WOODLAND, Calif. — A judge has denied defense attorneys’ request for a mistrial following an emotional outburst Tuesday in the trial of a man accused of killing a Yolo County sheriff’s deputy.
“It is unfortunate that this occurred,” said Judge Paul Richardson but added he believes jurors will not be unfairly influenced by the outburst.
Deputy Jose “Tony” Diaz was shot and killed near Dunnigan in June 2008. Marco Topete is accused of murdering Diaz and faces a possible death sentence, if convicted.
During the opening statement, prosecutors played a video shot by the dash camera of Diaz’s patrol car. It shows Diaz chasing a vehicle down a dusty, dead-end road, then a cloud of dust and a hail of gunfire. The video does not show Diaz being hit, and it does not show who pulled the trigger.
“It’s tough to watch. We have to show it to you. We have no choice,” said deputy district attorney Garrett Hamilton.
As the video played, several people in the courtroom cried out in Spanish, sobbed openly and went running from the courtroom.
“This was the loudest, longest, most spectacular disturbance I’ve seen in 35 years,” defense attorney Hayes Gable told the judge. “The defendant was seriously, seriously prejudiced by what happened this morning.”
A private investigator hired by the defense testified that he saw three jurors wiping their eyes and crying. Defenses attorneys requested a mistrial, but the judge said he was exercising his “broad latitude” to deny that request. The judge ordered the jury to disregard the outburst and focus on witness testimony.
The prosecution used its opening statement to paint Topete, 39, as a validated member of the Nortenos street gang in Woodland who went by the name “Flaco.” Prosecutors showed photographs of Topete with “Norte” tattooed across his abdomen. They said he spent eight years in prison and came considering law enforcement as his “natural enemy.”
“Hopefully these pigs mess up again I’m dying to get my hands on these sons of bitches,” said Hamilton in reading a letter that Topete had written to his wife from prison.
Joe Modesto, Topete’s former parole officer, testified that Topete was a “two-striker” and was just one crime away from being sent back to prison for life. He said Topete was facing a deadline to establish an address in Yolo County and that if he didn’t find one, he risked a possible parole violation. However, Modesto also said Topete was a “go-getter” who making an effort to be a family man and keep a job.
Prosecutors played the 911 recording from a woman in Davis who called on June 15, 2008 to report Topete had been drinking when he climbed into a Ford Taurus and headed toward Woodland. A short time later, there were reports of shots fired in northwest Woodland, and Topete’s car was seen leaving that scene.
Diaz was on a patrol near the Pilot truck stop in Dunnigan when he spotted a car that matched the description and license plate out in an alert about Topete. The dash-cam video shows Diaz trying to pull the car over in the parking lot, a man resembling Topete sticks his head out the driver’s window, then the car takes off.
Hamilton said Diaz “had no idea of the the true threat to his own safety he had come across in this car” as he pulled out a .223-caliber automatic assault rifle that he said Topete had in his car that night.
“That gun alone would sent him back to prison,” Hamilton told the jurors.
When the chase ended on the dirt road known as County Road 14, Hamilton said, Diaz mistakenly believed the person in the car had fled to a nearby field and shined his flashlight in that direction. In fact, Hamilton said, Topete was behind Diaz, near the corner of a house. Hamilton said investigators recovered 17 spent shell casings from the assault rifle near the house’s corner. Hamilton said one bullet had pierced Diaz’s protective vest and left him with a fatal chest wound.
Defense attorneys have opted to make opening statements at the start of their portion of the trial. The trial is expected to last a total of nine weeks. If convicted, Topete faces a possible death sentence.
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