Rafael Martinez, Jr., Trial Day 4, Opening Statements, Part III

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Day 4, Part II......


UPDATE 2/13 added testimony from this days witnesses

UPDATE 2/3 added testimony from first witnesses
January 29, 2015
Defense Opening Statement
Mr. Burns steps up to the podium. Up on the ELMO is a photo. It’s of a young, smiling man with longish hair. Mr. Burns tells the jury, “[A] photo of Mr. Martinez when he hadn’t been punched in the face, and not a booking photo.”

I did not recognize the photo as the defendant. He looks quite different. He's got a big smile on his face.

“And now it’s all drugs. It’s all drug related.”

Murder is ugly, and you’ll see ugliness. It’s sad. “God told Cain he could hear his blood pouring out. .. The DA will try to capitalize on every detail of this [crime?]. ... My client is innocent. He did not do these crimes. ... There’s no evidence...”

All this case is, is DNA. That’s all it’s about.  Everything else is to take your focus away from that. He’s [Martinez] a very convenient fall guy. We’ll prove that Mr. Martniez knew Nancy Boehm. Let’s give a better photo of Nancy. ... That’s what she looked like at the time of her death. (I don’t notice that much difference from the prosecution’s photo of Nancy to the defense. Both photos look much better than the photo from the press conference on the FLICKR account.)

She [Nancy] was like a second mother [to Mr. Martinez]. Like an aunt. Shawn was autistic. He was not an idiot. He was slow but he was a friend of my client. He [Shawn? Martinez?] knew him since he was a kid.

He [Martinez] lived basically right across the street from the Boehm’s. His cousin lived right around the corner, and they [all of them?] kind of grew up together.

[Anthony?] and Nancy ... was a drug house. Everyone knew it was a drug house. Mr. Martinez went on in his adulthood to associate with Nancy and his cousin. He’s been in that house a lot. He drank from bottles, used the bathroom; the kitchen; used ... wiped his hands on the towels .... chairs, because he’s there [very?] often. We do not dispute that his DNA was all over that house. They found one [palm print?] ...

Mr. Burns has a short pause then starts again.

Sometimes he went over there to do drugs with Nancy. Sometimes he went over there to play video games with Shawn. He wasn’t a customer; [that’s] wrong. He was like extended family.  I believe Mr. Burns mentions the unusual spelling of Nancy and Shawn’s last name, but that it’s pronounced “beem.”

“She was a drug dealer. She was a good woman. My client loved her. He mourned her,” Mr. Burns tells the jury. He tells them it was 1997, the “sex, drugs and rock and roll days.”  Back then, it was powdered cocaine. Mr. Burns states that it was wrong, incorrect that no drugs were found in Nancy’s residence. They did find something that this year, that we only found out this year were [not?] drugs, a white powder.  There were valuables and money left behind. “A crazy junkie looks for the next high. ... This is not a drug related crime.” 

In 1997, September 1997 he hadn’t seen the Bhoem’s for a week because they were pretty much homebodies. He called them several times. Unfortunately, the police did not preserve the voice mail so we can’t show them to you.

Nancy was one who was a phone person. [On the phone a lot?] Then she’s not answering her phone. People got suspicious. On a warm Saturday night after some other friend came over and became concerned. There was a lot of police action and Mr. Martinez came back on his bicycle and he saw the action at his friend’s house and he came over.

That night, as the evidence will show, he told detectives [?] what [he thought?] happened. He tells [officers?] all about his relationship with Nancy, and [that] probably a drug relation did it. He doesn’t know who. Police are asking him did this and he speculates. That he gave them a story to screw up their investigation and told them a story, that’s ridiculous. He would never have shown up there, especially if he had had scratches from a struggle. He would never have shown up there.

DDA Akemon: Objection! Argument!
Judge: Sustained.

Mr. Burns continues. As you’ll see from the evidence, his presence here, presented a great deal of contamination. Someone who had DNA knowledge would not show up there. You’ll see a lot of evidence of the other case, for intent. You have to ask why. We don’t dispute that.

There is no issue of intent here. In fact, it’s part of, we intend to show here, these murders were done very professionally. These were not crazy murders here.  These were done professionally. [There had to be more than one person] ... to immobilize the victims somehow.

The only victim in this case .... [does the?] DNA prove beyond a reasonable doubt that Mr. Martinez did these murders. ... There’s no DNA on Shawn’s fingernails.

Mr. Burns then talks about that the amount of DNA that was found under Nancy’s fingernails was very “molecular,” a very small amount. Mr. Burns tells the jury that the perpetrator is still at large. Burns states that the defense will show that there are great gaps in DNA technology. This was 1997.

“Let’s put this in context,” Mr. Burns tells the jury. “Just to bring you back there. ... President Clinton has begun his first term, before we had learned of Monica Lewinsky. ... Mike Tyson bit an ear in a fight. ... Microsoft was the most valuable corporation and Apple was losing money. ... Princess Diana had died. ... All the water under the bridge since then. ... And remember the technology back then. .... [The most advanced phone?] ... a Motorola flip phone. ... DVD’s had come back just then. ... A new computer [operating system?] was Windows 95. ... [If you?] wanted to connect to the Internet, connect with AOL or Prodigy.  ... Google was not a word.”

1997 technology ... so was DNA. Back then, when you found DNA on someone’s fingernails you could see it. It was particles. It was a hunk of skin you could actually see it. Not so today. You weren’t worried about contamination as we’re worried about it today. DNA testing [today?] was not your daddy’s DNA.

Mr. Burns briefly explains to the jury what DNA is. I’m not positive, but I believe he slightly pauses over ‘deoxyribonucelic acid’ the full, scientific name of DNA. He tells the jury that 99.9% of your DNA is the same. Mr. Burns adds, “However, scientists have learned how to focus on locations, loci on the molecule that have something called a polymorphism. .. That 1.1 percent that’s different. Short random repeats, that repeat different, at different lengths. No one knows what they do yet, but people have different lengths of them. ... They have machines that can measure the different lengths of them.”

PCR, amplifies DNA that you can grow more of them. ... Grow enough DNA to test it in machines.  Amplify it. Cool machines that distinguish the different length of the genes.

This technical talk that Mr. Burns is engaged in is slightly different than what I’m used to, hearing from criminalist DNA testimony, so it’s a little difficult to follow. I try to pick up from where I stopped typing.

“It’s actually a revolution, finding traces of DNA on bullets, on firearms. It’s revolutionized the way we look at DNA.”

Ladies and gentlemen, I’m not going to dispute that molecular DNA was found on the fingernails of Nanch Boehm.  We actually tested it ourselves and we put it to harder testing than the prosecution did. We found a ... we found Shawn’s DNA on Nancy as well. We found Nancy’s DNA on Shawn. I don’t think anyone’s going to say that Nancy had a [hand in Shawn’s death?].

Neither experts will be able to tell you where this DNA comes from. Whether it’s skin, blood, saliva, snot or whatever, or the many body fluids that have DNA.  They’re not going to tell you how it got there without speculating. Nor will they be able to tell you how much is on these nails, whether it’s billions of a gram or trillions of a gram. And no one will be able to tell you if it came directly from Mr. Martinez or transferred from something else.

These are also not your usual fingernails and not your usual environment. [I believe Mr. Burns is referencing the messy and cluttered nature of Nancy’s home.]

The noon lunch break is called. 

1:36 PM
The defendant is brought out.  We go back on the record. Judge Speer calls for the bailiff to bring in the jury.

1:37 PM
The jury files in. The prosecution and detective stand.  Burns continues with his opening statement.

“Afternoon folks,” Mr. Burns greets the jury.  “Afternoon,” they reply.

“I was talking about the revolution in DNA and molecules and DNA that could fly all over this house.” 

These were not regular fingernails, and where these fingernails are, on a daily basis. Mr. Burns puts up a photo of Nancy Boehm’s right hand. “None of these nails were broken,” Mr. Burns points out to the jury. Then a photo of Nancy’s left hand is shown to the jurors. Mr. Burns points out the length of the nails. “Obviously, she took some time to grow them." ... Now here’s the environment that these nails are always in.”

Mr. Burns puts up a photo of the living room. It’s very cluttered, packed with things.

“Look closely. You can see dust lying all over the place. ... A very cluttered, packed house. ... My client’s palm print was found on that coffee table.”

Another photo, I believe of the dining room. It’s also crammed with stuff. I can’t even see a dining table. There is a printer. I see food that has dropped on the floor. Another photo of the kitchen. I see empty beer and alcohol bottles stacked up in the kitchen.  The hallway was filled with stuff, too.



“My client’s DNA would be all over their house. ... They touch their hands, DNA all over the place.”



Mr. Burns now gives examples of how DNA is transferred to objects. He puts up photos of people crying. Now a photo of a person’s sweaty palm. Now, photos of people touching their face, eyes. One of the photos is of Simon Cowell, from the American Idol TV show.  While the photos are being shown, Mr. Burns is explaining the examples of how DNA is spread to objects, surfaces.  DNA could be left on fingernails, or left on surfaces.

The defense states that, they are saying that, this is not evidence, given the fact that Mr. Martinez came into this residence on many instances.  He went to the bathroom. He washed his face. This is not evidence. This is circumstantial evidence. There are a million reasons why this is not evidence. This house was not under ideal laboratory conditions.

“We agree DNA is a means of identifying people. We’re challenging the conclusion that DNA found under the fingernails [indicates?]...”

This the 1990’s. It’s not this century where we know DNA can be transferred from a touch, a sneeze, a hand.

“They were killed like lambs. ... There was no struggle. ... There’s no evidence there ever was a struggle.”

In the other case, the individuals had defense wounds.  In the Boehm case, the victims were in separate rooms. How could this be done?  Could one person do this? There’s no evidence that a struggle took place at all. ... There may have been someone else holding the victims.

What does the DNA evidence show? It shows nothing more than what it shows. Mr. Martinez told police he was in their house all the time. He was their friend. It’s what he told them.

I hate to talk about this other case, because it’s on the [intention?] of intent, so I have to talk about it.  I submit that what happened was what my client said on that tape. He turned himself in on that matter. She [Luz] left the apartment walking and talking. It’s different from the Boehm case, where they were professionally killed. The knife wounds were all in a cluster.

Mr. Burns talks about the wounds to Luz Nieves neck. 

“You can imagine two people struggling for a sharp object. It’s what my client said, is what happened.”

I see that Martinez watches his counsel give his opening statement.

“That all happened in a minute, two minutes. The neighbors heard an argument, and then, bam! Boom! It was over. That was a lot different. There’s no intent to kill in that case and there was no intent to kill in this case. So whatever evidence that they have in the Boehm case ...

They have Mr. Callahan.  Maybe, accuses Mr. Martinez now; [we first heard this from] him in April 2014. He always takes the side of detectives; their most promising suspect. He’s previously given statements in 1997, he said in ... that Nancy was [afraid] ...

DDA Akemon: Objection! [We litigated this.]
I believe Judge Speer rules in the prosecution’s favor.  The defense requests a sidebar. Judge Speer takes a sidebar.

1:56 PM
Back on the record. The court rules. The objection was sustained and the last statement by counsel was stricken.

Mr. Burns continues. Mr. Callahan was interviewed twice in 1997 and once in 1998 and never mentioned Mr. Martinez as a possible suspect.  Mr. Burns then mentions the mental gymnastics, that he mentioned in voir dire, when he was asking the jurors if they can do it.

“You’re going to ... like I said, the mental gymnastics here, is to disregard that other crime for no other purpose than intent. The intent is not in dispute. You should disregard completely that other crime. This man is innocent. He’s a very convenient fall guy. Once you see the DNA evidence you should acquit him.

The defense is finished with their opening statement and the people call their first witness.

UPDATE 2/3 added testimony from first witnesses
#1. Hugh Martin. LAPD firefighter-paramedic. Currently on assignment on Mulholland Drive, above Encino. He’s been on the job since 1984; 30 years. He’s been a paramedic approimately 22 years. He’s asked what his assignment was on May 10, 2001.

HM: I was working overtime, on fire station 60 as a paramedic on the rescue. ... That day I was working over time. ... The other paramedic was a guy, Barocas.

They received a call at 1:30 in the morning and they were dispatched to the Bonner address. People’s exhibit #1, an overview map of the streets of that area. The witness identifies the star on the map where the Bonner Avenue address was where he responded to the scene. He recalls the nature of the call. “We were dispatched to an incident where there was a stabbing, Martin answers.

Station 60 is in North Hollywood on Cahuenga. It took about 7-8 minutes to arrive at the location. There was a male patient out in front of the location on the ground. He was bleeding profusely.  That was Martin’s number one concern. They immediately administered medical treatment. The victim had stab wounds on the top part of his body. There was so much blood, you couldn’t tell how many.

Photo of an apartment building, people’s exhibit #2. There is an arrow pointing to a window on the top floor that says, “Apartment #6.”  The witness identifies the photo and states they parked right beside the telephone pole in the photo.  Using the laser pointer, he identifies an area in the street directly in front of the building. This is where they saw the first victim.

They were told that there was a second patient upstairs. Firefighter Barocas went upstairs and he informed the witness they had a much more serious patient upstairs. Another fire station paramedic unit responded to the scene. Martin and his partner asked the second crew to look after the man in the street and they went upstairs to find the second patient.

Martin testifies that when he first encountered the second victim, “She was still lucid; somewhat hysterical,” Martin states. Her wounds were all in the upper torso, the upper neck. Another firefighter was assisting her. She was upstairs in a unit. Martin states the paramedics were afraid she would “bleed out” so they did what they call a “scoop and run.” They transported her to the hospital. [A man from?] Engine 60 was driving and there was an LAPD officer inside the “RA” [ambulance].

HM: It was hard because we were in the ambulance driving as fast as we could and she would say something.

The uniformed LAPD officer would ask, “Who did that to you?” It took them about 12 minutes to get to Holy Cross Hospital. Martin acted as a translator for the LAPD officer. He told the officer, She said, “Junebug. Junebug did this.” Towards the end, Martin testifies she was going in and out of consciousness. The other man, Mr. Santos was brought to the hospital. After he turned the patient over to Holy Cross, he had no more contact with the female victim.

HM: Without immediate help, she was going to die.
TB: Objection!
JS: Sustained! Lack of foundation.

DDA Akemon lays the foundation with the next set of questions. He asks Martin about his training as a paramedic. Martin has seen approximately 150 people stabbed. Approximately 200 people shot.

DA: How many people have you seen die?
HM: Three or four hundred.

I believe Mr. Burns still objects and is allowed to question the witness on his knowledge and ability to diagnose.  Eventually, I believe the court over rules Mr. Burns’ objection.

Burns continues with cross.

TB: Did Ms. Nieves say, and I quote, Junebug stabbed me and Mr. Santos?
HM: She just mentioned one person.
TB: She didn’t mention anyone else being stabbed?
HM: No.

She was lucid to name, place and orientation. He [Santos?[ was hysterical that she was hurt very badly.  By the time Martin got to Luz she was lying down in a period of treatment.

My stomach is growling. I hope I make it to the break.

Unfortunately, I do not believe I accurately documented when the direct was finished and when cross began for this witness.

#2. Raffi Djabourian - Senior Deputy Medical Examiner (ME) for Los Angeles County. He’s been a deputy coroner about 16 years. He’s experienced in forensic pathology. He’s a licensed doctor in the state of California.  A deputy ME is another name for a forensic pathologist. It’s someone who examines dead bodies, and determines the manner of death.

On May 15, 2001, he performed the post mortem examination on Luz Nieves, coroner case number 2001 03585.

UPDATE 2/13/15
Continuing with the ME's testimony.

It was clear that she had been hospitalized and that she had sustained injuries to her body. She had sharp force injuries, stab wounds that penetrated into the body. She had 14 sharp force injuries.

The ME goes through her injuries, outlining which injuries were non-fatal and which were not. A wound labeled #2 was fatal and #3 (connected because of the surgical intervention) was not. Wound #2, to the neck, cut the left jugular  vein and a portion of the left carotid artery. Wound #3 cut muscle but did not cut major blood vessels in the neck. There were strokes of the brain as a result of hypoxsis, lack of oxygen. The ME explains a stroke. Lack of enough blood to the brain is a major cause of stroke.

There are more questions about stroke, and treatment, etc. Other injuries are discussed. Wound #6, a fatal wound the left arm, was significant because it cut across a major vein and caused bleeding. Wounds numbered 9 through 14 on the hands were considered defensive wounds.

Manner of death is homicide. Cause of death is multiple stab wounds.

Direct is finished and Cross begins.

The date of death was May 10, 2001. Toxicology screening was done. The blood tested negative [for cocaine?]. The result for other tissues was positive for cocaine. Mr. Burns asks about the injury to the hands [The injuries to the hands] ... “are they also consistent with the subject grabbing a hold of the knife, and also consistent with someone pulling it out?” The ME agrees, “That could be also consistent with that scenario.”

At some point, Nieves doctor’s considered her stable. It looks like the effects of lack of oxygen started affecting the brain. People can be operated on, people can be stable, but eventually you can die of a complication. The carotid artery was not cut all the way through, it was basically nicked.

There are questions about specific stab wounds and which direction they traveled and which wounds were superficial.

Cross is finished and no more redirect. The afternoon break is called.

3:00 PM
Back on the record, outside the presence of the jury.  A juror has a question. Are they allowed to know if the defendant was convicted. Counsel had not reached a formal stipulation. The defendant pled to manslaughter and assault. Counsel and the court discuss the resolution. Counsel stipulate that they [jury] are informed the defendant was convicted of voluntary manslaughter and assault. The people stipulate to that but request that it should be more accurate.  It was a plea agreement and he was convicted of voluntary manslaughter.  Martinez leans into his attorney to chat. He smiles. Martinez often looks back into the gallery. He watches the back of the courtroom as the jury files in. Judge Speer tells the jury the stipulation.

The prosecution calls their next witness.

#3. Sean Anderson, LAPD Officer assigned to Southwest Division. On May 10, 2001 assigned to North Hollywood Division, patrol. He responded to a radio call of an ambulance cutting. He was with a partner, in a black and white. He was the passenger. His partner was Officer Guthrie. He assisted his partner in guiding to the location. He responded Cod 3, which means lights and sirens.

He he arrived he noticed a male Hispanic, covered in blood, on Bonner towards the street. He spoke to that individual very briefly. Anderson’s concern was whether a suspect was still at the scene. He and his partner went to apartment #7 where there was an additional victim at the scene.  Officer’s advised Anderson that there was another victim up there. Anderson identifies the building in an exhibit. 

Officer Guthrie had been Anderson’s training officer. Anderson had been on the job 8 onths. He had just gotten out of the academy.  There were other officers with him, as well as firefighters, paramedics.

Anderson observed lots of blood on the ground. Upstairs, observed a female Hispanic sitting on the [couch?], also covered in blood. She had numerous stab wounds. Anderson was not able to communicate with the woman. Paramedics were working on her. He stood by until getting ready to transport the victim.

He rode in the ambulance with the victim. During the ride he made attempts to communicate with Ms. Nieves. He tried to inquire as to who had done this, who had stabbed her. She responded, but Anderson wasn’t able to hear. What she said was relayed through the firefighter. He documented that the victim said, “Junebug did it.

Direct is finished and cross begins.

The defense presents the witness with a report of the incident. It’s not clear to me who wrote the report. Anderson remembers that the victim relayed that “Junebug had stabbed her.” Mr. Burns confronts Anderson with the report written by another officer. He replies, “I don’t recall Francisco. I just remember ‘Junebug.’ He did not go inside the apartment where the stabbing occurred.

Cross is finished. The next witnessed is called.

#4 Alan Solomon, LAPD detective, currently assigned to gangs and narcotics. 26.5 years on the force, 16 years as a detective. In May 2001, he was one of the two lead investigators on the Nieves and Santos’ case. Martin Pinner was the other.

He arrived at the Nieves and Santos stabbing crime scene around 9 AM. He may need to refresh his memory with the follow up report.  The follow up report is dated May 15, 2001.  The report states he arrived at the location at 9:00 AM.  He was there to check the crime scene. His role was to be in charge of processing the crime scene. The apartment was at the top floor of an apartment building. Identifies through exhibits where the crime occurred, as the residence of the murder victim and the attempted murder victim. And, it was the crime scene.

People’s exhibit #6, photo of the top of the stairs, right out side the front door of apartment #6. He noticed blood around the front door, on the door and on the staircase itself. 

Solomon is shown people’s exhibit #9, the floor plan of the apartment and describes various areas of the apartment. On the map, the hallway closet door is directly across from the door to the master bedroom. Solomon states blood was found in various spots in the living room. There was blood in the hallway around the entry door to the bedroom.

People’s exhibit #10, photo depicting the coffeetable that was in between two sofas. On the coffee table Solomon found blod droplets. The witness points out other areas where blood was found in the photo.

People’s exhibit #11, two photos. Hallway on the south side facing toward the living room area. Placards #1 and #2 can be seen attached to the wall, on the door jam into the master bedroom. I note that there is quite a bit of smeared blood on this door and door jam. People’s exhibit #12 photos of the broken door jam to the master bedroom.

I take a short break from typing as the detective points out various items in the photos.

Direct ends and cross examination begins.

Money with blood on it was found along with small rocks of cocaine.  6.68 gross grams, in apartment #7 with the victim.

TB: When you interviewed Mr. Martinez, Ms. Vienes was still alive?
AS: That’s correct.
TB: As far as you knew, she was still stable at that time>
AS: I don’t recall. She was in serious condition. I don’t recall if she was still stable or not.

Solomon states drugs were found in the bathroom of Apt. #6 in the sink and on the toilet bowl.

Cross ends and the witness is excused, subject to recall.

Judge Speer orders the jury back at 10 AM tomorrow. 

As the jury files out, I note that Martinez starts biting his nails. He then turns around and looks back at the gallery and smiles.  Detective Martin Pinner enters. Detective Pinner is a tall, well built man. As court winds down, I get the opportunity to talk to Detective Townsend about some of the other cases he’s worked on.

Continued on Day 5........