Judge dismisses retaliation murder conviction
02/13/2014 6:18 PM
02/13/2014 6:21 PM
A Sacramento judge has overturned a jury’s murder conviction of a purported pimp accused in the fatal ambush of a sex customer who pulled a gun on one of the defendant’s girls.
Superior Court Judge Sharon A. Lueras granted the new trial motion last Friday for Michael Dushawn Nunally, 29, who was convicted in the Sept. 25, 2012, shooting death of Kaster Tezino, 29, behind the Motel 6 in the 2000 block of Arden Way.
Lueras based her decision on jury misconduct. According to the motion filed by defense attorney Charles E. Bauer, the panel improperly considered in its deliberations cellphone information that seemingly verified that Nunally had access to a phone with a number that showed up in repeated contact with the prostitute’s cellphone the day of the killing.
The linkage was important to the prosecution because it tended to independently corroborate the testimony of the prostitute, Margaret Kimberly Kephart, who testified under a grant of immunity for the prosecution. She told the jury she helped set up Tezino for Nunally because the victim robbed her at gunpoint during an earlier tryst on the day of the killing.
Prosecutors said the number also helped back up another witness, Caesar Williams. Initially charged with murder himself, Williams had his charge reduced by the Sacramento County District Attorney’s Office to being an accessory in exchange for his testimony against his friend Nunally. Williams then told the jury he was with Nunally at the time of the killing and that he saw him shoot Tezino. He also testified that the number on the cellphone in question belonged to Nunally.
The cellphone was admitted as an exhibit in the case as belonging to Tezino. During their deliberations, jurors accessed data on the phone and found a number in it that belonged to somebody named “Money Mike.”
It turned out, however, that the phone wasn’t Tezino’s, that it only mistakenly had been cataloged as belonging to the victim.
In addition, the jury sent a note to Judge Lueras during deliberations asking about the information in the cellphone, which was not entered into evidence during the trial. She specifically instructed the jury that “if no evidence was presented regarding the content of the (phone), it is not within the jury’s purview for consideration during deliberations.”
Two jurors signed affidavits for the defense after the Nov. 6 conviction saying that even after the judge’s instruction, some members of the panel still discussed the information in the phone. It was on that basis that the judge granted the new trial motion.
“I think Judge Lueras should be recognized for the wisdom that she demonstrated in protecting the process from the taint of any potential error,” defense attorney Bauer said Thursday.
In the new trial, tentatively scheduled for April 7, Bauer said he will have the ability to scrutinize the phone information, which he didn’t the first time around.
“That’s what trials are all about,” he said.
The District Attorney’s Office has appealed Lueras’ decision to the state’s 3rd District Court of Appeal. The prosecutor who tried the case, Thomas Asker, declined to comment Thursday.
In court papers opposing the new trial motion, Asker said there was plenty of other evidence to corroborate the accomplices, such as a video that showed Nunally walking out of an Applebee’s restaurant next door to the Motel 6 about the time of the killing.
Asker wrote that the jury had a right to examine a phone that had been submitted to it. He said it was “harmless error” that sheriff’s investigators mislabeled the phone the jurors mined.
If anything, the screw-up benefited Nunally because it created reasonable doubt “as to who the shooter was in the defendant’s murder scheme,” Asker said in his court papers. Although the panel convicted Nunally, it did not find true the allegation that he personally discharged the gun. The decision reduces his maximum term from 50-to-life to 25-to-life, even if he is convicted in the retrial.
Asker said in his papers that jurors told him after the trial that they discerned the phone they examined actually belonged to a Nunally associate who was once a suspect who they thought could have been present at the murder scene.
Sacto 911 StaffBill Lindelof
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