Scott Peterson testimony excluded from Kristin Smart hearing, judge rules
Defense witness testimony related to convicted murderer Scott Peterson and other alleged “possible suspects” will not be allowed at the preliminary hearing for the men accused in Kristin Smart’s disappearance, a judge ruled Thursday.
But that ruling could change in about two weeks if defense attorneys are able to gather evidence that the testimony should be allowed, the same judge said at the end of Thursday’s proceedings in San Luis Obispo Superior Court.
Testimony resumed in the preliminary hearing for Paul Flores and his father, Ruben Flores, who are accused in Smart’s disappearance.
Paul Flores, now 44, is the last person known to have seen the then-19-year-old freshman alive after walking her back from a party toward the Cal Poly campus residence halls on May 24, 1996.
Smart’s body has never been found, but investigators said in court documents filed in April that her remains were buried at Ruben Flores’ Arroyo Grande home but ”recently” moved.
Ruben Flores, 80, is charged with felony accessory after the fact, while his son, San Pedro resident Paul Flores, is charged with one count of murder.
Thursday marked the 21th day of proceedings as the evidentiary hearing reached the end of its sixth week.
The hearing, which began Aug. 2, was tentatively scheduled to conclude Friday. However, the prosecution revealed in court Thursday that it still had at least one witness remaining and the defense has yet to call any of its proposed witnesses.
Given that and pre-planned vacations next week, court proceedings are now scheduled to resume Sept. 20 and it is unlikely the preliminary hearing will conclude by the end of its seventh week.
When testimony concludes and an outstanding defense motion to exclude evidence gathered in the case is decided, Superior Court Judge Craig van Rooyen will rule whether prosecutors established probable cause — a lesser standard of proof than guilt beyond a reasonable doubt — to proceed the case toward trial.
Here’s what happened in court Thursday.
Crime scene investigator retakes the stand
Shelby Liddell, a San Luis Obispo County Sheriff’s Office forensics specialist, retook the witness stand Thursday morning.
She testified last week that she examined soil under Ruben Flores’ back deck with a private archaeologist in a location in which ground-penetrating radar was used to detect anomalies under the surface, she said. Dogs trained in human remains detection also had notable changes in behavior at that location, she said.
When sheriff’s deputies began excavating the patch of dirt under the deck, Liddell testified that she observed staining within the layers of soil, beginning at about two feet deep and continuing to thicker base rock about four feet deep.
Liddell said she took samples of the stained soil, which were collected by a Sheriff’s Office detective and analyzed by a serologist at a private lab in Richmond. The serologist, who testified Wednesday, said some of the samples revealed traces of human blood — though the tests could not rule out primate or ferret blood,
No DNA profile could be established from the blood, however, due to the degradation of the blood due to what the serologist, Angela Butler, attributed to being exposed to the elements for an unknown period of time.
On Thursday, Liddell resumed the witness stand to continue cross examination that was interrupted last week due to scheduling.
Liddell fielded questions from Robert Sanger, a defense attorney for Paul Flores, about where exactly the excavation occurred and how the staining was examined.
With photographs of the discolored soil projected for the audience in court, Sanger asked a series of questions about the characteristics of the staining, which appeared to be both light- and dark- colored blotches in mostly otherwise uniform soil layers that were encompassed by darkly colored edges.
Liddell previously testified that the stains were observed during digging on March 16, before the hole was refilled and dug up again on April 13 and 14.
Sanger asked Liddell whether the staining would traverse the layers of soil and appear if someone had buried something at the location, dug it up and removed it, and filled in the dirt.
Liddell said the staining would not have appeared that way — in that particular location under the deck.
Sanger then asked Liddell about whether it was “virtually impossible” for someone to bury a body in that particular patch of dirt, given that the ground’s slope under the deck required investigators to remove the decking in order to have enough head room to excavate the patch.
“It would have been difficult with the porch (deck) as it was, not impossible,” Liddell said.
Sanger then asked if Cindy Arrington, the archaeologist who accompanied Liddell during the dig, had used the words “virtually impossible.”
“I don’t recall her saying that,” Liddell said. “I know we discussed it being difficult.”
Lastly, Sanger noted that there was a sewage cleanout drain and two vents from the house on the home’s southernmost wall directly above the patch of dirt with the alleged staining.
Sanger asked whether any effort was made to find out whether something could have come from those openings that could have caused the staining in the soil below.
“I believe someone did,” Liddell responded, though she did not have any further information.
Judge rules on proposed defense witness testimony
Prior to adjourning on Thursday, van Rooyen discussed a list of proposed witnesses submitted by the defense following the lunch recess.
Van Rooyen ran down the list of proposed witnesses, which included four former investigators who looked into people the defense said should have been viewed as possible suspects, including Peterson, a former boyfriend of Smart’s, a former Cal Poly student who ended up sleeping in Smart’s dorm room the night of her disappearance, and another former Cal Poly student convicted of murder in Los Angeles after leaving the university around the time of Smart’s disappearance.
It was not clear whether the defense was intending to call each of those individuals or have the former law enforcement officers testify about them, but the lead detective in the case previously testified that each of those people were ruled out as suspects.
Regarding Peterson, van Rooyen found that his tenuous connection to the case supposedly involved statements Peterson made about disposing of a body in the sea or in ponds on a property he used to live at.
Sanger revealed that the defense has requested state prison officials make Peterson available to testify via Zoom conference from San Quentin State Prison, and that they have located members of Peterson’s family and are currently attempting to track down his brother to whom Peterson allegedly made one of the statements.
Van Rooyen not only ruled that there was no connection between Peterson and Smart, he said testimony over those statements would be multiple levels of hearsay and inadmissible.
The judge similarly said he would not allow evidence about Trent Buckle, who left Cal Poly in 1996 and was convicted of the murder of a female roommate whose body was found stuffed inside a refrigerator in San Diego. Buckle’s murder conviction was later overturned on appeal.
Sanger argued Thursday that Buckle was documented to have ran an escort service out of San Luis Obispo in the late 1990s and had an M.O. of picking up intoxicated women at night. One of his known escorts was a woman named “Roxy” — Smart’s alias — Sanger said.
Van Rooyen found that that testimony would amount to character evidence of Buckle’s past conduct, and that an investigator followed up on Buckle’s potential involvement for a period of seven years.
The defense has also alleged that a former boyfriend of Smart’s (whom The Tribune is not naming) had gotten her pregnant and that a witness recalled overhearing a troubling phone conversation between the two. Van Rooyen again said testimony about that individual would be excluded.
“I don’t see, even if (Smart) was pregnant, how that can account for her missing for 25 years,” he said.
The judge also wouldn’t allow testimony about a “Yanish” who the defense says Smart filed a complaint against at Cal Poly for allegedly peeping into her room. Neither investigators nor the defense has ever been able to identify “Yanish.”
But van Rooyen said he would allow testimony about Ted Munley, a Cal Poly student in 1996 who spent the night in Smart’s dorm room with another person. Though the defense said there was an hour-and-a-half window the night of Smart’s disappearance in which Munley could not account, the prosecution argues it’s “simply not believable” that Munley could have murdered Smart.
Van Rooyen agreed, but said Munley’s testimony could be relevant as to whether Smart ever returned to her room that morning.
Testimony is expected to resume Sept. 20.
This story was originally published September 9, 2021 at 7:11 PM with the headline "Scott Peterson testimony excluded from Kristin Smart hearing, judge rules."
