Crime - Sacto 911

Defense lawyers blast prosecution’s murder witnesses

Christopher Lee Merrill and Calvin Holmes Jr. took deals to escape life sentences, but now they are defense-lawyer targets in a murder trial that began Monday in Sacramento Superior Court.

“There is nothing they won’t say to please the DA,” attorney Ken Rosenfeld, representing Roman Lewis Hooker, 27, said in his opening statement. “They were looking at forever in prison.”

Merrill, 26, had faced a life term with no parole in the Nov. 12, 2009, pot robbery shooting death of Donald Kirby in Oak Park. Now, thanks to his no-contest plea to manslaughter and second-degree attempted robbery, Merrill is in line for a 14-year term, Deputy District Attorney Hilary Bagley Franzoia told the jury.

Holmes, 24, pleaded no contest to attempted robbery. Bagley said his arrangement calls for a 5 1/2-year prison sentence, instead of life without parole.

“ ‘What can I do to not have to die in prison? Give up innocent people? Not a problem,’ ” said defense lawyer Linda Parisi, who is representing Elias Nicholas Garcia, 26, in offering an explanation for witnesses’ cooperation.

Kirby, 47, was shot in the face and killed just inside the front door of his apartment in the 3300 block of V Street, a little after 8 in the morning on the day of his death.

Bagley, in her opening statement, said Garcia knew Kirby and knew he was a small-time pot dealer. She said Garcia, a former baseball player at American River College, pulled together the crew that consisted of Merrill, Hooker and Holmes for the morning rush-hour raid on Kirby’s apartment. She identified Garcia as the gunman who knocked on the Kirby’s door and shot him in the face with a single shot from a .40-caliber semiautomatic handgun.

Right behind Garcia in the approach to Kirby’s apartment was Roman Hooker, Bagley said. Merrill, reputed to be a one-time robbery partner and fellow gang member of Garcia’s, also was close by at Kirby’s door, while Holmes worked as the getaway driver, according to the prosecution.

“Unbeknownst to Mr. Kirby, there was a plan that a residential robbery would take place,” Bagley told the jury. Kirby opened the door, saw the barrel of the gun and realized right away he had a problem, Bagley said. “He tried to shut his door, and at that time he was shot in the face by defendant Elias Garcia.”

In a trial brief she filed with the court, Bagley said Kirby suffered from arteriosclerosis and hypertension. He had obtained a medical marijuana card and was known to sell small baggies of weed to people he knew, the brief said.

According to Sacramento County online court records, Kirby also had a criminal record that included two convictions for identity theft that on separate occasions landed him in state prison.

Bagley said in her opening statement that the slain man was a “computer geek,” and her court papers said detectives found multiple laptops in Kirby’s apartment. One of them was reported to be stolen, and Kirby had a reputation for fixing broken laptops and “cleaning” them for resale, according to the DA’s trial brief.

The prosecutor’s court papers said Sacramento homicide detectives learned “from the street” in late November 2009 that Christopher Merrill was involved in the shooting. They questioned him on Dec. 3, 2009, and on the same day served a search warrant on Elias Garcia’s north area apartment. Bagley said detectives found six rounds of .40-caliber ammunition in Garcia’s pants pocket. The bullets were of the same make as a single cartridge that investigators found on Donald Kirby’s doormat the day he was killed, according to the prosecution.

At first, Merrill denied knowing anything about the Kirby killing, Bagley told the jury. But after several interviews with investigators, last September he gave them the robbery scenario that Bagley presented to the jury. Her court papers suggested another element to the shooting: Garcia was angry at Kirby because the victim, in a previous contact, had “put a move” on him in a sexually suggestive manner.

Authorities said that shortly after the search of his apartment, Garcia in December 2009 took off for Oklahoma. Bagley’s trial brief said he was arrested at the Greyhound bus station in downtown Los Angeles. Returned to Sacramento, Garcia pleaded no contest to being an ex-con in possession of ammunition, according to court records. He was sentenced to 16 months in prison. Paroled on Aug. 20, 2010, he was charged with Kirby’s murder three months later.

Like Merrill, Calvin Holmes, when he was first questioned by police in October 2010, denied knowing anything about the killing. He maintained his silence after his arrest a month later, but changed his story, just like Merrill, last September, before the case was assigned to Judge Helena R. Gweon for trial, according to Bagley’s trial brief.

Holmes independently corroborated the basics of Merrill’s version of the Kirby killing, according to Bagley. She said Holmes added that when the other three ran back to the car after the shooting, Merrill appeared “shocked and spooked, and repeatedly shouted at Mr. Garcia, ‘Why did you shoot that man?’ ” the prosecutor said in her opening statement.

Holmes entered his no-contest plea Nov. 21 to the attempted robbery while Merrill four days later admitted to the manslaughter. They are both scheduled to be sentenced when the trial concludes.

“Each of them had a choice,” Bagley told the jury Monday. “Tell what you know, and knowing that whatever deal you get, you’ll be a snitch.”

Both are likely to testify sometime next week.

Parisi, the attorney for Garcia, countered with words like “mercenary” to describe the prosecution witnesses, both of whom she said were told by the authorities, “Tell us this information and you can buy your way out.”

“This trial has been orchestrated and manufactured,” Parisi said.

“They know their freedom depends on what they say here,” added Rosenfeld.

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