Crime - Sacto 911

Judge declares mistrial in case of man accused in infant nephew’s death

Nearly five full days of deliberations failed to produce a verdict in the murder trial of Wendell James Taghap. In the end, a good number of jurors thought it was more likely in their minds that the mother of the slain Josiah Pineda, and not his uncle, killed the 5-month-old baby.

“A lot of people felt that way,” said Dave Brown, the foreman of the deadlocked Sacramento Superior Court jury.

Judge Michael P. Kenny declared a mistrial after the 12 members of the jury unanimously agreed on one thing – that it would never reach a verdict in the murder case against Taghap.

The panel split on a 10-2 vote in favor of acquitting the 36-year-old unemployed computer programmer. Prosecutors had not decided in the hours after Tuesday’s verdict whether to retry the case.

“We’re going to take a look at it and make a determination,” said Rod Norgaard, assistant chief deputy district attorney. “We do that after the passage of time and after the emotions of the day calm down.”

Taghap’s husband-and-wife legal team of Robert and Sarah Saria will ask the judge on Friday to set bail on their client. Robert Saria said he also will file a motion to have the case dismissed.

“The court has inherent authority to dismiss the case, if it believes another jury can’t come down to a verdict,” Saria said. “We’re hoping the District Attorney’s Office exercises its authority to dismiss the case on grounds it’s not likely they’re going to find a jury that’s going to find him guilty.”

Wendell Taghap, the baby’s uncle, is the brother-in-law of Josiah’s mother, Daphne Pineda. The three of them and Taghap’s wife lived in an apartment on Truxel Road in the Natomas area at the time paramedics responded on Oct. 31, 2012, to reports that the baby had become nonresponsive. Josiah Pineda died four days later at UC Davis Medical Center.

Taghap, who cared for the baby while his wife and sister-in-law worked, was home alone with Josiah most of the day when the fatal injuries were administered. The baby’s mother returned home from her nursing assistant’s job about 3 p.m. that day. A pathologist who testified at trial estimated that Josiah suffered a potentially fatal whiplash injury about 30 to 60 minutes before the 6 p.m. 911 call two years ago. An autopsy also disclosed three skull fractures.

Brown, the jury foreman, said the case presented too much of a close call to conclude that Wendell Taghap was responsible for the death.

“It was based on not enough concrete evidence to really feel one way or the other,” Brown said of the jury’s inability to reach a verdict. “And based on that, it allows you have to make (the decision) that reasonable doubt was proved.”

Brown said, “There just wasn’t a smoking gun to find,” on Taghap.

The foreman and one other juror interviewed said they were suspicious of the baby’s mother based on inconsistencies in her statements about whether she had any physical contact with the sleeping Josiah when she got home from work the day of the injury.

“When she was on the stand, she said, ‘Why would I touch a sleeping baby?’ ” said juror Archana Newcomb. “The thing is, you’re a mother. When you’re a mother, you come home after a full day’s work, and your child is sleeping. Everyone wants to look at their children, and it’s hard to believe she didn’t notice the child wasn’t breathing or not breathing right or in pain. Doctors said any reasonable person would have noticed the child was in pain, and nobody noticed it for all how many hours after she’d been home?”

Newcomb said the testimony conflicted with Daphne Pineda’s statements to police that she touched the baby’s back when she came home and that the infant made a gurgling type of noise.

Daphne Pineda declined to comment after the mistrial.

A third juror, Justin Seither, was one of the two who voted for guilt.

“I’m not necessarily married to the 30-to-60-minute window that was presented as the gospel truth,” Seither said.

In rearguing the case Tuesday, Deputy District Attorney Robin Shakely said the injuries probably took place well before the window established in forensic pathologist Stephany Fiore’s testimony that influenced some members of the jury into thinking Daphne Pineda killed her son.

Shakely noted that Pineda testified she stepped out of the apartment about 20 minutes before she found the baby nonresponsive and that Taghap told Sacramento police detectives he had checked in on Josiah during the time his sister-in-law enjoyed her cigarette. Shakely suggested Taghap shook the baby into a whiplash at that moment, to try to wake him into consciousness from the debilitating injuries inflicted earlier, probably out of frustration from the baby’s crying.

“By now, he’s desperate,” Shakely said of Taghap.

Robert Saria disagreed, saying there was no credible evidence to establish an earlier time frame to the baby’s injuries.

“At 4:30, the baby was fine,” Saria said. “And from that point, the only person who was with the baby was Daphne.” Saria said Taghap’s check-in on the baby while the mother was smoking took place well before the prosecution’s 5:40 p.m. estimate.