Palo Alto Online : Alvarez: 'Cold-blooded killer' or self-defense?

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Uploaded: Tuesday, November 24, 2009, 12:13 AM

Alvarez: 'Cold-blooded killer' or self-defense?
Prosecution and defense both blame 'bad choices' in tragic death of Officer Richard May

by Sue Dremann
Palo Alto Online Staff

The death of East Palo Alto Police Officer Richard May comes down to bad choices made by both the officer and defendant Alberto Alvarez, attorneys for both sides claimed during final arguments Monday in San Mateo County Superior Court.

The summations were the latest in a long and emotional courtroom drama that put the slain officer's actions on trial along with his admitted killer.

Alvarez, 26, of Redwood City, has not denied shooting the officer four times on Jan. 7, 2006 in East Palo Alto. But he maintains he did so in self-defense after the officer shot him in the thigh as he attempted to run away during a foot chase. Alvarez testified in his own defense that he feared the officer would kill him.

Much of the trial, which involved 170 exhibits and 67 witnesses, revolved around whether May used excessive force in violation of departmental policy and city ordinances. He struck Alvarez twice with a metal baton as the defendant attempted to flee during a foot pursuit.

Defense attorneys said May did not have probable cause to stop Alvarez, who was the victim of a battery in a nearby taqueria. An expert witness testified Alvarez did not adequately fit the description of the perpetrator when he left and ran across University Avenue.

But prosecutors maintain there was justification for stopping Alvarez, and May's shooting confirms just cause.

Senior Deputy District Attorney Steve Wagstaff called Alvarez a "cold-blooded killer" who returned to where May lay wounded and fired additional shots, including a fatal shot to the face and head.

Alvarez returned to shoot May twice after initial rounds of bullets knocked the officer down, Wagstaff said during an impassioned presentation that lasted more than an hour.

The defense maintains the first shot incapacitated the officer and was to his face, causing death within minutes. The second set of shots were to the officer's bulletproof vest and were not lethal, they said, hence, there was no "execution" as alleged by the prosecution.

But Alvarez's state of mind -- to kill the officer in order to avoid returning to prison for being a felon in possession of a gun -- point to motive for returning to execute the downed officer with a second set of shots, Wagstaffe said.

"He follows it up with the execution. By anybody's definition of the facts, regardless of what order the shots came in, his state of mind is he's going to plow another couple of shots into Officer May � to finish the job," Wagstaffe said.

Wagstaffe told jurors they have several possible verdicts to consider: first-degree murder with special allegations (which could mean the death penalty or a life sentence), second-degree murder, justifiable homicide, voluntary manslaughter or acquittal.

Of the lesser crimes, second-degree murder takes away deliberate premeditation. One can commit an unlawful act, such as shooting into a crowd -- a malicious act -- but not with deliberate intent to kill, he said.

For justifiable homicide, the jury would have to believe that "Officer May is the one with murderous intent and that he took out his gun and shot him in the leg," Wagstaffe said.

Voluntary manslaughter is committed in the heat of passion with adequate provocation, but that would not apply in this case, Wagstaffe said.

But the crime is "clearly first-degree murder. The defendant is running from the officer and taking his gun out. He's still walking back and firing more shots into him. That's murderous intent," Wagstaffe said.

First-degree murder is premeditated and deliberate and intentional. It doesn't have to be planned out, but must be willful. There need only be a thought to do it before pulling the trigger, Wagstaffe said.

"It's no different than going shopping at the store and (seeing) what I have a weakness for: chocolate chip cookies," he said. One can decide to pass them by and forego the calories or cave in and put them in the cart. That's deliberative, versus 'Ah! Chocolate chip cookies! In they go,'" he said.

Wagstaffe created a dramatic murder scenario by lying down on the courtroom floor. He wanted to explain an alternate theory for spattered blood on the back of the officer's hands.

A defense expert said the fine spray was consistent with the officer holding a gun up to aim at Alvarez when May was shot in the face. But Wagstaffe had another explanation.

"He's down and he's hit," Wagstaffe said, indicating a hypothetical first shot to the shoulder.

"What does he do as the defendant comes toward him? He puts his hands up," Wagstaffe indicated, portraying a defenseless officer sitting up, palms out with his hands in front of his face.

Alvarez had a choice every step of the way, but always made the wrong decision, Wagstaffe said.

He chose to purchase a gun; he chose to sell drugs on East Palo Alto streets; he chose to flee from an officer; and he chose to hold on to the gun rather than ditch it in bushes before the officer pulled up in his patrol car to stop him. He chose to run away and he chose to shoot the officer; then he chose to come back on his way to escape and shoot the officer again, he said.

Alvarez chose to lie to medical staff about the bullet wound in his leg and chose to try to get a fellow inmate to lie about his mental state, Wagstaffe added.

"The very first question I asked him (on the witness stand) was, 'Is it fair to say you are a liar?"

"His answer: 'It depends on what you're talking about,'" Wagstaffe said.

But Defense Attorney Charles Robinson said May's tragic death was brought on by his own actions, which were outside the law and a result of poor decisions.

"It's very hard for me to stand here and tell you that a police officer was wrong. They have a dangerous job � and we are brought up to trust a police officer," Robinson said.

But the officer violated his department's policy and a city ordinance against excessive use of force when he used a baton to strike Alvarez as he fled, then allegedly shot first, hitting the defendant in the thigh, he said.

Robinson revisited hotly-contested testimony by a defense use-of-force-policy expert. May did not have just cause to stop Alvarez in the first place, since he did not fit the description of a shirtless man wearing a black jacket. Alvarez wore a black jacket but had on two shirts, the tails of which stuck out, he said.

May's choice of words to try to get Alvarez to stop running did not constitute a command to stop. They were a threat, Robinson said.

"'I'd stop if I were you,'" he said, echoing the officer's only known words to Alvarez.

May made choices contrary to his training, starting with his initial pursuit of Alvarez. He drove the wrong way down University Avenue with a teenage Explorer in the car as he pursued Alvarez to Weeks Street, where the shooting took place, Robinson said.

May chose to issue a threat rather than a direct command to stop and pulled out a baton against a fleeing man who did not fit the suspect's description. He beat, cornered and shot Alvarez. Those choices caused him his life, Robinson said.

"We're not trying to say Richard May is a bad cop. In this instance he completely stepped out of the rule of law," Robinson said.

"You might feel Alberto Alvarez should have stopped when he was told to stop, even if there was no reason. But that was not the law.

"Justice without following the law is revenge. The law is the law and it applies to everyone. � Alberto Alvarez reacted to survive and a man ended up dead," he said.

May's behavior "was an element in this trial -- an element that must be proven beyond a reasonable doubt," with all other allegations, Robinson said.

"Doubt calls on reason. It encourages people to question. It brings into question some perceived reality. Doubt is good. It suits human nature," Robinson said.

Perceptions can be wrong, Robinson said, asking the jury to look deeper than Alvarez's felony record or drug dealing or even the act of shooting May itself.

May relied on a perception of a Hispanic male in a black jacket as the perpetrator without examining the fact that Alvarez did not fit the description of the suspect. "He got complacent," Robinson said. "And that perception cost him his life."

Each member of the jury has a moral obligation to vote their conscience, Robinson said.

"Any one by their own conscience can veto the votes of the others. Different opinions don't necessarily mean they are wrong. When you cast your vote, that vote is your vote and not that of the person next to you," he said.

The prosecution will present a rebuttal and the jury will begin deliberations today (Tuesday).

Comments

Posted by anon, a resident of another community, on Nov 24, 2009 at 12:34 am

Obviously the only reason this is a death penalty case is because a cop was killed. If this was a shootout between 2 criminals it would be a manslaughter case. Officer May did not deserve to die that day but this man should not be executed for killing him.