Did OCDA Ignore Doctored CHP Reports to Convict Motorist of Murder?
Southern Californians understand weekday traffic builds toward congestion even at 4:59 a.m., which was the case on July 7, 2006, on the westbound 91 freeway in Anaheim. That's when a new stove, still in the box, fell from the bed of a gray Ford F-250 pickup truck and landed in the lanes. We've all seen an assortment of debris—baby seats, flat tires, vehicle bumpers, trash bags and lawn chairs—clutter our highways. Given its heft, a stove is, however, a more frightening obstacle. Cole Allen Wilkins, a Long Beach construction worker and the driver of the truck, hadn't intended for his newly acquired kitchen appliance to tumble into oncoming traffic. Nonetheless, this bizarre event led to tragic and controversial consequences—ones still being angrily debated a decade later.
Motorists' calls to the California Highway Patrol (CHP) dispatch began at 5:01 a.m. Dan Lay, who'd been driving about 50 yards behind Wilkins, saw the stove fall and hit it with a glancing blow. During the next four minutes, most drivers managed to miss the unexpected hazard or avoid collisions, other than two minor fender-benders.
Then disaster struck like a terrifying chain-reaction scene in the Final Destination films.
As he drove to his Whittier office that day before sunrise, 34-year-old David Piquette didn't see the stove until it was too late. At 5:05 a.m., Piquette swerved his Ford Crown Victoria across several lanes to his right and slammed into a tractor-trailer driven by Thomas Hipsher in the slow lane. Hipsher's truck, which was carrying a full load of cement, toppled over and crushed Piquette. According to an autopsy, he died of "positional asphyxiation."
To prevent additional fatalities, veteran CHP officer John Heckenkemper, one of the first cops on the scene, dragged the stove to the freeway's shoulder. Heckenkemper also wrote a report about events that morning and determined speeding or unsafe lane changes was a "primary collision factor," or PCF. He filed his report—which, depending on who is speaking, either did or didn't get officially approved—and went on a planned vacation.
What happened next is the centerpiece of the still-raging dispute. There's no doubt CHP officials not only amended the findings by switching the PCF to blame Wilkins, but they also destroyed original reports by two officers at the scene. Six days after Piquette's death, the Orange County district attorney's office (OCDA) bypassed the weakest possible charge, manslaughter, to file the most serious: first-degree murder. Without knowing of the behind-the-scenes CHP events, a 2008 jury found Wilkins guilty; calling him "dangerous," Superior Court Judge Richard F. Toohey ordered the maximum possible sentence of 26 years to life in prison.
But defense lawyers claim the report editing and secrecy illustrate how law-enforcement officials will manipulate evidence when one of their own is involved, as well as that OCDA officials possess a win-at-all-costs mentality. At the time of the stove incident, Piquette was a popular cop and had served a decade as a deputy sheriff in Los Angeles County. Accusations of wrongdoing offend prosecutors. They contend their triumph was the epitome of justice and, although the California Supreme Court overturned the conviction in 2013, are determined to re-apply the murderer label to Wilkins in coming months.
* * * * *
Based on television crime shows, citizens may wrongly assume only a person who successfully plots to kill another human being can be charged with first-degree murder. In what's known as the felony murder doctrine, California law gives prosecutors authority to file the ultimate criminal charge against individuals who, unlike the traditional notion of first-degree murder, unintentionally take a life. So if an innocent person accidentally dies as a result of a perpetrator committing any one of a series of felonies—arson, rape, carjacking, robbery, burglary, mayhem and kidnapping—that scenario can be classified as first-degree murder. For example, an armed bandit who has successfully fled a bank without firing a shot is guilty of the most serious type of murder if, several blocks away, his gun-waving terrifies a bystander, who dies of a heart attack.
With increasing frequency, the DA's office has filed murder charges against serial DUI drivers who cause fatal collisions. This second-degree-murder concept espouses that an offender should have known driving while intoxicated can result in an innocent person's death but drove anyway. Last month, 24-year-old Neil Storm Stephany, who was convicted of murder, received a prison punishment of 15 years to life for crashing his truck into a bicyclist while high on heroin on Pacific Coast Highway in October 2014.
Inadvertently causing a traffic death can bring a lesser charge, too. Jorene Ypanto Nicolas, 29, was found guilty of vehicular manslaughter last year for a 2011 fatal collision on the northbound 405 in Westminster. Prosecutors accused Nicolas of texting while driving 85 mph and not seeing that traffic had come to a standstill. The San Diego resident received a six-year prison term.
Wilkins hoped to face no worse than a manslaughter charge. But his story is more complicated than Nicolas' inattentiveness. He'd burglarized a residential construction site in Riverside County, taking as many appliances, including the stove, as he could cram into his truck. Unfortunately for Piquette and himself, Wilkins forgot to use tie-downs or close the tailgate to his truck bed.
* * * * *
Between the OCDA and the public defender's (PD) office, the DA's office is the more powerful and generously funded of Orange County's two major public legal agencies—plus its top lawyers receive regular glowing profiles on television crime shows. Within the criminal-justice system, prosecutors are the aggressors, determining who will face charges and what charges apply, allowing them to maintain the upper hand.
For nearly two decades, homicide prosecutor Mike Murray has dominated Orange County courtrooms with a no-nonsense, military-style presence that has caused otherwise-menacing killers to squirm. Murray's demeanor isn't manufactured. If office mate Matt Murphy, a surfer, is a charmer who leaves jurors wanting to hug him, this West Point graduate, U.S. Army captain during the Persian Gulf War and present-day adjunct professor at Chapman University School of Law captivates juries with righteous indignation.
Defense lawyers alternately fear and loathe Murray, who is married to an FBI special agent. He's known to take over cases other prosecutors fret they can't win, including People v. Marvin Smith, a murder whodunit that went all the way to the U.S. Supreme Court, which affirmed the conviction. Still, justices at the California Court of Appeal have singled him out by name, a rarity, in hostile rulings for what they've seen as overly aggressive tactics.
OC Weekly file photo
Murray's legendary intensity found another outlet with Wilkins. He didn't just hold the defendant, who has created an alarming rap sheet, in contempt. The senior deputy DA believed Wilkins could not have been more guilty of first-degree murder than if he'd shot Piquette point blank in the head.
"What I want to talk to you about is the murder of a young man by the name of David Piquette," Murray said in his opening statement at the April 2008 trial. "In jury selection, there was a lot of discussion about accidents. But the evidence is going to show this was not [an] accident, not under the law. It was murder. . . . He was murdered."
But Wilkins' private, Los Angeles-based lawyer saw the charge as excessive. "There's no question, as you hear the story, even from the prosecutor, [that] Mr. Wilkins did not know the stove fell off his truck," the late Joseph T. Vodnoy told jurors. "Imagine, you have a bunch of things happening, I suggest, not foreseeable. There's a whole bunch of cars driving and hit [the stove] with some minor damage before the officer, who presumably had been trained in driving, slid across a bunch of lanes, and just so happens, at that exact moment, there's a cement truck there. Imagine. Is somebody going to foresee that? It's a terrible accident. . . . The question is: Are you going to make [Wilkins] a murderer because there was an accident?"
It wasn't a contest: Murray swayed the jury.
* * * * *
Representing the accused in Orange County, on the other hand, doesn't bring lofty status. Public defenders are often treated like one-eyed stepchildren in courthouses. On a consistent basis, nobody hears a terse "no" more often from judges. A daily symbolic reminder of who is boss: The DA's 10-floor office, a commercial building, towers over the nearby PD's office, a converted county morgue that resembles a 1950s, Soviet-style government edifice.
Despite those circumstances, there are public defenders such as Sara Ross whose constitutions resist the role of pushover. After a stint with federal public defenders in Idaho, Ross joined the Orange County PD's office in 2005, and though it's unlikely she'll ever win a feature on 48 Hours, she is a rising star in the office's felony panel unit, according to colleagues. "Lots of people claim they aren't ever intimidated, but Sara really isn't," said Deputy Public Defender Scott Sanders. "She is prepared, well-spoken and tough as nails."
Ross became Wilkins' defense counsel in December 2014 as the OCDA decided to seek his retrial after the state supreme court declared the 2008 conviction had been improperly obtained. During pretrial battles, Superior Court Judge M. Marc Kelly repeatedly praised her legal skills and passion.
According to Ross, law enforcement tinkered with reality to construct a first-degree murder case. "What happened to Piquette was a tragedy," she told the Weekly. "But it was not a foreseeable accident. Except for a few fender-benders, everybody else was able to safely avoid [the stove]."
Ross says Piquette's actions—either speeding, changing lanes unsafely or both—caused the death. She says she doesn't precisely know which one is right because CHP destroyed the original reports containing such details, an act she is "absolutely positive" was done at the behest of someone in OCDA. Who? Last month, she asked Kelly to place Murray and several of his colleagues tied to the case, including Larry Yellin and Eric Scarbrough, on the witness stand under oath. The judge, a former prosecutor, acknowledged the evidence destruction but declined her request.
"What isn't commendable is to withhold evidence," she said. "That's huge."
During a Jan. 22 hearing, Murray listened to Ross' complaints and stewed, furious his integrity had been challenged. "I feel like I have sat here for months and listened to a woman who I have never met before," he said. "Never had a case with her. Didn't even know she existed until she accused me of a crime in her moving papers."
Los Angeles Angels vs. Seattle Mariners
TicketsFri., Jun. 30, 7:07pm
New Japan Pro Wrestling - G1 Special In The USA
TicketsSat., Jul. 1, 5:00pm
Orange County Soccer Club vs. Portland Timbers 2
TicketsSat., Jul. 1, 7:00pm
Los Angeles Temptation vs. Pittsburgh Rebellion
TicketsSat., Jul. 8, 7:00pm
An annoyed Kelly interrupted. "Just a minute," the judge said. "When you say 'woman,' let's refer to her as 'counsel.'"
"Counsel," he said. "Didn't know counsel existed. Didn't know her name. Wasn't familiar with her work. The first time I even heard her name was when she accused me of the crime of suborning perjury."
Arguably the most fear-instilling prosecutor in the region, Murray's comments didn't force Ross to retreat. In the aftermath, she noted she'd actually opposed him in a prior unrelated case. "He must have forgotten," she said with a chuckle.
It's her stance that too many people in the DA's office have been allowed "to slide" on ethical lapses, and as a consequence, prosecutors have "become more emboldened" in employing questionable tactics.
"A prosecutor's job isn't to win," Ross said. "It's to do justice."
* * * * *
Born in Bien Hoa, South Vietnam, in the first hours of 1972 to a Vietnamese mother and an American soldier, Piquette and his family immigrated to the United States. He was popular in high school, where he participated on the wrestling team. After graduation, Piquette followed in the footsteps of his father and grandfather, who served at Pearl Harbor when Japan attacked the naval base in 1941. He joined the U.S. military and served on the USS Theodore Roosevelt in 1993. His service took him to distant places such as the United Arab Emirates and Singapore.
In memorials to her son, his mother, Lan, recalled his desire to help others even as a young boy. She also remembers his joy the day he became a deputy, a job that eventually included him training reserve officers in self-defense. According to his students, he voiced a mantra: Keep your eyes on a suspect's hands.
He inspired devotion from fellow Marines and deputies even in death. "For the two years we served together in the Marine detachment, you became a true friend," one pal stated about Piquette in a remembrance. "The friendship you gave me in two years could last two lifetimes. We laughed, fought, bled and even cried together."
Piquette's sibling, Rich, crafted a passionate remembrance as well. "I am so honored to have you as my older brother," he wrote. "Every day, I wake up and hope that this is just a bad dream. You have no idea what you meant to me. . . . I miss you so much."
Illustration by Jeff Drew
More than 3,000 people attended Piquette's July 12, 2006, funeral. The crowd included deputies, FBI agents, police officers, Marines, then-LA Sheriff Lee Baca and then-California Attorney General Bill Lockyer. Hollywood actor Arnold Schwarzenegger, the governor at the time, gave teddy bears to Piquette's kids. Local television stations interrupted regularly scheduled programming to air live coverage of the massive procession to the Riverside National Cemetery.
Nobody prized Piquette more than his wife, Shawna. Her father, Piquette's senior inside the LA County sheriff's department, felt so strongly about his character he introduced the two. The couple was raising two preschool children, a boy and a girl, at the time of the accident. In her memorial a month into the ordeal, she called the deputy an "amazing" husband and father. "I am so honored to be your wife," Shawna wrote. "I will forever adore you. Your strength will forever guide me in raising our beautiful babies."
* * * * *
In Ross' view, the age-old scandal question is appropriate in Wilkins: What did Murray know about CHP officials changing original reports, and when did he know it? She believes he knew during the trial and withheld that evidence from the defense to gain unfair tactical advantage. To support her contention, the deputy public defender points to a December 2015 affidavit by Jon Cassidy, a reporter at Watchdog.org. Cassidy recalls that during the 2008 trial, when he worked for the Orange County Register, he told the prosecutor that a confidential source informed him "about the CHP altering its findings regarding who was at fault for the [Piquette] accident." He recalled Murray telling him the information was "irrelevant."
Ross also possesses a sworn declaration from Steve Beeuwsaert, who served as chief of the CHP's Southern Division, the largest in the agency. In 2009, in response to a whistleblower complaint about officers fixing a speeding ticket for an Anaheim Ducks player and doctoring accident reports—including ones involving Piquette's death—Beeuwsaert declared he'd relayed concerns to the agency's Internal Affairs unit and the OCDA. He wrote, "The Orange County DA handling the case, Mike Murray, was well aware of the circumstances involving the accident and the differences of opinion as to who was at fault."
Beeuwsaert's records show Heckenkemper, one of the initial officers at the scene, "determined that the cause of the accident was unsafe speed on the party who had swerved around the stove, but had collided with a second party in the process."
Those documents go on to describe how CHP officer Mike Bernardin wrote a concurring report. "Approximately three weeks after the accident took place, Officer Heckenkemper was on vacation when he received a call from Sergeant Joe Morrison, [who] told him that they were going to change his report to reflect the PCF as 'Other Than Driver' [meaning Wilkins] instead of unsafe speed so that it would not conflict with other accident reports," Beeuwsaert wrote, according to court records. "He was also told this was being done to help with getting prosecution for murder against the suspect who stole the stove. Upon his return from vacation, he learned that several items in the report were changed and others added without his knowledge or approval, yet his name was still on the bottom of the report as the investigating officer. Officer Heckenkemper was told his original report was destroyed."
Beeuwsaert's notes also contend OCDA investigator Wesley Vandiver "had discussions relative to the changing of the report." On the witness stand during the trial, Vandiver, an ex-CHP officer, testified Piquette had not been speeding. The investigator said he'd reached his conclusion, in part, because there was no record proving otherwise.
* * * * *
In contrast to Piquette, the defendant isn't a sympathetic character. Born in March 1976, Wilkins, the son of a state prison felon, became a troublemaker in middle school. He stabbed a girl in the leg with a knife at age 11. Two years later, he attempted to steal a bike and committed three residential burglaries. When he was 14, he stole a gun and ammunition from a home.
But it was his 15th year that loaded his rap sheet. According to court records, on separate occasions, Wilkins:
• "Threw his mother to the ground, straddled her and attempted to choke her";
• Placed a 12-gauge shotgun to a driver's head in a carjacking;
• Entered a woman's residence while she sunbathed, and then beat, raped and threatened to kill her—violence that left the victim requiring 100 stitches and plastic surgery to her face.
Illustration by Jeff Drew
Though still a minor, Wilkins received a punishment of 33 years and eight months inside the California Youth Authority for the last crime. He emerged at the age of 25 and the following year was arrested for not registering as a sex offender. At the ages of 28 and 29, police arrested him for DUI. The records are unclear on timing, but at some point, authorities learned that a woman accused him of putting "something into her drink during a social night out with friends in a bar and had subsequently raped her."
* * * * *
On a recent Saturday inside the busy 4th Street Market in Santa Ana, Murray acknowledged "fascinating issues" in the case, and he remained disgusted by Wilkins and attacks on his own credibility. He said Ross "sees conspiracies under every rock," "jumps to conclusions" and "wants to paint herself as a hero." According to him, "there is nothing nefarious" about the CHP changing "draft reports" that, to his knowledge, are routinely altered by superiors who have more information or expertise. "That's standard procedure," said Murray, who has no memory of Beeuwsaert ever contacting him and doubts he did.
In a Jan. 19 affidavit, Murray declared, "No one from the CHP contacted me and discussed changing any reports, opinions or conclusions."
He also doesn't care if particular CHP officers disagree with his murder filing, stating, "The prosecutor, who is a trained lawyer, decides what charges are appropriate, not them."
But it's the public defender's attempt to eliminate Wilkins' responsibility for the fatality that upsets him most. Murray believes Ross is advancing an outrageous notion. "I think she wants you to believe Deputy Piquette would have been speeding and swerving 90 degrees into other lanes without the stove in the road," he said.
* * * * *
In its ruling two years ago, the California Supreme Court opined that Judge Toohey wrongly blocked a defense request for a jury instruction on an "escape clause" in the felony murder doctrine. The court also said the error wasn't harmless. The justices wrote, "Given the evidence, there is a reasonable probability that a jury properly instructed on the escape rule would have concluded that defendant had reached a place of temporary safety before the fatal act occurred and was not guilty of felony murder."
Here, too, Ross and Murray don't see eye to eye. Ross says her client reached the point of temporary safety, the clause trigger, because he was an hour and 62 miles away from the crime scene, traveling the speed limit and wasn't fleeing a police pursuit when the stove fell. It "makes no sense" to claim the accident was a "continuation" of a burglary just to make it a felony-murder, she argues.
In contrast, the prosecutor believes the escape clause would have been triggered if, say, Wilkins had stopped somewhere and broken continuous movement from the burglary. Murray recalled the defense tried to take advantage of the technicality in the 2008 trial, when the defendant testified he'd made a Palm Springs stopover after the burglary. "Based on the cell phone [tower pinging] evidence, the jury didn't believe him," he said. "He's a liar."
* * * * *
A future jury will decide Wilkins' fate. Having rejected Ross' outrageous-government-conduct assertions, as well as recusal motions, Judge Kelly scheduled a second trial for May 16. Murray, who is running for a judicial spot on June 7, insists he'll fight attempts to delay the case to the point he can't handle prosecutor duties. If he wins the election, he'll become a judge next January.
"I know [Ross] doesn't want me to try this case," he said. "I'm trying this case. I'm not running from bull accusations."
Ross is equally firm. She's ready for courtroom combat and expects more OCDA shenanigans.
"I don't trust them," she concluded, "to turn over records."
Get the ICYMI: Today's Top Stories Newsletter Our daily newsletter delivers quick clicks to keep you in the know
Catch up on the day's news and stay informed with our daily digest of the most popular news, music, food and arts stories in Orange County, delivered to your inbox Monday through Friday.