Day of High Drama in LAFD Captain's Murder Trial

California Evidence Code Section 402 requires jurors to depart to the jury room while a judge determines whether an admission or confession made by a defendant is admissible as evidence. When the motion is used in trials on the verge of conclusion, it usually comes as a surprise. Sometimes high drama follows.

The case of People vs. David Del Toro had a such a moment Thursday that was clearly the highlight of the trial’s proceedings since opening statements began Jan. 20. The moment came in the midst of a cross examination of a defense witness, psychiatrist Gordon Plotkin, who told the jury that he believed former LAFD Captain Del Toro had suffered an alcohol-induced blackout—or loss of memory—on Aug. 16, 2006, when police found the nearly naked and mangled body of Jennifer Flores, a 42-year-old acquaintance of the firefighter, about two blocks away from his Eagle Rock home on Vincent Street.

Del Toro, 54, has been charged with strangling Flores to death and is being tried for murder, based on a large body of incriminating evidence that investigators found on the crime scene as well as in his home. Del Toro has pleaded not guilty and has been in jail without bail since November 2006. He faces 25 years to life in state prison if found guilty.

“I’ve interviewed many defendants who say they can’t remember a crime—almost every defendant says they can’t remember a crime,” Plotkin told the jury in response to a question from Deputy District Attorney Robert Grace about Del Toro’s ability to make sophisticated decisions around the time of Flores' murder despite the fact that two breathalyzer tests on the morning of his arrest on Aug. 16, 2006, revealed a blood alcohol level of 0.12—four decimal points higher than the legal limit for driving. The defense has been trying to build a case around Del Toro's heavy drinking and the physical and mental fatigue he is said to have suffered while working as many as three consecutive 24-hour shifts as a firefighter in Lincoln Heights. (As Plotkin put it to the jury to illustrate Del Toro's drinking history: "He recalls frequent blackouts drinking 10 drinks fast.")

The full impact of the "402 moment" in today’s trial didn’t come, however, until Plotkin admitted that he believed Del Toro told him during a 2008 interview that “there was blood on his tennis shoes.” Prosecutor Grace asked Judge Lance Ito for permission to admit as evidence a portion from a two-hour audio interview that the LAPD conducted with Del Toro following his arrest, and that  contains comments that the firefighter made to himself while LAPD detectives interviewing him had left the interrogation room. Because, Ito said, he had not reviewed the interview for a year or more, he needed to assess it once again before allowing it as evidence.

That’s when the drama exploded. The judge had barely instructed the jury about what was going to happen next when a PowerPoint screen facing them flickered and a two-paragraph typed transcript from the audio tape flashed before the jurors’ eyes. In an apparent fit of absentmindedness, one of Grace’s assistants had activated the PowerPoint demonstration. By the time Judge Ito ordered the transcript taken down, at least five seconds had passed and anyone in the courtroom with reasonable reflexes had probably noted some of the transcript's riveting highlights, especially these words, displayed in red:

“I killed her. F-----g killed her.”

The full transcript read:

• “Oh s--t. Got me into trouble—Oh man, oh man, I should have known Jennifer. F--k. I f----d up. Yes—oh God. Got me for murder. Oh, I’m done—some girl I don’t know—Oh, they f-----g got me man. Yes. She tried to rip me off. Oh man. I don’t have time to—oh, I got to call work. “Yeah, she left her s--t there. So no. I killed her. F-----g killed her. Plus, everybody—I’m going to need an attorney, man. Man, my career is over. She was murdered in my house, man. F--k—it’s on my shoes. She wanted to rip me off. Oh (unintelligible).

• “Oh f--k, I can’t believe it, man—It wasn’t intentional. Yeah. There was a history of violence, it was verbal abuse more than anything else. It was—yeah. Been drinking and I f-----g popped her.”

Three of Del Toro’s brothers and three sisters—all in their middle ages or more—sat next to each other in court, directly in front of Jennifer Flores' brother Richard and his wife, looking grim and a bit dazed. Defense attorney Joseph Gutierrez wasted little time in asking for a mistrial on the grounds that the jurors, even though they were asked to leave after the transcript was swiftly removed from the screen, had doubtless seen the prominently highlighted words in red, “I killed her.” The entire episode, Gutierrez said, was "outrageous" and amounted to "misconduct."

Judge Ito denied the motion for mistrial, saying that the transcript was only up momentarily and the “font is not easily readable.” Besides, said Ito, the phrase, “I killed her, f-----g killed her,” would be presented to the jury at some point. He added, however: “Interesting chess game going on here.”

Gutierrez said that the LAPD detectives who interviewed Del Toro “used every trick and ruse in the book to manipulate him and tell him that he is guilty of murder,” even though he told the police “he didn’t kill Jennifer Flores, he didn’t have sex with Jennifer Flores." Yet the detectives "repeatedly told him that he killed her—how a woman can push your buttons," said Gutierrez. "They ended up taking this statement out of context—‘Oh s--t, I killed her’—because they kept repeating this to him.”

The defense attorney also argued that the contents of the audiotape were rhetorical and that they referred to Melissa Dale, Del Toro’s wife for two years, with whom he has long been divorced. “At no point does he refer to Jennifer Flores.” Responded Ito: “I’ll ask Mr. Grace to remove the last paragraph because it’s ambiguous. However, the first [paragraph] clearly refer to Jennifer Flores.”

An amended version of the transcript was eventually displayed before the jury as evidence, along with a roughly eight-minute audiotaped extract that, Ito noted, “was intended for Mr. Plotkin” because the content of the audiotape “tends to indicate a memory, not a blackout, and it is inconsistent with Dr. Plotkin’s theory.” Further, added Ito, the words, “Ya, I killed her” and “it’s on my shoes” appear to be “inconsistent with a state of blackout.” As a result, the prosecution is "entitled to cross examine [Plotkin] on a detail that’s inconsistent with [his] statement.”

Further details of the LAPD's audiotaped interview with Del Tores will become known on Tuesday, Feb. 22, when Plotkin's cross examination will resume. The trial, on the ninth floor, department 110, of the Civic Center on 210 W. Temple St., is expected to continue until the end of next week and a verdict isn't likely before Feb. 25.