A key witness in the murder trial of former LAFD Captain David Del Toro told the jury Wednesday that she could not identify from police photographs a deep cut she said she had seen and bandaged on one of the firefighter’s hands two days before he was arrested for allegedly killing an acquaintance of his.
Christina Bou, an LAFD “Explorer” cadet who accompanied Del Toro to the scene of a crime on Aug. 14, 2006, two days before police found the mangled body of Jennifer Flores near Del Toro’s house in Eagle Rock, said Del Toro had a deep laceration on one of his hands—but that she could not see the wound on a set of color photographs blown up and presented to her on a screen in the courtroom.
The photographs, taken by the LAPD shortly after Del Toro was arrested in his Eagle Rock home on Aug. 16, 2006, depicted small, circular red marks on his hands—but nothing resembling what the LAFD cadet recalled as a linear wound, “a pretty deep cut that looked like it needed stitching.”
Bou’s inability to identify the wound she said she had bandaged on Del Toro’s hand appeared to leave the defense without irrefutable evidence that the ex-LAFD firefighter had been injured shortly before he allegedly killed Flores—and that the injury, coupled with a string of grueling 24-hour work shifts, contributed to such great fatigue and mental anxiety that Del Toro was compelled to consume a large amount of alcohol to soothe his nerves.
Del Toro’s purported hand injury is one of the missing pieces of a puzzle that, according to defense attorney Joseph Gutierrez, ultimately led the firefighter into an alcohol-fueled blackout that would have made it impossible for him to commit murder. On Feb. 2, Gutierrez told the jury that Del Toro logged a total of 216 hours of work from Aug. 1 through Aug. 16, 2006 and that his blood-alcohol level following his arrest was four decimal points above the .08 limit for driving under the influence. The prosecution insists Del Toro not only killed Flores but intended to do so.
Del Toro, 54, is charged with the first-degree murder of Flores, 42, whose mangled and almost naked body was found near the 5100 block of Loleta Avenue, about a quarter mile from his home in Eagle Rock on Aug. 16, 2006. Since opening statements in the case began on Jan. 20, several LAPD detectives and criminalists told the jury that they documented tire marks from Del Toro’s truck that left a trail of Flores’s blood and DNA leading all the way back to his house on Vincent Avenue. Del Toro has been in prison since a Grand Jury indicted him in November 2006.
Among the seven witnesses who testified Wednesday, Feb. 16—each one summoned by the defense—was LAFD firefighter and paramedic Pete Vega. He said he had known Del Toro for four or five years prior to his arrest and that they were both assigned to the same fire station in Lincoln Heights where Del Toro was an engine captain.
Vega told the jury that he had accompanied Del Toro to the scene of the Aug. 14, 2006 crime—in a two-story apartment complex in Highland Park where a woman was brutally stabbed to death and a teenage boy was critically injured, with multiple stab wounds to his chest. Vega said that he and other firefighters had to tear down part of a wooden fence encircling a small yard where the two victims lay, large pools of blood around them, so that the LAPD could escort a suspected assailant off the property without bringing him through the crime scene—the only other way out of the complex.
Asked by a member of the jury if the firefighters wore gloves while knocking down the fence, Vega said yes—apparently ruling out the possibility that the activity could have caused the minor bruises to Del Toro’s hands, visible as reddish marks in the police photographs. Besides those marks, investigators found no other scratches or wounds on Del Toro's body that might suggest he had any sort of scuffle in the few days prior to his Aug. 16, 2006 arrest.
Wednesday’s trial proceedings in the court of Judge Lance Ito began with the conclusion of an unfinished testimony by Louis Pena, a forensic pathologist at the L.A. coroner’s office who conducted an autopsy on the body of Jennifer Flores, concluding that she was strangled to death and that “blunt force” wounds to her head were a contributing factor in her murder.
Pena told the jury that Flores was likely strangulated with a “soft ligature,” that is, “a tie, T-shirt or shirt knotted up and put over her neck.” A towel could also have been used, he said. Investigators recovered a blood-stained white T-shirt in a plastic bag and a towel with blood on it from Del Toro’s house. They also collected several items in the kitchen sink of the residence, including latex gloves, two leather gloves and pieces of rope.
Deputy Defense Attorney Robert Grace questioned Pena further on an issue that the defense brought up in Tuesday’s testimony: Could injuries to Flores’ neck have somehow resulted in her strangulation? The pathologist’s answer was that while neck injuries, like head injuries, can he life-threatening, they cannot result in strangulation.
To elaborate, Pena mentioned his experience with the autopsies of kick boxers, who sometimes get grievous or fatal kicks to the neck. In those cases, said Pena, a bone in the neck above the Adam’s apple, called the hyoid, almost always shatters in many places. “I did not see that” in Flores’ autopsy, he said, adding: “The other point I want to hammer on is that her tongue came up” while she was evidently being strangled and “was still alive” when that happened.
Pena then gave a demonstration of how Flores might have been strangled. Standing behind Grace, he held his right knee to the prosecutor’s back, while gently tugging on him backward as if there were a rope or some other object around his neck capable of causing strangulation. The combined force of the knee pushing forward and the object hypothetically used for strangling Flores caused two of her ribs near the trapezius muscle area to snap, Pena said.
The pathologist also told the jury that he didn’t see any marks on the back of Flores’ hands—telltale signs that she might have been using her hands to ward off blows to her head. Nor were there any defensive wounds—self-inflicted scratches—on the neck usually found in the case of people who are strangulated. “Sometimes you will not see any defensive wound in people strangulated from behind because they have no time to react,” he said.
Pena also clarified that a severe fracture to the jaw that Flores suffered—the pathologist noted in his earlier testimony on Tuesday that he had never before seen such a fracture—would have required two separate blow, one to the front of the jaw and the other to the side. Further, Pena agreed with the prosecution that those blows would have required a substantial amount of force.
In an apparent effort to establish that Del Toro had been drinking heavily during the night before his arrest on suspicion of murdering Flores, the defense called as a witness an LAPD officer, Luis Reyes, who twice administered a breathalyzer test to Del Toro on the morning of Aug. 16, 2006, first at 8:23 a.m. and then at 8:25 p.m. Both times, Del Toro’s blood alcohol level registered 0.12, Reyes confirmed, adding that the firefighter did not appear to need any medical assistance.
In a related testimony, a criminalist in the LAPD’s alcohol unit, Christopher Breyer, told the jury that the breathalyzer kit used to measure Del Toro’s blood alcohol level was functioning properly and accurately, according to maintenance records for the kit that he examined.
Asked by the defense what Del Toro’s blood alcohol level might have been about 11 hours prior to his arrest, Breyer said it could have been as high as 0.23 to 0.34 and that generally speaking any blood alcohol level greater than 0.35 can result in death. In the case of Del Toro, Breyer added, “it takes a more extreme drinking habit” to attain the high blood alcohol level that he possibly had on the night before Flores’ body was found.
Asked by a member of the jury at what level of blood alcohol an average person can expect to lose consciousness, Breyer replied that first of all he would define an average person as “not an alcoholic” and that a blood alcohol level of 0.15 to 0.23 or higher could result in unconsciousness. An average person, however, was more likely to fall asleep than become unconscious after drinking substantial amounts of alcohol, Breyer added.
In the face of overwhelming evidence against Del Toro and the absence of other suspects, if the defense is able to prove that he was in something of an alcohol-induced coma in the hours before Flores' body was found, the former Fire captain could possibly get away with the lesser charge of manslaughter instead of first-degree murder.
Witness testimonies are scheduled to continue Thursday and Friday, and the jury is likely to deliver a verdict on Tuesday, Feb. 22, after the President’s Day holiday on Monday. It’s reasonable to say that the long-delayed case of People vs. David Del Toro is now heading toward a dramatic climax. Defense attorney Gutierrez confirmed yesterday what had been a matter of speculation—and controversy—until now: That Del Toro will be taking the witness stand, thereby opening himself up to all manner of cross examination by the prosecution. Just when Del Toro will testify isn’t yet known.
In another significant development, Judge Ito granted the defense’s request not to allow any TV cameras or photographers in the courtroom during Del Toro’s testimony because their presence is likely to “create a disturbance.”
In a verbal exchange with Ito at the end of Wednesday’s trial proceedings, Gutierrez argued against TV coverage of Del Toro’s testimony because, he said, it would create a “spectacle” that “would have an impact on the jurors.” Further, said Gutierrez, an inmate has already attacked and wounded Del Toro on the head in prison, where he is “well-known through the media.”