Important new evidence revealed for the first time
Important new evidence was revealed for the first time, including FBI laboratory analysis purportedly linking lead removed from the brain of the slain deputy to lead from cartridges found at Lincoln's mother's house. Also revealed was ballistic evidence linking cartridge casings found at the shooting scene to the same weapon which fired empty casings found at Lincoln's own house.
The preliminary hearing was the first time the prosecution laid out the case against Lincoln in public, questioning witnesses under oath and presenting physical evidence, photographs and diagrams. It was also the first opportunity for defense attorneys J. Tony Serra and Philip DeJong to cross-examine prosecution witnesses, to call defense witnesses, and to challenge the prosecution case by argument. The principal defense against the murder charges is self-defense.
He felt a stinging in his leg and thought he might have been hit
first day of the hearing Deputy Dennis Miller retold his version of the events on Little Valley Road which resulted in the two deaths. He was questioned by Deputy District Attorney Aaron Williams. Miller said he and Davis decided on their own initiative where to set up a surveillance position on the ridgetop. He told how they had driven the last part of the way with the vehicle lights off, then backed off the main road on an intersecting fire trail on the wooded ridge. Miller denied Serra's suggestion that the two deputies were hiding from anyone who might pass along the road, and claimed that the patrol visible would have been plainly visible in the moonlight.
Miller said he saw two figures approaching on the road, and that the first person was carrying a rifle. This was consistent with his testimony before a secret Grand Jury proceeding October 10, but inconsistent with his initial statement to an investigator hours after the shootings, when he said he only saw one man approaching. That inconsistency, and the prosecutor's failure to fully disclose it to the Grand Jury, resulted in the Grand Jury indictment being tossed out November 30.
Miller said that when they saw the armed figure approach, he and Davis both got out of the police car and Davis told the person "Hold it right there." Davis then said "Put the rifle down, Sheriff's Department," or words to that effect, three times rapidly. The person then replied, "Fuck you, put yours down," and fired at the deputies, whereupon both deputies returned fire at him, and he fell to the ground mortally wounded. (Ballistics tests have since shown that it was Davis' bullet which killed Leonard Peters. Tests also showed that Peters never fired his gun, but apparently was prepared to, since an unfired round ejected from his rifle was found a few yards down the road.)
Miller said he lost track of the second person he had seen at first because he was concentrating on the person in front who was visibly carrying a gun. After the first man was down, Davis thought he might have been wounded, and took cover next to Miller behind the patrol car. Miller says he then heard twigs snapping and other sounds in the woods. The deputies thought the second man was trying to flank them and come around behind them. They decided to take cover in some small trees on the opposite side of the main road. Miller radioed a call for assistance and took his partner's M-16 from the vehicle. Davis told Miller to cover him as they crossed the road. Miller switched the M-16 to fully automatic fire, and Davis paused to check if the fallen Leonard Peters might still be alive and a danger to them. Then, Miller says, there was more gunfire as Davis began to stand up. He could see a muzzle blast and a silhouette down the road. Miller fired a multi-round automatic burst, took one or two more steps, and fell off the downhill embankment of the road. When he immediately got up on his knees, he saw that Davis had been hit. There was more gunfire. He felt a stinging in his leg and thought he might have been hit. He could tell he was being shot at by the fact that the cracks of bullets flying past him preceded the sound of the gunfire. He fired three or four more automatic bursts in the direction where he had seen the muzzle blast. When reinforcements arrived he told them he needed more ammunition for the M-16, and they brought him some.
In cross-examination, Miller said he was a Marine veteran, and had been trained on the M-16. He was thoroughly familiar with the weapon and formerly had one issued by the Sheriff's Department, and practiced with it at the shooting range within the year before the incident. On the night of the shootings he said he and Davis wore their badges above the left breast pocket of the uniform shirt with dark-colored jackets which may have covered the badges. He said he had been involved in three officer-involved shootings where he had fired his weapon, and had been shot at about five times.
He denied a suggestion the two deputies tried to hide their vehicle, and said it was parked in an open area where the trail intersected the road. Serra said since the deputies' purpose was to capture the suspect in the earlier shooting that evening, and since if he could see them he could avoid capture, "You hid didn't you?" "No," Miller replied.
The replacement ammo is what the FBI tested, not from the batch actually fired by Miller
new information came from the next person to testify, Sonoma County Sheriff's Detective Roy Gourley, the investigator in charge of the case. He said that bullet fragments had been removed from the brain of Deputy Davis just two months ago and sent to the FBI for analysis. Although Davis' body was cremated, the brain was preserved for further investigation after autopsy X-rays revealed small metal particles and fragments within it. Gourley said he sent samples of the metal fragments from the brain to the FBI crime lab, along with samples of ammunition from the deputies' guns and .223 caliber ammunition (the size fired by an M-16) found at the home of Bear Lincoln's mother Lucille Lincoln. Gourley stated that the FBI tests showed that the lead found in Davis' brain was consistent with that in bullets from the Lincoln samples and inconsistent with the lead in any of the law enforcement ammo.
In cross-examination by DeJong, Gourley was handed the written FBI Lab report and asked to find where it said the lead samples from Davis' brain were inconsistent with lead from any of the deputies' ammo. There is no such statement in the written report, but Gourley claimed he was told that by phone from the FBI lab. The written report does not say the lead found in the brain matches the bullets from the Lincoln homes. It says that based on the tests done, "it is consistent that the ... lead fragments from the victim originated from the same source of lead as the cores of the bullets loaded in the .223 REM caliber cartridges represented in Group I above." Group I included some, but not all, of the cartridges tested that were found at the Lucille Lincoln home.
When the cross-examination of Gourley continued the next day it was brought out that none of the sheriff's .223 ammo samples sent to the FBI were from the same batch actually fired during the firefight. Miller ran out of ammo in the M-16, and was given more after Davis was hit and most of the shooting was over. The replacement ammo is what the FBI tested, not ammo from the batch actually fired by Miller.
Despite the large number of shots fired by Miller (Miller said he estimated he fired 20-30 shots from the M-16) and other deputies, no bullets they actually fired were recovered from the wooded scene. Gourley said investigators searched for expended bullets, but none were found. He didn't know if any trees were checked for lead. No trees or branches were removed from the scene, he said, because none were logged into evidence.
Although this last point was not contested at the hearing, it certainly will be challenged when the case comes to trial. Several Round Valley residents reported within days after the shootings that investigators chain-sawed and removed trees from the scene, and this reporter has photographed the stump of one tree and a bullet crease in an adjoining one, both within a few feet of where the two bodies lay.
Tony Serra summed up the defense's position on the FBI tests in a hallway interview when he said that the tests showed only that "lead is consistent with lead." He said "consistent with" means only "could be," not a positive match. He said Gourley's statement that FBI tests showed that the lead from Davis' brain did not match Miller's ammunition is invalid because none of the ammo he fired was tested.
Taking and recording measurements took too long
witness was Sonoma County Detective Paul Lozada, who investigated the shooting scene and gathered dozens of shell casings and other evidence the day after the shootings. Lozada also told how he had searched the Lincoln homes. At Lucille Lincoln's home he found five live rounds of .223 ammunition, and an M-16 type magazine. At Bear Lincoln's home, he found 16 empty .223 casings outside, 23 more in a paper bag inside, as well as two .22 caliber rifles.
Lozada presented an enlarged diagram of the scene indicating the positions of the bodies, the locations where various groups of shell casings were found, the positions of the vehicles, and the shape of the intersection where the shootings happened. Lozada said the diagram was "not to scale," and Serra remarked when the diagram was shown at an earlier hearing that the diagram "defies scale."
In cross-examination Lozada said he had not measured the distances between any of the evidence and any fixed object on the ground, but only to movable objects such as vehicles which were later removed. Asked why, he said it was because he was ordered to stop taking tape measurements by the Mendocino Sheriff's sergeant in charge of the scene. It was beginning to snow and officers felt they might be in danger. Taking and recording measurements took too long. Officer safety was also given as the reason Sonoma County investigators left Mendocino County officers in charge of the scene for the first eight or nine hours after the shootings, until the next morning. (The purpose of turning the investigation of an officer-involved shooting over to a separate department is to try to assure impartiality and avoid the possibility or appearance of a cover-up by colleagues of the involved officer.)
"We walked right into an ambush"
prosecution then called John Boyd, senior criminalist with the Eureka office of the state Department of Justice. Boyd testified about tests on the M-16, both deputies' handguns, Peters' .30-.30 rifle, and the various shell casings found at the scene and at the Lincoln houses. He said he concluded that the bullet which killed Peters was fired by Davis' handgun. Peters' rifle had not fired, but a live round found several yards down the road had been cycled through the rifle, based on markings on the round.
Most importantly, Boyd said he found that of a group of 24 .223 caliber casings of 5 different brands found on and just off the road near the bodies, the M-16 fired by Miller had fired all of the casings of two brand names, and all the rest were fired by the same weapon which had fired all the empty casings found at Bear Lincoln's house.
The prosecution called Gladriel Mounce to the stand. She identified herself as Bear Lincoln's girlfriend for the past year, but said she had never lived with him. She said she did not know of Lincoln ever having a gun, and had never seen him with one. While in Mendocino County Jail in mid-April, she received a letter. Shown the letter, she said she could not say for sure if it was in Lincoln's handwriting. She said she had never told anyone she recognized the writing as Lincoln's. She was also shown a black felt hat found down the road from the shooting scene. She admitted it looked like one she had seen Lincoln wearing, but could not be sure it was the same one. There was no cross-examination.
The letter was received into evidence over defense objections that it was not proved to be from Lincoln. The importance of the letter is that it places Lincoln at the scene of the shootings, and behind Leonard Peters. In the letter Lincoln wrote: "Baby, I need to tell you that the police ambushed us and killed Acorn right in front of me. They would have killed me also, but they didn't see me, baby. They murdered Acorn right in front of me. They didn't turn on any lights or identify themselves, they ambushed us. We walked right into an ambush. We broke no laws."
Next the prosecution called Sonoma County Sheriff's Detective Leslie Comrack, who said she had interviewed Mounce in jail and took the letter from her. A tape of the interview has been reduced to writing. In it Mounce said she got the letter from Lincoln, and it was in his handwriting.
Comrack also said she had interviewed a Kathleen Green in Round Valley the morning of April 15. Green said she had seen Lincoln and Peters together the previous day, and Lincoln had a rifle.
"Bob is down"
called Detective Gourley back to the stand. He had with him a cassette recording of the sheriff's radio dispatches beginning with Miller's first call for aid and ending with another call from Miller saying Davis had been hit. The tape established that the time interval from when Peters was shot to when Davis was shot was about 4-1/2 minutes. After a brief cross-examination of Gourley by Serra, the prosecution evidence was complete.
Serra said he wanted to call Mendocino Sheriff's Sgt. Tom Allman to the witness stand because he was one of the first two reinforcements to reach the scene, he was told by Miller at the scene what had happened, and he furnished ammo for the M-16 to Miller. Over prosecution objection the judge ruled that Allman would be the first witness when the hearing began its final day.
When Allman took the stand he said he had been the incident commander of the investigation of the first shooting April 14 at Covelo High School in which Arylis Peters had killed Gene Britton. He was the immediate superior to Miller and Davis. Serra asked if Allman knew of the two deputies' plan to hide at the summit of Little Valley Road. He said he did not.
Citing a transcript of Allman's testimony before the Grand Jury, Serra said Allman had told how Davis came to him and told him he would go hide in a grove of trees at the intersection of Henderson Lane and Little Valley Road, and Allman had replied it was a good idea. That intersection is at the beginning of Little Valley Road, about 1/2 mile from the shooting scene at the summit. Pressing Allman, Serra said since he had approved their plan to hide at that location, wouldn't he infer that they would also hide when they moved up to the summit. Allman again said no. He admitted he had, as their superior, approved their plan to hide at the first location, and never revoked that permission, but did not know they had decided on their own to move to the top of the hill, therefore he did not know of any plan to hide at the top.
Turning to Allman's arrival at the scene of the shootings, Serra asked if their vehicle had its headlights on when it arrived. Allman said it did, because it was dark. Allman said he saw no one when he first arrived, but saw Miller and Davis' patrol car with its lights off and its doors open. Then he saw Leonard Peters' body lying in the road. He assumed it was Arylis Peters, the wanted suspect. When Serra asked why, he replied that he had complete trust in his deputies, and since that's who they were looking for he assumed that's who they had shot.
Then he heard Miller's voice yell, "He's in the bushes. Bob is down." Allman did not see Miller until after he and another deputy had dragged Davis' body to one of the patrol cars and he had radioed for more men. Allman said Miller said he was out of ammo for the M-16. Allman took him three more clips, and said he got them from Deputy Ellis and CHP officer Holmes.
Allman said Miller told him there had been two firefights, and he assumed Peters was hit in the first one, and Davis in the second one. Miller told him he had seen a second suspect down the road about the time Davis was hit, and Miller had fired at the suspect, and heard a grunt from that direction. The second suspect then left. Allman saw a hat about 50 ft. down the road from the intersection, and told another deputy to check it. Allman was the only witness called by the defense.
Miller said in this hearing and before that Peters fired his gun, not Lincoln
D. A. Williams gave the closing argument. He said when the deputies first saw Peters and ordered him to drop his gun, Deputy Miller had seen a muzzle flash that appeared to come from Peters' gun. But since tests show the gun was never fired, the shot must have been fired by the only other person up there that could have fired, Bear Lincoln. Lincoln fired at Davis, striking him in the hand. That's attempted murder. Davis returned fire, killing Peters. That's a murder attributable to Lincoln under the provocative act theory. The deputies took cover behind the patrol car. Lincoln could have run away, but chose to remain there and tried to circle around behind the deputies. Lincoln murdered Bob Davis as Davis checked the body of Peters. That's Count 1, first degree murder, and also the special allegations of murder of a peace officer, lying in wait, and using a gun in a murder. Deputy Miller is fired upon and can feel a sting on his leg from gravel thrown up by bullets striking near him. That's attempted murder of Miller and the 8th and 9th special allegations for using a gun.
Serra argued there was a plan, approved by Allman, giving Miller and Davis permission to hide. That permission was never revoked. We can assume their vehicle was placed so it would not be seen by people coming up the road, so we can infer that the deputies were not seen first by Peters and Lincoln.
Miller said in this hearing and before that Peters fired his gun, not Lincoln. Davis then fired, killing Peters. After that there was an exchange of gunfire. It has not been shown who fired, or by whose weapon, or by whose bullet Davis was killed. Bear Lincoln saw his friend killed in front of him without reason. If Lincoln fired after that, it would be either in the heat of passion or in self-defense. The evidence in this hearing does not support murder in the death of Deputy Davis. There is no sufficient evidence in the record that Miller said Bear Lincoln fired the first shot. He unequivocally said Peters fired first. Therefore Lincoln could not be guilty of the murder of Peters.
Prosecution alleges that there were two firefights. They allege the wound to Davis' hand happened in the first firefight, because if it happened in the second one then there is merger, and it is not a separate offense. But the evidence is that Davis did not have the hand wound at the end of that firefight. He examined his leg and abdomen with a flashlight after the firefight, not his hand. The hand wound could have been caused by the same bullet that struck him in the head, or could have happened after that. That disposes of the count of attempted murder of Davis.
The crucial element is an intent to take the victim by surprise
to the ex-felon in possession of a gun charge, there is no evidence that Bear Lincoln had exclusive occupancy and control of the household where the two guns were found. There is no showing that he was ever in the house at the time these events occurred. No one has said that he was aware of the guns in the house or had ever used them.
DeJong then argued the defense position on the Special Allegations. There is no clear line as to what constitutes lying in wait, but the crucial element is an intent to take the victim by surprise. The Morales case says that the concealment that is required is not of the attacker himself but of the attacker's purpose. The Cejas case says that surprise is the crucial element of lying in wait.
In this case the facts as presented by the prosecution tell you two men walking up the road turned and fired at two deputies hidden in the bushes. Assuming for the sake of argument that Lincoln fired first, he was not lying in wait but standing in the middle of the road. Maybe the prosecution theory is that the intent to surprise was formed later. How could the deputies be surprised after they knew someone brazenly fired at them to begin with. To catch by surprise means to catch the victim unaware of the need for defense.
Turning to the allegation of knowingly killing a peace officer, Peters and Lincoln walked up the road in the dark. They were then confronted by sound and darkness. Officers didn't turn on a flashing blue light or car lights, or in any way present themselves visibly as police. They then both opened fire on Peters, killing him. Lincoln would have thought he was facing hostile and lawless elements, not law enforcement officers. There has been no evidence presented that he knew he was dealing with law officers.
Acting Municipal Court Judge Vincent Lechowick threw out minor counts of carrying and discharging a firearm on a public street, saying he didn't find that Little Valley Road met the definition intended in the law. The judge held Lincoln to answer at trial for all the major counts and special allegations, ruling that the standard of proof had been met, and the task of judging the validity of evidence and the credibility of witnesses would be the duty of the trial jury.
Asked in the hallway if Bear Lincoln would take the witness stand at trial, DeJong replied, "Absolutely! Bear is Bear. You couldn't keep him off the stand."
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