by Christina D. and Jamie Moddelmog
On Tuesday, August 9, 2016, in Department 9, the jury trial for Donald Wayne Keeling commenced in front of Judge Janene Beronio. Keeling was charged with violations of Penal Code sections 273.5 (a), 273a (b), and 166 (c)(1). Before the jury was called in, Deputy District Attorney Kassie Cardullo and Defense Attorney James Bradford presented their arguments on admitting a May 12, 2015, 911 radio call as evidence. Because the caller is currently on the East Coast and isn’t available for giving testimony, the People wanted to submit a recording of the 911 radio call instead.
The defense argued that the recording violates hearsay and confrontation clauses, due to speculation and prejudicial content, and the lack of the presence of the witness. The caller could not see what was going on in her neighbor’s house, and only assumed that the victim was screaming because she was being hit by Keeling. Additionally, admitting the call recording as evidence violates the defendant’s right to a fair trial, since the caller won’t be present for cross-examination.
Cardullo responded that the recording would provide valuable insight because the caller was describing what she heard as events were happening. It was also the only evidence prior to the second incident, for which the police came out and initiated the case. Although some statements in the recorded call were determined to be speculative by Judge Beronio, she allowed for stipulation of an edited transcript of the call to be presented to the jury during the trial.
Domestic Abuse Trial of Deaf Defendant Begins
By Jamie Moddelmog
The trial of Donald Wayne Keeling began Tuesday afternoon with Judge Janene Beronio presiding. Mr. Keeling faces two charges of “Inflicting Injury on Cohabitant Resulting in Traumatic Condition,” one charge of child endangerment and another of violating court orders regarding a protective order. The trial had been delayed, originally supposed to begin in the morning, as the People’s attorney, Kassie Cardullo, and the defense attorney, James Bradford, argued to the court which evidence would be admissible.
When the afternoon session began, they were nearing the end of their discussions. Judge Beronio was deciding whether or not a 911 phone call placed by Mr. Keeling’s neighbor should be admitted as evidence. Mr. Bradford claimed that only the “essence” of it should be conveyed because the call contained a lot of hearsay. Ms. Cardullo argued for it to be read aloud by the judge in its entirety. Mr. Bradford claimed there were lots of unnecessary parts to the call that qualify as hearsay. Eventually the judge ruled that she would read the transcript of the call aloud.
With that cleared up, the jury was called in and the trial commenced.
People’s Opening statements
The People’s opening statements, made by Ms. Cardullo, began with the phrase: “violence is not love.” She claimed that not everything that happens inside the home is private and, in some cases, such as the case involving Mr. Keeling and his girlfriend, the law must step in. She described the defendant’s relationship with his girlfriend to the jury, saying it was “complicated” and that violent things happened. This trial would be focused around specifically two violent incidents, one on May 12, 2015, and the other on September 22, 2015.
Cardullo turned on a slideshow and showed the jurors a picture of the alleged victim, the defendant’s girlfriend, with a black eye.
She claimed that on May 12, 2015, Keeling struck his girlfriend in the face when he was angry, and, even further, admitted two days later that he had done so.
Cardullo showed another photo of a document containing typed questions and answers written by the defendant. She pointed out the question that asked, “Did you strike her [the victim] in an argument on 5/12?” and his answer was, “Yes.”
She said that, after the May 12 incident, a restraining order was issued forbidding him from going near his girlfriend, but yet, on September 22, 2015, he returned to try to recover some “male enhancement pills” that he had left in the girlfriend’s home. The girlfriend would not give them to him, and, in a state of anger as well as to get what he wanted, he choked her.
She then showed photos of the girlfriend’s neck and pointed out red marks on it. A juror claimed that he could not see any red marks on the photos, and Ms. Cardullo assured him that they were there. She also showed photos of the male enhancement pills Keeling had come for, as well as a window that he broke during the incident. The girlfriend’s seven-year-old son was the one who called the police. Ms. Cardullo played the 911 recording of a child’s voice telling the operator that his stepfather went up and started “like choking” his mom. Officers responded to the home and Mr. Keeling was arrested. Ms. Cardullo claimed that the evidence would eventually show that, on several occasions, Mr. Keeling had abused his girlfriend.
Defense Opening Statements
Defense Attorney James Bradford provided a very different narrative on the events. He began with the September 22 incident that Ms. Cardullo had described as the defendant trying to take back the pills and using violence to do so. He claimed that the alleged victim had found the pills and gotten angry, because she believed them to be evidence that her boyfriend, the defendant, was cheating on her. That led to a huge argument in which he attempted to get the pills back, by coming at her from behind, putting his arms around her and trying to pry the pills out of her hand. He claimed that her seven-year-old son might have seen this happen and mistaken it for choking, when in reality it was just Keeling trying to get his male enhancement pills back. He also claimed that Mr. Keeling in no way intended to hit his girlfriend in the face on May 12, the earlier incident. It was at that point that the transcript of that 911 call was read, in which a neighbor described “hearing something hit the wall,” “yelling for three or four hours,” and “what sounds like screaming.” He said that the evidence would clearly show that Mr. Keeling did not actually slap his girlfriend on May 12, 2015, and he did not choke her on September 22.
Officer Erik Thruelsen Testimony
The People called Officer Erik Thruelsen, a 22-year veteran of the West Sacramento PD. He has received extensive training on domestic violence and has also taught courses on domestic violence. He said he receives two to five domestic violence calls a day. Ms. Cardullo asked him to explain what the cycle of violence is.
He broke it up into three phases: 1)Tension building phase; 2)Explosion phase (violent outburst); and 3)Honeymoon phase (abuser apologizes to victim and makes promises that they will never do it again). He explained that the phases get shorter and shorter in duration the longer the cycle goes on, leading to more violent outbursts.
Officer Thruelsen stated that he was dispatched to the residence of the defendant’s girlfriend on May 12, 2015, because of a neighbor’s report of possible domestic violence. When he got there he saw that the alleged victim was deaf and could not speak to him but was excitedly trying to explain to him that he was not needed there. He said that he noticed that she had a black eye. He asked her if her boyfriend, Mr. Keeling, who was also inside the apartment, had hit her and she said yes. This led to the arrest of Mr. Keeling, who is also deaf.
Once Mr. Keeling was at the police station, the officer wrote out questions for Mr. Keeling to answer on a sheet of paper and saw him fill it out. He saw him admit to hitting his girlfriend by writing yes when he was asked that question. He left a question at the end, asking if he had anything to add, to which he wrote, “No.”
Mr. Bradford started his cross-examination by trying to discern how Officer Thruelsen obtained any information from the alleged victim, as she is deaf. He stated that he used her son as an interpreter, because the boy knew sign language and English. Mr. Bradford asked if it was department protocol to use a seven-year-old child as a translator or interpreter. Officer Thruelsen said it was common practice. He admitted, though, that the May 12 incident was his first experience of domestic violence with deaf people. Although he got a statement from the alleged victim, a statement was never taken from the defendant.
Mr. Bradford turned it over to the People once again, and Ms. Cardullo questioned why the officer did not take a statement from the defendant. He said it was because he did not want to further involve the child by using him as an interpreter for both parties and wanted to use him as little as possible. He also said he believed the statement he had already obtained was sufficient to make an arrest.
In his final line of questioning, Mr. Bradford asked the officer what he was at the scene to do. He answered that he was there to investigate and admitted that usually, in an investigation, the investigator talks to all parties involved and he did not. He said he made a judgment call for the “health and emotional welfare” of the young child. When asked, he said he did not deem it necessary to get an American Sign Language (ASL) translator or interpreter to the scene.
Officer Andrew Ha Testimony
The next witness called by the people was Officer Andrew Ha, who was dispatched to the same apartment on September 22, 2015, when a child called about his mother being choked. When he arrived, he claimed the alleged victim had a worried look on her face. He could not arrest the defendant then because he had left the premises.
He said that he observed a broken window and red marks on the woman’s neck. Seeing that the apparent victim was deaf, he took a written statement from her on a notepad. She told him that she and her boyfriend were fighting over some male enhancement pills, and she showed him the package with the medication in it. He took photos of the medication as well as areas of the neck where he saw red marks. He said there were no other injuries on her and she was not having any trouble breathing. He also observed the child in the home and claimed the boy did not seem distressed at all.
Officer Jerry Watson Testimony
The third and final witness of the day was Officer Jerry Watson, Officer Ha’s partner, who responded to the apartment with him on September 22. He testified that he interviewed the son of the alleged victim, stating that the kid was bouncing all around and very energetic. When asked whether he considered using the child as an interpreter, he said that he would normally try to stay away from doing that. He believed the kid understood all of his questions and he purposely tried to keep them simple. He also noted that there were other deaf people besides the alleged victim in the apartment, but he did not take statements from them.
Domestic Violence Case between Deaf Persons Resumes
By Christina D.
After witness testimonies from three police officers on August 9, 2016, the jury trial reconvened on August 10, 2016, in Department 9 in front of Judge Janene Beronio. Two more American Sign Language (ASL) interpreters were brought in to interpret for Witness 4, in addition to the two already interpreting for the deaf defendant (Donald Keeling). Witness 4 was the alleged victim and the defendant’s deaf girlfriend of two years, herein referred to as “SA.”
Before bringing in the jury, the court instructed SA to avoid any mention of child protective services (CPS) for her son, of Keeling’s past felony conviction, and of his other criminal history. Then, with the jury assembled, Deputy DA Kassie Cardullo called SA to the stand.
SA testified that neither she nor Keeling held jobs, but that she was paid under the table to help with various tasks for her apartment. She also mentioned very briefly in passing that Keeling had a hard time with employment due to his past felony conviction. As she already had for several days, on May 12, 2105, SA repetitively asked Keeling about getting a job. They started arguing outside, then moved into their bathroom, where Keeling ended the argument by striking SA with an open palm and giving her a black eye.
After the slap, SA left Keeling and her apartment to talk to her manager, and found that the police had arrived when she returned. Her neighbor had heard shouting and called the police. Officers only asked SA whether she needed an ambulance and about the whereabouts of Keeling before leaving. When SA and Keeling argued again on May 14, 2015, Keeling threw a glass, which shattered on the rocks they had outside. The same neighbor called the police again, and Keeling was arrested.
During cross-examination, SA testified that only two questions were given to her, in written form, but the neighbor, who didn’t live in the same apartment and had reported the incident, talked to the officers for a long time. Since SA is deaf, she didn’t know and couldn’t confirm what the neighbor told the police.
SA testified that on May 14, 2015, when the police arrived they asked SA if her black eye was from May 12, since they couldn’t see two days earlier when her eye was covered up by her sunglasses. Although SA asked for an ASL interpreter because she couldn’t properly communicate to the officers everything that happened, none was provided. SA’s seven-year-old son, who can speak and hear normally, was asked to interpret instead, and was questioned. SA also wrote a written statement on the incident for the police.
On September 22, 2015, SA woke up in the morning to find her son late for school and Keeling nowhere to be found in the apartment. When SA eventually found Keeling sleeping outside in his truck, she disbelieved his explanation that he had gone out for a smoke and fell asleep. Both went into the house, where they argued and SA ordered Keeling out of the house.
Keeling grabbed a hat, out of which fell erectile dysfunction pills. Although Keeling signed in ASL that the pills were a surprise for her, SA testified that she thought it was suspicious and that he was seeing other women. She said she snatched up the pills, and, in an attempt to retrieve them from her, Keeling wrapped his arms around her from behind. SA’s son saw the struggle and called 911 because he thought Keeling was choking her. When the police came, they noted a window that was broken by keys being thrown through it, and laughed about the pills, which they helped SA retrieve from where she had thrown them behind her dresser.
At this point, SA mentioned that the police dropped by her apartment again in the afternoon, and told her she could not pick up her son. The prosecution cut SA off before she could continue describing the afternoon’s events, and reminded SA to focus only on the morning’s struggle.
SA recognized photographs of her neck, and the red marks on it. When asked, she testified that she did and still does love Keeling, but hesitated before answering that she does not know whether the social worker would allow her to continue being his girlfriend.
During recess for the jury, Attorney James Bradford objected to SA’s testimonial references to Keeling’s criminal history and the involvement of CPS. Bradford motioned for mistrial, but it was denied. The witness was brought in and again admonished not to say anything about CPS or Keeling’s past criminal record, or that her son was not staying with her.
The jury was brought back in, and Bradford began cross-examination of SA. For the May 12, 2015, incident, SA testified that her argument with Keeling, up until they entered the bathroom, was all sign language and verbalized sounds. She could feel the vibrations and saw that Keeling was being loud, and wanted him to keep it down.
SA testified that, in the small (less than 10ft by 10ft) bathroom, she and Keeling stood face to face. They were still signing and arguing, standing at less than two feet apart, and he was fed up with her repeatedly asking him to get a job. SA again brought up Keeling’s past felony conviction.
Although she testified that Keeling left with no apology after slapping her, she couldn’t recall that she told Bradford and his investigator that Keeling did apologize over and over again.
For the September 22, 2015, incident, SA testified that they were in the bedroom when she repeatedly told Keeling to take his clothes with him and leave. While arguing, Keeling threw his keys, which flew into the window and broke it. Instead of his clothes, Keeling reached for his hat, and the pills fell out. She was suspicious because he typically didn’t hide male enhancement pills from her, and they usually bought them together. But SA picked up the pills and headed into the living room. Her roommates were in the kitchen, and her son was in the doorway to the apartment.
SA hunched over a chair with the pills in the living room, and Keeling wrapped his arms around her when SA’s son saw the situation. Keeling didn’t throw SA to the ground, but left right away. SA only learned later on that her son had called 911. When the police came, they spoke to SA’s son first. SA asked for an interpreter right away, but the police had her son interpret instead. SA testified to concerns that her son may have misinterpreted, with his limited ASL signing abilities and considering his young age.
Additionally, SA testified that her son often told people things that didn’t happen, and liked to exaggerate and add to his stories. When SA would ask the boy why he would do that, he told her he didn’t like Keeling because he hurt her.
The jury was then excused before SA continued. Even though she can’t hear what her son says, she knows he has been untruthful, and gave examples of when other people brought to her attention instances her son said something she knew was not true.
On the train, SA’s son told people she killed her daughter, when in fact the baby had died in her sleep due to sudden infant death syndrome (SIDS). Her son also told people he had four brothers and four sisters, when he only has three brothers and two sisters, one of which was the one who passed away. Additionally, SA’s neighbor informed her that the boy said Keeling had forced him to do something relating to sex and playing with boys. However, SA attributed her son’s statements to his dislike of Keeling, and to talking with older neighborhood boys. When asked by DDA Cardullo, SA testified that she tried to explain SIDS to her son, but that he still did not understand. She was also a single mother for six years before meeting Keeling, and thought that her son could just be jealous.
The jury returned, and SA confirmed that she told the truth about the incidents as she remembered them, finishing her testimony.
Eight-year-old’s Testimony Leads to Mistrial Request in Domestic Abuse Case
By Jamie Moddelmog
The prosecution’s second witness of the day was ZH. ZH is the now eight-year old son of the alleged victim, and the one who placed the 911 call on September 22, 2015. Before he was put on the stand, the judge advised counsel to choose their words very carefully when questioning ZH, because of the several topics that the jury is prohibited from hearing. Judge Beronio said that it would be difficult to give admonitions to someone that young and expect him to monitor his own testimony, telling them they should be extremely cautious in their questioning so as not to lead ZH into an answer that may reveal inadmissible information.
ZH arrived inside Department 9 before the jury returned from their break, so that the court could determine whether he knew the difference between the truth and a lie.
He came into the court room with a “comfort dog,” a labradoodle named Aloha that he was allowed to lead around the room. He also had a “support person,” who was his social worker. ZH said he wanted Aloha with him when he testified. The judge agreed that the dog was good to have for all parties and she wanted the jury to see him with it, saying the dog was almost “more important than the person.”
When testing ZH’s knowledge of lies, prosecutor Kassie Cardullo first asked ZH if he knew what a lie was. He replied, “Yes.” Then she asked, if she were to say her hair was bright purple, whether that would be a true statement or a lie. He replied, “Lie!” He answered similar subsequent questions correctly, as well. Once it was decided that he could discern truth from lie, he was able to take the stand.
When he came back to the courtroom later on, there was an attempt to swear him in, standing directly in front of the jury, but Aloha pulled him away, not allowing him to stand still or raise his right hand. He was eventually sworn in, in the witness stand. When asked to raise his right hand, he accidentally raised his left hand. When asked if he would tell the “truth, the full truth and nothing but the truth,” he charmed the jury by asking, “What does that mean?”
Both the prosecution and defense said that they wouldn’t take too much time questioning ZH, and they meant it. Ms. Cardullo questioned ZH for less than five minutes, first asking him if he liked his teachers, what his hobbies were and if he liked his lunch. He said he liked his teachers, he plays basketball and he had two burritos and a strawberry freeze at Taco Bell during lunch.
She then questioned him about the incident on September 22, when he called the police, asking if he remembered that. He said he did. She asked what he saw the defendant, Don Keeling, do on that day. ZH said that Don had broken a window on that day. She then asked ZH, “And what else did he do?” ZH said that Keeling had grabbed his mom’s wrist. Ms. Cardullo tried to clarify that the wrist grabbing had happened on September 22, 2015. ZH said that it was not on that date, it was “in Indiana.” The defense attorney, James Bradford, objected, and Ms. Cardullo moved on to a new question.
He said he called 911 because he didn’t want to get hurt. He said he didn’t remember it that well. When he was asked if he was scared to talk about it, he nodded a “yes,” and Ms. Cardullo ended her line of questioning.
Then Mr. Bradford began his cross-examination of ZH, also starting out with some ice breakers, asking ZH about his birthday. ZH said he got a drum and his favorite artist was Lecrae, who wrote his favorite song, “All I need is you.”
After that, Bradford asked whether ZH could remember as far back as September 22 at all. He said that he couldn’t, and with that the defense had no further questions. Both attorneys wanted to question ZH as little as possible. ZH was subsequently dismissed and he, his social worker and Aloha went on their way out the door. He and the defendant made eye contact as ZH walked past, giving each other a gesture in sign language.
Soon after ZH had the left room the jury was ordered out. Mr. Bradford objected to the prosecution’s broad questions that led to ZH revealing inadmissible information about other possibly abusive incidents. He claimed that the comment made by ZH about the defendant grabbing his mom’s wrists “in Indiana” was extremely prejudicial and would make the jury see Mr. Keeling as an abuser. He said that it could be stricken but it would still inevitably influence the jurors. Once again, he asked for a mistrial.
He claimed the question “and what else did he (Mr. Keeling) do?” – the question that led to ZH talking about the inadmissible information – was too broad because it did not specify the date Cardullo was talking about. He stressed that she did not narrow it down enough.
Ms. Cardullo stated that her line of questioning was not broad at all. She said that she could not have been more specific than she was about that date. She asked if he remembered the day he called 911 and then specifically asked what happened on that day. When she asked “what else happened” after that, she believed it could very reasonably be assumed that she meant “during the same day we have been discussing.”
Mr. Bradford said that, although they may be able to know that, she should not have assumed an eight-year-old would know what she meant.
Ms. Cardullo said, “I’m sorry that ZH has witnessed multiple clear instances of abuse.” Mr. Bradford strongly objected to her statement, leading Cardullo to agitatedly snap, “I’m talking!”
After the somewhat heated arguments, Judge Beronio found that the statement was not grounds for a mistrial and that Ms. Cardullo had done the best that she could have in her questioning.
