By Cheyenne Galloway
MODESTO, CA – Stanislaus County Superior Court Judge Shawn Bessey dismissed charges of assault here this week—because he said the case lacked evidence of an assault—in front of Deputy District Attorney Thomas Peter Beko and Deputy Public Defender Ryan Michael Bowler.
The court heard testimony that on Aug. 26, around 12:55 in the morning, police observed a female exiting a residence, followed by the victim, who had a towel wrapped around the top of his head as he bled.
The officer was informed that a male was spotted on the side of the driveway with “a machete,” was scruffy and “wearing a burgundy or brown flannel shirt.” The machete was defined as three feet in length with a red handle.
The officer said the victim exposed the lacerations on each side of his head, and the prosecution showed exhibit number one, a picture of the victim’s wounds at the crime scene that portrayed roughly a three-inch laceration on the left side of the head and a four-inch laceration on the right.
Testimony from an officer said other officers had found the suspect “ lying down next to a vehicle with a machete.”
Another witness was shown two infield show-ups, said the officer, “One of which was of a different subject, and the witness at the time identified that subject as responsible; that same witness was conducting another follow-up with the defendant and then identified him as the responsible subject.”
DPD Bowler argued two people were positively identified as the alleged assailant in the crime, and there is no evidence about the assault itself.
“Basically, at this point, it’s a toss-up between these two possible people who have committed the crime. There is no indication whatsoever why this machete was found nearby at the arrest. There was no indication that my client was holding it or was nearby, that he was approaching it, or anything like that,” said Bowler.
“That machete could have been dropped from the other assailant, and we have two separate positive identifications of two different people; we are in a situation where we don’t know who exactly did this alleged crime,” added DPD Bowler.
With the two identifications, DPD Bowler contended it is difficult to discern who committed the crime, especially when there is no evidence pointing to the suspect other than the witness identifications contradicting one another.
Moreover, DPD Bowler asserted there is a discrepancy in the suspect’s description in the original 911 call…the person described was a white man but was later characterized as Hispanic during the officer’s investigation.
Bowler noted the accused is of Hispanic descent, so “[t]here are witness identification problems with this case, especially when we have a witness saying, ‘well it was this guy, and it was this guy.’”
DPD Bowler argued that the identity of who committed these alleged events is unknown because of the convoluted witness identifications. He also highlighted the victim’s wounds, “There is no indication whatsoever of the severity of the wounds; there are some cuts on the head.”
DDA Beko charged, “The victim identified the assailant as someone who was wearing a brown flannel shirt and described the machete as having a red handle. That is very specific and matches the description of what the defendant was wearing and the machete found near the defendant. The witness at the time identified the defendant as the assailant.”
“And regarding the injuries,” continued Beko, “It is evident that there are blows to the head; it is apparent that the laceration is pretty deep on the defendant’s head, and it is a machete, which in itself is an extremely dangerous weapon that was used on someone’s head.”
The prosecutor noted, “I believe the officer testified that the victim came outside and was attacked by the defendant outside of his residence.”
The judge asked, “So he [victim/witness] didn’t say specifically what the situation was, just that he was attacked?”
DDA Beko replied, “Yes sir, I believe nothing escalated. It was just a random attack outside of his home.”
However, this acknowledgment was not considered evidence by the judge to support the alleged charge of attack with a deadly weapon.
Judge Bessey concluded there were no facts presented to support assault, noting, “There are some inferences there, some assumptions the court would have to make, and there is no description of the assault whatsoever on the record.”
The judge said, “As far as the identification was concerned, I’m pretty satisfied that based on the description (of the victim)…and the fact that the defendant was wearing similar clothing and that he was found in close proximity in reference to the machete that was identified,” the accused was identified.
But the judge quickly added, “I do have a problem that the record is void of any description of the assault whatsoever.”
So, because of the lack of information on the assault, the court decided not to hold the accused to answer this charge, dismissing the case for now, adding, “Just so you know, Mr. Bowler, I doubt that the People will not be refiling to try to remedy the issue, but until that time, good luck.”
