Defendant in 2012 murder found mentally unfit for trial

A man charged with shooting a Berkeley man to death in 2012, and later getting into a shootout with Berkeley Police officers, has been deemed mentally incompetent to stand trial at this time by a Superior Court judge in Oakland, according to court documents.

Calvester Houston Stewart, 20, of Berkeley was arrested in April 2012 after he reportedly exchanged gunfire with police following a routine traffic stop in West Berkeley. Police said Stewart opened fire on multiple officers after he ran into a Delaware Street apartment building when police tried to stop him. Stewart was shot multiple times during the incident.

The crime scene at Sacramento and Oregon streets where Devin Lee Whitmire was killed in March 2012. Photo: A citizen reporter

In May 2012, the Alameda County district attorney’s office charged Stewart with five counts of attempted murder of a peace officer. At the same time, he also was charged with murder in the shooting death of Devin Lee Whitmire in late March 2012, and possession of a firearm by a felon. He entered a not guilty plea in July.

Last Friday, Feb. 22, Judge Carrie Panetta ruled that criminal proceedings should be suspended because Stewart is not competent to stand trial. Panetta based her ruling on the reports of two psychiatrists. Stewart remains in custody without bail but was not in attendance, according to the Alameda County district attorney’s office.

Panetta said earlier this month that Stewart had declined to speak with the doctors who were ordered to evaluate his competency.

According to several court documents filed since his arrest, Stewart has been “completely unresponsive” or uncooperative with mental health providers. Wrote one therapist in December, “He just said ‘Yah,’ after multiple attempts to engage.” She noted that he did not appear to be a danger to himself or others while in detention. Another document filed that same month described Stewart as “non-responsive; muttering, stares into space; knows his attorney by first name but not as his attorney…” During one evaluation, he reportedly stared at the wall. In another, he sat shivering and mumbling. “Not tracking at all,” wrote the provider.

Also in December, Judge Panetta ruled that Stewart be allowed access to an MP3 player so he can “listen to digital audio recordings related to his case,” according to court documents.

Panetta directed Stewart to be evaluated under the Conditional Release Program for an examination and recommendation for placement, according to court documents. A hearing on the outcome of that evaluation is set for March 15.

According to a document filed by police at the time of his arrest, a witness identified Stewart as having approached 24-year-old Devin Lee Whitmire the night of his death: “The witness observed Calvester Stewart pull out a handgun. As the victim ran, Calvester Stewart chased the victim. Multiple rounds were purposely fired at the victim, killing him.” When police later arrested Stewart, police said they recovered a Ruger handgun in his possession that later was confirmed to be the weapon used in Whitmire’s murder.

According to court documents, Stewart’s “rap sheet” is nine pages long. In 2011, he was convicted of possession of an assault weapon, according to the Alameda County district attorney’s office. He received a sentence of probation.

Psych review delayed for man charged in murder [02.06.13]
Man accused of murder released after witness speaks up [06.09.12]
Man in police shootout charged with Berkeley murder [05.08.12]
Berkeley police identify suspect who was shot [04.23.12]
Berkeley police exchange gunfire with fleeing suspect [04.14.12]
Berkeley victim’s brother fought suspect after the killing [04.04.12]
Reward offered to help find suspects in Berkeley homicide [04.03.12]
Police identify victim and suspect in Thursday slaying [04.01.12]
Sacramento Street shooting victim dies, arrest made [03.30.12]
Shooting on Sacramento and Oregon, victim wounded [03.29.12]

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  • PragmaticProgressive

    Are the psychiatrists forensic psychiatrists? Could this guy be malingering? Seems he was tracking pretty well when he was shooting a man to death, driving a getaway car, and exchanging gunfire with the police.

  • Belly Up

    Seems like you’ve already convicted the guy of what he’s been charged with, what are you basing your opinion on, what you’ve read in the press? C’mon, a ‘pragmatic progressive’ would at least do some research ;)

  • PragmaticProgressive

    What exactly do you propose to “research” ? Do you have some basis to cast doubt on the facts in evidence? Because that’s what I’ve enumerated: the facts. Someone who is “not tracking” would not be capable of performing the actions this guy was witnessed performing. Did he sustain a traumatic brain injury in the firefight?

  • Belly Up

    I was referring to “when he was shooting a man to death, driving a getaway car…” and so on. Those are not facts, they’re suppositions based upon charges not yet proven…or am I not tracking? ;)

  • PragmaticProgressive

    Technically you are correct: he, a previously convicted felon with a long rap sheet, is alleged to have shot the man and allegedly fired at police who then found the gun that killed Whitmire in his possession.

    Is it your contention that he wasn’t driving the car either?

    You’ll be a defense attorney’s dream juror.

  • Belly Up

    I’m not contending (if that’s a word) that he did or didn’t do anything, I just get tired of obviously intelligent people quoting what they’ve read in the media as fact or truth; we’ve become lazy in our consumption of news, it’s all delivered in tidy little sound bites, or “he said/she said” and we assume that it’s true and build on it from there!

    Here’s an example: I don’t know if this kid did or didn’t do what he’s being charged with, but I’ve been following the case and do know that the pre-trial hearing judge tossed the BPD’s ‘criminalist’ (forensic firearms) expert witness’s entire testimony…so the gun that’s characterized as being the same in both crimes doesn’t seem to have been proven even to that degree but every article you find mentioning the weapon says it’s the same one…so what’s the truth?

  • PragmaticProgressive

    That’s certainly interesting. Do you have a link about the forensics being tossed? I bet Emilie would dig into it and correct the record if so.

  • Belly Up

    No link, sorry…but if the preliminary hearing transcript is public record, then she could find it there…

  • John Holland

    Glad to see this ruling. After Sandy Hook, it was refreshing to see advocates of unrestricted shooting point out how mental health is the real culprit with regards to gun violence.

    What kind of person in their right mind would open fire on police officers?

    I agree with the NRA, these people aren’t criminals; they’re sick and need mental health assistance.

    Personally, I think we need more gun safety, but at least both left and right agree on mental health.

  • emraguso

    I did review the file but for the most part this level of detail is lacking. I would love to review a transcript but I think it’s the kind of thing you can only see if you buy. I’ll look into it though.

  • Name

    You’re full of it.

  • Belly Up

    Would you care to be more specific? If you’re saying I’m full of enjoyment when advocating we use our brains and seek the actual truth, well, yes, I am!

  • Belly Up

    Great, glad to hear it.

  • Che Joubert

    I’m glad to see there’s a basic sense of decency in this blog, and grateful to people like John Holland for reiterating that. I sometimes wonder if people like ‘PragmaticProgressive’ remarks sarcastically that a blogger would be a ‘defense attorney’s dream juror’ as if defending oneself in court were a crime in and of itself. Btw, It’s not at all uncommon for listless, inattentive and disoriented mentally sick people to suddenly rally and attack someone, due to extreme paranoia. If this were the middle ages and there were no hospitals at all, societies would probably either drive that person out of town, or kill him. Happily there are now alternatives, and I hope ‘PragmaticProgressive’ would not deplore that too.

  • Name

    Full of crap. Making things up. Concern trolling.

  • PragmaticProgressive

    While I’m often guilty of being sarcastic, that wasn’t an instance of same. With as many witnesses as there were, a juror would indeed have to be extraordinarily cynical about the testimony of sworn officers and forensic experts. I don’t think it’s sarcastic to say that such a juror would delight a defense attorney.

    Psychiatry and the law have a troubled past, as is not news to anyone who remembers the whole “recovered memory” sham that ruined lives a few years back. Malingering to beat a prison rap is also not uncommon – remember the mafia don in his bathrobe? With a nine page rap sheet, o you think he might have me some guys with insight into how to act for the psych eval?

    The actions of this person up to the arrest do not suggest listless and disoriented to me. Obtaining a firearm as a convicted felon isn’t something one rallies to do in response to an imminent threat. It requires advance planning and thought.

  • emraguso

    I believe so. They are called “alienists” technically, “A psychiatrist who assesses the competence of a defendant in a court of law.”

  • PragmaticProgressive

    That’s an antiquated term. Forensic psychiatry is a sub specialty with fellowship training and board certification. Anyone in the 30s could call themself an alienist, but in 2013 only a board certified forensic psychiatrist can claim to be a forensic psychiatrist. See for example.

    Malingering seems very possible in this case.

  • emraguso

    Hm — it may be antiquated but it’s still the term used by the courts in Alameda County. I hadn’t heard it before this. I have the names of the docs so I will see if I can find out more next time I have a chance.

  • Belly Up

    Thanks for introducing me to the term ‘concern trolling,’ I hadn’t heard of it before…but wouldn’t you have to know me and my true position before knowing if, according to Wikipedia, my “actual point of view is opposed to the one that [I, as] the user claims to hold”?

    I also enjoyed learning their definition of a troll: “someone who posts inflammatory,[1] extraneous, or off-topic messages…with the primary intent of provoking readers into an emotional response”

    Too bad we’re not playing poker, I could call your concern and raise you a troll ;)