Jury deliberations begin in 2010 Berkeley murder case

Gary Ferguson Jr. Photo: Ferguson family
Gary Ferguson Jr. was killed in 2010 when two gunmen attacked him and a friend. Photo: Ferguson family

Jury deliberations began Wednesday afternoon in the trial of 26-year-old Brandon Wallace, who has been charged in the murder and attempted murder of two men in 2010 on a sunny morning outside a South Berkeley barbershop.

Wallace’s trial began Monday, March 7, not long after a codefendant in the case — 26-year-old Coleon Carroll — pleaded guilty to manslaughter. Authorities say Wallace and another man who has not been publicly identified opened fire at point-blank range on lifelong friends Gary Ferguson Jr. and Larry Belle as they stood talking and joking on a Sacramento Street sidewalk on Oct. 26, 2010, near the shop where Belle worked cutting hair. Ferguson, 35, died within the hour, and Belle spent more than a month in the hospital after the two assailants unleashed a hail of bullets on the pair. Authorities found more than 20 casings from two different guns at the scene.

“They pumped those bullets into those bodies even as they lay on top of each other,” Alameda County Deputy District Attorney Matt Wendt told the jury during closing arguments Wednesday morning. He described the killing as both “coldblooded and calculated” while playing the jury surveillance footage he said clearly showed Wallace opening fire then fleeing the crime scene, limping because he had been shot accidentally by his “little partner” during the brazen attack.

Deputy Public Defender Bonnie Narby urged the jury to find her client innocent of the charges against him, and painted a picture of investigators who got caught up in an “obsession to win at all costs.” She said police did not do enough to track down evidence — in the form of BART surveillance footage or witness statements — that might have proven her client to have been elsewhere during the shooting. They suffered from “tunnel vision,” she argued, when they learned that someone had come into a hospital seeking medical care for an injury consistent with one they believed they saw on surveillance footage of the crime.


“It was good police work that allowed Brandon to be developed as a suspect,” she said. He fit the general description of one of the shooters, had a similar gunshot wound and similar purple shoes, and was a black male with long dreadlocks. “But all that neutrality, all that organized fact finding, once Brandon was developed as a suspect there was a rush to judgment.”

Since opening arguments 10 days ago before Alameda County Superior Court Judge Jon Rolefson at the René C. Davidson Courthouse in Oakland, the jury has heard testimony for the prosecution from an eyewitness to the immediate aftermath of the shooting who tearfully and with trepidation identified Wallace from the stand; the survivor of the shooting; and a man making his morning coffee who saw the suspects speed off in the getaway vehicle. He could not identify the individuals but had a clear view of the car, he said: a silver PT cruiser.

Jurors also heard from a woman who begrudgingly — under threat of arrest and while insisting she was on the verge of mental collapse due in part to a cocktail of antipsychotic drugs — said Wallace and Carroll were using her silver PT Cruiser the day of the crime.

Two veteran Berkeley police sergeants described elements of the investigation, while witnesses explained the DNA evidence, the way GPS tracking works, and the reliability and mechanics of the ShotSpotter gunshot detection system.

Defendant testified this week to explain blood evidence, gunshot wound

Police examine bloody clothing left on ground after the 2010 shooting. Photo: Frances Dinkelspiel
Police examine bloody clothing left on the ground after the 2010 shooting of two men. Photo: Frances Dinkelspiel

Wallace himself took the stand Monday to explain in his own words how his blood ended up in the PT Cruiser and to outline his alibi the morning of the shooting. He had been attending community college at the time, and was in the midst of football tryouts. That day, he said, he woke up at his family home in Pittsburg, gave his brother some cash, then took a bus and BART to meet up in Richmond with a girl he’d recently met. He was 21.

He said the bus ride to BART took about 30 minutes, and the BART ride then took 45 minutes to an hour. He could not recall whether he’d had to transfer. (There are no direct trains between Pittsburg and Richmond stations.)

After exiting BART, he testified, he went to the corner where the girl had told him she would pick him up. It was there where a man asked him for change for a $20. The man then pulled out a gun and tried to rob him. As Wallace ran from the corner, the man fired several shots at him, one of which went into his left thigh. He said he flagged down a van and some men took him to Kaiser Richmond for treatment.


Throughout his testimony, which lasted from about 9:50 a.m. Monday until nearly noon, Wallace was calm and collected on the stand. He could not, however, describe any of the surroundings of the area where he was shot. He said he was not familiar with the neighborhood: “I just remember cars going by in both directions.”

He told the jury he did recall bumping into a car parked on a side street as he tried to flee, but said he was “running and ducking” not “looking at houses.” Wallace said he had used his BART ticket to exit the station, but no longer had it when police later spoke with him in the hospital: “I might have dropped it when I was running,” he told the jury.

Wallace could not explain why he never called back or met up with the girl he said was coming to get him, or why he didn’t demand that police speak with her, though she lived just 6 minutes away. He acknowledged using a friend’s ID card to mask his identity at the hospital and with police, and did not volunteer to police that he knew Carroll when they showed him Carroll’s photo. He acknowledged, too, that he’s known by his “rap name” of “Stickup.”

Authorities identified Carroll and Wallace, during court proceedings in 2012, as “part of a gang in Berkeley called the Waterfront gang.” Photo: Coleon Carroll/FB
Authorities identified Carroll (above) and Wallace, during court proceedings in 2012, as “part of a gang in Berkeley called the Waterfront gang.” Photo: Coleon Carroll/FB

On the stand, Wallace said he met Carroll when they were both detained as juveniles in 2008. Wallace was serving time after entering a no contest plea for robbery. They struck up a friendship and reconnected after they were released. Wallace told the jury they would hang out “a lot,” going to clubs and hooking up with girls. One night, three weeks before the shooting, he said they went to a San Francisco club called Impala and ended up having a confrontation with someone. He said his nose was “busted” and his lip was cut during the incident.

“That’s the only thing I could recall [why] my blood would be in that car,” Wallace said Monday.

In his closing argument, Wendt called Wallace’s testimony “ridiculous” and told the jury, “The defendant’s story is corroborated nowhere.”


Narby called no one to testify on Wallace’s behalf, said Wendt. Not the girl Wallace was allegedly planning to meet, not Wallace’s brother who supposedly saw him the morning of the shooting at their Pittsburg home. That could have contradicted evidence Wendt presented that Wallace and Carroll were together with the PT Cruiser in Corte Madera, as Carroll’s former girlfriend testified. Narby called no one to corroborate Wallace’s story of the fight at the club that might have left his blood in the getaway car, though Wallace said he told many people about it.

“None of them testified,” Wendt said. “Why’s that? Because it wasn’t true.”

Wendt did note that Narby was not obligated under the law to present any of that evidence, because the prosecution bears the burden to prove its case beyond a reasonable doubt. But he asked the jury to consider Narby’s failure to “dig deep and produce some evidence” as it began its deliberations.

In addition, the ShotSpotter system in Richmond detected no gunshots in the area where Wallace said he ran from the robber who shot at, and hit, him near BART, company rep Paul Greene testified last week. Greene acknowledged during cross-examination by Narby that the system doesn’t always register gunfire, but said false positives — picking up and reporting sounds that turn out to be something else — are more common than false negatives, or missing gunfire-like sounds altogether, particularly when there are repeated shots, as Wallace described.

Both attorneys at times Wednesday wondered at unanswered questions in the other’s case and tried to urge the jury to find meaning in the absence of the information. Why had police failed to investigate Wallace’s alibi, asked Narby, to rule out all the possibilities? Why had Wallace failed to insist police talk with the girl he was supposed to meet, asked Wendt, noting that doubt could be cast in both directions.

Yellow tags marked the location of evidence at the 2010 shooting scene. Photo: Frances Dinkelspiel
Yellow tags marked the location of evidence at the 2010 shooting scene. Photo: Frances Dinkelspiel

Police have said Wallace and his sidekick gunned down Ferguson and Belle, then ran off to the waiting PT Cruiser driven by Carroll that pulled up about a block away.

As they ran, a woman working in a nearby laundromat said she came close to the window after hearing the gunshots. She thought at first it was a washing machine malfunction, but a customer told her to duck and identified the sound as gunfire. Instead, she froze, and got a straight-on look at Wallace as he ran past her with a gun, she said. Seeing the gun, she felt like she had to throw up. She got hot and dizzy.

In court, she had to overcome tremors, tears and apparent terror to point out Wallace and verbally identify him as the man she had seen running past her back in 2010. Authorities previously identified Carroll and Wallace, during court proceedings in 2012, as “part of a gang in Berkeley called the Waterfront gang” said to be responsible for many violent crimes. The alleged gang connection did not come up during this month’s trial.

After the shooters had passed, the woman quickly went outside and saw men she knew as “Gary and Larry” on the ground in a pool of blood. Police had not yet arrived. She said, testifying through a Spanish translator, she felt confused and had to sit down on a bench. Later, police showed her a photo line-up and asked her to see if any of the men pictured matched the one she saw running. She circled Wallace’s picture.

Narby asked the jury Wednesday to consider that the line-up may have been suggestive due to the photo selection and, in particular, the hairstyles of those included. She said the shooters had run by the laundromat “very quickly,” according to the woman’s testimony, and that she had only been able to describe the gunman’s skin color (black) and hair (long braids) before picking him out of the line-up. Narby noted that the video of the suspects running, “even slowed down it’s only maybe 2-3 seconds,” and asked how clearly the woman could have seen them go by, particularly due to the high emotion running through her in the moment.

DNA expert: DNA from Wallace, getaway vehicle bloodstain a match to 1 in 2 sextillion people

Wallace told the jury injuries to his face caused a bloodstain on the front passenger seat of the PT Cruiser several weeks before the killing. But prosecutor Wendt said the stain matched the size and location of the left thigh injury one of the shooters received as his companion jumped around and accidentally struck him with a bullet. The yellow foam seat, with its upholstery removed, has been wrapped in plastic for preservation, and was on display in the courtroom at various times over the past week and a half.

In photos of the seat while its gray cover was still on, there seemed to be a large stain of unknown origin that appeared as if someone may have tried to clean it. On the yellow foam seat now preserved, there remains a much smaller circle of blood, perhaps even smaller than the circumference of a quarter. (The size was difficult to gauge from across the courtroom.)

DNA expert Casseday Baker testified last week that a blood sample taken from that seat cushion matched Wallace’s profile.

“Brandon Wallace is the source of the bloodstain,” Baker said. He said he was certain because of the rarity of the DNA sample: 1 in 2 sextillion people would have it. That’s 21 zeroes. With 7 billion people on earth, he added, it had not been a tough conclusion to reach.

On cross-examination, Narby asked Baker if he had known, by the time he tested the seat cushion sample to see if it matched Wallace’s DNA, that it was already 4 years old. Baker said he had not known that, and did not know — in response to questions — if it had been kept frozen, as it should have been, or exactly how old it was. He said the sample he received was, however, still in perfectly good condition to be tested.

Berkeley Police Sgt. Dave Lindenau testified last week about a GPS tracker BPD had placed on the PT Cruiser four days before the shooting in connection with a narcotics investigation into Carroll. The tracker, which reported data hourly, put the car in Corte Madera as of 6:15 a.m., on the Golden Gate Bridge as of 7:15 a.m., and in the 3200 block of Sacramento Street at 8:15 a.m. — “5-6 short blocks” from the shooting scene.

The shooting happened at about 8:45 a.m. in front of Johnson’s House of Style, near Russell Street, at 2914 Sacramento. The tracker pinged next on I-680 in Concord, near Highway 4, at about 9:15 a.m., an estimated 30 minutes from Kaiser Richmond, said Lindenau. At 10:15 a.m. it was on the MacArthur Freeway in Oakland.

Narby said there was no concrete evidence, such as video, that put the PT Cruiser at the hospital, however.

“To my knowledge I don’t think it ever pinged in Richmond,” Lindenau said. He said police received no data, due to how the tracker had been programmed, between the hourly pings. Once investigators realized the car’s connection to their active case, they set the tracker remotely to report more frequently. But that was not until sometime after 10:15 a.m.

Narby also questioned the timing of the alleged journey to the hospital. She told the jury it would have been rush hour in a “very very busy section” of the highway on a Tuesday morning when the PT Cruiser was in Concord. She said it would not have been able to get from Concord to the emergency room in Richmond then down to the freeway in Oakland between the hourly reports.

Witness: “I was supposed to be done with this shit”

The GPS data corroborated the testimony of Carroll’s former girlfriend, said Wendt, who said Wallace and Carroll drove to her Corte Madera motel room the night before the shooting and stayed overnight. She had testified at the preliminary hearing in 2013 that Carroll was armed, and had gotten frustrated with her directions because he didn’t want to be on the road any longer than he had to be.

Last week, the woman repeatedly refused to testify, saying she wasn’t mentally up to it and did not want to give evidence. During her first appearance, the judge excused her for the day but ordered her to return the next day, which she did. But testimony still proved difficult.

“I’m not mentally competent to answer these questions,” she said, once she took the stand.

“You’re doing just fine,” the judge assured her. Minutes later, she simply went silent, and began sniffling and crying as she looked down. The judge, apologetically, ordered her to answer the prosecutor’s questions. She said she was “on the verge of going to the mental hospital” and “was supposed to be done with this shit.”

She then began pulling out pill bottles and prescription papers, and asked if she needed to have her therapist there. The judge had the jury leave the courtroom and told her, in no uncertain terms, that she would be thrown in jail and held in contempt if she did not try to answer the questions put to her by the attorneys.

Ultimately, she gave testimony, but described it to Narby as “coerced” and said she suffered from depression, PTSD and psychosis, hearing and seeing things that were not real. She said she had gone into a mental institution sometime after the 2010 killing, and that it was not the only time in her life she had done so. Narby asked if she felt the district attorney had wanted her to implicate Carroll and Wallace in her testimony at the preliminary hearing in 2013: “I felt that way,” she said.

Narby told the jury Wednesday the testimony was “entirely unreliable” and called the woman “a pathetic human being with horrible mental health problems,” adding: “She was forced to testify on pain of jail.”

“She was a mess,” acknowledged Wendt. “She was on her own program.” But the woman, who seemed to calm down and become more cooperative once she had accepted her fate, eventually placed Wallace with the PT cruiser in Corte Madera — not in Pittsburg — the night before the shooting. She was also with Carroll at his Antioch home when police served a search warrant there shortly after midnight Oct. 27, 2010, and took him into custody while seizing the PT Cruiser.

Wendt noted that, despite the woman’s protests, the GPS data confirmed her timeline of events. And she said she testified truthfully to the best of her knowledge. Wendt reminded the jury Wednesday that evidence corroboration and seeing how all the pieces fit together would help them reach their verdict, which he said should be first-degree murder, attempted murder and unlawful possession of a firearm.

Defense attorney: Detective “rushed to judgment”

Wednesday, Narby told the jury about several police hunches after Wallace’s arrest that hadn’t panned out: The gunshot residue test he had submitted to voluntarily came back negative. His DNA — also given voluntarily — did not match anything tested at the scene, though police initially thought they might find the bullet there they believe had penetrated his leg. His shoe sole actually did not match a partial bloody shoe print found at the scene. (The shoe print was a bit of a red herring: Police originally thought it might match the sole of Wallace’s shoe, but Narby pointed out during testimony that police eventually realized it could not actually have been made by the shooters.)

A purple and black hat found in the PT Cruiser that matched the colors of Wallace’s shoes, and looked like a hat he’s wearing in a photo recovered by police, was never tested for DNA. Berkeley Police Sgt. Dave Marble, the lead investigator on the homicide, said that had been a cost-saving measure. Narby was incredulous. She told the jury Marble hadn’t wanted to risk getting another result that might cast doubt on his case.

“He made a tactical choice in the way he developed the case after Brandon Wallace become a suspect,” she told the jury. “He chose to stop DNA testing things because his assumptions weren’t coming to pass.… His investigation is working against him.”

She described the case as “almost entirely circumstantial” with a “very weak identification” from the woman at the laundromat, and Carroll’s former girlfriend who put Wallace with them at the motel. She said it was a reasonable interpretation of the evidence to believe that Wallace had indeed been shot in Richmond, and asked the jury to find her client innocent. Narby questioned the absence of any motive suggested by the prosecution, though it’s not required by law, as an indication of what she deemed an incomplete investigation: “We don’t have any reason why Gary Ferguson has ended up dead.”

And what of the so-called murder weapon? It was recovered in Richmond in December 2010. Berkeley police learned about the gun in May 2011. Ballistics were a match for the Ferguson homicide. Marble said he spoke in August of that year to the teenager found with the gun, who denied having it and “basically denied knowing anything about anything.”

Marble said he had been unable to find a link between the teen and either Wallace or Carroll — he cross-checked their phone numbers — and had not tried to link the teen to the case independently, through either photo line-ups or other means. He testified that he did not think he ever got that gun from Richmond, and had not had it tested for fingerprints or DNA.

“Detective Marble rushed to judgment believing he’d solved the case in two hours,” Narby told the jury Wednesday. “He refused to investigate solid leads that were dropped in his lap because it didn’t fit his theory of the case.”

Prosecutor: “You can see it with your own eyes”

Not so, Marble told Wendt. He listed his evidence: Wallace’s gunshot wound, which matched the injury that appeared to take place in the surveillance video. The distinctive jeans and purple shoes Wallace had with him in the hospital, which looked like those in the surveillance tape. There was the eyewitness testimony from the woman at the laundromat. And Richmond Police officers found no evidence of a shooting where Wallace said the man had tried to rob him.

“Your focus is trying to be shifted in places it doesn’t belong,” Wendt told the jury Wednesday. “We know what happened because basically we were there with that video… That’s Brandon Wallace, that’s him running from the scene. That’s him holding the gun. You can see it with your own eyes.”

When Wallace spoke to police, he was polite, calm and cooperative, Marble testified. When police asked him about a tattoo on his wrist that says “Coleon” — as part of a list of other names — Wallace denied it was a reference to Coleon Carroll, whom he never acknowledged knowing.

When Wendt asked him why, he said it was because “I didn’t want to make anything up and put something in the investigation I wasn’t supposed to.”

Wallace said the tattoo referred to a friend of his who uses “Coleon” as his “rap name.” The name appears along with several others on Wallace’s forearm that he said referred to guys he grew up with in Pittsburg, attended school with and made music with.

During his closing argument, Wendt questioned those statements, while showing the jury a picture of the tattoos. He pointed out what appeared to be bullet holes and spent shell casings also tattooed on Wallace’s arm, rather than something like music notes: “They’re not rap buddies,” he argued.

Wendt reminded the jury that Wallace had testified he is ambidextrous, and does “everything but write” with his left hand. Wendt then replayed the video of the killing for the jury, in which the shooter authorities ID’d as Wallace fires with his left hand, then is seen in another video running down the street holding the gun in the same hand.

Homicide victim’s sister: “This is what I’ve been waiting for”

A memorial on Sacramento Street for Gary Ferguson Jr. Photo: Frances Dinkelspiel
A memorial on Sacramento Street for Gary Ferguson Jr. Photo: Frances Dinkelspiel

The seats behind the bar were largely empty throughout most of the trial. Wallace had one supporter, an older gentleman with a prominent mustache who attended every day, bringing with him changes of clothes for Wallace’s appearances in court. A younger male supporter of Wallace also attended closing arguments. They politely declined to comment Wednesday as they sat together on a bench outside the courtroom and waited to speak with Wallace’s defense attorney.

Several of Gary Ferguson Jr.’s supporters attended part of opening arguments last week but have not returned to court again.

Last Monday, March 7, a woman who identified herself as Ferguson’s younger sister said she was looking forward to the conclusion of the case.

“This is what I’ve been waiting for,” she said. She noted that she and other relatives had attended many of the earlier hearings, but said there had been so many court dates over the years they had mostly stopped coming. She also said that, due to the graphic nature of the evidence, it could be difficult to watch. “A lot of them can’t take it.”

She said Ferguson left two children when he was killed, one of whom is about to graduate college. As jurors initially took their seats last week to listen to the attorneys’ opening arguments, she whispered to a friend, “It’s crazy: My brother’s life is in these people’s hands.”

The jury began its deliberations Wednesday afternoon, and had wrapped up for the day around 4:30 p.m., following the usual court schedule. Deliberations were expected to resume Thursday morning.

Carroll, who had been slated to be Wallace’s codefendant before he took the plea deal in February, is slated to be sentenced March 21. Wallace remains in custody at Santa Rita Jail with a bail of $5.5 million.

Related:
Defense attorney: Berkeley detectives ‘rushed to judgment’ in murder case arrest (03.07.16)
Berkeley man takes plea deal in 2010 murder case (02.26.16)
Case dismissed in Jermaine Davis homicide (09.17.14)
4 with Berkeley ties held to answer in alleged murder plot (04.10.14)
1 held to answer in Berkeley murder of ‘Lil Tone’ (01.13.14)
Berkeley police make second arrest in murder (11.01.10)
Berkeley police arrest man suspected of murder (10.28.10)
Memorial set up for Berkeley slaying victim (10.28.10)
Another murder in Berkeley (10.26.10)

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