As jury deliberations get under way Monday in the civil trial over the fatal shooting of Luis Gutierrez by a Yolo County sheriff’s deputy in 2009, it may all come down to “the knife” – a key piece of evidence that was the 500-pound gorilla in the courtroom.

Two deputies, including the shooter, testified that the 26-year-old Gutierrez was threatening sheriff’s Sgt. Dale Johnson with a folding pocketknife at close range, and lethal force was all that was left for them to defend themselves.

But one witness testified in Sacramento federal court that Gutierrez definitely did not have a knife. Another said she also saw no knife, but her attention was not focused on Gutierrez’s hands.

A knife like the one described by Johnson and the shooter, Deputy Hernan Oviedo, was found at the scene and collected by Woodland police.

The theory of attorneys who represent Gutierrez’s parents, Irma and Jose Gutierrez, in a civil rights and wrongful-death lawsuit against the county, Johnson, Oviedo, and a third deputy is that the knife admitted as evidence is a “throw down” – a knife that was thrown or dropped at the scene after Gutierrez was killed.

The jury’s verdict likely will swing on whether the plaintiffs’ lawyers have sown enough doubt in jurors’ minds that Gutierrez did not have the knife when the shooting occurred.

If there was no knife when Oviedo fired the fatal shot, either Gutierrez would be alive today or his death would be indefensible.

Even the defense’s police practices expert agreed.

The shooting “would be uncalled for, yes, if he did not have a knife in his hand and was not threatening any of the officers,” Massad Ayoob testified.

There is no way the parents’ San Jose attorneys, Paul Caputo and Robert Burchfiel, can prove the knife was planted at the scene. They have pounded home to the jury what they believe is the circumstantial evidence to suggest that it was: the two witnesses whose testimony dramatically contradicts the deputies; the lack of evidence Gutierrez was known to have a knife, or that he was prone to violence; the absence of blood on the knife, even though photos of Gutierrez’s body lying on the street show a lot of blood on his right hand, where he purportedly held it.

Defense attorneys Bruce Kilday and Amie McTavish have more substantial evidence to work with, including the knife itself, an object that the jury may look at anytime during deliberations. Then there is the testimony of the deputies and an expert who said that Gutierrez had a level of methamphetamine in his system that makes some people irrational; and the fact that Oviedo and Johnson claimed they felt so threatened by Gutierrez that they shot at him.

Cops’ car was unmarked

On the afternoon of April 30, 2009, Gutierrez was walking home from the Woodland office of the Department of Motor Vehicles after passing a driver’s test for a license renewal. He was on the East Gum Avenue overpass above state Highway 113, within sight of the trailer park where he lived with his parents and four siblings.

At the same time, Johnson, now a lieutenant; Oviedo, now a sergeant, and Deputy Hector Bautista – all Yolo County Gang Task Force members dressed in T-shirts and jeans – were cruising in an unmarked black Ford Taurus with black glass. They spotted Gutierrez on the overpass sidewalk and, while he was unknown to them and had no criminal record other than driving-related violations, they decided they wanted to talk to him because of his appearance and the neighborhood he was in, according to their testimony.

They said he was a “Hispanic male” wearing “baggy clothes,” including long Dickies shorts favored by gangsters, his hair was cut short, and he was in an area where gang members hung out.

But, they related, when they intercepted him and Johnson identified his department and displayed the badge and gun at his waist, Gutierrez stuck his hand in his right front pocket and, without saying a word, ran away.

Everything about his appearance and his actions caused them to suspect criminal activity, they testified, so Johnson and Oviedo gave chase with guns drawn. Johnson said he caught him in a traffic lane on the south side of the overpass and grabbed his shoulders, but Gutierrez ducked, twisted away and Johnson ran past him. They were face to face, with Oviedo running up behind Gutierrez, the deputies recalled, when Gutierrez pulled the knife from his pocket and swung it at Johnson.

The sergeant fired four shots at him, but missed.

Oviedo fired twice and one bullet hit Gutierrez on the right side of his upper back, ripped through his neck and throat and exited through the left side of his jaw.

He collapsed face down on the pavement.

Johnson testified that, as he fell, he tossed the knife away with a sweeping motion. Oviedo testified that, after he fell, he pulled his right hand from under his body and pitched the knife. The deputy said it hit the sidewalk and skidded across into gravel and dirt between the sidewalk and a guardrail.

It was found there, the blade sticking into the ground.

Conflicting testimony

At trial, there was conflicting testimony as to whether the knife is the type and quality commonly used by first responders, such as firefighters, paramedics and police officers. They all responded to Bautista’s call for help. The knife has “Fire Fighter” inscribed on the blade along with the national emblem of firefighters. It has a clip on the back for affixing it to a belt or clothing.

Variations of the knife are readily available on the Internet.

One witness, Lyndsey Fletes, drove upon the bizarre scene and watched it unfold from her car. Caputo asked her whether she saw a knife, saw any threatening moves by Gutierrez, and saw him make a motion as if throwing something away.

“Not that I can recall,” she replied to all three questions. On cross-examination by McTavish, the defense attorney, Fletes acknowledged, “I wasn’t paying attention to his hands.”

Fletes said she was never interviewed by investigators from any of the agencies that looked into the incident.

Another motorist who witnessed the shooting, Vieana Navarro, testified she approached Woodland police and volunteered to be interviewed on the night of the shooting. Asked why by Caputo, she said, “Because I thought that the person shot would need somebody to tell them that he wasn’t doing anything wrong.”

Navarro said she first saw three men running in the street and “I kind of saw like a little altercation … I just know for sure that Luis had punched one of the people” and then sprinted away from the man he punched and another man.

There was a moment when Gutierrez was running right at her van, she recalled, and he looked “confused, scared.”

“And then I saw Luis kind of step and pivot and turn,” Navarro testified. She heard gunshots, but doesn’t know how many. “And then he turned back around, and then two seconds later, like a fraction of a second later, he was on the ground.”

DNA on knife handle

Detective Darren Imus interrogated Navarro when she went to the Woodland Police Department, and didn’t like what he was hearing, especially her insistence that Gutierrez had no knife, she told the jury.

“I saw his hands the entire time,” she testified, referring to Gutierrez.

At first, she said, Imus’ questions “were really nice, and it was just like having a conversation.”

“Then, after a while, it was tricky questions, and they were trying to catch me … I was there for hours, it felt like, and the officer was getting really aggressive.”

At one point, she said, Imus left the room and, when he returned, he pulled a knife out of the sleeve of his jacket and asked her if she had seen the knife before he pulled it out. She acknowledged she had not.

The problem with that demonstration, as Navarro pointed out, was Gutierrez couldn’t have been hiding the knife in a sleeve. He was wearing a T-shirt.

During Imus’ trial testimony, McTavish sought to present to the jury that portion of the interview video showing the detective pulling the knife out of his sleeve. She did play a snippet of it while Caputo was objecting to the film as hearsay.

U.S. District Judge Lawrence K. Karlton sustained the objection, but the judge remarked that he didn’t understand Caputo’s concern, “since all it shows is him trying to get her to say something.”

There were no usable latent fingerprints on the knife. Testing of a “low amount” of “degraded” DNA from skin material on the handle ruled out Johnson, Oviedo and Bautista as having handled it, but did not exclude Gutierrez.

Under Caputo’s cross-examination, Shawn Kacer, a supervisor at the state Department of Justice crime lab, testified that a person could get somebody else’s DNA on an object by rubbing it on the other person’s body. Kacer also acknowledged the genetic markers from the knife “are more common in the Caucasian population.”

Dr. Gregory Reiber, the forensic pathologist who did the autopsy, acknowledged under cross-examination by defense lawyer Kilday that the trajectory of the fatal round allows for the possibility that Gutierrez was bending forward with his head down and his right arm extended – the slashing motion described by Johnson – when the bullet entered his body.

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