A murder charge against an 18-year-old Berkeley man for the fatal shooting of 24-year-old Devin Lee Whitmire in Berkeley in late March was dismissed this week after a dramatic courtroom moment in which the prosecution's key witness said the man wasn't involved in the shooting.
Randall Oscar Alston was the first person to be arrested and charged with murder in connection with the death of Whitmire, who was a Berkeley resident, from a shooting outside Bob's Liquors and Deli in the 2800 block of Sacramento Street at about 7:35 p.m. on March 29.
Authorities later arrested a second suspect, 19-year-old Berkeley resident Calvester Stewart. Stewart was also charged with murder and is accused of being the shooter.
A preliminary hearing at which a judge was to decide if there was enough evidence to have Alston and Stewart ordered to stand trial was scheduled to start Tuesday morning.
But when Whitmire's brother, 22-year-old Darnell Robinson, who was with Whitmire when he was shot, came into the courtroom shortly before the hearing was to begin, he said Alston wasn't involved in the shooting and then pointed at a man in the audience and said, "That's the guy who did it," according to Alston's lawyer, James Giller.
Authorities subpoenaed the man and took a statement from him, Giller said, but Berkeley police said that he hasn't been arrested.
Charges against Alston, who had been in custody since the night of the shooting and was accused of being an aider and abettor to Stewart, were dismissed later on Tuesday and he is now free and at home, Giller said.
Giller, who's been practicing criminal law in Oakland for more than 50 years, said he's never heard of another case in which a murder defendant was freed after a prosecution witness came to court and said the wrong man was in custody.
"It's a unique situation and lawyers around the courthouse are talking about it," Giller said.
Prosecutor Joseph Goethals and Alameda County District Attorney spokeswoman Teresa Drenick declined to comment on the case today.
A preliminary hearing that only involves Stewart began Thursday and is expected to continue for most of next week.
In addition to being charged with murder in connection with Whitmire's death, Stewart is charged with several counts of attempted murder of a peace officer for a separate incident in which he allegedly engaged in a shootout with Berkeley police officers April 13.
Berkeley police said they attempted to make a traffic stop on him near Eighth and Delaware streets at about 10:40 p.m. that night but he ran away and went into a nearby apartment building.
Police said that after they surrounded the building Stewart came out and shot at officers but they returned fire and an officer struck him.
Stewart, who has a prior conviction for possession of a firearm, is still recovering from his injuries and came to court in a wheelchair this week.
When Goethals asked Robinson today if he saw the man who shot his brother in court, Robinson hesitated for a long time before finally saying, "I think so" and pointed at Stewart.
Stewart yelled at Robinson, "I've never seen you before in my life!" Under cross-examination from Stewart's lawyer, Joann Kingston, on Thursday, Robinson said he doesn't think the fatal shooting of Whitmire was related to an ongoing feud between two Berkeley gangs, the Waterfront Gang and the South Berkeley Gang.
Robinson said, "I don't know why they shot my brother. They probably thought he was someone else."
In testimony today, Berkeley police Officer Kyle White said Stewart fired several shots at him and another officer who was next to him at an apartment complex at 929 Delaware St. the night of April 13.
White said, "I could tell he was definitely shooting toward me and I was worried that I had been hit" but neither he nor the other officer was hit.
White said he recognized Stewart because he'd had prior contact with him and although it was nighttime he could see him well because he was standing under a porch light.