A 19-year-old Berkeley man has been ordered to stand trial on a murder charge for the fatal shooting of 24-year-old Devin Lee Whitmire outside a Berkeley liquor store on March 29.
Calvin Stewart was also ordered to stand trial on five counts of the premeditated attempted murder of a peace officer for allegedly shooting at Berkeley police officers in a separate incident on April 13.
At the end of a preliminary hearing that spanned four days, Alameda County Superior Court Judge Jon Rolefson told Stewart's lawyer, Joann Kingston, "You made some valid points" in arguing that prosecutor Joseph Goethals didn't present sufficient evidence to have Stewart stand trial for murdering Whitmire or on attempted murder charges for the April 13 incident.
But Rolefson, who noted that the threshold of ordering a defendant to stand trial is much lower than finding him guilty, said, "For our purposes there is sufficient evidence on all counts."
He told Kingston, "You made some logical arguments" but said she should save them for Stewart's trial.
Rolefson then thanked Kingston and Goethals for what he described as "a very interesting preliminary hearing," apparently referring to a dramatic courtroom moment at the beginning of the hearing last week in which the prosecution's key witness said a second man who was charged with murder for Whitmire's death, 19-year-old Randall Oscar Alston of Berkeley, wasn't involved in the shooting.
Prosecutors then dismissed the charge against Alston, who was the first person to be arrested and charged 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.
Prosecutors allege that Stewart was the man who fatally shot Whitmire and had accused Alston of being an accomplice.
After saying that Alston wasn't involved, the prosecution's witness, 22-year-old Darnell Robinson, who is Whitmire's brother and was with him when he was shot, 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 say he hasn't been arrested at this point.
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.
Kingston said yesterday that she thinks Robinson's identification of Stewart as the man who shot Whitmire is insufficient because Robinson paused and equivocated before pointing at Stewart.
But Rolefson said he believes, "Mr. Robinson was pretty clear in who he identified as pulling a gun from his waist area" and shooting Whitmire.
Berkeley police said the shooting on April 13 occurred after they attempted to make a traffic stop on Stewart near Eighth and Delaware streets at about 10:40 p.m. that night but he ran away and went into a nearby apartment building at 929 Delaware St.
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, was hit by the officers' gunfire but has recovered from his injuries.
Kingston said the most serious charge Stewart should face for allegedly shooting at the officers is assault with a deadly weapon because he didn't have a specific intent to kill the officers.
But Rolefson said he believes premeditated attempted murder is an appropriate charge because Stewart "was pretty much firing shots with the intent to kill whoever was in the area" and he also had time to think about what he was doing.
Prosecutors haven't stated a motive for why Whitmire was killed.
In his testimony last week, Robinson said, "I don't know why they shot my brother. They probably thought he was someone else."