3 men held to answer after fatal Berkeley shooting

An Alameda County Superior Court judge ruled Monday that three young men charged in the fatal shooting of a Pinole man in Berkeley in December must now stand trial.

Judge Thomas Reardon said Monday afternoon, after a lengthy preliminary hearing that began in May, that the prosecution had presented enough evidence to demonstrate a “strong suspicion” that Gregory Foote, Carl Young and Khalil Phanor were responsible for the shooting that killed 36-year-old Kamahl Middleton, who grew up in Berkeley, and wounded his fiancée, Rebekah Cleberg, during a robbery Dec. 29, 2014.

According to evidence presented during the hearing, the couple had arranged, after posting an ad on Craigslist, to trade 1½ pounds of a strain of medical marijuana called “Girl Scout Cookies,” for a donation of $3,200, to a man who had provided a verified medical cannabis card and state ID card.

The man pictured in that ID card was identified as Carl Young, 20, of San Leandro. According to Alameda County deputy district attorney Rebecca Warren, 19-year-old Foote of Oakland had acted as the driver on the night of the shooting, Young had been assigned to interact with the couple prior to the robbery, and 18-year-old Phanor of San Leandro had been the gunman.

Foote told police at the time of his arrest that the group was just planning to rob the couple of their marijuana, and that the fatal shooting in a San Pablo Avenue parking lot had been a surprise development. All three young men have been charged with murder, robbery and assault with a firearm. They have also been charged with the special circumstance of murder during the course of a robbery. No prior convictions were listed for any of the men in court papers.

The hearing began May 27 and spanned approximately four days, then recessed to allow Reardon to review many hours of audio and video recordings of statements made to police after the shooting. The hearing resumed Monday morning, July 6, and had concluded by approximately 12:45 p.m.

The scene Tuesday on San Pablo Avenue as a city worker cleaned up after a fatal shooting. Photo: Darby Tyro — The scene on San Pablo Avenue as a city worker cleaned up after a fatal shooting in December. Photo: Darby Tyro

Reardon said Monday that defense attorneys had highlighted discrepancies in the evidence for the prosecution’s case that were “all extremely interesting and may well prove dispositive” during trial.

But he said prosecutor Warren had been able to show probable cause — which is the required standard of proof during a preliminary hearing — that the trio could have been responsible for the murder of Middleton.

As for the discrepancies, Reardon said there had been some variations between eyewitness Cleberg’s statements to police and her later court testimony. For instance, initially Cleberg told detectives she had not seen the gunman, but later pointed out Phanor in court as the person who had fired a single shotgun blast during the robbery, causing significant injury to her arm and killing her fiancé.

When detectives first interviewed her in the hospital, Cleberg told them she had only seen the man identified as Young for about 30 seconds when he sat in her car before the robbery, and said she “didn’t see the guy that ran up with the gun.”

She identified alleged gunman Phanor for the first time when she took the stand in May. At the time, Phanor and Foote were the only defendants in the courtroom, leading Phanor’s defense attorney, Stephen Avilla, to question whether Cleberg had truly recognized Phanor, or simply identified him through a process of elimination.

In a photo line-up with police, Cleberg identified a photograph of Young as the person she believed she had seen on the ID card provided prior to the marijuana deal. But she did not, Young’s attorney argued, with certainty identify the man in the police photo as the one who sat in her car — until after an unrecorded discussion with police.

Cleberg’s description of the positions and movements of Young and Phanor also changed somewhat between her initial statements to police and her testimony in court in May.

Cleberg testified, however, that her memory had improved over time, due in part to therapy and ongoing reflection about what had taken place Dec. 29.

Read Berkeleyside’s account of Cleberg’s prior testimony.

Phanor’s attorney Avilla said Cleberg had been “very clear in her statement” to police initially that she had not seen the gunman. Avilla argued, too, that a gold chain that had been yanked off one of the robbers had not belonged to his client, contrary to what police had said. He noted that no one identified his client in police photo line-ups, and said no physical evidence tied Phanor to the scene. (A DNA expert testified previously, however, that Phanor had been a “possible contributor” to a hat, gold chain and pendant found at the scene.)

Avilla described Cleberg as a drug dealer with an unreliable memory due to the marijuana and methadone she said she relies on to treat lupus and other ailments. He pointed out, as well, that the district attorney’s office had granted Cleberg “transactional immunity” and agreed not to charge her with selling marijuana in exchange for her testimony in the case.

Reardon pointed out that Cleberg was not the only person to place Phanor at the scene. Foote and Young both identified Phanor as the shooter, the judge said, when they spoke to police. Foote, according to attorneys for the other defendants, told police Phanor had called the shotgun used in the crime “my bitch in the bag.”

In brief remarks regarding his client’s involvement, Foote’s attorney Darryl Stallworth said Foote — the driver — had not known the robbery would turn deadly. Stallworth said previously that Foote had believed the plan was to carry out a strong-arm robbery, and had been surprised to hear gunshots Dec. 29 as he sat in his car waiting for his associates to come back.

Defense attorneys question police interrogation techniques, client’s whereabouts

Young’s privately-retained defense team — San Francisco-based David Cohen and Jason Campbell — argued Monday that their client had not actually been at the scene of the crime, though his ID card had been used to set up the deal. According to testimony from numerous people, photographs of the documents sent to Middleton and Cleberg came from Foote’s cellphone.

The attorneys presented evidence they said showed Young never left San Leandro on the night of the shooting, and called witnesses who said they spoke to Young on his phone — which cell towers placed in San Leandro prior to the 9:40 p.m. shooting — as late as at least 9:20 p.m. The phone never left San Leandro that night, according to data collected by police.

Young did, however, confess his role in the robbery to police, according to evidence presented in court. But his attorneys said he made that confession under duress, after being left alone for five hours in an interview room. He then maintained his innocence for about two hours of police interrogation, encouraging police to test his DNA and asking to take a lie detector test, before changing his story to say he had been involved in the robbery.

His attorneys said Young’s will had been broken by suggestive, questionable interrogation techniques and “psychological pressure” from police that included lying to and bullying the young man.

“After two hours, Carl gave in and told the investigators what he thought they wanted to hear,” Cohen told the judge, arguing that any details his client then described about the case were only those that had been fed to him earlier in the interrogation by detectives. Cohen noted, too, that Young had told police he did not like guns because his own father had been murdered with one.

Reardon, who viewed a video of the interrogation prior to Monday’s hearing, said Young provided numerous details related to the crime that police had not discussed with him. According to the judge, Young brought up Phanor’s involvement in the shooting, though police had not mentioned it; correctly identified the pick-up location used prior to the shooting; knew about logistical changes that had taken place prior to the meet-up in Berkeley; and had described how the bag of marijuana had ripped during the robbery, which Cleberg also described during her testimony.

“It appears Young had quite detailed knowledge of what went on,” Reardon said, before holding all three men to answer for the charges filed against them in February.

Reardon also theorized that Young might have participated in the robbery even after his ID card — showing his face — had been used because there would have been no easy way to carry out the plan without him, he did not think the robbery would “go bad,” and he might not have worried he would be identified after a robbery because “marijuana dealers, they don’t call the cops.”

According to testimony, the trio ultimately made off with about an eighth of an ounce of marijuana after the shooting.

The men, all of whom remain in custody at Santa Rita Jail in Dublin, are set to return to court July 20 for arraignment on the charges.

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Defense attorneys question police interrogation techniques, client’s whereabouts

Emilie Raguso