Left alone in the back of a police car, authorities say an 18-year-old man arrested after the stabbing of a 72-year-old woman in South Berkeley in 2014 confessed to killing “the old lady” and told God he did not want to go to jail for life.
Unbeknownst to him, his statements were recorded by Berkeley Police investigators. Those statements, as well as a secretly recorded jailhouse conversation between him and his mother that led police to the alleged murder weapon, were presented Wednesday by the prosecution during the second day of the preliminary hearing for Kamau Berlin.
Berlin, now 20, is facing a murder charge as well as other serious felonies for the September 2014 killing and attempted carjacking of Nancy McClellan. This week, an Alameda County Superior Court judge heard testimony and evidence in the case against Berlin. Judge Rhonda Burgess said she will not decide until May 4 whether to send the case forward to trial though both sides have rested.
Read complete coverage of the case.
Berkeley Police Sgt. Peter Hong testified Wednesday about a significant break in the investigation that took place shortly after Berlin’s arrest. Concerned McClellan may have been sexually assaulted, police took Berlin for an exam Sept. 19 to test him for any signs of that possibility. (The results of that exam were not presented during this week’s two-day hearing, which began Tuesday.)
Officers had to wait for the medical examiner to arrive, and left Berlin alone and handcuffed in a police car, Hong said. A detective secretly left a recorder on the front seat. Hong testified Wednesday about the evidence he said the recording contained when he listened to it. The recording was not played in court.
Hong said Berlin was “thinking out loud,” talking to himself, when he “admitted to killing ‘the old lady.’”
“‘Work with me, God, I know I did this, I stabbed the lady,’” Hong said he heard on the recording.
Berlin made comments about how bad the situation would look in court, according to Hong: the way the woman’s pants had been pulled down, and how he had run from police. He observed that police had not found “the brass knuckles,” and said someone behind him had seen what happened.
Hong later added that Berlin mentioned the words “trying” and “carjacking,” and said: “I killed her. She didn’t deserve it.” He told God he did not want to be sent to jail for life, Hong said.
Mother: “All this because you didn’t have a ride home?”
Hong also described a jailhouse conversation between Berlin and his mother Sept. 21, two days after the arrest. They did not know they were being recorded, but were whispering to each other as they talked, Hong said.
“I had to listen very intently,” Hong told the court, and replay the recording repeatedly to hear what was discussed. Again, the recording was not played in court.
Hong said he heard a woman’s voice asking, “What happened? What did you do?”
Berlin told his mother, according to Hong, that he did not have a ride home, and could not reach anyone on the phone.
“All this because you didn’t have a ride home?” Hong said Berlin’s mother asked, and went on to ask why he didn’t try to get bus fare or find another way home.
Hong said Berlin’s mother insisted he tell her the truth of what had happened. He told her he saw a woman in a car, and started hitting her to get her out of the car, then threw her into the backseat.
Berlin’s mother asked if he had a weapon. Hong could not hear what Berlin said, but heard his mother’s response: “Brass knuckles? Brass knuckles? Oh my god.”
He told her not to worry because he “tossed it real good” as he was running from police, according to Hong. She told her son not to discuss what he’d told her with anyone else and emphasized to him the seriousness of the situation, Hong said.
Monday, Sept. 22, police returned to the scene and, after 30-45 minutes, Sgt. Dave Lindenau testified he spotted a pair of gold-handled brass knuckles with a knife blade in a yard on Russell Street near the fence where Berlin had been arrested. The knife was on the ground amid debris and bushes, he said.
Deputy public defender Daniel Duvernay asked Lindenau pointed questions about the importance of collecting evidence quickly to limit the possibility of contamination or tampering, and also noted that several days had passed between McClellan’s stabbing and the recovery of the brass knuckles.
“Fake blood for Halloween”
Hong, when he testified Wednesday morning after Lindenau, described the immediate aftermath of Berlin’s arrest. The lead investigator on the case, he said he was called to the scene about 45 minutes after the stabbing due to the severity of McClellan’s injuries. She was not expected to survive. McClellan did not die until Oct. 8, but never regained consciousness.
After inspecting the crime scene and the vehicle where police found McClellan — at Russell and Otis streets — Hong said he went to see Berlin, who had been detained after a short chase not far from the crime scene minutes after police were initially called.
Hong said he saw what appeared to be bloodstains on Berlin’s clothing, face and nails. Another officer described to Hong how he had taken Berlin into custody as he tried to jump over a fence. A child playing in the area, who had seen the officer during the search, had “frantically” gestured to him to indicate Berlin’s location, Hong said.
The officer, Kyle White, had seen the blood on Berlin and asked him if he was injured, Hong testified. Berlin “told him it was fake blood, fake blood for Halloween.” He said he and his brother had been decorating the night before. As it was only Sept. 19, “that raised some suspicion in our minds,” Hong said.
He had a crime scene technician swab the apparent blood for testing, and sent Berlin for a Sexual Assault Response Team, or SART, exam. Berlin never asked why police were doing that or objected to the swabs, Hong said. He noted that, while officers swabbed Berlin for possible blood evidence, he said nothing at all about the nearby stabbing: “I found that to be odd,” Hong added.
After the exam, police brought Berlin back to the Berkeley Police Department and tried to speak with him about the case but he asked for an attorney a few minutes later. Police noticed at that time, and photographed, Hong said, that Berlin’s knuckles appeared to be injured and visibly swollen.
Duvernay spent most of his cross-examination, about 15 out of 20 or so minutes, asking Hong to recall whether both of McClellan’s shoes had been collected at the scene and logged by another officer who worked on the case. Ultimately, Hong could only find a definite reference in that officer’s report to a single shoe, but he said he wasn’t sure whether it might indicate a pair of shoes. He said, based on his recollection, both shoes had been collected, and couldn’t explain why only one of the shoes, possibly, had been logged.
Otherwise, Duvernay confirmed with Hong that the defense knew of all the statements Berlin made to police or while in custody.
The prosecution presented no medical or DNA evidence during the preliminary hearing. The defense team, which includes public defender Kathleen Ryals, presented no evidence at all, which is not uncommon during this part of the process. Berlin has two attorneys due to the severity of the charges against him.
At the preliminary hearing, a sort of “mini-trial,” the burden of proof is lower than at the actual trial; the judge is charged with deciding whether a reasonable person could believe the allegations are true. The judge decides which of the charges, if any, the defendant should face at trial. Defendants often wait until after the preliminary hearing to decide whether to make some kind of plea deal.
Judge denies motion to suppress secret police recordings
There were no opening or closing arguments during the preliminary hearing but, Wednesday afternoon, attorneys discussed motions filed by the defense to throw out all the evidence collected as a result of Berlin’s detention, including the recorded statements.
Duvernay told the judge the prosecution had been unable to justify Berlin’s detention, and that any evidence found following that detention would be the fruit of a poison tree. Further, he said the recordings police made violated Berlin’s expectation of privacy.
Prosecutor Briggitte Lowe said there had been sufficient reason to detain Berlin, from the 911 calls to the “bloody woman calling for help,” to his “generally” matching the description provided by callers — though one said she believed him to have been wearing a black sweatshirt. (He was wearing a white shirt, as described by other witnesses, when he was arrested.)
“He’s found less than a block away from the actual crime scene where there is a woman who is bloody in the car,” Lowe told the judge. An officer saw him jumping over fences and onto rooftops. When he’s found by police, he has what appears to be blood on his clothing and body, she continued. “When you add all of it together, it’s very clear they had probable cause to detain him.”
The judge ultimately denied both of the defense motions. She said she believed there had been probable cause to detain Berlin, and that he would have had no expectation of privacy in jail or in the police vehicle.
She said, too, Berlin had matched the general description provided to police, and that he took off running as soon as he made eye contact with an officer who responded to the scene.
Judge Burgess put the matter over until 9:30 a.m. May 4 in Dept. 5 at the René C. Davidson Courthouse, 1225 Fallon St., in Oakland. She did not provide a reason for the delay.
Berlin, who appeared in a red prison jumpsuit, was quiet throughout the hearing, smiling to himself at times. Toward the end of the day Wednesday, when the judge asked him if he would agree to wait until May 4 for her ruling, he responded politely, “yes, ma’am.”
Family members of Berlin, about half a dozen of whom attended both days of the hearing, respectfully declined to comment to Berkeleyside.
Witnesses to fatal Berkeley attack did not see killer’s face (04.13.16)
Teen now faces murder, attempted rape and robbery charges in South Berkeley killing (11.14.16)
Homicide victim remembered as artist, humorist, lover of plants and pets (10.24.14)
Op-ed: After fatal stabbing, be the change in South Berkeley (10.08.14)
Emeryville woman dies weeks after Berkeley stabbing (10.08.14)
Teen charged in stabbing of 72-year-old woman (09.24.14)
18-year-old arrested in stabbing of 72-year-old woman (09.22.14)
Berkeley police arrest suspect in homicide attempt of woman in 70s (09.19.14)
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