Trial starts in fatal shooting of 16-year-old boy with Down syndrome

01/21/2014 3:32 PM

01/21/2014 7:04 PM

Eliazar Hernandez was riding in the back seat of his mother’s minivan near Modesto when he was struck by gunfire, an innocent bystander after a fight involving his older brother escalated.

Deputy District Attorney Beth O’Hara Owen told a jury that Eliazar’s mother was driving the minivan away from the fight, and his sister and brothers were riding in the family’s vehicle with him. After the shots were fired, they turned around and saw “Eliazar choking on his own blood.”

More than four years later, a trial started Tuesday morning for Richard Maurice Jolly, the man who authorities say fired the shots that killed Eliazar, a 16-year-old boy with Down syndrome. His older brother Alex Gomez, who was involved in the initial violent confrontation, also was injured by gunfire but survived.

The trial began with opening statements by both attorneys. Frank Carson, Jolly’s defense attorney, told the jurors it was Gomez who is responsible for the death of his younger brother. He said Gomez was a “bully” who provoked the violent confrontation and brought along a 12-gauge shotgun, seeking revenge with his family as “reinforcements.”

The defense attorney argued that his client fired the gun in self-defense, and ran from the scene because he was a scared 16-year-old boy. Jolly is being prosecuted as an adult.

“Richard Jolly wasn’t looking for any trouble,” Carson said in court.

Along with the first-degree murder charge, Jolly is accused of attempted murder, shooting at an occupied vehicle and three counts of assault with a firearm in the same incident.

Attorneys have negotiated possible deals numerous times since Jolly’s preliminary hearing concluded in February 2012. Prosecutors on Tuesday offered Jolly a last-minute plea deal that would result in a 24-year prison sentence and two felony charges that would be considered strikes under the state’s “three-strikes” law.

Jolly rejected the district attorney’s offer. Carson told the judge that he could not recommend that his 21-year-old client agree to a deal that could make eligible for a life sentence if he were to be convicted of another felony.

Judge Marie Silveira made it clear to the defense attorney that his client faces a maximum sentence of life in prison if the jury convicts him.

The shooting occurred in the aftermath of a violent confrontation between two groups Oct. 20, 2009 at a home on Lombardo Avenue, which runs east from South Ninth Street a few blocks south of the Tuolumne River.

Owen told the jurors that Gomez went to the Lombardo Avenue home to buy drugs and that several of his friends were inside the home. Instead of buying the drugs, Gomez was jumped and assaulted, and Gomez left the home, vowing to return to fight them, she said.

Carson gave the jury a different account: that Gomez, whom he referred to by his street moniker, “Junebug,” went to the home and sucker-punched Omar Reyes. The defense attorney said there was a grudge between Gomez and Reyes, and Reyes tried to shake Gomez’s hand when he was punched.

“The bully wound up getting his nose bloodied,” Carson argued.

He said Gomez gathered three carloads of people including his family to retaliate. Carson told the jurors that Gomez “was hellbent for blood” and had “a lust for vengeance.”

Gomez and a group of people arrived at the Lombardo home, the prosecutor said, and Gomez had a shotgun, which he used to smash windows on a parked vehicle and the home to get the people inside to come out and fight.

Carson said Gomez’s group arrived with sticks, baseball bats and guns.

“The people huddled inside the home wouldn’t come out in the face of that shotgun,” the defense attorney told the jury.

Owen said one neighbor attempted to defuse the situation by walking up and telling Gomez’s group that the cops were coming. They left, but other neighbors spotted Jolly holding a cell phone to his ear.

The prosecutor told the jurors that the neighbors heard Jolly asking, “What I gotta do? What I gotta do?” Seconds later, Jolly hung up the phone and said, “I gotta kill somebody,” according to Owen.

She said Jolly fired 10 shots into the minivan as Gomez and his family were heading home. A bullet struck Gomez’s arm, and he got out of the minivan and ran away, she said, and he was a convicted felon who was not supposed to possess a gun.

Carson questioned the credibility of the prosecution’s witnesses, most of whom are convicted felons, he said. There has been an “evolution of testimony” from these witnesses, Carson told the jurors. He said their stories have changed.

The prosecutor said residents in this neighborhood are conditioned not to talk to police. She said they initially gave investigators short answers about what they heard and saw, but they provided more information in private follow-up interviews.

Owen told the jurors that the facts of the case will show that “Eliazar died at the hands of Mr. Jolly.”

The defense attorney said that the evidence will show that his client was not holding a phone to his head shortly before the shooting. He also said Gomez and his family were more concerned with making sure Gomez, an armed felon, avoided capture after the shooting than with Eliazar’s injuries.

Carson argued that Gomez was “a psychotic person” who bragged that he ran that neighborhood and would break faces, knock out teeth and respond “with no mercy.”

“You need to have both sides of the story before you render a decision,” Carson told the jury.

Testimony in the trial is expected to last several weeks in Stanislaus County Superior Court.

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