When prosecutors convinced a grand jury to indict a Stockton man in the early-morning shooting death of a California Highway Patrol officer, crucial testimony came from a passing motorist who noticed a traffic stop, heard a popping sound and saw the officer drop.
But the grand jury did not hear from a Modesto trucker who told investigators she saw two cars pulling away from a white CHP Camaro, a dark-colored compact car like the maroon Nissan Maxima murder defendant Columbus Allen Jr. II is believed to have driven and a small silver car.
Truck driver Kelly Harding's version of events puts a Latino man with a mustache behind the wheel of the darker car, with a female passenger at his side, and a black man in the driver's seat of the silver car.
The grand jury that said Allen must stand trial on charges of first-degree murder in the death of officer Earl Scott, in a case in which a conviction could bring the death penalty, only heard about Harding in passing.
"She gave varying descriptions of the people associated with those cars," Chief Deputy District Attorney Alan Cassidy told the grand jury, according to a transcript of a three-day hearing that was held behind closed doors. "When she was asked to give subsequent interviews, she failed to appear."
Allen's attorneys want a judge to throw out their client's indictment. They cite 18 reasons, including that grand jurors heard little about Harding and nothing about two other motorists who seemed to corroborate her view.
Judge Nancy Ashley has received hundreds of pages of legal motions from both sides and is expected to hear arguments Tuesday in Stanislaus County Superior Court.
Allen would remain behind bars even if his indictment were tossed because the district attorney's office, which plans to take Allen to trial Oct. 14, would file a new criminal complaint against him.
Suspect, wife came to police
Allen and his wife, Bertera, showed up at the Stockton Police Department less than five hours after Scott was killed about 4:40 a.m. on the side of Highway 99 just south of Hammett Road on Feb. 17, 2006, near Salida.
Authorities had been looking for their Nissan Maxima because Scott was clasping its registration papers in his left hand when he was found. The Allens said the car, which was registered to Bertera Allen, had been stolen.
A detective told the grand jury that Allen claimed to have been making drug-selling runs around town the day before, admitted firing a gun three days earlier and insisted that he spent the night at the Stockton home of a rap music producer.
The authorities said cell phone records place Allen in the vicinity of the shooting. They also point to gunshot residue on his sweatshirt and right hand. A prosecutor told the grand jury that gunshot residue found on the passenger-side door frame of the Maxima suggests that Allen fired a gun while seated in the car.
The grand jury said Allen, 32, should stand trial on charges of first-degree murder, using a firearm in the commission of a crime and three special circumstances that could lead to the death penalty. He was arrested shortly after he showed up at the Stockton Police Department and is being held without bail.
Defense attorneys Ramon Magaña of Modesto and John R. Grele of San Francisco point to a host of procedural issues as they argue that Allen's indictment should be dismissed.
Chief among their concerns is the prosecution's duty to share exculpatory evidence with the panel. Prosecutors must tell grand jurors about evidence that points to a suspect's innocence.
That's why Cassidy told the grand jury about Harding, the truck driver who said she was cut off by two cars that seemed to be fleeing the scene.
Magaña contends that the prosecution put Harding's statements in a negative light because her testimony does not help their case. Cassidy responded in legal papers, saying Harding's statements are not unfairly characterized and do not suggest that Allen is innocent.
The prosecutor said the most direct evidence came from Jose Miranda of Ceres, who was driving northbound when he heard a popping sound, got off the highway and traveled south on a frontage road, jumped a fence to find out what happened and found Scott lying in front of his patrol car.
Cassidy said Miranda, who called 911, had the best vantage point, adding that it was not clear whether other motorists observed any portion of the fatal shooting. He said suspicions about Allen are corroborated by physical evidence, such as the gunshot residue and cell phone transmissions.
Magaña said Harding's story is backed by statements from two motorists the grand jury never heard about and was minimized during the hearing because the possibility that two cars might have been involved in the traffic stop casts doubt on the official narrative.
According to court records:
Maria DeJesus Martinez of Stockton told authorities she was driving south on Highway 99 when she noticed a small red car and a small gray or white car parked near a police cruiser on the other side of the road. She assumed there had been an accident, but didn't see any people.
James Regaldo of Salida said he was driving north and saw a traffic stop before Hammett Road involving a Latino man in a boxy green car and a highway patrolman who approached from the right side of the vehicle.
Trucker talked to investigators
Harding said she called the Sheriff's Department after she returned home from work on the night of Scott's shooting, because she found her husband watching the news and realized that she might have seen something important on the highway hours earlier.
She saw Allen had been arrested but said she thought authorities should keep looking for more suspects because two cars cut off her truck as they sped away from the parked CHP car.
Harding -- who talked to several sheriff's detectives, later consented to an interview with a defense investigator and has received a subpoena to testify at the upcoming hearing in Allen's case -- said she is not taking sides and does not want to free a defendant who might be guilty.
She recalled her irritation as the cars shot out into traffic, saying she wondered why anyone would drive so recklessly with a CHP car nearby.
She regretted not getting their license plate numbers.
And she said she believes some suspects might have gotten away.
"There was more than one person," Harding said. "I'll go to my grave believing that."
Bee staff writer Susan Herendeen can be reached at firstname.lastname@example.org or 578-2338.