Def asks about the video games they were playing. At the time of the shooting, Lopez and Mike were playing Modern Warfare 2. Lopez had just passed the controller to Tim when the knock at the door came.
Def asks about Whitman's statement when he entered the apt.
Def says that in his statement taken immediately after incident, Lopez quoted Whitman as saying, "I'll lay it out simple for you. Get down on the ground."
Def points out that this is different than what he just testified to.
Lopez clarifies that the shot at the window was fired just after this statement was made.
Def asks whether Lopez saw the position of Mike's hands on the gun when he grabbed it. He says he did not.
Simonsen is finished. Finck is up now.
Finck asks whether Lopez can say for sure whether there was a shot fired before the struggle between Mike and Whitman. Lopez says he can.
Def asks whether Lopez could see the pistol in Mike and Whitman's hands. He says he could not.
Def asks whether he took the time to turn and look at what was going on in the room while he was jumping out of the window. Lopez says he only looked back in the course of backing out of the window, not specifically to look at what was happening.
Def asks whether he or the defendants had consumed any controlled substances that day. Lopez says they had all probably consumed marijuana. Lopez had not consumed alcohol.
Judge asks Lopez to sign his name to the diagram he drew on the whiteboard, which I now realize is paper. Lopez is dismissed.
The drawing is entered as an exhibit.
Padilla was living with his brother at the time of the shooting. He describes Whitman as his brother's friend.
Tim had just met Borner earlier that day when Borner dropped Tim's mom off at the apt.
In the evening, there was a knock at the door while Mike, Tim and Lopez were playing video games.
Tim saw Whitman and Borner entered the apartment with guns raised. Whitman fired the .22 pistol through the window. Tim calls it a warning shot. Says he and Mike both stood.
Says there was "yelling and screaming."
Tim says he grabbed the assault rifle. Says it went off.
Tim did not see what was happening with Mike and Whitman.
Tim recognized Borner because he had just met him earlier that day. Says Borner was wearing something over his face but he could see through it. Possibly nylons.
Says that as he was struggling with Borner, Whitman hit him with his gun and shot him. He does not remember being shot. The bullet entered his back. it was removed that night at the hospital.
Tim says he grabbed the assault rifle and chased Whitman and Borner out of the apt. Tried to fire. Gun was jammed.
Tim went back into the apartment and found his brother on the floor. He knelt and held his brother until he died.
Def will cross examine. Simonsen first.
Def starts with Tim chasing Whitman and Borner out of the apartment.
Tim clarifies that he pushed them out of the apartment, then went back for the assault rifle. He had thrown the gun across the room.
Def asks about the warning shot.
Tim says it went through the window. Def says Tim had made a statement after the shooting indicating that the warning shot had been fired into the floor.
Def will provide Tim a copy of his statement to refresh his memory.
Tim says he recalls making this statement.
Def asks about the conversation between Mike and Whitman. Tim says the conversation began immediately after he and Mike stood up from the couch.
Tim says the warning shot was fired before anything was said. Tim says the first statement made was, "This is a stick up. We're taking everything you got."
Simonsen is finished. Finck is next.
Def asks about phone calls. Tim says he does not recall any threatening phone calls between Whitman and Mike.
He recalls one phone call, but it was only about money given to his mom by Borner.
Def asks about the warning shot. Tim says it was fired by Whitman as soon as he entered the apt.
Tim says that as he confronted Borner, Mike confronted Whitman.
Tim says most of the scuffle took place near the entryway of the apartment.
Def asks whether Tim had any contact with Borner of Whitman earlier in the day. He says he had not.
Def asks again about the scuffle. Tim says he took the rifle away from Borner. It discharged as soon as he grabbed it. He took it away and threw it on the floor.
Def is asking how Whitman came to lose possession of the .22 handgun. Tim does not know.
Def asks about Tim trying to fire the rifle. Tim says the trigger did not move when he tried to pull it.