Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 850 W. Adams, Ste 201 Phoenix, Arizona 85007 3 Telephone: 602-382-2700 4 DAVID LEE TITTERINGTON State Bar # 006500 5 Asst. Federal Public Defender [email protected] 6 Attorney for Defendant 7 8 9 10 11 12 13 14 15 vs. William Domingo, Defendant. 1. Mr. Domingo objects to information contained in the offense United States of America, Plaintiff, No. CR-04-1100-PHX-DGC OBJECTIONS TO THE PRESENTENCE REPORT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

16 conduct section of the first draft presentence report. The information about the 17 offense conduct was taken from reports of interviews of witnesses whose actions have 18 compromised their credibility. While Mr. Domingo has pleaded guilty to assault of 19 Hubert Evans, it is imperative that this Court realize that much of the version given 20 by the witnesses against Mr. Domingo must be countered by the witnesses' actions 21 taken to cover up their participation in the events of January 12, 2003. 22 On Sunday January 12, 2003, Mr. Domingo and his friend, Theophilus 23 James, were shot by Hubert Evans and Samuel Kisto, who had been visiting Mr. 24 Domingo at his trailer home that night. That night, Mr. Domingo was shot twice, 25 once in the shoulder and once in the abdomen. James, also known as Opie, was also 26 shot twice by Samuel Kisto. Both Mr. Domingo and Mr. James were shot twice, once 27 in the back and once in the back of the head. As a result of the shooting, Mr. James 28 died.

Case 2:04-cr-01100-DGC

Document 96

Filed 07/11/2006

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The witnesses against Mr. Domingo included Russell Blackwater,

2 Samuel Kisto, Hubert Evans, and Lisa Pablo, who were visiting Mr. Domingo that 3 night. These witnesses contend that Mr. Domingo started an argument with Mr. 4 Kisto, and began hitting Mr. Kisto with a machete. But no machete was ever found 5 at the scene. Even though police arrived minutes after the shooting, and secured the 6 scene to preserve evidence, they never found a machete at Mr. Domingo's trailer, 7 either inside the trailer or outside. After police had left, Gary Othole, a neighbor 8 cleaned up the yard outside Mr. Domingo's trailer the next morning, and he never 9 found a machete. 10 What police did find was a .38-caliber pistol, taken without a warrant 11 from a storage room off the kitchen. In addition, police found several empty shell 12 casings on the ground in front of Mr. Domingo's trailer. The empty shell casings did 13 not match the .38-caliber pistol found inside the trailer. Police examined the exterior 14 of the trailer, and located two bullet holes in the front door, two bullet holes in the 15 threshold of the front door, and four more in the exterior wall east of the front door. 16 Inside the trailer, police found one bullet hole in the west wall of the 17 living room, west of the northwest bedroom threshold approximately two feet above 18 the doorknob height, one bullet hole in the northwest bedroom door approximately 19 three feet above door knob height, one bullet hole in the south living room wall next 20 to the hallway approximately one foot up from the floor that penetrated the cabinet 21 behind it. Two more bullet holes were found in the south wall of the living room, 22 which has kitchen cabinets on the other side. One of the bullets penetrated and exited 23 the kitchen cabinet, the other made contact with the side of the cabinet leaving a path 24 approximately two feet long. 25 Two more bullet holes were found in the wood paneling on the south 26 wall of the living room, which penetrated the kitchen cabinets but did not go all the 27 way through. 28 2
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There was a copper colored bullet located on the kitchen floor that had

2 the nose flattened. The bullet did not match the .38-caliber pistol found inside the 3 trailer. There was one additional bullet hole found in the south wall of the kitchen 4 above the windows. 5 Police did not find much of the evidence related to the shooting of Mr. 6 Domingo and Mr. James because the coverup engineered by the witnesses had 7 already begun. The four visitors sped away in Russell Blackwater's truck. The 8 truck's lights were off to avoid the possibility that witnesses might see the license 9 plate. 10 They drove to Phoenix, and determined that Hubert Evans had been shot 11 while at Mr. Domingo's trailer. The remaining witnesses decided that they should 12 take Mr. Evans to Perry Park, where they would leave him to claim that he had been 13 shot in a drive­by shooting. They did take Mr. Evans to Perry Park, near 36th Street 14 and Virginia in Phoenix, and they left him there, stopping at Dunkin Donuts, near 40th 15 Street and Thomas, to call police and report that they had seen a gunshot victim in 16 Perry Park. 17 When police arrived at the park, Mr. Evans furthered the coverup by 18 telling police that he had been shot by a Hispanic male, who had driven by in a small 19 white car. Police took Mr. Evans to Maricopa Medical Center. 20 Having left Mr. Evans to fend for himself in Perry Park, the other visitors 21 drove through Gilbert toward Russell Blackwater's house. Blackwater and Samuel 22 Kisto decided to hide the gun. They stopped at a location near Gilbert Road and the 23 Hunt Highway, where Kisto hid the gun under some bushes. 24 Having hidden the gun that was used to shoot Mr. Domingo and Mr. 25 James, they drove to Blackwater's house, so that Kisto and Lisa Pablo could retrieve 26 some of their belongings. Then Blackwater drove them back to Phoenix, to a location 27 near 3rd Street and Portland, where they actually lived at the time. 28 3
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The next day, Mr. Blackwater continued the coverup. He delivered his

2 truck to a body shop with instructions to paint it a different color. Billy Chavez, the 3 body shop owner, told a defense investigator that Mr. Blackwater had asked him to 4 bang out a few dents and paint the truck primer gray. Mr. Chavez told Mr. 5 Blackwater that he was too busy to do the work, but Mr. Blackwater insisted on 6 leaving his truck with him so that he could fix it when he had time. Mr. Chavez said 7 that Mr. Blackwater did not have a prior appointment for this work, as Mr. 8 Blackwater later told police. In fact, Mr. Chavez later told Mr. Blackwater that he 9 would not do any further work for him because he did not appreciate Mr. Blackwater 10 trying to involve him in the coverup of the shooting at the Domingo residence. 11 Two days after the shooting, Mr. Blackwater heard that Mr. James had 12 died from his wounds. He knew that he and the other witnesses would be blamed for 13 his murder, unless they took action. 14 So Mr. Blackwater gathered up Samuel Kisto and Lisa Pablo, and they 15 went to the police and told the police a story about Mr .Domingo starting everything 16 by hitting Mr. Kisto with a machete. The machete that was never found. They also 17 told police that Mr. Domingo was waving a gun in the air shooting at Mr. Kisto, Mr. 18 Evans, and Mr. Blackwater. When Mr. Evans was interviewed, he told police that he 19 had shot his gun into the ground to warn Mr. Domingo to back off. When Mr. Kisto 20 was interviewed, he told police that he found Mr. Evans's gun, and shot in the air 21 over the trailer. He said that he never saw anyone standing in front of Mr. Domingo's 22 trailer. The witnesses' story insisted that Kisto and Evans had not shot anyone, even 23 though it was clear that Mr. Domingo and Mr. James had both been shot twice, and 24 the Domingo trailer had been riddled with bullets. 25 What happened that night is not entirely clear. Mr. Domingo was 26 extremely intoxicated, and he has admitted that he does not remember much of what 27 happened that night. He has admitted to assaulting Mr. Evans. But the extended 28 coverup undertaken by the witnesses against Mr. Domingo mitigates against 4
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1 accepting their version without question. For this reason, much of the damage 2 inflicted that night should not be attributed to Mr. Domingo. 3 2. For these same reasons, there is no evidence supporting an upward 4 departure for dismissed charges, as suggested in paragraph 77 of the first draft 5 presentence report. The evidence supporting the dismissed charges is given without 6 support by the same witnesses who engaged in the coverup detailed above. 7 3. Mr. Domingo objects to information contained in paragraph 12 of 8 the presentence report. He objects to the amount of restitution unless detailed billing 9 can be shown for the treatment given to Mr. Evans in support of the claim for 10 restitution. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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Respectfully submitted: July 11, 2006. JON M. SANDS Federal Public Defender s/ David Lee Titterington DAVID LEE TITTERINGTON Assistant Federal Public Defender

1 Copy of the foregoing transmitted by ECF for filing this 11th day 2 of July, 2006, to: 3 Clerk's Office United States District Court 4 Sandra Day O'Connor Courthouse 401 W. Washington 5 Phoenix, Arizona 85003 6 Tom Simon Assistant U.S. Attorney 7 United States Attorney's Office Two Renaissance Square 8 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 9 Copy mailed to: 10 William Domingo 11 Defendant 12 s/ Kathy A. Kruckeberg 13 Kathy A. Kruckeberg 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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