By Jessica Bernstein-Wax
San Jose Mercury News
SAN JOSE, Calif. — Six men and six women charged with deciding whether a 26-year-old man receives the death penalty or life in prison for murdering East Palo Alto police Officer Richard May listened Monday as relatives described the devastating effect the policeman’s 2006 slaying has had on their lives.
The testimony from May’s mother, stepfather and sister Monday afternoon followed opening statements in the penalty phase of the trial, during which a prosecutor detailed defendant Alberto Alvarez’s prior convictions and jailhouse fights, while defense lawyers asked the jury to exercise mercy in sentencing a troubled young man.
Last month jurors convicted Alvarez of first-degree murder with the special circumstance that May was performing his police duties when killed. He now faces life in prison without the possibility of parole or execution.
“The murder of my son has left a hole in my heart that will always be there,” May’s mother, Clarice Merrill, said as the prosecution projected photographs of her son on the courtroom wall. “We were a family of six, and now we’re a family of five.”
In tearful statements May’s stepfather, Frank Merrill, and his sister Tami McMillan also remembered the 38-year-old father of three’s acute sense of humor and his willingness to help others. Several of the jurors were also crying.
Alvarez sat motionless during the testimony even as relatives occasionally glared at him with wet eyes from the stand.
About 12 other relatives and friends, including May’s widow and daughters, are expected to give victim impact statements today.
On Jan. 7, 2006, May chased Alvarez near the scene of a fight at an East Palo Alto taqueria. The two men scuffled in a driveway on nearby Weeks Street and exchanged gunfire, leaving Alvarez with a bullet wound to his right thigh and May dead.
During the guilt phase of the trial, Alvarez testified in his own defense that May struck him with a baton and shot first. The prosecution said Alvarez opened fire on the officer to avoid going back to prison on a parole violation, ran away and returned seconds later to “finish him off” as he lay on the ground.
In his opening argument of the penalty phase of the trial Monday morning, defense attorney Eric Liberman described Alvarez’s chaotic upbringing in East Palo Alto with a father who spent time in prison and then struggled with alcohol and drug addictions until his son was 14. The defendant, who has a functional IQ of 84 and the mental age of a child or teenager, was often left unsupervised as a small boy while his mother worked long hours to support her three children, Liberman said.
“None of this evidence is being provided to you as an excuse for his behavior on Jan. 7, 2006 — there is no excuse,” Liberman said. “We will be asking you to spare Alberto Alvarez’s life, to allow him to live out the rest of his life in a prison cell.”
However, San Mateo County Chief Deputy District Attorney Steve Wagstaffe urged jurors to sentence Alvarez to death.
Wagstaffe described how in 2003 an officer arrested the defendant and found a semi-automatic pistol in his waistband. Just days later Alvarez pulled a gun on a security guard who ordered him not to loiter outside the Pal Market in East Palo Alto, he said. The defendant also has a conviction for possession of marijuana for sale.
In 2007 and 2008, Alvarez attacked two other inmates in the maximum security wing of the San Mateo County jail, and officers twice found makeshift weapons during inspections of his cell, Wagstaffe said.
“I am not asking you to return the penalty of death just because of these types of things,” Wagstaffe told the jury. “In the end it is "... the murder, the execution, of Officer May.”
The trial resumes today with further prosecution evidence and testimony.
Copyright 2009 San Jose Mercury News