After confiscating a .45 caliber pistol from murder suspect David Mota’s Chevy Silverado on the night of Feb. 28, 2013, Oro Valley Detective Sergeant Dean Nesbitt, at the request of the prosecution, revealed the handgun in court today to the 12-person jury.
Shortly after the shooting, which occurred during an altercation in traffic and ultimately claimed the life of 22-year-old Joshua Switalski, officers with the Oro Valley Police Department pulled Mota over at the intersection of Oracle and Hawser roads.
A warranted search of the vehicle by Nesbitt revealed an M1911 model pistol tucked underneath a pillow and PlayStation console, behind Mota’s driver seat.
The search also revealed two spent shell casings from the .45 – one located underneath a beer bottle on the floorboard, and another on the passenger seat where Mota’s friend and passenger, Daniel Fehr, was sitting.
With the support of photographic evidence, the prosecution used Nesbitt to highlight an important fact about the weapon.
“When I recovered the handgun, there was one (bullet) in the chamber, and only four in the magazine,” said Nesbitt. “This type of magazine normally holds seven rounds.”
Nesbitt added that upon finding the gun, “the hammer was back, the safety was off,” and it was “ready to fire.”
Switalski’s Pontiac Grand AM was struck by two bullets, one of which ricocheted into his lung and heart, killing him; that, despite attempts by OVPD officer Michael Kleinberg to resuscitate him, the audio of which was played during the trial.
As it played, Switalski’s girlfriend, April Taylor, who was riding in the vehicle with Switalski at the time of the shooting, began weeping and left the courtroom alongside Switalski’s mother, Jeri.
The prosecution, headed by attorneys Bruce Chalk and Rona Kreamer, continued a day-one push to negate the defense’s claim of self defense. Based on scene reconstruction, the prosecution alleged that not only had Switalski begun rolling up his window to end to the verbal altercation, his car was also positioned ahead of Mota’s, meaning he was driving away from further conflict.
Defense attorney Natasha Wrae relied heavily on Mota’s claim that he fired because he saw Switalski reaching for something, pointing out the fact that a sweep of the desert nearby was never performed, implying Switalski may have ditched a weapon.
As she did in day one of the trial, Wrae continued to refer to Switalski as the aggressor. She also said that because attempts of a scene reconstruction were not identical to the actual occurrence, there was no way to determine the exact trajectory of the bullets. That in turn, she said, leaves question as to whether Mota was shooting to kill.
That considered, the prosecution banked on key witness Daniel Fehr to provide further insight as to Mota’s intent. Instead, what it got was an unclear picture of events that transpired that night – Fehr continually answering questions with, “I don’t recall.”
No doubt frustrating to prosecutors, Chalk grilled Fehr with questions surrounding his memory that night, at one point even asking him, “You know you’re under oath, right?”
Fehr stuck to his story, however, saying that his memory was foggy due to the fact he had been drinking for much of the day in Tucson before he and Mota began heading back to their hometown of San Manuel.
Wrae defended Fehr’s stance by pointing out that in addition to being intoxicated, he had little sleep that day.
As the questioning proceeded, Fehr denied the prosecution’s allegations that he tampered with evidence shortly after the shooting.
When Mota fired his weapon, each of the two bullets hit the passenger side mirror before making contact with Switalski’s vehicle.
A photograph of the mirror showed the bullet markings, but also an indent in the middle of the mirror. Chalk alleged that Fehr, whose hand was bloody the night of the shooting, was attempting to punch the mirror off of the vehicle.
Fehr claimed he punched the mirror because he was upset due to an argument with his girlfriend.
Chalk refuted that, reminding Fehr that his phone records had been collected as evidence, and that the last message he sent to his girlfriend less than an hour before he and Mota became engaged with Switalski was not one of an argumentative nature.
According to Fehr, the argument – of which he was also hazy on the details – may have taken place earlier in the night. His reaction, he said, was punching the mirror at a later time – around the time of the shooting.
A pile of glass was found near the shooting location, but it was not collected as evidence by detectives – somewhat irrelevant since it could not have been definitively matched to the suspect vehicle, according to OVPD forensic expert Lori Plummer who testified late in the day.
Two things were for certain in Fehr’s testimony: Mota fired two rounds at Switalski, and Fehr, who had a .38 caliber pistol on him, never fired a round – a fact the prosecution used to point out that it was unusual for Mota to shoot out of fear for his life, but Fehr, with a gun at his disposal, not to.
The 24-year-old Fehr, who like Mota is a former Marine, portrayed Mota as an honest individual. The defense’s attempt to have Fehr also identify Mota as someone who wouldn’t shoot at somebody for no reason was objected to by the prosecution for speculation, and sustained by Judge Casey McGinley.
During redirect, the prosecution used Mota’s experience in the Marine Corps to hold him accountable for the shooting, and during continued questioning, Chalk managed to get Fehr to provide a definitive answer to one critical question.
“Per your training in the Marine Corps… you don’t aim at anything you don’t intend to shoot, is that correct?” asked Chalk.
“Yes,” responded Fehr.
The trial will resume tomorrow morning at 10:30 a.m. Character witnesses on behalf of Mota are expected to testify.
For day one of the trial, visit: http://explorernews.com/news/article_d905bb86-af13-11e3-8035-0019bb2963f4.html