2.26.2010

TS - Wife refuses to testify against husband at preliminary hearing

Wife refuses to testify against husband at preliminary hearing
The wife of a Eureka man allegedly involved in a traffic collision that ended the life of a 9-year-old girl in October, was held in contempt of court Thursday and arrested after refusing to testify at her husband's preliminary hearing.

The preliminary hearing is set to determine whether there is sufficient evidence to hold Jason Whitmill, 31, and Anthony Flores, 19, to stand trial on charges related to their alleged roles in an Oct. 6 street race along State Route 299, which seriously injured Debra Quigley and killed her 9-year-old daughter, Nicole.

For the second time during the preliminary hearing, Cheri Marcelli, 40, of Willow Creek, refused to testify against Whitmill, evoking the marital privilege -- a legal rule that protects the privacy of communication between husbands and wives.

That privilege, however, has a number of limitations within the courts, and prosecutor Randy Mailman cited a 2002 California Supreme Court ruling that provided an exception to the spousal privilege.

According to the ruling, when an individual commits a crime against their spouse, and in doing so injures a third party, the spouse that was injured can be compelled to testify.

Because the District Attorney's Office has alleged that Marcelli was injured while riding as a passenger with Whitmill while he was allegedly intoxicated, she can legally be expected to testify against her husband about the allegation he injured others in the collision, Mailman argued. udge Bruce Watson agreed, asking Marcelli to be sworn in. Marcelli then evoked the Fifth Amendment, a protection against self-incrimination. Watson disputed Marcelli's right to demand the Fifth, as she has not been charged with a crime and her answers could not be used as evidence to convict her.

When Marcelli then refused to be sworn in to testify, Watson held her in contempt of court. She was handcuffed and led from the room.

Later during the Thursday hearing, Marcelli was brought back into court with a newly appointed public defender.
Watson ordered her to be sworn in to testify, and asked “Do you, at this time, still refuse to testify?”

”Yeah,” Marcelli responded.

”With that,” Watson said, “I will place you in custody, presuming we will have you back at 8:30 tomorrow to testify.”

Willard O'Diear, a California Highway Patrol investigator, also testified at the Thursday hearing, saying that Whitmill was allegedly driving more than 100 mph seconds before he struck the Tahoe driven by Quigley.

After the collision, O'Diear testified he examined computers inside the Tahoe and Pontiac Sunfire, which recorded driving information from both vehicles during the moments before and after the impact.

According to O'Diear, the computer found in the Pontiac showed the vehicle reached speeds of 103 miles per hour just seconds before striking the rear of the SUV. At the second of impact, O'Diear said the Pontiac was traveling at 100 miles per hour.

The Pontiac “was traveling as fast as it could at the time,” O'Diear said. “It couldn't go any faster.”

O'Diear said the Pontiac's computer showed the driver hit the brakes while simultaneously continuing to accelerate just before the moment of impact. That information, O'Diear said, supported evidence the Pontiac driver was racing the vehicle, and attempting to speed through a gap in traffic between the Tahoe and a Ford Mustang, which was allegedly driven by Flores.

Whitmill has contested he was the driver of the Pontiac involved in the collision, and has said it was Marcelli who was driving the car. O'Diear said he found evidence that “clearly indicates Mr. Whitmill was the driver of the vehicle.”

That evidence, O'Diear said, was blood found on the passenger's side seat belt. According to O'Diear, Marcelli's hand and neck were seriously injured during the collision, while Whitmill did not suffer any injury that caused significant bleeding.
Blood, which O'Diear believed was Marcelli's, was found staining the passenger side seat belt.

O'Diear was the last witness to testify for the prosecution at the preliminary hearing. Whitmill's attorney, Glenn Brown, said he intends to call four more witnesses. Testimony in the preliminary hearing will continue today.

Sean Garmire can be reached at 441-0514 or sgarmire@times-standard.com.
Sean Garmire/The Times-Standard
Posted: 03/13/2009 01:28:29 AM PDT
***
Related:
09
Whitmill and Flores trial date delayed another month 08/04/2009
Whitmill, Flores take District Attorney's deal 12/05/2009
Jury selection begins in trial of Whitmill, Flores 11/23/2009
Whitmill, Flores trial to proceed 11/10/2009
Motion denied to suppress blood sample in Whitmill case 11/06/2009
Whitmill faces murder charge for alleged role in crash 10/15/2008
Quigley family, friends remember 9-year-old Nicole 10/06/09
Nearly one year ago 10/01/2009
Case surrounding fatal crash on Highway 299 delayed 09/15/2009
Too many delays 9/10/09
Legal maneuvers slow case of men charged in 9-year-old's death 09/01/2009
Whitmill and Flores trial date delayed another month 08/04/2009
Evidence, charges unchanged against Whitmill 07/17/2009
Evidence for second degree murder charge? 06/19/2009
Thinking of the Quigleys 05/29/2009
Remember Nicole 05/08/2009
Looking forward: Quigley family watches and waits as case continues 05/17/2009
Defendants in 299 wreck plead not guilty 03/28/2009
Judge holds Whitmill, Flores to answer for 299 wreck 03/14/2009
Wife refuses to testify against husband at preliminary hearing 03/13/2009
Investigator testifies suspect in fatal crash changed story 03/12/2009
Officer testifies about 299 crash at prelim 03/11/2009
Preliminary hearing over Highway 299 wreck continues 03/10/2009
Superior Court delays hearing in 299 crash case 02/11/2009
Broken system 01/23/2009

08
Hug your children 12/03/2008
Vehicular manslaughter suspect has extensive criminal history 11/13/2008
Whitmill-Flores hearing continued 11/06/2008
Street race case waiting on CHP reports 10/23/2008
Authorities seek Mustang passenger for questioning 10/17/2008
Court document: Flores tried to 'subvert' investigation 10/16/08
Whitmill faces murder charge for alleged role in crash 10/15/2008
Authorities arrest driver of Mustang 10/10/2008
New driver named in fatal collision 10/09/2008
Search continues for other driver in fatal crash 10/08/2008
◼ ER Parolee named as driver in fatal collision
◼ TS New driver identified in fatal crash
◼ TS New driver named in fatal collision
TS Update: ☛ TS Police still looking for driver
◼ TS Driver sought: Suspected drag race on 299 results in fatal crash

Note: there were other articles in the Eureka reporter, but none are available online anymore.