15 to 20 Feet on a Dark Night

In this post, I want to zoom in on Johnson's testimonies during the preliminary hearing and the trial.  So I'll repeat the summary of his testimony regarding what he witnessed in the early morning hours of August 16, then  I'll look at the details critically.

"In the very early hours of August 16, 1985 Vincent Johnson spent time visiting with a friend in his bus.  Because the friend was afraid to drive herself back to Berkeley, Johnson accompanied her out to University Ave., and then walked back to Rainbow Village.  As he was returning, he saw Mary, Greg, and International standing together near the dump office.  This was around 0230.  Johnson testified that he quickly walked by them (within 15-20 feet) without saying anything, and he had the impression that International looked 'angry.'"

Around the time that Jim Prew, Mary, Greg, Paul Harter, and International returned to the Village after giving Chris Campbell a ride home, Johnson drove down to University with his friend.  She dropped him off, and then he walked home around the same time that the gathering at Jim Prew's van was winding down and Mary and Greg left to take a walk.  Assuming that Johnson was the last person to see Mary and Greg alive, then they were last seen alive at approximately 0230.

1. The court documents and Patricia Gioia's book give us details of what happened as Johnson walked closely by.  Johnson claimed that he didn't hear anything nor did he say anything to the three, because he just wanted to mind his own business.  When he was questioned by Wolke on August 20, Thomas claimed that Johnson said hello.  

2. Johnson claimed that Thomas looked "angry" and "pissed off," yet Patricia Gioia reports that during the preliminary hearing Johnson also testified, "I didn't stop.  I was going to ask if these two people needed a place to stay but since International was there, I thought he [Thomas] would take care of them." (Berkeley Marina Murders, p. 113)  in his questioning of Johnson, Chaffee suggested that the perception of "anger" may have been a bit of projection on Johnson's part and there's reason to believe that this was true.  "Johnson said he didn't speak to them because he is shy and thought International was mad at him." (Ibid.)

3. Thomas told Wolke that he saw Vivian Cercy's vehicle parked on the road to the Village as he walked toward the landfill office.  It appears that Johnson did not testify that he saw Cercy's vehicle as he walked back to the Village nor was he questioned about this.  He could not have missed it if in fact the vehicle sat where Thomas said it did.

4. And here's a key detail to Johnson's testimony during the preliminary hearing. Again Patricia Gioia reports that, "Johnson said he saw nothing in anyone's hands and he didn't see anyone smoke a pipe.  He thought the girl was wearing a shawl." (Ibid)  Here's why it turned out to be a key detail during the trial:

"Circumstantial evidence suggestive of planning activity is present in this record. Vince Johnson testified that he saw defendant with the victims about 2:30 a.m. on August 16 near the landfill office, but did not mention seeing defendant's rifle. The jury could infer that defendant returned to his car to get the rifle and ammunition before committing the murders." (People v. Thomas, p. 10)

So the jury could infer premeditation.  Judge Mosk jumped all over this in his dissent:

"In this case, the majority concludes that because witness Vince Johnson testified he saw defendant with the victims about 2:30 a.m. on the night of the killings, but did not mention seeing a rifle, defendant must have had to return to his car to get the rifle before committing the murders. Johnson, however, was never asked whether he saw a rifle; his failure to respond to a question that was never asked is not evidence of anything. Moreover, even if Johnson had testified he did not see a rifle, this would not prove that defendant had no rifle; it would merely show that on a dark night, from a distance, a witness who testified he ‘tried not to look’ at defendant because he wanted to mind his own business did not see a rifle" (People v. Thomas, p. 31)

Of course, if Thomas had his rifle with him as Johnson walked by, then this raises a question about what happened after Johnson passed.

And this gets us back to Cercy's vehicle.  If Johnson saw it then this would have given Cercy's testimony some credibility.  If he didn't then this could mean that she didn't drive up to the parking lot to throw out her trash until after he walked back to the Village, and after Thomas left to walk to Ledger's Liquor.

But there's still the open question:  How does Vivian Cercy's testimony connect to the ones given by Prew and Johnson?