JURY ACQUITS FRESNO DEPUTY SHERIFF — PART 1

ROGER D. WILSON
Senior Trial Counsel
Rains Lucia Stern St. Phalle
& Silver, PC

More than three years after the tragic death of his friend and mentor, Fresno County Sheriff’s Sergeant Rod Lucas, it took the jury just over one hour to find former Fresno County Detective Jared Mullis not guilty of involuntary manslaughter. From the very beginning, the case against the former narcotics detective was unusual, mainly because seemingly everyone with knowledge of the incident leading to Lucas’ death believed it to be a horrible accident. However, the accident morphed into a crime when prosecutors targeted Mullis, ultimately charging him with involuntary manslaughter (Penal Code §192[b]) with a firearm use enhancement (Penal Code §12022.5[a]) and exposing him to 14 years in prison.
Mullis had been with the Sheriff’s Department for just over nine years when he heard from his attorney that he was being charged criminally for the accidental death of Lucas. Mullis felt like he was losing his mind. He had wanted to be a detective with the Sheriff’s Department since high school; he had planned to make law enforcement his career. Now he was on administrative leave and facing criminal prosecution for an accident.

Halloween 2016
October 31, 2016, started out as a good day at the Special Investigations Division (SID), where Mullis and Lucas worked. It was an office day, and everyone was processing evidence collected from a very large marijuana dispensary bust.
Around 3:30 p.m., Lucas entered the open office space shared by Detectives Mullis, Ruelas, McSwain and Yang, and commenced to mimic roundhouse kicks at Mullis’ head as he sat at his computer. Lucas’ antics were not unusual for him. On this afternoon, however, the Glock 43 he was carrying fell from his borrowed holster to the floor. All horseplay stopped. Mullis, McSwain and a now-retired sergeant who had just happened by the office stared at the fallen gun. McSwain told Lucas to get a different holster, because the one he was using was made for a gun with a tactical light and his gun did not have one. Mullis said essentially the same thing and offered to show Lucas the new holster he recently purchased for his M&P Shield. Thirty to forty seconds later, everyone heard a loud “pop” and Lucas was lying on the floor, fighting for his life.

Later that afternoon, McSwain told homicide detectives that he saw Mullis show Lucas the new holster, commenting that Mullis held the gun with the muzzle pointed toward the ceiling. McSwain explained that he then turned away from the two and returned to report writing. “Thirty to forty seconds later, I heard the loud pop. I turned around and saw Sergeant Lucas clutching his chest,” McSwain said.

However, the retired sergeant told homicide detectives that he thought he saw Mullis demonstrate the holster with the muzzle pointed directly at Lucas. As Mullis “slid the gun into the holster the gun went off,” the retired sergeant reported.
Almost immediately after the “pop” of the gunshot, Mullis called dispatch to report the accidental shooting and request EMS. The entire call lasted 10 seconds, and Mullis did not bother to hang up the phone. He and the other detectives who heard the shot rushed to Lucas and began first aid. Several detectives cut Lucas’s T-shirt to locate and treat his wound. Several detectives were yelling at Lucas to “Hold on!” and “Stay with us, Rod!” One detective remembered Mullis saying to Lucas, “I’m sorry.”
Paramedics soon arrived and took over the lifesaving measures. Lucas was transported to a nearby hospital, but he was pronounced deceased soon after his arrival.

After Lucas was transported to the hospital, Mullis was shuffled by other detectives to the SID office break room. He called his wife, and she soon arrived and joined him in the break room. Within minutes, the DSA president also arrived, met with Mullis and asked him what had happened. Mullis explained that he handed his M&P Shield in the holster to Lucas, then turned toward his computer. He said that out of the corner of his eye, he saw Lucas make a jerking movement, and then he heard the loud pop of the gunshot. He turned toward Lucas and saw him clutching his chest. He immediately called dispatch.

“I did not shoot Rod,” Mullis told the DSA president, who wisely advised Mullis to try to relax while he contacted a PORAC Legal Defense Fund attorney prior to giving a statement. The president got the panel attorney on the phone and advised Mullis to go home and rest, and the interview would occur in a couple of days. Mullis reluctantly agreed and was driven home by his friend and wife. He would never return to the narcotics office.

The Investigation
Evidence collected at the scene of the shooting included Mullis’s M&P Shield and his new Kydex holster. To Mullis’ surprise, the M&P Shield had not chambered a new round after the shot was fired. The spent shell casing had fully extracted and landed on his desk, but a new round failed to feed into the chamber. This is commonly referred to as a “misfeed” or “short stroke.” Significantly, Mullis’ holster was located six feet away from him and was undamaged.
Another crucial piece of evidence was the T-shirt worn by Lucas when he was shot. The shirt was collected by a crime scene technician (CST) at the hospital. It had been cut in four places by deputies and others treating Lucas’ wound at SID, and was later removed and bagged by hospital emergency room staff. The handling of the shirt would prove vital to Mullis’ defense at trial.

The day following the shooting, November 1, the County coroner performed the autopsy. He concluded that the bullet entered Lucas’ chest below the left nipple and traveled upward and backward, coming to rest against a rib under the right shoulder blade. The coroner opined that the cause of death was homicide because Lucas was shot from a distance of “greater than 32 inches.” This meant that Lucas could not have shot himself, according to the coroner. The coroner completely disregarded the upward path of the bullet, and the distance of “greater than 32 inches” was based on his “training and experience” due to the absence of stippling or powder tattooing on Lucas’ skin.
That same day, the lead detective, Davis, retrieved Mullis’ holster from evidence and took it to her office. Another homicide detective secured an M&P Shield .45 caliber, inserted the gun into the holster and performed a retention experiment. The detective held the holster and gun with the muzzle pointing toward the ceiling and lightly shook the holster. The gun fell from the holster and hit the ground. The holster was returned the next day to the crime lab. The gun used for this “experiment” was empty and did not have an inserted magazine.

The next day, Mullis was interviewed by the two lead homicide detectives. Although Mullis’ LDF attorney was told that his statement would be “voluntary,” just prior to the start of the interview, the detectives told Mullis and his attorney that he would be advised of his constitutional rights before the interview. During the interview, Mullis explained what he observed, as he had earlier explained to the DSA president.
While describing the incident, Mullis told the detectives he remembered Lucas’ personal firearm dropping on the floor before the shooting, but he could not remember how it happened. Moreover, Mullis could not remember showing his gun and holster to Lucas before handing them to him. These two gaps in Mullis’ memory became the focal points for the prosecution’s contention that Mullis lied to detectives to cover up the fact that he had actually shot Lucas.
The Sheriff’s Department Human Resources staff planned and scheduled a “critical incident debrief” for November 2. Everyone from the Narcotics Division was invited. The Department had arranged for a clinical psychologist to be present to moderate the meeting. The goal was to provide a venue for everyone involved to share their grief about the shooting. Further, as several people testified, participants were told that the meeting would be confidential and they could all speak freely.
Before the debrief started, the retired sergeant was taken to SID for another interview. During this second interview, he claimed that even though he thought the muzzle was pointed toward Lucas when Mullis handed the gun to him, he did not see the gun fire and did not see the actual shot. Everyone present during the walk-through interview and those who watched it prior to prosecuting Mullis watched the retired sergeant demonstrate the “gun-in-holster” actions and assumed he saw the gun fired. Later, the retired sergeant would explain that he must have diverted his attention, probably to his cellphone, which, he explained, “he looks at 1,000 times a day.” He said he was probably texting his wife.
Later that afternoon, investigators from CalOSHA conducted a walk-through of the SID and a cleaning crew went through the office to clean the floors, desks and filing cabinets. In fact, a large portion of the carpet containing blood evidence was cut out and destroyed.
On November 3, Lieutenant Salinas ordered Detective Davis to collect gunshot residue (GSR) evidence at the SID offices where the shooting occurred, although the cleaning crew had cleaned the offices the day before.
DOJ Test Results
Between November 30 and December 22, detectives received the results of several forensic and ballistic tests and analyses from the Department of Justice (DOJ) laboratory. These results supported Mullis’ defense and refuted the contention that the gun was pointed toward Lucas when Mullis handed it to him.
Of particular importance were the DOJ tests of Mullis’ Kydex holster and duplicate holsters purchased by the Sheriff’s Department. When DOJ criminalists fired a round from Mullis’ M&P Shield through his personal holster and two replica holsters, all three either broke or blew apart. These test results were known to detectives 30 days after the shooting, but the detectives did no follow-up interviews or other tests until after the preliminary hearing, when Mullis presented evidence to the court that Lucas shot himself when he tried to catch Mullis’ dropped gun.
Further DOJ and CST test results revealed no identifiable fingerprints on Mullis’ gun or holster. Mullis’ holster was not tested for GSR, GSR was located on Lucas’ hands, Mullis’ DNA was located on his gun and holster (not surprisingly), and Lucas’ DNA was not located on the gun or the holster. Notably, the DNA analyst explained that the absence of Lucas’ DNA profile on the gun did not mean that he did not touch the gun, merely that he did not leave DNA behind if he did touch the gun.
Another test the DOJ performed consisted of a series of gunshots through filter paper to determine the distance from the muzzle to Lucas’ wound. The DOJ criminalist explained that he prepared an image of the GSR on the T-shirt that Lucas was wearing when he was shot and then visually “matched” the amount of GSR found on the T-shirt with the test shots he performed at the filter paper at varying distances. The DOJ criminalist estimated that Lucas was shot from a distance greater than 24 inches.

Prosecution of Mullis Begins
The District Attorney’s Office charged Mullis with involuntary manslaughter in violation of Penal Code §192(b) with a firearm use enhancement pursuant to Penal Code §12022.5(a). Mullis faced 14 years in prison. His preliminary hearing was held in November 2017.

During the preliminary hearing, the prosecution presented the retired sergeant’s walk-through interview video and testimony from Homicide Detective Davis, the coroner and a sergeant who surprised everyone when he testified that “no deputies in the Department ever hand another deputy a loaded firearm” and to do so “would be against departmental policy.”
In his defense, Mullis presented the testimony of two narcotics detectives who had known Lucas for many years and had personally witnessed Lucas drop his concealed-carry gun and attempt to catch it in mid-air several times. These detectives also testified that each told Lucas to get a holster for his concealed-carry gun, and to stop trying to catch it when it fell because he could injure himself or others if he accidentally depressed the trigger.
The coroner expressed his opinion that Lucas was killed by another person and that the shot was from a distance of greater than 32 inches. Further, he testified that the upward trajectory of the gunshot was irrelevant because the bullet could have easily “deflected off organs” as it passed through the body — the bullet never struck any bones as it passed through the organs.

The DOJ criminalist who performed the muzzle-to-wound tests testified that the distance was closer to 24 inches, based on his tests.
The magistrate judge who heard the preliminary hearing questioned the prosecution’s election to charge the firearm use enhancement, so the prosecutor dismissed the enhancement at the conclusion of the hearing. Nevertheless, the magistrate judge did not believe Lucas dropped and then tried to catch his gun. Because Lucas was “shot center mass,” the magistrate felt he could not have shot himself. Mullis was held to answer for the involuntary manslaughter charge.
Although he faced the daunting prospect of a criminal trial for manslaughter, following this tragic accident, Mullis knew that the PORAC Legal Defense Fund and his attorneys at Rains Lucia Stern St. Phalle & Silver had his back. Stay tuned for the next issue of PORAC Law Enforcement News to find out what happened at trial.

About the Author
Roger D. Wilson is a senior trial counsel with Rains Lucia Stern St. Phalle & Silver, PC, and practices in the firm’s Legal Defense group. He represents peace officers in administrative, disciplinary, critical incidents and criminal defense matters.