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People v. Mackey

California Court of Appeals, First District, Second Division

January 14, 2015

THE PEOPLE, Plaintiff and Respondent,
ANTOINE MACKEY et al., Defendants and Appellants.

Alameda County Superior Court, Alameda County Super. Ct. No. 160939A B Honorable Thomas M. Reardon.

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Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant Antoine Mackey.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Yusuf Bey IV.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin and Allen R. Crown, Deputy Attorney General, for Plaintiff and Respondent.


Richman, J.

This case involves the brazen daytime shotgun murder of prize-winning journalist Chauncey Bailey, as well as the murders of two other men, Michael Wills and Odel Roberson. Codefendants Antoine Mackey (Mackey) and Yusuf Bey IV (Bey) were charged with all three murders. (Pen. Code, § 187.) Mackey was also charged as a felon in possession of a firearm (former § 12021, subd. (a)(1)), [1] and Bey was charged with shooting at an unoccupied vehicle in a separate incident that predated the murders. (§ 247, subd. (b).) In a joint single jury trial Mackey was convicted of two counts of first degree murder (those of Bailey and Wills), and Bey was convicted of all three first degree murders, with special circumstance findings of multiple murders on each of the murder convictions for both defendants. (§ 190.2, subd. (a)(3).) Mackey was sentenced to two life terms without possibility of parole, and Bey was given three life terms without possibility of parole.

Both defendants appeal, asserting error in both pretrial and trial proceedings. With respect to pretrial rulings, both defendants claim a change of venue motion was improperly denied and argue tracking evidence fro a global positioning system (GPS) should have been suppressed. Mackey further claims a severance motion should have been granted. With respect to trial, both defendants claim instructional error in various particulars and ineffective assistance of counsel based on failure to request a limiting

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instruction. Bey further argues there was insufficient evidence to support the Wills murder conviction, and both defendants claim the convictions on that count must be reversed because they rested on uncorroborated accomplice testimony. Finally, both defendants claim cumulative error requires reversal.

We conclude that denial of the change of venue motion did not result in an unfair trial, and refusal to sever Mackey’s case was not an abuse of discretion. Because California case law allowed warrantless placement of a GPS device by law enforcement at the time the device was placed, the fact that the United States Supreme Court has since held such conduct requires a warrant does not dictate exclusion of the tracking evidence in this case. As for the claimed instructional errors and related ineffective assistance of counsel claim, we find either no error or no prejudice with respect to each contention. The evidence of the Wills murder was sufficient to sustain Bey’s conviction, and the accomplice testimony rule did not apply because the witness was not an accomplice. Necessarily, the cumulative error rule does not pertain. We thus affirm.


A. The Prosecution Evidence

1. Your Black Muslim Bakery and its occupants

Bey’s father, Yusuf Bey, Sr. (Yusuf, Sr.) founded Your Black Muslim Bakery (the Bakery), and for decades was the head of the Bakery and affiliated companies, which included a security business and a community school.[2] Yusuf, Sr. died in September or October 2003. For some period prior to his death he was in poor health, and Waajid Bey (Waajid), an accountant and tax expert who served on multiple corporate boards of the affiliated Bakery businesses, was named chief executive officer (CEO) and President of the Bakery. Waajid died in February 2004, just a year after taking control of the Bakery.

Bey’s brother Antar Bey (Antar) then took control of the Bakery, at age 23. Other Bey family members took issue with this, left the Bakery business, and filed suit to try to prove that Antar’s takeover was fraudulent. Antar was killed in October 2005.

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After Antar’s death, Bey took control of the Bakery, becoming CEO. He was 19 years old.

The downstairs of the Bakery building consisted of a retail counter, baking area, and office area, with an entrance at 5836 San Pablo Avenue, Oakland. The upstairs was a residence that could be accessed from either front stairs or back stairs near a parking area. There was a large living room at the top of the stairs, and several bedrooms. Bey occupied the master bedroom.

A duplex in the rear of the Bakery had two units, one upstairs and one downstairs, with three bedrooms. The first lower-unit bedroom was occupied by Mackey, the second bedroom by Devaughndre Broussard (Broussard), and the third by Malachi Hurst.

As will be seen, Broussard played a crucial role in this case in that he was the shooter in the Bailey and Roberson murders and one of the shooters in the car shooting. Broussard had a criminal history: he committed a strong-arm robbery with others when he was a minor, and he was convicted of assault on a bus passenger as an adult. Broussard turned state’s witness in exchange for a sentence of 25 years, avoiding a life term without possibility of parole. He testified at length, for some six days, and it was largely through his testimony that the state was able to produce evidence of the details of the crimes and the roles played by various other participants.

Broussard had heard about Bey and the Bakery from a family friend, Richard Lewis (Lewis), when they were in jail together. Lewis told him Bey needed “soldiers” to serve the Black community, and in exchange Bey could ensure that his soldiers would get “good credit to buy whatever you want.” When he was released from jail, Broussard went to live at the Bakery.

Broussard started working at the Bakery in July 2006, serving as a janitor and providing security. Broussard described being searched and led in military-style drills when he first arrived at the Bakery. He also testified about being introduced to Bey and his brothers, and described the security system and cameras installed in Bey’s bedroom. In their initial meeting Bey talked about “eye for an eye” revenge and said that if somebody did something wrong, they deserved to get the same treatment in return. Broussard came to understand that he would be expected to commit crimes as part of his “job” at the Bakery, but he went along with it because of the credit assistance he had been promised. Broussard was told he needed to stay free of drugs and alcohol.

Bey regularly gave sermons at the Bakery, speaking on the history of the Black man and the “devils” or “White devils” who sabotaged Islam. There were also regular meetings in security training, which included military style drills.

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2. Liquor store vandalism and the Mossberg shotgun

Bey took over the Bakery in late 2005. On November 23, 2005, about a dozen Bakery men wearing suits and bow ties, including Bey, Donald Cunningham, Dyamen Williams (Williams), and Dhakir (Zaki), vandalized two Muslim-owned West Oakland liquor stores by smashing bottles and equipment, done to show their disapproval of selling alcohol in the African-American community. The men assaulted at least one liquor store employee and took a Mossberg shotgun from underneath a counter at one of the stores. It was stipulated that after the murders in this case Bey was convicted in a separate proceeding of stealing the Mossberg shotgun.

3. The Cook car shooting

Bey’s “second wife, ” Jasmine Siaw (Siaw), had two children with Cameron Cook (Cook). Siaw testified that Cook did not like having his children raised at the Bakery, and on one occasion in late 2006 he made an angry phone call to Siaw, and she heard gunshots in the background. It turned out that Cook was shooting a gun into the air outside the Bakery. Bey wanted to do something in response, but Siaw did not want Cook to be hurt, so Bey decided to shoot up Cook’s car.

Siaw was present on December 7, 2006, when Bey told Yusuf Bey V (Yusuf V), “Let’s talk about what we’re going to do.” Sometime past midnight that night, Bey took Siaw in his BMW to the spot where Cook’s car was parked, not far from the Bakery. Siaw saw about four or five men associated with the Bakery leave at the same time in a yellow Cadillac. Tommy Hearns (Hearns) was driving the Cadillac, with Broussard and two other Bakery men, Bey’s brother Yusuf V and Dawud Bey (Dawud), with guns in the car. The men in the Cadillac wore black to make it easier to escape detection. According to Broussard, Yusuf V had organized the mission, but he told Broussard that Bey “wanted it done.” Yusuf V gave Broussard the Mossberg shotgun to use in the shooting.

Bey and Siaw in the BMW met up with the Cadillac near where Cook’s car was parked. Bey pulled his car alongside the Cadillac and, according to Siaw, told the men, “Y’all know what to do, ” and “Wait until we drive off.” Bey and Siaw drove off and Siaw heard a lot of gunshots. Siaw and Bey then drove back to Cook’s car and saw it riddled with bullet holes.

According to Broussard and Dawud, when Bey and Siaw drove off, the Bakery men got out of the Cadillac and fired multiple rounds from shotguns and assault rifles into Cook’s car. Broussard admitted he participated in the shooting. There was a predetermined plan to put the firearms into the trunk

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after the shooting, which was done, and they then ran back to the Bakery, while Hearns drove the Cadillac away in the opposite direction. They wanted to get the weapons away from the scene separately from the shooters.

Police who responded to a 911 call found many casings and expended shotgun shells. The shooting was ultimately tied by ballistic evidence to firearms seized from the Bakery property (four shells from the Mossberg shotgun) and from a car owned by Bey (19 shells from an Arsenal AK-47). There were also eight shells from another rifle, identified at trial as an SKS-20, a rifle that was never recovered, but was later used in both the Wills and Roberson murders.

4. The Bakery’s financial problems

The Bakery did not thrive under the leadership of Antar or Bey. While Antar was in charge he signed a note in December 2004, secured by the Bakery property, in the amount of $625, 000. It was at 11 percent interest, with more than $5, 700 payable monthly, and a balloon payment due in January 2006. As noted, Antar was killed in October 2005, and Bey took control.

In October 2006, the Bakery filed a Chapter 11 bankruptcy petition, claiming $686, 750 was owed on the note and $200,000 was owed to the IRS. On April 18, 2007, the bankruptcy court issued an order allowing the Bakery to retain possession of the property if it made monthly payments of $7, 291.67 on the first of each month.

In early June 2007, Saleem Bey (Saleem), who was married to Bey’s older sister, met with Bey and presented an offer from family members to reconfigure the Bakery corporation. The family wanted to create another board, get the Bakery out of bankruptcy, run it as a family organization, bring in qualified people to oversee the business. Bey was to remain in control of the Bakery, but the security business, already controlled by other family members, was to remain under the control of John Bey, a spiritually adopted son of Yusuf, Sr. Bey rejected the proposal.

On June 22, 2007, the bankruptcy trustee filed a motion to convert the Chapter 11 reorganization to a Chapter 7 liquidation because the Bakery was not meeting payroll, paying sales taxes, or filing monthly operating reports. And on July 12, the bankruptcy court indicated it would grant the motion to convert effective August 9, to give the Bakery one last chance. On August 9, after Bey was arrested, the bankruptcy court converted the Bakery reorganization to a liquidation.

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5. The Lofton kidnapping and attempted robbery[3]

Beginning in May 2007, Bey and the Bakery men escalated their violence, embarking on a crime spree that lasted until Bey was arrested in August. In the first half of May, as the Bakery’s financial pressures mounted, Bey asked Albert “Johnny” Antone (Antone), the father of a woman Bey had dated, to lend him $10, 000 to save the Bakery. Antone turned him down, but suggested they could instead cooperate to rob Sylvia Lofton (Lofton), a drug dealer, of cash and drugs. Antone, himself an admitted drug dealer, targeted Lofton because he believed she was connected to a robbery at his house in which he had lost $80, 000 in cash and jewelry. Antone wanted the drugs and would let Bey keep the cash. Bey’s younger half-brother, Joshua Bey (Joshua), testified that Bey hoped to get $30, 000 from Lofton.

On the evening of May 17, Antone spotted Lofton’s car at a bingo hall in East Oakland and phoned Bey. Bey gave Joshua the keys to a Chrysler 300 owned by Bey and kept at the Bakery and told him to go with Tamon Halfin (Halfin) to look for a gold Pontiac at the bingo hall. Joshua drove, with Halfin in the rear seat with an assault rifle. They planned to communicate with Bey by walkie-talkie.

When Halfin and Joshua got to the parking lot of the bingo hall, Antone pointed out Lofton’s Pontiac and said a woman would come out and get into it. Joshua’s walkie talkie failed to work, so he called Bey on his cell phone, who told him to follow the Pontiac. Two women, Lofton and her mother, got into the Pontiac and drove away. Halfin drove the Chrysler, following the Pontiac onto the freeway, while Joshua gave Bey updates by phone.

A few minutes later, the Bakery’s security car, a black Ford Crown Victoria equipped with spotlights beside the side mirrors, a cage in the back seat, flashing lights, and a siren, passed the Chrysler on the freeway. The Crown Victoria activated its flashing lights, and pulled the Pontiac over to the side of the freeway. Halfin stopped the Chrysler behind the Crown Victoria.

Yusuf V and Lewis got out of the Crown Victoria. Both men wore all black clothing and had black masks covering the lower part of their faces. Lewis retrieved an SKS assault rifle with a clip from the trunk of the Chrysler, a rifle Joshua had seen under Bey’s bed, where it regularly was kept. Lewis and Yusuf V approached the Pontiac, and at gunpoint moved the two women to the rear seat of the Crown Victoria and got into the seat with them. Bey, who had been driving the Crown Victoria, came to the Chrysler and told Joshua to drive the Pontiac and follow him.

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With Bey driving the Crown Victoria in the lead, Halfin driving the Chrysler, and Joshua driving the Pontiac in the rear, they drove to a residential area and parked in front of a vacant house on Avenal Avenue, between 68th Avenue and Church Street, that had been owned by a member of the Bey family. Joshua stayed in the Chrysler, Halfin stayed with Lofton’s mother in the Crown Victoria, and the other men took Lofton into the house.

Later, Bey came outside, searched the Pontiac, and returned to the house, taking Joshua with him. Lofton said something about getting money from someone else. Bey told Joshua to watch Lofton while they went to her house to try to get the money, and Yusuf V gave Joshua a revolver that Joshua had previously seen in the living room at the Bakery.

Just then a patrol officer searching for a stolen car pulled up in front of the house. When the men inside saw the patrol car, they broke out windows, jumped out, ran through the backyard, jumped over fences, and ran through other backyards to get away. The officer saw the Crown Victoria parked nearby and thought it looked like a police vehicle. He then heard breaking glass, crashing noises, and screams for help emanating from the vacant house. The officer found Lofton inside the house, handcuffed, bloody, and partially clothed, with a plastic trash bag over her head. Lofton was treated at the hospital for lacerations to her head and hands. Lofton’s mother, found in the rear seat of the Crown Victoria, also had something over her head, but she was alive.

Police seized the Chrysler and the Crown Victoria. The Chrysler had dealership paper license plates. It contained papers regarding the Bakery with Bey’s name on them, and it was registered to Ameena Bey, another name used by Siaw. The Crown Victoria was registered to Yusuf Bey III and had a “security log” in it from the Bakery. Joshua’s cell phone was found outside a broken window in the house.

Zaki also testified about helping Bey and Halfin escape from the area that night. Bey called him, saying he was at Havenscourt Boulevard and Bancroft Avenue, and asked for a ride back to the Bakery. After Zaki picked up Bey, they drove back to the vicinity of the vacant house, where Bey pointed out the Chrysler and asked Zaki if he could retrieve it. They then picked up Halfin in the vicinity of 70th Street and International Boulevard, and then drove to Zaki’s grandmother’s house, which was on 68th Avenue near the vacant house. Zaki then gave his car keys to Bey, and Bey and Halfin drove off.

Zaki returned to the vacant house on foot to try to pick up the Chrysler, as Bey had asked. The area was swarming with police, so Zaki could not

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retrieve the car, and he returned to his grandmother’s house for the night. The next morning, after learning that Zaki had been unable to retrieve the Chrysler, Bey instructed Zaki to falsely report the Chrysler stolen, and he did.[4]

6. Bey’s Arsenal AK-47 assault rifle

On the night of June 9, Bey drove his girlfriend, Sheavon Williams (Sheavon), in his red Corvette to a San Francisco nightclub where the Bakery was providing security. After gunshots were fired by people trying to get into the club, Bey drove Sheavon back across the Bay Bridge to the Bakery. She heard him open and close the trunk, and he then drove them back to the club in San Francisco.

Bey took a rifle with a clip from the trunk and walked with the Bakery security men toward the crowd. There was more shooting, and the San Francisco police responded. As they did, Bey threw the rifle into the Corvette, and Sheavon and Bey left the Corvette in San Francisco with her purse in the trunk. They were driven in another car back to Oakland, where Sheavon was dropped off at her house.

The next morning police officers found the unlocked Corvette. Inside was an Arsenal AK-47 assault rifle, with a live 7.62 x 39 millimeter rifle round in the chamber; a magazine found nearby contained more 7.62 x 39 millimeter ammunition. It was later determined this was one of the rifles used in the Cook car shooting. The police also found indicia of Bey’s ownership of the car, items with possible gang symbols, and, in the trunk, a red purse.

7. The Roberson murder

Bey’s brother Antar was killed by Alphonza Phillips, Jr. (Phillips), who tried to “jack him” for the rims on his BMW. Phillips was ultimately convicted of that murder. Bey took his Bakery men, dressed in suits and bow ties, to attend Phillips’s court proceedings. During the proceedings, Bey pointed out Phillips’s relatives to Broussard, said he wanted Phillips’s father “whacked, ” and asked Mackey and Broussard to find an opportunity to kill him.

Mackey and Broussard drove past the elder Phillips’s house several times trying to get a chance to kill him, but were not successful.[5]

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In June 2007, Bey and Broussard were standing in front of the Bakery when Bey pointed out Odel Roberson, a drug addict who came to the Bakery for handouts of food. Bey told Broussard that Roberson was a relative of Phillips. Broussard responded, “What, and he’s still walking around?” Bey replied, “That’s why we need more brothers like you, ” and told Broussard to “keep track” of Roberson.

Around July 4, Bey told Broussard to kill Roberson: “Take him out when you get a chance, because seems like we can’t get his pops.” On the night of July 4, to celebrate the holiday, Bey, Broussard, Mackey, Lewis, and two other Bakery men went up on the roof of the Bakery and shot various firearms, including the Mossberg shotgun and the SKS-20.

On the night of July 7, Mackey and Broussard went out on security patrol together around the Bakery. Mackey had an assault rifle with a folding stock (which Bey had given him) hidden under his coat. While on patrol they met Roberson, who asked them if they had any “work, ” which meant he was trying to buy drugs. Broussard said, “Yeah, I got you. Come on, ” and took Roberson around a corner. Broussard turned to Mackey and said, “Pass it to me. I’m on this.” Mackey said, “You want this one?” and Broussard said, “Yeah, I’m on this.” Mackey pulled the rifle out of his waistband and handed it to Broussard. Broussard turned to Roberson, pointed the rifle at him, and told him to stop or he would fire. Roberson stopped. But Broussard still fired, eight or ten shots into Roberson’s face and chest as he fell to the ground. Roberson died from multiple gunshot wounds. Mackey, meanwhile, had left the scene.

A man walking his dog in the neighborhood heard seven to eight gunshots, returned to his nearby home, and called 911. A patrol officer reached the shooting location at 12:08 a.m., and was flagged down by Mackey, who told him there was a body lying on the sidewalk. Seven 7.62 x 39 millimeter cartridge casings were near the body, and it was later determined that all of the bullets that killed Roberson were fired from a single gun with class characteristics of the SKS, and as will be discussed, that the same weapon was later used to kill Wills. The SKS-20 assault rifle described by Broussard (and other witnesses) was never recovered, but Bey’s brother Joshua testified that an assault rifle was normally stored under Bey’s bed.

Broussard ran back to the Bakery and returned the assault rifle to Mackey. The next day Broussard showed Bey a newspaper article about Roberson’s death and told Bey, “It’s done.” Broussard never had problems with Roberson and had no reason to kill him except that Bey told him to do it.

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8. The Wills murder

At 3:19 a.m. on July 12, Oakland resident John Hopping called 911 to report hearing several initial gunshots, then a pause, another gunshot, another pause, and another gunshot. Hopping looked out of his window and saw a Black man with an athletic build running down the street carrying a gun with the barrel protruding from the crook of his arm. The man was approximately 20 years old, five feet, eight inches tall, 160 pounds, and was wearing khaki pants, a hooded sweatshirt, and a blue knitted cap. After calling 911, Hopping went down to the street and found the dead body of a White man.

A responding officer found identification indicating the body was that of Michael Wills. Wills had died from multiple gunshot wounds to the back. His wallet contained cash, and a cell phone was found nearby. Nine 7.62 x 39 millimeter cartridge casings were found in the area, strewn along the path leading to Wills’s body, suggesting his murderer had been pursuing him down the path while firing on him. It was later confirmed through ballistics analysis that Wills had been killed with the same assault rifle used to kill Roberson. The district attorney’s theory was that Mackey was the shooter.

As noted above, Broussard testified that Bey talked about “White devils” and the history of the Black man at Bakery brotherhood meetings. In the early morning hours of July 12, Broussard was at the Bakery with Khidar Bey when he heard a rifle firing three-round bursts. Broussard got a call from either Mackey or Bey to open the back gate at the Bakery; he did so, and Bey drove a Dodge Charger into the Bakery parking lot with Mackey as his passenger. Cell phone records confirmed that Bey made a call to Broussard at 3:14 a.m.. As Mackey alighted from the Charger he was carrying the same assault rifle with which Broussard had shot Roberson a few days earlier.

Broussard followed Mackey into his room, where Mackey told Broussard he “got one, ” meaning “[h]e caught a body, ” i.e., killed someone. After Bey joined them in Mackey’s room about 20 minutes later, Mackey said he and Bey were driving down San Pablo Avenue talking about the Zebra killers[6] when they saw a “White guy.” Mackey jumped out of the car, ran down the path, and shot the man as he tried to run away. The man’s leg flew up in the air, as if he had kicked a field goal. Mackey joked, “It’s good, ” put his arms up like a football official, and laughed. Bey repeated the joke. Bey did not leave the room, did not get angry, and did not disagree with, or correct, Mackey. Rather, Bey told Broussard to go see for himself what had happened. Broussard went where Mackey said the shooting had occurred and saw a White man’s body.

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A couple of days later, while Bey and some other Bakery members were watching movies in Bey’s room, Bey told them about the Zebra killers, who were Black men killing White people. Bey said they got caught because they robbed their victims. Bey said the Zebra killers were giving White people “a taste of their own medicine” for lynching and murdering Black people. Bey referred to White men as “White devils” and said, “We got a devil.” He was excited when he said it.

9. The Bailey murder

Chauncey Bailey was a well-regarded, award-winning African-American journalist who was an editor at the Oakland Post newspaper. Bailey wrote many news articles about Yusuf, Sr. while he was alive, and in particular reported on felony criminal charges and a related civil suit pending against Yusuf, Sr. at the time of his death. The felony charges were based on allegations that Yusuf, Sr., sexually assaulted underage girls who were living at the Bakery and purportedly fathered children with some of them.

In July 2007, Saleem spoke to Bailey about a new series of articles he was going to write about the Bakery and provided information to Bailey to show fraud and other criminal conduct by Bey. Bailey later showed Saleem the article he had written, which incorporated the information Saleem had provided and accused Bey of criminal conduct. Saleem became concerned that his anonymity as a source had been compromised because Yusuf, Sr.’s wife saw him coming from Bailey’s office. Sometime after that Saleem received a threatening phone call from Bey.

One night, while Bey was showing Bakery associates a video of his father’s funeral, he paused the video and pointed out Bailey to Mackey and Broussard, describing him as “the motherfucker who killed my father.” Bey said Bailey had written articles about his father and was going to write more articles about the Bakery, [7]and that Saleem was working with Bailey.

The next day Bey told Mackey and Broussard that Bailey worked for the Oakland Post and told them to find out where he lived and learn his routine. Mackey and Broussard drove in the Dodge Charger to the Oakland Post office, and saw a dark SUV in the parking lot that belonged to Saleem. They phoned Bey, who came to the parking lot and said, “That’s that motherfucker up there right now fucking with dude.” Bey said they should “get [Saleem], too, ” but Bey’s sister (Saleem’s wife) might get angry.

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After Bey left, Mackey and Broussard waited for Bailey to come out of his office and then followed him as he got on a bus. He got off less than 15 minutes later and walked into a residential building. Mackey and Broussard drove back to the Bakery and told Bey they found out where Bailey lived. When police interviewed Sheavon, Bey’s girlfriend, she said she heard him on the phone asking for the description of a building and its surroundings. She also told the police Bey was upset about Bailey’s upcoming article.

On the night of August 1, Bey asked Mackey and Broussard to come to his bedroom. He told them he wanted them to kill Bailey, to “take him out, ” before his article was published, which Bey believed would happen on the coming Friday. Later that night, the three men drove the Dodge Charger to Bailey’s residence and devised a plan to kill Bailey on his way to the bus the next morning, discussing the plan out of the car because Bey thought his car was bugged. Bey wanted Bailey killed the next morning and said he would arrange a “credit hook-up” for Mackey and Broussard as a reward for the Bailey murder. But, he said, the shooter “can’t miss or can’t mess up.” Discussing who would do the shooting, Mackey told Broussard it was his “turn” “to take the hit.”

Mackey and Broussard then practiced the plan: Mackey was to approach Bailey’s residence and to communicate via walkie-talkie to Broussard in the parked vehicle when Bailey appeared; Broussard would then run up as close as possible to Bailey and shoot him, while Mackey would run back to the parked vehicle to be ready to drive away when Broussard got there. After practicing the plan, they returned to the Bakery and to Bey’s bedroom, where Bey gave the Mossberg shotgun to Broussard and said to wake him in the morning.[8]

Early the next morning Mackey woke Broussard. Broussard got dressed, all in black with a hooded sweatshirt, gloves, and a mask, and they went to Bey’s bedroom and woke him. They decided to use a van for the Bailey killing, and Bey had a Bakery employee phone Rigoberto Magana, a live-in handyman, to ask to use his white van. Magana said okay, but he needed it back at 7:00 a.m. to go to work. When the request was made to borrow the van, Magana could hear Bey’s voice in the background, directing someone to get the keys to the van. Bey gave the keys to Mackey, who took the license plates off the van.

The walkie-talkies were not functioning, so Mackey and Broussard left them, and decided to use cell phones. Mackey drove to Bailey’s residence, got out of the van, and alerted Broussard by cell phone when Bailey had left

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his apartment. Broussard pulled on the black mask, took the Mossberg shotgun, and ran toward where Bailey was supposed to be. Broussard did not see him, however, and returned to the van.

A woman stopped at the intersection of 1st Avenue and East 14th Street saw a man dressed all in black carrying a long rifle across the street and also saw Bailey, whom she recognized from having read his articles. She also saw someone get into the passenger side of a white van parked nearby and saw the van drive off. She continued driving, but when she phoned her husband and told him what she had seen, he told her to call the police.

After the failed attempt, Mackey and Broussard drove along the bus route until they saw Bailey walking. Mackey said that location was “too hot, ” so they drove ahead, parked near 14th and Alice Streets, and waited for Bailey to arrive. When Broussard saw Bailey approach that intersection, he jumped out of the van, ran across the street to where Bailey was, and shot him twice in the torso at close range and started to run back across the street. Then he remembered that Bey had made it clear they should be sure Bailey was dead, so he returned to Bailey lying on the ground, fired a third shot into Bailey’s face, and ran back to the van. After the shooting Mackey drove them back to the Bakery, where they went upstairs and told Bey, “It’s done.”

An eyewitness confirmed that the shooter, dressed all in black, turned to run after firing two shots, but then stopped and ran back to fire a final shot into Bailey’s head, and that he then jumped into a white van that sped away. A second eyewitness confirmed the same events, including that the van had no license plates.

Magana’s van was not in the parking lot when he needed to leave for work, so he called Bey and simultaneously walked around the corner of the Bakery building and talked to Bey through an open window, telling him he needed the van back. Phone records showed that Magana’s call was placed at 7:28 a.m. Two minutes later, Bey called Mackey, talked to him briefly, and called Magana back, telling him the van was in the parking lot. Magana checked the lot and found his van.

Bey returned the van keys to Magana and apologized for being late. When Magana got into the van to drive away he saw Mackey standing near the back stairs of the Bakery, gesturing like he wanted to talk, but Magana kept driving. Magana found the license plates between the front seats of the van, and later told Bey that the plates had been taken off the van. Bey said he would put them back.

A 911 call was received on August 2 at 7:26 a.m. Officers responded, and found Bailey’s body with part of his head and face missing, dead from three

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gunshot wounds. Two shotgun shells were found near the body; the third shell casing was not found at the scene. It was determined by ballistics examination that the shotgun shells from the scene had been fired by the Mossberg shotgun.

Later that morning, Bey saw a television news broadcast about Bailey’s murder and told Sheavon to come look at it. Sheavon forgot this event at trial, but in a prior statement to police she said that Bey was “happy” and “satisfied” or “proud” about it, saying something like: “That will teach him to fuck with me.”

Around 8:00 a.m., Bey, Mackey, and Broussard drove in the Dodge Charger back to the Bailey shooting scene. When they saw the murder scene marked off with crime scene tape, Bey said, “I told you I was going to be big.” They then parked the Dodge Charger by the lake and got out of the car to discuss the details of the murder, doing so while walking around the lake because of Bey’s fear the car was bugged. After Broussard filled Bey in on the details of the murder, Bey said, “I love y’all.” Afterwards, they drove back to the Bakery, picked up Lewis and drove to the International House of Pancakes (IHOP) on San Pablo Avenue, where they stayed only briefly, because Bey believed one of the other patrons was a police officer. While at the IHOP Bey asked Broussard what the inside of Bailey’s head looked like. They then drove to the Emeryville marina and walked out on the pier. Bey told Broussard and Mackey that he would see someone the next day about getting them good credit. He also said, “The bakery [is] going to get respect now.”

After they returned to the Bakery, Broussard gave the Mossberg shotgun back to Bey. Bey gave it back to Broussard again later that night to use on security patrol.

10. The Bakery raid

As part of the investigation into the Lofton kidnapping, on July 31, Oakland police obtained search warrants for the Bakery building, the duplex behind it, and Sheavon’s residence. On August 3, about 5:00 a.m., the search warrants were served simultaneously. The search of Bey’s bedroom turned up the VCR containing a video of Yusuf, Sr.’s funeral. It also turned up a black neoprene mask, a wallet containing Bey’s identification, walkie-talkies, recordings of Phillips’s arraignment, some expended ammunition, and a great quantity of live ammunition, including shotgun shells, .40 caliber cartridges, nine-millimeter cartridges, and 7.62 x 39 millimeter assault rifle cartridges,

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both loose and in clips.[9] Of particular significance was an expended PMC nine-pellet shotgun shell that according to expert testimony had been fired by the Mossberg shotgun and matched the characteristics of the shot fired into Bailey’s head. It was the prosecutor’s theory that this was the third expended shell from the Bailey murder, which had not been found at the scene. She theorized that Broussard did not eject the final shell immediately after the murder. She encouraged the jury to infer it was ejected when the shotgun was reloaded in Bey’s bedroom, as there was live ammunition fitting the shotgun in Bey’s bedroom but not in Broussard’s, and the shotgun was loaded with six live rounds when it was seized during the raid.

When the officers came to execute the warrant at the duplex, Broussard peeked out of his bedroom door, closed the door, and threw the Mossberg shotgun loaded with six live rounds out of the window, where it was found on the ground.

In Broussard’s bedroom the officers found under the television a plastic storage bin containing live rounds of large-caliber rifle ammunition, some loose and some in clips, that could be fired from the AK-47 and SKS rifles, as well as nine-millimeter Winchester and Luger cartridges. Gloves and a knit hat were found on a glass table, a neoprene mask in a dresser drawer, and a pair of handcuffs in a closet.

A Remington sawed-off shotgun loaded with three live rounds was found under Mackey’s bed in the duplex. The SKS assault rifle used to kill Roberson and Wills (and also used in the Cook car shooting) was never found.

11. Broussard’s arrest, his statements while in custody, and his plea bargain

Broussard was arrested on August 3, and was soon charged with the Bailey murder. He initially told the police he was not involved. Then the police told him that Bey had said Broussard had killed Bailey, without mentioning anyone else’s involvement. Broussard was taken to the room where Bey was being held, and Bey repeated in front of the officers that Broussard had confessed he was the killer. Broussard asked to speak to Bey alone, so the officers left them alone for some six minutes without police monitoring or recording. Bey wanted Broussard to confess to the crime for the good of the Bakery, because “everybody can’t go down for that, ” and said “God was

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testing” Broussard. After that meeting, Broussard told the police that he shot Bailey, and that he acted alone. Broussard testified he confessed to protect Bey and Mackey, and he believed Bey would reward him when he got out of prison.

Broussard claimed Bey promised to get him a good attorney, and when that did not happen, he began to feel “let down” by Bey. Broussard retained his own attorney, and upon advice of counsel granted an interview with 60 Minutes, in which, in a program aired in February 2008, Broussard said he did not shoot Bailey. Broussard also told a television news reporter in August 2007 he had nothing to do with Bailey’s death. He said the police had beaten him to get him to confess and refused him an attorney when he asked for one. When asked at trial why he lied to the reporter, Broussard giggled and admitted he believed it was okay to lie if he could get some advantage from it.

Broussard eventually entered into a plea agreement under which he pled guilty to two counts of manslaughter in the Bailey and Roberson murders in exchange for a sentence of 25 years in prison, provided he testified truthfully at the trial of Bey and Mackey.

12. Ballistics evidence

A firearms expert testified that various shotgun shells were fired from the Mossberg shotgun that Bey stole from a vandalized liquor store, including shells from the Bailey shooting scene and four shells from the Cook car shooting scene. One of the expended shotgun shells found in Bey’s bedroom was a PMC nine-pellet buckshot cartridge, the characteristics of which matched the wadding and pellets that had been removed from Bailey’s head. This was the only one of the expended shells that matched.

The police quickly found the link between Bailey’s death and the article he was writing about the Bakery, as the owner of the Oakland Post told them about the article. Early on, they checked the casings found at the Bailey shooting scene against those found at the Cook car shooting, and within hours after Bailey’s death knew there was a match.

The firearms expert also determined the Arsenal AK-47 rifle recovered from Bey’s Corvette in San Francisco fired 7.62 x 39 millimeter casings found in various locations, including 19 from the Cook car shooting scene and 34 from the Bakery roof. An SKS 20 assault rifle, believed to be the murder weapon in the Roberson and Wills killings—which, as noted, was normally kept under Bey’s bed—also fired 7.62 x 39 millimeter ammunition. Casings fired from this rifle were found at various locations, including eight

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at the Cook car shooting scene, seven at the Roberson shooting scene, nine at the Wills shooting scene, and 50 from the Bakery roof. Those casings had not been fired by the AK-47 and were consistent with an SKS. Seven casings on the roof of the Bakery had been fired from the Mossberg shotgun.

13. GPS tracking evidence

On June 27, while investigating the Lofton kidnapping, officers attached a GPS tracking device to the underside of Bey’s Dodge Charger while it was parked in a public parking lot, to “gain intelligence” on Bey’s movements. Due to transmission problems and the towing of the Dodge Charger, [10] Bey’s movements were being tracked for some 20 of the 38 days the GPS device was in place, including during the time of the Bailey murder. The Dodge Charger was not being tracked at the time of the Wills murder.

The GPS tracking device indicated the following: at 11:47 p.m. on August 1 the Dodge Charger was at the Bakery; at 12:12 a.m. on August 2 it drove from the Bakery to the area of Bailey’s residence and stopped at 12:24 a.m. for about 13 or 14 minutes; it then returned to the Bakery and stayed there until morning; at 8:01 a.m. it drove to the area near the Bailey killing; it then drove to the lakeside area and stopped for about 16 minutes; at 8:27 a.m. it made a five-minute stop in the 4200 block of San Pablo Avenue, returned to the Bakery, and went back and stopped again in the 4200 block, near an IHOP; and after that stop it drove to the Emeryville marina and stopped.

14. Bey’s statements after his arrest

On August 3, after the Bakery raid, police took a recorded statement from Bey after reading him his rights. Bey was 21 years old and had been CEO of the Bakery for some two years. He told the police Bailey was a reporter who wrote slanderous things about Bey’s father, and he had “heard rumors” that Bailey was writing an article about the Bakery’s problems with the IRS and the bankruptcy case.

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Bey told the police no guns were allowed on the Bakery premises, including at the duplex behind the Bakery, which was true under the leadership of his father, his brother, and himself. He had live ammunition in his room, but not empty casings. And he did not have weapons for those bullets in his room, as weapons were not needed at the Bakery.

The next day the district attorney’s office took a recorded statement from Bey after reading him his rights. Bey said his sister knew someone who worked at the Oakland Post, and his sister told him that Bailey was going to write a slanderous article about the Bakery. He knew that in 2003 Bailey had written something negative about his father that upset him. Bey said he was in litigation with the IRS in bankruptcy court and was also in litigation with older Bey family members who were contesting his ownership of the Bakery properties.

After the Bakery raid, Joshua, Bey, and Halfin were arrested for the Lofton kidnapping. The police placed them together in an interview room at the San Leandro Police Department for two hours or more and secretly video-recorded their conversation. The video recording was played for the jury.

On the recording Bey—referring to his followers as “soldiers”—was concerned that somebody told the police what happened during the kidnapping because they knew too much about what he had done. The three men then compared notes on their police questioning. Joshua said he told the police he was driving the Chrysler for Antone, and that he had hopped into the Pontiac and driven it. He told them Bey was not there and was only communicating with him on the walkie-talkie.[11] Joshua also admitted going into the house, but claimed he did not know who else was there because “it was dark” and “they had masks on.” Bey advised Joshua repeatedly to say that the cops forced him to make the statements he made. Joshua said he had been scared and crying when he made his statement to the police, and Bey told him to “man up.” Bey later said Joshua should tell the police he was not there even though his cell phone was found at the scene.

Bey admitted to his friends he had been driving one of the cars, but said he told the police they were helping a friend collect some money owed him, so “if anything happened, ” the police should “blame it on Johnny” (Antone). They later discussed again possibly blaming it all on “Johnny.”

Halfin was concerned that the officer who busted into the Lofton torture scene could identify him, as the officer had seen him in the Crown Victoria where he was holding Lofton’s mother hostage. Bey asked Halfin why he did

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not shoot the officer. Halfin said he would “take the rap for everything, ” but Bey said the officer might not come to court because “we got some crazy hitters, trust me. And all of them ain’t in jail.” Bey also said the officer was “probably too scared to confront us, ” and that he would “sacrifice another soldier” to “make sure” the officer would not come to court. And then Bey laughed.

Halfin and Bey discussed fabricating a story about why Halfin was in the Crown Victoria. They talked about the kidnapping case, about the patrol car that stopped outside the house, and how they “panicked” by breaking out the windows and running.

Bey was worried about fingerprints. He told the others they had better get their “stories straight right now” because they might not have another chance to talk together. He counseled the others to lie to the police and not tell on each other. He said “Fifth” (Yusuf V) and “Rich” (Lewis) would not “tell on” them, and Lofton could not have seen their faces “cause we were wearing masks.” In his words, “Ain’t nobody gonna tell.”

Bey also said, “All this shit... was Saleem[’s] fault, ” and then described how Broussard had confessed to killing Bailey while he was in the room. Bey told them Broussard was “a soldier for that” because he confessed to the killing to “take all the heat off the bakery.” Joshua asked if Broussard really did the crime, and Bey said, “Ah huh.” Joshua then said, “Man, he a soldier for that, man.”

Joshua asked which gun they had used, and Bey told them it was the Mossberg shotgun (“shotty”), which had been in his closet the night before the Bailey shooting. Joshua asked “Where they shot him at?” and Bey answered, “The head.” Bey then said, “BOOM!” and snapped his head back as if he had been shot in the face. They all laughed. Joshua asked what car they had used, and Bey said “Rigo’s van.”

Bey told them he made sure not to be anywhere nearby when Bailey was murdered, but as soon as it was over, he went by the crime scene to see for himself, describing going in the Dodge Charger to the murder scene, the lake, IHOP, and the marina. Bey was concerned that nobody should implicate him in either the Lofton or Bailey case. Finally, Bey said people in Oakland were “terrified” of the Bakery men, who could “make anything in Oakland disappear.” He said, “I’m gonna make the mayor give me some shit now, ” and if he was not released by the next day, “there gonna keep on being murders.”

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B. Bey’s Evidence

Cornell Hurst, also known as Kadar (or Khidar) Bey, testified that he worked at the Bakery counter around the date of the Wills shooting and no one at the Bakery would have been working the counter at 3:00 a.m. He never heard multiple gunshots when he was with Broussard at the Bakery counter.

C. Mackey’s Evidence

Mackey, who had been convicted of selling cocaine in 2006 and burglary in 2008, testified that he was not involved in the Bailey or Roberson murder and that he never told Broussard he shot Wills. Mackey had grown up in San Francisco but moved away in 2007, after suffering a serious gunshot injury for which he had been hospitalized for two and a half months. He returned to San Francisco after he turned 18, but was again shot in two incidents within two months of one another. He decided to leave San Francisco again and was thinking of returning to Atlanta, but Lewis, a childhood friend, convinced him to go to the Bakery. Mackey found the Bakery inspirational because it seemed like a family atmosphere and people were very respectful of one another, so he decided to stay. Mackey went by the name Ali at the Bakery because he did not want San Francisco people to know he was there. He worked at the counter so he could show his probation officer he was working—and show his mother he could take care of himself.

Mackey testified that Broussard was also from San Francisco and knew Lewis. Although they were generally on friendly terms at the Bakery, Mackey testified he had sex with three women Broussard was dating or was interested in, and felt Broussard was jealous of him.

The night Roberson was killed Mackey was in his room at the Bakery when he heard what he thought were doors slamming. After investigating and finding nothing amiss, he walked to the corner liquor store and bought some candy. Coming out of the store he saw nine or 10 people looking at a body on the next corner, so he flagged down a patrol car and reported the body. He gave the officer identification, but then left the scene because he did not want to be a witness. He denied involvement in the Roberson murder.

Mackey also denied involvement in the Wills murder. He said it was a bake night at the Bakery and he was there working. He heard police sirens and went outside to see what was going on. He stood outside for few minutes with at least a dozen other members of the Bakery, but he never knew who was killed until he was charged with the murder.

Mackey testified he was working at the Bakery the morning Bailey was killed and denied involvement in that killing. He denied driving with Bey and

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Broussard to the area of Bailey’s residence the night before the killing, and denied going the next day to the scene of the Bailey murder, the lake, IHOP, or the Emeryville marina. Mackey admitted he had awakened Bey at 5:00 a.m. that morning at his request, but testified this was nothing unusual because Bey always wanted to be up early to pray, though admitting that was the only time Bey had asked Mackey to wake him at 5:00 a.m. Mackey testified unequivocally that Bey never ordered him to kill Bailey or anyone else.

Mackey admitted he got a Remington sawed-off shotgun in San Francisco about a month before the Bakery raid and kept it under his bed for self defense. He did not know how a shell fired from the shotgun got into a room of the Bakery, or how one shell fired by it had been found on the roof. He denied firing the Remington shotgun (or any other firearm) on the roof, and in fact said he had never been on the Bakery roof. Mackey testified he had never lent the Remington to anyone. He knew he could not possess a gun while on felony probation, but he did it anyway because he had learned from past experience that the police would not always be around to protect him.

Mackey denied waving at the white van while Magana drove away, as Magana had testified. He denied ever seeing Roberson around the Bakery or corner liquor store. He denied seeing Phillips, Sr. before the present trial or driving past his house with Broussard. He could not remember what he and Bey discussed on their cell phones at 2:57 a.m., 3:04 a.m., or 3:06 a.m. the morning Wills was killed. And he admitted a Mossberg shotgun was kept at the Bakery.

According to Mackey, Bey’s sermons focused on topics such as empowering the Black community and taking care of oneself rather than seeking government welfare. He said Bey’s followers encouraged each other not to let adversity be an excuse for selling drugs or snatching purses. He denied Bey said it was okay to kill Whites, and said he had not heard Bey call White people “devils, ” ...

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