May 16, 2007-The first day of the penalty phase began with the judge providing basic information about factors they'll consider when deciding if Tao Rivera should be sentenced to death.

The factors they'll consider include...
a. the circumstances of the crime
b. prior criminal acts
c. prior convictions
d. mental and emotional distress
e. consent to homicidal acts
f. moral justification
g. duress
h. capacity of the defendant, mental illness or substance use
i. age
j. accomp. to off., minor
k. any other factors such as character and record.

Merced District Attorney Larry Morse began his opening statement. He thanked the jurors for their service, and let them know he felt they arrived at the correct verdict. The jurors found Rivera guilty of first degree murder with two special circumstances. That is the reason they are now considering the death penalty.

Morse told jurors that they would hear information that didn't come out during the guilt phase of the trial--criminal history, wrenching emotional testimony about Stephan Gray. He said they'd hear how on April 15, 2004, Rivera's cowardly acts impacted his family, friends, colleages and the Merced community as a whole. Morse said the appropriate punishment is death. He said life in prison should be considered an act of mercy and the lesser of the two punishments.

Morse said he does not want to minimize the gravity of what the jurors are about to do. He reminded them that they assured the court that they were willing to sentence Rivera to death. He said they should consider Rivera's crimes, charged and uncharged. And although the defendant was only 21 when he killed Gray, his age should not be a factor of mitigation, because the defendant had a long history of criminal activity. Morse described him as "a ruthless veteran." He said as early as the year 2000, Rivera was trying to kill people. Then just before killing Gray, Rivera fired three shots into the car of two innocent people. He told the jurors that between 2000 and 2004, Rivera spent a significant amount of time in prison. He said after the defendant killed Gray, he should no responsibility for his actions. Rivera told lie afer lie after lie, during his interview with Det. Sterling.--showing that he is capable of erupting with hostility, even while in custody. He repeatedly said, "f*** you, f*** you, I didn't do sh**, yo momma."

Morse then reminded the court, that even after Rivera had killed Gray, and was on the run, he threatened her life, because she had started seeing another man, "while wanted for murder, he was still threatening murder," Morse said. Then Morse told the court information they hand't heard before. He said that while in the Merced County jail, Rivera got angry that he wasn't put in general population, so he flooded his cell, and said,k "all of this because some pig got killed." Morse then told jurors they would hear from six people who would illuminate the void left by Gray's death--the former Merced Police Chief who hired Gray, Sgt. Chris Goodwin, who would describe being Gray's best friend and partner in the police department, Gray's 16-year-old daughter Landess would also testify, as would Gray's brother, mother and wife.

Morse told jurors the death penalty is a serious and final punishment, but it's the only appropriate sentence for, "all that this man has wrought." Morse said it's consistant with the evidence, consistant with the law and consistant with justice.

The defense chose not to provide an opening statement at this time. The prosecution called its first witness.

Sergeant Barbara Carbonaro with the Merced County Sheriff's Department took the stand. She said that she has worked with the department for 19 years, and on April 18, 2006, she was working on the day shift at the jail. At approximately 1:20 p.m. on that day Rivera flooded his toilet. Water ran into the hallway. The inmate said he wanted to be placed in general population. Carbonaro said, "he was angry, he made a statement that this was unfair, everybody else got a chance, because some pig got killed he was there."

Carbonaro told the court Rivera had filed greivances to be reassigned, almost since the day he was arrested. The jail staff reviewed his history and his charges and decided to keep him segregated. After flooding the cell, workers had to clean out Rivera's cell. He refused to be removed, so a special team had to suit up and get him out.

Next the prosecution called retired Merced Police Chief Tony Possetti to the stand. He testified that before retiring, he spent 30 years with the department. He remembered Gray coming to the police department to interview for the job. His first impressions were that Gray was energetic and motivated. At the time, 76 officers worked in the department and around 110 people worked for the Merced County Sheriff's office. There was a large gang problem, so he had six officers dedicated to that unit. They were responsible for identifying gang members and eradicating the problem. Possetti believed workers should advance in the department, not because it's "my turn," but because they showed ability. He said Gray did that. Possetti said Gray worked hard, even om his time off. He was an outstanding officer. The prosecutor then asked where Possetti was on April 15, 2004, when he learned Gray had been shot. He said he was at home. He had gotten off of work an hour earlier. When he got the call about an officer involved shooting, he thought one of his officers shot someone. He asked the caller, "who'd we shoot?" He said the dispatcher broke down and said one of our officers had been shot. He said he knew he had to get a hold of Gray's family. Then he called for a crime scene team to respond to the station, and then he headed to the hospital. The prosecutor asked him when he learned that Gray died. He said he went to the room where Gray laid. Another officer was with him. Possetti wanted to know why the officer wasn't trying to find Gray's family, like he was told to. The officer left right away. Possetti said he could see the injuries Gray suffered. He was still in his uniform. He had two wounds. Gray was the first Merced officer killed in the line of duty. He said he left the hospital and went to the crime scene. He was met by police department workers. He said a lot of people responded, because the defendant was last seen running from the area. SWAT teams surrounded a house. He said it probably looked like chaos to the outsider, but it took a couple of days to process the scene. He met with the victim's wife the next day. The next few days after the shooting, he said his officers did an outstanding job, but he felt like someone had punched all of the feelings out of him. He said people in the department were like zombies. The retired chief then started to cry on the stand. He said he watched guys operate with no sleep. Gray's partner slept under a table at the office, because he didn't want to leave. He said no one would leave. He had to tell them to go home and get some sleep. They used that time for grieving. He said, Gray was someone who was loved and respected by everybody. He said the officers were closer than brothers. He said it took the department a long time to recover. As far as the funeral went, officers were assigned to help the Gray family. He wanted them to have any funeral they wanted. The community opened up their arms to the police department. Even though Gray wasn't Catholic, services were held there, because it was the only church large enough to accomodate the huge crowd that wanted to attend. He said law enforcement from all over attended. It was three to four miles to the cemetery, and the streets were line two-three deep with citizens of the community, waving American flags. Later, Possetti said, officers from San Francisco commented that they were amazed. They had never seen that much support for a police department. The impact on the department in the months to follow, he said it was hard to put into words. There was none of the normal work place stuff. Everyone was still in a state of shock that this happened.

Possetti told the court people all over the community were concerned about the workers in the department. They sent over memorials. The prosecution displayed a picture of one of the memorials for the court. He said in the days following Gray's death, the department received fewer calls. People said they hesitated bothering the workers with smaller crimes like theft, vandalism and burglaries, because they realized what was going on. Catching Gray's killer was the highest priority. One of the positive things that came from the ordeal was a tax measure to provide more officers. People realized that gang members were dangerous people. Residents started calling to report more suspicious gang activity. But Possetti said it's hard to pick out the positives, because they're overshadowed by such a dark cloud.

The witness was asked if he ever second guessed any of the decisions he made, if the death could have been prevented. He said, no. He said being a police man is a dangerous job. It takes special people to be an officer. He said his only regret, was that he was so involved in catching the killer, he wished he could have notified all of the workers in the department sooner. The defense declined to ask Possetti any questions.

The next witness to take the stand was Sergeant Christopher Goodwin. He was Gray's partner. He said Gray pushed him to be a good officer. He commented that he recently told Michelle Gray, Stephan Gray had bad eyes, and Goodwin had poor hearing, so together they made a good team. He says he now tries to instill in his officers the qualities Gray had, to be a buffer between the good and the bad. He wants them to be proactive, and realize that something small can lead to a huge deal. He said as new officers come in, they don't know Gray's death personally, that things have changed. He doesn't think he'll ever recover, "I move forward, move through it." He told the court that after Gray died, he got a tattoo on his back. It's a flag with Gray's badge number, because they always had each other's back. The defense declined to ask Goodwin any questions.

The next person to take the stand was Officer Gray's brother Tony Gray. Tony told the court he had two brothers and one sister. He and Stephan were two years apart. He said growing up the children were very close. Their mother raised them alone. She worked from four to midnight. They had to do all of the chores, get themselves to school. His mom was determined the kids would do what they were supposed to do. When Stephan was eight-years-old he didn't get along with girls. The four children mostly played together. They had to be close because their mother worked a lot. As a teen, Stephan was small with big glasses. He was a loyal brother to all of his siblings and mother. Tony learned from Stephan. Stephan kept everyone in line. At the high school level, Stephan was an athlete. He ran track, played basketball, and played all kinds of sports. He was also good at cheerleading. He placed nationally. He was a good tumbler. Tony was as well. Tony was asked why his brother wanted to become a police officer. He told the court the two of them had been Christmas shopping one year, and they saw a man stealing a watch. They were at the Wal-mart store on Shaw street in Fresno. Stephan told Tony to go to the west exit. Stephan followed the man out to a car and told him to give him the watch. The man said he didn't have it. They went round and round, and finally Stephan grabbed the watch from inside the man's coat, and said, now you have to go to jail. He was going to let him go if only he gave back the watch. When the police arrived, they said they needed someone like Gray. So Gray asked for an application. They're mother was worried when Stephan said he wanted to be a police officer. Two other relatives had been killed in the line of duty.

The prosecutor asked Tony what he learned from his brother. He said he and Stephan were as close as two men could be. He learned the difference between right and wrong, and knew with all the trials and tribulations his brother was there to tell him to get up and fix it, right your wrong. He said the day he found out his brother had died, he was running a bath for his daughter. His mother called him. He couldn't understand what she was saying. She was hysterical. She hung up the phone. The phone rang again. He could hear his mother in the background screaming, as her daughter said, "you need to get him." He called his brother's house, and Michelle Gray's sister said something happened to Stephan. He asked her if he was ok. She said, no. He said he grabbed his nine millimeter and three cases of shells, loaded up the car and headed down the road. He said he drove 115 miles per hour to Merced. He got to the hospital. Michelle was there, his mom was there, he couldn't remember who else. He said the only other death in the family he experienced, was his grandfather. He said through tears, "38 years later I get a call that my brother is dead." He said they were best friends. Stephan knew all of his secrets, hurts, pain. All of that died with him. He said the only person who knew him was gone. He said he looked at his mom. She said, "go say goodbye to your brother." He said his mother lost two sons that day. He can no longer be around his family, because of all of the pain. He can't see their pain. He can't bare it. He can't drive the highway he took that day. He told the court while wiping tears away, that he's tried to commit suicide two times. He's sought counseling and takes Xanex. He was asked how his brother's death has affected his personal life. He said he's getting a divorce, he's lost his children, his house, everything. He said he's depressed.

Tony Gray said his phones off the doors and wndows are closed. He stays in his room all of the time now. The defense had no questions for the victim's brother.

The next person to take the stand was Landess Gray. She is the victim's 16-year-old daughter. She told the court that she was nervous testifying, but that she really wanted to be here and do this. She was only 13-years-old when her father was killed. She remembered hearing the phone ring. Her mother wouldn't let her answer it. She said, "I heard her yelling, 'no, no'" Landess said, "she stared at me crying, and said, 'I'm sorry, your dad is gone.'" Landess said she stood in her closet for a long time and cried. Although she is Michelle's step-daughter, they are very close. She's known her step-mother since she was three-years-old or younger. Landess said she didnn't want to go to Merced and see everyone upset, but her mother told her she needed to go. Landess said she has a hard time expressing her feelings. She let a lot of anger and unhappiness buid up. She doesn't like to epress her feelings. She feels confused. She went to talk to a counselor, but didn't like it. She stopped going. She now talks to her her mother or Michelle when she needs to. Landess said she thinks about her dad all the time, "nobody at school or around me can understand what I'm going through." She started to cry on the stand. She said while at school, she feels bad when students are disrespectful to the school resource officers. She said she misses a lot about her dad. She said he was really funny and could always make her laugh. He was much like a friend. They had talks about her future. He wanted her to go to college and be successful. The prosecution then displayed pictures for the court of Landess with Stephan Gray. One picture was of her graduation. Several of the jurors started crying. The next picture was of Landess when she was five-years-old. She said she could tell her dad anything, expect when it came to talking about boys. She said one of her best memories was when she was in second grade. Everyone thought it was cool that her dad was a police officer. It was red ribbon week and he came to her class. He had lunch with her and started racing everyone. The court filled with laughter. She also enjoyed when she was little, hanging off her father's big arms. She said she got a chance to know her dad, but not as well as she would like. She had hoped he'd be there for when she went on dances, worried about boys and tell her she's pretty. She also will miss him being there for her graduation. She told the court, "if I could only take one person to watch me graduate, I would have chosen him." She wants to be a doctor. She gets good grades in school to honor her father. The only reason she has been able to get through all of this, is him. She's close to her little brother and sister. She said it breaks her heart to see her little brother. He doesn't understand why his favorite person isn't there anymore. And her little sister was only two-years-old. She won't have the same memories. She said although she lived an hour away from her father, they were as close as a father and daughter could be. She said she's now lost, and doesn't know who to share with anymnore. She said when she misses her dad, she looks at pictures. She said over the last three years what she's missed out on, her father helping her through her first year of high school. She was really nervous. Now he'll miss her high school graduation. She looked to him for strength and reassurance that she could do anything. The defense had no questions for Landess Gray.

The next person to take the stand was the victim's mother. Landress Gray told the court that Stephan was her youngest child. She had four in all--three boys and a girl. She had to raise the children on her own. Her husband returned from Vietnam a different man. He had problems with drugs and alcohol and moved out. She worked at a tire company in Hanford, building tires. She worked the swing and graveyard shifts. When she and her husband parted ways, her oldest child was seven-years-old. Her sister came and helped with the kids, but the kids had to do as they were asked. They had marching orders. They had to cook their dinner and be in bed at a certain time. She served as the mother, father, coach, doctor lawyer and referee. They enjoyed having their mother around. She said Stephan was a cute child, with beautiful eyelashes. He was a good student. School was very important. The children were rewarded for their good work. They went on a lot of trips to hunt, fish and go to amusement parks. Stephan loved baseball. He was an excellent athlete. He participated in track and basketball. Lonather Gray could remember a tie when she planned to go to one of his games, and she laughed as she said her son asked her not to come to the game "looking like a ghetto mom." She said Stephan never gave her any trouble.

He kept everyone in line. She said when he told her that he wanted to go into law enforcement, she was shocked. The family had two people killed in the line of duty, "it's a dangerous occupation." As the prosecution displayed a family picture, she told the court that she was supportive of Stephan, "he loved being an officer." He said he was helpful to everyone, giving family advice and what not. He expected his family to be on the straight and narrow. He was always there for his family. The mother described her son as funny, bright and sweet.

The prosecution asked her if she remembered the day she learned her son had been murdered. She said a hospital workker called. The worker asked if she was Stephan's mother. She said, "yes." She said he's dead, just like that. After she heard that, she dropped the phone, ran to her room and fell to her knees. She had to call the rest of her family. The call to Tony Gray was the one she dreaded most, "that was the hardest phone call I ever made." She said she kept praying the whole time, "not Stephan, it can't be Stephan." She saw his body laying on a table. He just looked like he was asleep. She wanted him to wake up and go home. She said his body was still warm. He had a mark on his forehead. She kissed his neck and told him how much she loved hi. She stayed there for a little bit. The prosecution asked her how her life has changed since that day. "Absolutely horrible. I have to go on," she said. She's been described by family as a woman who never cries. She broke down in tears on the stand just then. She said he's always on her mind. Sometimes she thinks she sees him. At the grocery store she'll smell his cologne on another man, "I have to tell myself, I hae to wake up, he's gone." She started sobbing, unable to speak. One by one family members walked up to the stand to help her down. The defense had no questions.

The final person to take the stand for the defense, the vitim's widow. Michelle Gray told the court that she first met Stephan during the first year of college at Fresno State University. They dated for three years before marrying on January 21. The prosecution showed a picture from their wedding rehearsal. They got married in Fresno. She grew up in Merced. Her father was stationed at an Air Force base there. Early in their marriage, they were just trying to find each other. They were busy establishing their careers. He decided he wanted to become a police officer, and she was working at St. Agnes Hospital. She worked the three to 10 p.m. shift, so that he could cut back on hours at Wal-mart. They decided when he finished with the academy, whichever place offered him a job first, is where they would go. That place turned out to be the Merced Police Department. She went into the registered nurse program, and took care of their three-month-old son. Stephan didn't want the children in day care. They did that for two years. They bought a house and established their careers. Michelle Gray started to cry as the prosecution showed the court a picture of of Stephan caring for their son. He had a child from a previous marriage. Landess became a daughter to Michelle over the next 10 years. Then the prosecution showed a picture of the whole family in Hawaii in May of 2003. She said he was the very best father she could have hoped for her children. She recalled when they were still dating, Landess was just two, she came home and found this large muscular man painting her little toenails. She knew that day that was the man she wanted to father her children. He always made an effort to be there for his children. He spent all the extra time he could with them. He watched his son's baseball practices, but didn't live to see his first game. The prosecution displayed more family pictures. One of them showed Stephan taking a pre-school class to the pumpkin patch. Michelle and Stephan were married for nine years and together for 12 years. Things started to get hard for the couple. They both had stressful jobs. That was a common bond for them. At one point though, she asked him to consider another line of work. He refused. She always thought he would make a good kindergarten teacher. He said he loved being a police officer.

One of the things she admired most about her husband, he always made her laugh. He also always made her feel protected. She said he was such a giving father. He never wanted them in daycare. When he would get home late from work, he'd wake the kids up to talk to them. The prosecution asked Michelle Gray if being different races was hard for them. She said when they first moved to Merced, they got a lot of stares. She said there were pressures, but eventually everyone in the community was comfortable with them. She always felt, "that which doesn't break you makes you stronger. She said in April 2004, their marriage was getting stronger. They were in a good place.

They went through a rough period, but it made them appreciate each other more. They had been living day-to-day, and they lost track of each other. They were able to reconnect and put each other first. They were looking forward to their 10th anniversary. They would go to Jamaica and scuba dive. Every day when Stephan Gray got ready for work he would sing and take a shower. He was a very happy person. He always loved his family. Once they went snorkling and came across huge turtles. They weren't supposed to feed them, but he kept giving them peas, "I miss my friend very much," she said.

On April 15, 2004,. she was at the house. She had just come back from the gym. A friend who was stayig with them was there with the kids. She had been out earlier because Stephan finally decided it was time to sell the house. The street was busy and gang members would drive by. Earlier that day Stephan and Michelle went out to look at some property to build a home. His aunt was getting ready to get married, so they went to a boutique. She wanted to show him a dress. He didn't really seem to like it. He said he'd come by later and get his under cover vehicle. Later he called to see if they could meet for dinner, or if she could make something for him at home. She told him she'd make something. He arrived home carrying a package. He said it was an early mother's day present. They ate dinner together. He seemed preoccupied. She wanted to spend more time with him, but he said he couldn't stay. He said they were looking for a gun, and he thought he knew who had it. Cameron, the couple's child, didn't want Gray to go. He kissed her. He said, "daddy's has to go get the bad guys." They walked him out. She asked, "what about the present?" He said she'd have to wait to open it when he came home. He left, and they watched him drive off.

At eight that night, it was just starting to get dark. A neighbor came ocver and said to page Stephan. Michelle didn't think much of that, because sometimes people needed her husband's help. She paged him, but he didn't call back. She said if she really needed to get a hold of him, she could try another way. He still didn't answer. Someone said Stephan's been shot. She said, "they would have called me." Her friend was also an ER worker. She called the sheriff's department, and told the dispatcher who she was. The dispatcher asked her to hold for a sergeant. She said she had to go to the hospital. She tried to call family. She said she ran up to the ER entrance. She heard two EMTs, one of them was laughing. She thought everything was fine. She told them, "I'm Officer Gray's wife, I need to get through." She was taken to a doctor, and as an ER nurse, she knew what that meant. The doctor said, "You're husband's been shot, I'm sorry he didn't survive his wound," She said, "you have the wrong officer." She went to him. He was the only one in the room. She expected someone in there. He was all by himself. She stayed in the room for eight and a half hours. All of Stephan's family showed up. They all came to say goodbye. She saw the tube in his mouth. His front teeth were missing. She could see the wound in his right arm. One the left she saw the nose tube, and thought, 'there's the contents of the dinner we just ate a half hour ago." She said she started screaming, wanting to know what happened. She saw the wound in his chest. She took the medical device off his mouth, and put his teeth back in. She didn't want his mother to see him that way. She moved his lips up so he looked like he was resting peacefully. She stayed with Stephan until she was ready to let go. She stood outside of the hospital and told her dad that she didn't want to go home. But he told her she had to. When she arrived her sister was there, "they didn't have to kill him," she said through tears. Her son was sleeping peacefully. She asked God for strength to tell her babies their dad was never coming home again. She sat down and told her son that a very bad, evil man killed their daddy and wasn't going to be able to come home. The prosecutor asked her how the children were handling the death. She said Landess was withdrawn, and had trouble expressing her emotions. Michelle thought she was ok, but she had really bad dreams. They had all been in therapy. Cameron cried a lot. During the first six weeks, she held her, "she cried and hit me and told me to bring her daddy home." Michelle said, "she hit me and told me to call her daddy in heaven and hae him come home. I yelled at her, I couldn't take it, I said, 'you're daddy is never coming home again.'" She kept asking why and she couldn't answer her. Michelle Gray said her son was in denial for a long time. He saw a child therapist and didn't want to talk about his daddy anymore. She said he was very quiet for a long time. Six to seven months after the death, she heard a shrill cry from his room. He was sobbing asking where his daddy was. The first day he talked about