Mortensen attorney raises question of new murder weapon

The latest theory to justify a new trial for former Metro Police officer Ron Mortensen is that a third gun -- larger than either pistol carried by Mortensen or his buddy on Dec. 28, 1996 -- was responsible for the death of 21-year-old Daniel Mendoza.

District Judge Joeseph Pavlikowski is expected to decide this week whether a new trial is justified because of that theory or recently revealed statements made by the convicted killer's friend, fellow officer Christopher Brady, about wanting to commit a drive-by shooting.

Mortensen was convicted last year of first-degree murder and sentenced to life in prison without the possibility of parole.

The jury had rejected Mortensen's claim that Brady was the actual gunman -- choosing to pick up Mortensen's .38-caliber semi-automatic pistol to fire the fatal shot rather than use his own .38-caliber revolver.

Mortensen's attorney, Frank Cremen, argued during a hotly contested hearing Friday that he didn't have access before the trial to notes from a Metro firearms expert who expressed concerns that the bullet wound was larger than the purported murder weapon.

The notes from Torrey Johnson also indicated curiosity that the fatal bullet passed through Mendoza's body although he generally didn't consider .38 ammunition to be that powerful.

Although police searched the murder scene on McKellar Circle, the fatal bullet was never recovered.

While Johnson admitted initial interest over the fatal wound, he told the judge from the witness stand Friday that the half-inch bullet wound was not inconsistent with a .38 bullet. He said his decision to explore the issue was to be as thorough as possible.

He explained that tissue can expand from the impact of a bullet. But Cremen suggested that a third gun -- perhaps accidentally discharging as it was being pulled by one of the 18th Street Gang members who lived there -- was the weapon that killed Mendoza.

To justify a new trial, the judge must conclude not only that there is new evidence, but that evidence would have changed the outcome of the original trial.

The other "new evidence" in the case involved statements Brady was said to have made to a fellow officer that he wanted to do a drive-by shooting.

Officer Marc Barry testified that as he and Brady were "blowing off steam" in a bar frequented by Metro officers, Brady commented perhaps half a dozen times that he wanted to commit a drive-by.

Barry emphasized, however, that the talk never involved a direct plan and was never taken seriously.

"He would say, 'Hey, let's do a drive-by," and we would giggle and laugh and it would be over," Barry said of the comments that he indicated occurred about a year before the Mendoza killing.

While Cremen said the information supports Mortensen's claim that Brady was the shooter, Deputy District Attorney Gary Guymon disagreed.

He said a comment made in jest a year before the slaying "doesn't make Brady the shooter in the case."

"This is a case of eyewitness identification," Guymon said, noting that the gang members who were targets of harassment and then gunfire had testified the gunman was the man in the passenger seat wearing glasses.

At that trial, both officers admitted that Mortensen was in the passenger seat and a volley of shots emanated from Brady's truck, although they differed about who pulled the trigger. Mortensen testified it was Brady and explained how he had picked up Mortensen's pistol, leaned across the truck and fired out of the passenger window.

Bullet casings littered the ground in front of the apartment near Paradise Road and Twain Avenue, indicating the pistol was held well outside the truck when it was fired.

The jury tried to re-create Mortensen's scenario when they were given access to the truck and apparently were not convinced it was possible.

Brady had come forward three days after the incident, when there were few leads, to solve the slaying by confessing he had been the driver of the truck naming Mortensen as the killer.

Pavlikowski noted Friday that the jury believed Brady, but Cremen responded, "They didn't have the testimony of Marc Barry."

Brady was never charged in Mendoza's death although he admitted being, in essence, the getaway driver. His story to homicide detectives was that he had no knowledge Mortensen was going to open fire.

As a result, the district attorney's office determined Brady had broken no law.

That decision, however, has drawn fire from defense attorneys who contend that drivers in drive-by shootings routinely face charges despite claiming they had no knowledge one of their passengers had a gun or was going to use it.

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