Jury foreman: 911 tape led to murder conviction

By Matt Pordum

Wednesday, Aug. 10, 2005 | 8:24 a.m.

A jury foreman said the 911 tape made by the murder victim in the minutes prior to being shot and not a damaging jailhouse journal detailing Jim Holden's life as an alleged hit-man is what led to his conviction Tuesday.

Frederic C. Vanderbur said after playing the tape twice the jury convicted Holden in the killing of Michael Panek and the shooting of Gary Sutton at a home in the 5500 block of White Cap during the early morning hours of Feb. 6, 2004.

Vanderbur said "everyone was on the same page" as the jury took less than an hour to find Holden guilty of one count each of first-degree murder with use of a deadly weapon, attempted murder with use of a deadly weapon, two counts of first-degree kidnapping and one count of conspiracy to commit murder.

Because of a pre-trial agreement reached by Holden's attorney and prosecutors, District Judge Jennifer Togliatti will sentence Holden instead of the jury on Sept. 21.

Before being escorted back to jail in chains by corrections officers, Holden turned to his mother in the audience and said, "I love you, Mom."

Although much had been made about the incriminating jailhouse journal Holden wrote in which he referenced the killing of Panek specifically and said "to kill is easy when you have no feelings' and that he was "born to do this," Vanderbur said it meant little to the jury.

"We talked about the journal, but it didn't have as much weight as the 911 tape and the district attorney's clear explanation of the law during closing arguments," Vanderbur said. "The journal came up, but we didn't really know why it was written. Coerced or not he didn't have to write it."

In frenzied run-on sentences filled with misspellings and lacking punctuation, Holden's journal zigzags between complaining about headaches -- he says he hears voices and has violent nightmares -- and pining for his wife and son. But the bulk of the journal chronicles crimes he has committed or wants to commit.

Holden's attorney, Bret Whipple, argued at trial that a cellmate named Steven Hall befriended Holden after he was arrested for another case -- the March 27 slaying of 34-year-old Gerardo Ojeda-Garcia.

Whipple said Hall "set up" Holden by suggesting he "do this journal and let me take care of it." The defense attorney said Hall then passed the journal on to his attorney, saying "get me another deal."

Vanderbur said while there might have been questions about the journal, with the 911 tape "we were right there when it happened."

In the 911 call made by Panek during the incident, a booming voice can be heard over the commotion, saying, "If we don't kill you (expletives), you are going to get your ass kicked, we're going to start beating the (expletive) out of you, piece by piece."

During the call a frantic Panek can be heard telling the dispatcher, "He's got a gun in my face right now, please come and help me."

As the dispatcher continuously asks where the incident is occurring Panek repeats several times "White Cap, White Cap."

The prosecutors said Holden was hired to be an enforcer by his friend Rodney Evans because Evans wanted to get revenge on Panek and Sutton for beating up a friend of his two days prior to the killing.

In January Evans pleaded guilty to one count of voluntary manslaughter with use of a deadly weapon and one count of battery with use of a deadly weapon in connection to the incident and was sentenced to five to 20 years in prison.

Evans, who testified at Holden's trial, said Holden was only at the scene of the shooting because Evans asked to him come over in case Panek and Sutton came back to attack again and not as a hit-man.

Evans told the jury it was he who wanted Panek dead as revenge for beating up his friend. He also admitted after a brief pause in his testimony that "yeah I wanted Gary (Sutton) dead too."

Chief Deputy District Attorney Marc DiGiacomo said Panek and Sutton were kicked out of the home after the incident, but returned to pick up their belongings. He said when they entered the home Holden and Evans were waiting for them with a gun and baseball bat, respectively.

DiGiacomo said Holden shot Panek in the head as Panek pulled a knife and jumped over a couch while trying to escape from the house. He said Sutton then tried to get the gun out of Holden's hand, but Evans hit him with the bat and told Holden to shoot him.

The prosecutor said that more than anything the jury's verdict showed that "ultimately the jury made a determination that you can't hire someone to kill someone over a small dispute."

Whipple had argued that Holden was at the residence the night of the killing because of the fight two days earlier, not as a hitman, but instead as a concerned friend. Whipple said Holden's friend "feared for his life"because of the beating he suffered at the hands of Panek and Sutton.

Whipple said when Panek and Sutton arrived at the house Holden believed they were armed and looking to cause trouble, so he pulled his gun and ordered them to the ground. He said although the pair first complied with Holden's request, Panek then pulled out a knife and lunged toward Holden, who shot him in self-defense.

Whipple said he would "take one step at a time" as he prepares for sentencing, filing an appeal of the conviction and Holden's next trial.

Both Whipple and DiGiacomo will find themselves going head to head at Holden's trial for allegedly murdering Ojeda-Garcia, who police said was shot in the head with a high-caliber rifle in an apartment at 3301 Civic Center Drive.

The trial is scheduled to begin Nov. 14 before District Judge David Wall.