Mistrial declared in Yuba County murder trial

A Yuba County judge declared a mistrial Friday in the second-degree murder case of Todd Allen Cole Jr. after jurors said they were "completely torn."

A prosecutor called the evidence against Cole "pretty compelling," but jurors deliberated two days without reaching a verdict.

Cole's fingerprints and footprints were found in the blood of victim Scott Malmstrom, whose decomposed body was found July 25, 2009, in his North Beale Road apartment.

Asked by Judge Kathleen O'Connor what the vote breakdown was without saying which way jurors voted, the jury forewoman said before O'Connor cut her off that there were 10 votes to convict Cole.

The forewoman declined comment as she left the courthouse, as did other jurors.

The lead prosecutor, Deputy District Attorney John Vacek, said Cole will be retried. A trial date is scheduled to be set Wednesday.

Cole's attorney, Chief Deputy Public Defender Brian Davis, and Deputy District Attorney Shiloh Sorbello met with jurors behind closed doors to discuss their votes.

Davis asked an Appeal-Democrat reporter to leave at the request of some of the jurors.

Jurors had the option of finding Cole guilty of voluntary manslaughter instead of second-degree murder, an option opposed by prosecutors, Sorbello said. But the issue that led to the hung jury was more of "who done it," he said.

The two jurors who voted not to convict apparently were not sure beyond a reasonable doubt that it was Cole in Malmstrom's apartment, not someone else, even though they didn't seem to have any particular person in mind, Sorbello said.

One witness said that shortly before Malmstrom's death, she saw him having an argument with a lanky, ponytailed Hispanic man. Cole told a fellow inmate in Yuba County Jail that he and his brother had stabbed a child molester.

Malmstrom was convicted of child molestation in Placer County.

Sorbello credited Davis with planting enough reasonable doubt in the minds of some jurors to cause the hung jury.

"He did what he needed to do," Sorbello said.

In his closing argument to jurors, Davis said state Department of Justice investigators should have taken more blood samples from the apartment. Some of the blood could have come from someone else, he said.

"Everything seemed obvious to them, so why go to the bother?" Davis said.

Malmstrom was stabbed or slashed 17 times. Blood was on the floor, walls and ceiling.

"No one knows beyond all doubt that happened in Scott Malmstrom's apartment. There are other ways this reasonably could have happened," Davis said.

The prosecution's case consisted entirely of circumstantial evidence — no witnesses, no videotape, he said.

Davis called one prosecution witness, Brian Brand, a white supremacist gang member, "a snitch. He didn't even have the guts to sit here in front of you and tell you what he has to stay," Davis said.

At a December preliminary hearing, Brand testified Cole talked to him in jail about stabbing a child molester. In the trial, he said he couldn't remember.

Vacek said Brand feared retaliation for being a snitch.

By talking to Brand, Cole may have been stupid or bragging or "a punk sucking up to the real deal" whose white supremacist gang, the Peckerwoods, might protect him in prison, Vacek told jurors.

Vacek acknowledged that evidence was largely circumstantial, including forensic evidence such as Cole's fingerprints and footprints in Malmstrom's blood.

"But it's a pretty compelling circumstantial case when you look at it," he told jurors.

Cole's fingerprints in Malmstrom's blood were found on the control rod for vertical blinds on the living room window, evidence that he didn't want anyone to see what had just happened, said Vacek.

"What other reasonable explanation is there" for the bloody prints, Vacek asked. "What reasonable person goes inside and wades in blood? Who sees this and doesn't call the cops?"

The struggle apparently was the most violent near the window and door, with blood spurting from Malmstrom's severed carotid artery, Vacek said.

A bloody knife blade, broken from its handle, was found near the window. That apparently happened when Malmstrom was stabbed in the back of the neck and the blade hit bone, he said.

When Malmstrom's body was found, the left pants pocket was turned out and he had no wallet. Malmstrom liked to flash a roll of cash, a Yuba County detective testified earlier.

CONTACT Rob Young at 749-4710 or at ryoung@appealdemocrat.com.