Implant related tragedy

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Posey grand jury witness says 'It's murder'

Medical, forensic experts testify that Napa dentist shot estranged wife

Sunday, July 24, 2005By MARSHA DORGANRegister Staff WriterTestimony presented to a Napa County criminal grand jury last month suggests Napa dentist Posey stood over his estranged wife holding a handgun in the kitchen of his Napa home in 1996, and that he was the one who fired the bullet that killed Posey, 27.The Walther PPK .380-caliber semi-automatic gun jammed, but had been reloaded and made ready to fire by the time police arrived at the Maplewood Avenue house and found the firearm next to 's hand, according to a transcript of the grand jury proceedings.Nineteen grand jurors met on June 7 to listen to testimony and determine if Posey, 52, should be charged with the murder of . After four days of testimony, the grand jury returned an indictment ordering Posey to answer to a charge of first-degree murder with a special allegation of use of a firearm.Criminal grand juries are

impaneled at the request of prosecutors and asked to find whether there is probable cause to hold a defendant for trial. The process has the same legal effect as a preliminary hearing, but has very different rules.Grand jury proceedings are not held in open court and defense counsel is not allowed to call or cross-examine witnesses, or even be present, during the testimony. The Posey case represents the first time the Napa County District Attorney's Office has used a grand jury in several years.Expert witnessesPosey was arrested in May and is accused of killing on April 19, 1996. The couple was in the middle of a divorce at the time she died.According to prosecutors, on the night of the incident Posey told police that became angry when he refused to pay for her recent breast implant surgery. Posey said went into the bedroom, unlocked the safe and removed the gun.He said she walked into the kitchen

where he was washing sippy cups for his young children, fired a shot at him and missed. The bullet lodged in the kitchen cupboard.At that point, Posey said he tried to take the gun from her, they struggled and the gun went off, shooting her once in the head. When police arrived, was lying on her stomach, her head in a pool of blood. She was pronounced dead at the scene.The more than 450 pages of transcripts of the grand jury proceedings contain testimony from 15 witnesses as well as Napa County Deputy District Attorney Rob Wade's theory of the case. The testimony contradicts Posey's statements to police on the night died and statements made following his May 27, 2005, arrest in front of his dental office on Seminary and Second streets.The most damaging testimony came from two expert witnesses, Dr. Di Maio and California Department of Justice criminalist Waller.Wade asked Di Maio his opinion as to the manner of

's death.Di Maio, who has been the chief medical examiner for Bexar County, Texas, replied the death was a homicide. did not have her finger on the trigger at the time of the shooting, he said. Someone else pulled the trigger."It's murder," Di Maio testified.Di Maio testified the gun was in contact with 's chin when it went off, the bullet going straight into her brain.The night of her death, officers found blood stains on the lower pant leg of Posey's pants. Di Maio said it most likely came from the impact of the gunshot wound to face.In interviews with investigators, Posey said the two of them were standing in the kitchen struggling for the gun. But Di Maio said was either on her hands and knees or some other position very close to the floor, and that Posey's lower pant leg was near her face.He also testified about the physical differences between Posey and the victim.

was 5-feet-1 and 100 pounds. Posey is 5-feet-8 and 175 pounds, Di Maio said. had just had breast implant surgery three days before she died."According to him, he's got two hands on her and she has two hands on the gun, and he has trouble getting it away from her," Di Maio testified.Dr. Reichel testified he performed breast surgery on the victim on April 16, 1996, three days before she died. He testified he encourages his patients limit the use of their arms for a week.Di Maio said fibers taken from under the victim's fingernail matched fibers of the royal blue Polo shirt Posey was wearing that night. Those fibers were found under 's right thumb nail. "If she has the fibers under her right thumb nail, which is supposed to be holding onto the gun, how could she have scratched his shirt?" he asked.A blister and a 'stove pipe'Di Maio and Waller, the weapons expert, testified that the gun jammed during the

episode. In order to fire a Walther PPK semi-automatic .380 after it jammed, the magazine must be removed, the bullet removed and the magazine re-inserted."If the gun jammed after she shot at him, the gun was inactive," Di Maio said. "If they were struggling over it, they were struggling over a piece of metal, not a gun. Are you going to sit there while somebody clears the gun?"Di Maio also testified that only had a small bruise on her face."If they were standing upright and the bullet hit her in the brain, she was dead walking. She would have fallen forward and would have extensive injuries to her face. All she had was a little scratch, not impact injuries. Put this all together and it totally contradicts (Posey's) statements."He's lying. There is no evidence she ever had the gun. When she was shot, she was on the floor and his pant leg was next to her. He was leaning over her or crouched down, straddling her, his leg next to her and the

gun went off."Earlier, Napa Police forensic specialist Janet Lipsey testified that fibers matching the Polo shirt Posey was wearing were found under the victim's left fingernails, and Posey had scratches across his back.Di Maio said in order for her to scratch Posey, would have to have her arms almost around him. "He's not a small guy, and all this time she is supposedly holding the gun in her right hand?"Waller, who works for the department of justice in Santa , backed up most of Di Maio's testimony.Waller, who is a firearms expert, testified the gun "stove-piped," meaning the bullet turned sideways.The gun must be cleared and the magazine replaced. The gun that killed is known to pinch a person's finger when they replace the clip, causing a blood blister. The night died, investigators observed a fresh blood blister on the little finger of Posey's left hand.Waller testified when he was conducting

tests on the alleged murder weapon, it jammed. After clearing the gun, Waller testified when he was replacing the clip, it pinched him, giving him a blood blister on the little finger of his left hand.Posey's broken wristwatch was collected the night of the murder as evidence.Waller testified the watch had been pushed up and flipped over and there was blood on it. He also said there was blood tissue found on the front of Posey 's shirt and shoe.Blood was found on the kitchen table pedestal, the legs of the chairs and the bottom of the stove.Wade asked Waller if any blood was found high enough to be consistent with Posey's statements the pair was standing up when the fatal shot was fired."No," Waller answered. "She was very close to the floor. It couldn't have come from a higher angle because a there were objects in the way. The blood would not have been able to get under the table."Waller said he was not able to determine if the weapon

jammed after the first or second shot was fired.A member of the grand jury asked Waller if the blood could have gotten on the floor when she fell.Unlike juries in criminal and civil trials, members of criminal grand juries are allowed to submit questions to witnesses.Waller said that the scenario the juror suggested would have created a different pattern of blood stains.Nine years on the caseEd Knutsen, the lead detective on the case nine years ago and still the lead on it today, also testified before the grand jury.He testified that when he interviewed Posey the night before, Posey said he and the victim were standing up struggling for the gun.The day after 's death, Knutsen said, he visited Posey's house."I was looking up in the kitchen for blood stains. If they were standing up you would expect to see blood up high, not on the floor," Knutsen testified."Also he said there was a struggle,

which I thought was strange. Everything in the kitchen was in order, even the sippy cups on the sink."Wade also asked Knutsen why it took nine years to make an arrest."I have been investigating the case since April 1996. It's been ongoing by myself even when I left the Napa police and started my new career with the Napa County District Attorney's Office. The case followed me. We have gone through several experts and each required an extraordinary amount of time. I was also working other cases the whole time," Knutsen said.Initially the district attorney's office charged Posey with a special allegation of murder for financial gain. The grand jury did not hand up an indictment on that charge.At the grand jury hearing, 's divorce lawyer, Doug , testified he and the victim met on April 12, 1996, a week before she died.The divorce settlement ordered Posey pay $3,000 a month, child support and $7,500 attorney fees. Posey also has

holdings in Cayman Islands, which were part of the divorce settlement. said was "very happy with the settlement and she stood to receive hundreds of thousands of dollars."In his closing statement to the grand jury, Wade recapped the four-day proceedings."Mr. Posey and his wife were getting a divorce. Things were not going well for him. She brings their children (1 and 3) over for a weekend visit with their father. This is his opportunity. He says she goes into a rage because he would not pay for her breast surgery. She goes to locked gun case, opens it with a combination she's only been told about a year ago," Wade said.He proceeded to recall Posey's account of his wife's death, saying, she walked into the kitchen, fired a shot and missed and they struggled."Mr. Posey says all he was trying to do was to stay away from the gun. He doesn't remember the gun jamming. The only way he got blood on his pant leg was with high velocity

from the bullet when it struck the victim. If they were standing and struggling, he would have had to had his lower leg up by her mouth," Wade said. "If she fired a shot at him and the gun jammed, why didn't he just walk over and take it away from her? It didn't work."Posey is out of custody after posting a $6 million property bond with the court. A hearing is scheduled for Oct. 24, to set a trial date.

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