Murder charges dismissed against 2

Drunk, high, immature and sometimes lying witnesses are shaky building blocks for a successful murder prosecution.

Noting those issues and others, a Sonoma County judge Monday tossed out murder charges against two of the three defendants in the stabbing death of a 21-year-old man at a party last year at a west Santa Rosa town house.

Judge Ken Gnoss discharged all criminal counts against Matthew O'Day, 20, and dismissed a murder count against Donald Bittner, 20, following attorneys' final arguments at the end of a lengthy preliminary hearing.

Despite inconsistent testimony, Gnoss said evidence that Alex Hopper, 20, was involved in the Dec. 15 slaying of Benjamin Floriani was more substantial. Hopper was ordered to stand trial on murder, assault and other charges that could mean life in prison.

"This, by far, has been one of the most difficult cases the court has had to rule on," Gnoss said from the bench Monday.

Nearly two dozen family members of O'Day, Bittner and Hopper sat quietly in court as Gnoss began explaining his ruling. Earlier in the hallway, the families were "ready for some good news" and waited nervously for the case to be called.

O'Day's parents, who attended every day of the hearing, declined to comment after the hearing. O'Day was expected to be released from Sonoma County Jail later Monday after serving eight months in custody.

Twenty-four witnesses testified during the monthlong preliminary hearing, and statements from four others were introduced. Many said they saw only bits and pieces of a brawl that ended with Floriani's death and two of his friends with serious stab wounds.

Almost all of the prosecution witnesses admitted they consumed large amounts of alcohol, and some said they smoked pot several times during the night before the fight broke out.

Complicating their testimony were lighting conditions -- only a strobe light that distorted movements -- and the fact that several witnesses either lied or changed their stories when talking to police or testifying under oath.

Other witnesses discussed the incident with friends, and some testified that they couldn't distinguish what they actually saw eight months ago from what their friends had said or what they read in the newspaper.

Some witnesses were "extremely immature," Gnoss said, and told detectives they saw certain things because they felt the "need to be part of it." In detailing his ruling, Gnoss addressed the evidence against each defendant separately, apparently starting with whom he believed to be least culpable, O'Day.

Of the 28 witnesses, only one identified O'Day as being involved in the fight. But she identified him as "Alex" to police and testified in court that she'd "made a mistake" and didn't see O'Day in the brawl.

Her statement to police was "inconsistent with any other witness," Gnoss said.

"Not having found any credible evidence against Mr. Matthew O'Day, he will be discharged of all charges."

At least two witnesses said they saw Bittner kick Floriani when he was down, apparently after someone else stabbed him.

Another, Gnoss noted, after being cross-examined by the defendants' attorneys, acknowledged: "I really don't know what I know any more."

Based on that, Gnoss dismissed the murder charge against Bittner, but said there was enough evidence to continue with assault charges.

Prosecutor Craig Brooks argued for murder charges against all three -- although none of the three was actually identified as having stabbed Floriani -- under the aiding and abetting theory, which can hold an entire group responsible for a crime committed by one.

But Gnoss said there was insufficient evidence that Bittner or O'Day knew anyone else intended to kill Floriani.

"The circumstantial evidence is more substantial" against Hopper, the judge said. Witnesses testified that he was in a verbal altercation with one of Floriani's friends and that a man with similar appearance -- dark skin with hair in a ponytail -- fought and possibly stabbed another of Floriani's friends.

Brooks argued that Hopper, O'Day and Bittner left the party without talking with police, showing a "consciousness of guilt."

Bittner's lawyer, Stephen Turer, countered that Floriani's friends -- who did stay -- may have shown that same state of mind by apparently disposing of the gun Floriani was seen pointing at people that night.

Gnoss said Hopper displayed a consciousness of guilt when he told police he had never been to the town house and was home all day. A cell phone photo shot the night of the party introduced as evidence showed Hopper was there.

Hopper's possible argument for self-defense because of Floriani's gun would be left for a jury to determine, Gnoss said.

Bittner, Hopper and a fourth defendant facing lesser charges, Noah Minuskin, 19, are due back in court Sept. 4.

Minuskin is out on bail, Hopper is being held without bail, and Bittner will seek to have bail set. He now faces assault charges and felony probation violations for nonviolent crimes.

You can reach Staff Writer L.A. Carter at 568-5312 or lori.carter@pressdemocrat.com.