Key witness in Toste trial comes under fire

<p>A key prosecution witness in the trial of two Santa Rosa men accused of murdering a man in a downtown parking garage came under fire Monday for switching her account of who pulled the trigger and making inconsistent statements to police.</p><p>Kim Barragan testified she saw her cousin Matthew Toste, 32, shot to death after a confrontation with a group of gang members and others more than three years ago. Her testimony is crucial in placing co-defendants Joseph Lopez Jr., 21, and Paul Whiterock, 30, at the scene.</p><p>But under cross-examination, it was her version of events that went on trial in a courtroom filled with tears, outbursts and accusations.</p><p>Whiterock's attorney, Kristine Burk, needled Barragan for telling police in early interviews that her client was the shooter. Barragan changed her story after suffering a “panic attack” four days later during a trip to Wal-Mart.</p><p>Instead, she said Lopez killed Toste after reaching around Whiterock's torso in a “bear hug” and pulling a handgun from his waistband. Given the varying accounts, Burk suggested Barragan's statements could not be relied upon to convict two men of murder.</p><p>That brought strong response from Barragan who broke down in tears and complained to Burk: “I feel like you're attacking me.”</p><p>“I don't think that's very fair,” Barragan shouted, prompting Judge Lawrence Antolini to clear the courtroom.</p><p>The exchange came at the start of the third week of testimony in the high-profile trial. Lopez is believed to have shot Toste but both men are charged with first-degree murder with additional gang allegations that could bring life prison sentences. They have pleaded not guilty.</p><p>Barragan, who began her testimony late Friday, said she was with her husband, a girlfriend and Toste on Dec. 3, 2006 when Toste was gunned down in Santa Rosa's Seventh Street parking garage. They were walking from their car to a nearby nightclub when they were confronted by a group of five men who yelled lewd comments.</p><p>She testified that one of the men, the defendant's father, Joseph Lopez Sr., 41, grabbed Barragan's buttocks and another pushed her on the ground.</p><p>Toste, a construction worker and single father, stepped in to defend the women. Lopez Sr., a former co-defendant, threw a punch at Toste and missed. Toste swung back, flooring the elder man and knocking him out.</p><p>That's when according to different accounts, Lopez Jr. pulled a handgun and started firing. His lawyer, George Boisseau, contends he shot Toste because he thought Toste shot his father.</p><p>Toste was hit twice — in the side and chest — and died at the scene. Another man who was with Lopez was wounded in the leg.</p><p>Barragan's girlfriend, Kelly Griffin, testified last week that Lopez produced the gun. But Barragan said she saw him get it from Whiterock. She demonstrated to the jury how Lopez held the gun sideways in his right hand and fired it three or more times.</p><p>After the shooting Barragan said she saw the two defendants fleeing in a gold Lexus driven by Whiterock.</p><p>Her testimony is critical to prosecutors because it paints Whiterock as an active participant. Burk, his lawyer, contends he was more than a hundred feet away from the confrontation and was not involved at all. </p><p>Under cross-examination Monday, Barragan conceded her accounts to police changed in the days after the shooting. She wasn't able to place Whiterock at the scene in initial interviews, then said he was the shooter.</p><p>She said her memory cleared when she was bumped by a Wal-Mart customer in a way that was similar to the shooting, and she named Lopez Jr. as the gunman.</p><p>Burk reminded Barragan that she told police at one time she could “guarantee” Whiterock pulled the trigger. That was before “she changed her memory,” Burk said.</p><p>Barragan acknowledged the mistake but explained she was in shock from witnessing a murder.</p><p>“My cousin was murdered in front of me,” said a tearful Barragan. “A man I loved very much died in front of me. Things are clearer now.”</p><p>Testimony continues Wednesday.</p>