One of the three co-defendants accused in the December 2010 murder of Justice Afoa of Newark had his own mini-hearing on a separate charge in an Alameda County Superior Courtroom Tuesday.
According to court testimony, police caught Daniel Howard, 31, in the backyard of his family's Fremont home a little before 6 p.m. on Nov. 25, 2012.
At time time he had his girlfriend's hands tied behind her back.
She was perched on some crates with a rope around her neck. The rope was secured to a tree limb overhead.
That much seemed in agreement as prosecutor Elgin Lowe and defense attorney Darryl Stallworth appeared before Superior Court Judge Thomas Reardon at a preliminary hearing to determine how the matter should be tried.
One big dispute: was Howard was on the verge of murdering the woman or was he letting her go by the time police arrived?
Among the dramatic aspects of the case, prosecutors say the woman rescued herself by fishing her cell phone out of her back pocket and dialing 911, while Howard allegedly went inside the house to get her a last cigarette.
The Police Account
Fremont Police Sergeant Patrick Epps said he and three other officers arrived at the house on the 41000 block of Beatrice Street a bit before 6 pm.
They were responding to a call from a woman who said her boyfriend had tied her up in back of the house. But they didn't know whether that meant inside the structure or in the backyard.
As they approached the house, Epps said he saw a lighted shed in the backyard and moved to check it out.
He testified that he heard a woman scream, "I'm over here, help me!"
He said he shined a flashlight and trained his gun in that direction and saw a man -- later determined to be Howard -- with his arm around a woman's chest, wrapping a rope around her neck.
"I said, 'Get away from her!', three or four time," Epps testified, before the man pushed the woman away. She fell to her knees, close to an embankment leading down to a creek, he said.
Epps said he let the officer behind him take care of the woman and chased Howard who he quickly apprehended.
Element of Doubt
Through his questions, defense attorney Darryl Stallworth attacked the notion that the woman's life was in peril and that Howard intended to hang her.
Stallworth established that the woman had been staying in the Howard family house, and that she and the defendant had had an on-again, off-again relationship for two years.
What precipitated the backyard incident was Howard's suspicions that his girlfriend, then 11 weeks pregnant, had had sex with his best friend and that the friend, and not Howard, was not the father of her unborn child, Stallworth developed in the course of his cross-examination.
Stallworth established that the woman had accompanied Howard into the backyard without coercion, while Howard's father and brothers were in the house.
He asked Epps whether Howard could have been unwrapping the rope and not looping it around the woman's neck when he arrived.
Epps insisted the defendant was tightening the loops.
When Fremont Police Detective David Holguin took the stand Stallworth returned to the rope issue.
The defense attorney noted that police had made a videotape of their interview with the victim.
"Her words were he (Howard) was taking the rope off her neck," Stallworth said, to which Holguin replied, "Yes."
Tuesday's hearing was part of determining whether Howard should come to trial in connection with that incident.
It was separate from the Justice Afoa case, except in one regard, according to prosecutor Elgin Lowe, who is handling both cases.
The best friend who Howard suspected of being the real father of his girlfriend's child was Rafael Tovar, his co-defendant in the Afoa case, Lowe said.
The hearings will continue Wednesday.