3 men to face murder trial for killing tourist at Fashion Island, judge rules

Three men accused of carrying out a brazen, mid-day robbery at Fashion Island in Newport Beach that ended with a 68-year-old New Zealand woman being run over and killed by a getaway driver will all face trial on special circumstances murder charges, an Orange County Superior Court Judge ruled on Thursday, Dec. 12.

The ruling following two days of testimony by law enforcement during a preliminary hearing held in a Santa Ana courtroom clears the way for a jury trial for Leroy McCrary, Malachi Darnell and Jaden Cunningham, three alleged members of a robbery crew from Los Angeles County who are accused of killing Patricia McKay during the commission of a robbery.

A defense attorney representing McCrary — the driver — denied that he intended to run over McKay, while attorneys for Cunningham — who prosecutors allege dragged McKay into the roadway in the midst of the robbery — and Darnell — who is accused of firing gunshots at a good Samaritan who tried to intervene — argued that the two other men were not directly responsible for McKay’s death.

Testimony from more than a half-dozen law enforcement officers — bolstered by several security videos from the shopping center — painted a chaotic scene for a robbery that lasted less than a minute and a half.

McKay and her husband, Douglas, were standing on a sidewalk in front of a Barnes & Noble around 3:30 p.m. on Tuesday, July 2 waiting for family members to pick them up when a white Toyota Camry with no license plates pulled up to the curb.

Two masked men wearing hoodies — identified by prosecutors as Darnell and Cunningham — quickly exited the Camry and tried to force the husband to give them his Rolex watch. The husband later told officers and investigators that one of the robbers — prosecutors say Darnell — pressed a gun into his face and said, “I will shoot you!”

When the robbers couldn’t get the Rolex from the husband, they turned their attention to the wife. In the course of the robbers trying to get bags away from Patricia McKay, security footage showed her being knocked to the ground — in Senior Deputy District Attorney Mark Birney’s description like a “rag doll flung into the street” — and ending up in front of the Camry.

The husband told officers that he stood over his wife, trying to get the driver’s attention and hit the hood of the Camry while telling them to “Stop!” Prosecutors say McCrary ignored the husband and drove off, running over Patricia McKay and dragging her body for around 30 yards.

The Camry drove off so abruptly that one of the robbers — prosecutors say Cunningham — wasn’t able to jump inside. A good Samaritan tried to stop him from running after the Camry, but had to hit the ground when he heard bullets that prosecutors allege had been fired by Darnell “zing” past his head.

All three men were arrested after a police pursuit that stretched over multiple freeways and countless surface streets. At least one of the men made seemingly incriminating comments to investigators, according to testimony during the preliminary hearing,

“Did he describe himself as being the driver at the time Mrs. McCabe was run over?” the prosecutor asked in reference to McCrary.

“Yes,” Newport Beach Police Det. Michael Fletcher responded.

Birney, the prosecutor, argued that all three men were “major participants who acted with reckless disregard.” Darnell and Cunningham teamed up to attack much older victims, the prosecutor argued, while McCrary ignored the husband’s warnings and ran over the wife.

McCrary’s attorney, David Hammond, argued that McCrary didn’t know that the woman was on the ground in front of the Camry due to the chaotic scene and shadows on the roadway.

Darnell’s attorney, Joel Garson, told the judge that Darnell did not kill McKay and was firing gunshots to scare, not kill, the good Samaritan.

Cunningham’s attorney, Ray Chen, argued that Cunningham during the robbery used only enough force to take the McKays’ property. The struggle between the wife and Cunningham over her purse and shopping bags and the husband running up and grabbing Cunningham in order to protect his wife was what led to the confrontation ending up in the roadway in front of the Camry, the defense attorney added.

The standard of proof for a preliminary hearing — probable cause — is a lower burden for prosecutors than the “beyond a reasonable doubt” standard for an actual criminal trial.

Judge Gregory Jones ruled that all three men can stand trial as charged. The men are also facing attempted robbery charges and a sentencing enhancement for causing the death of a person 65 or older, among other charges.

Due to the special circumstances murder charges, prosecutors will have to decide at some point prior to trial whether to pursue life without the possibility of parole or the death penalty. The county’s top prosecutor — DA Todd Spitzer — ultimately makes that decision, generally after internal discussions with his senior prosecutors and advisors and input from the defense attorneys.