The Berkeley man charged with murdering a 19-year-old Cal student in June told an old friend he had shot and killed someone, and was also seen loading a gun like the one used in the homicide just two days before the crime, according to court testimony over the past week.
On Monday, at the conclusion of the hearing, Alameda County Superior Court Judge Michael Gaffey ordered Tony Walker, a longtime felon, to stand trial in the murder case.
On the night of June 15, Seth Smith had been walking alone on Dwight Way in southwest Berkeley, just 1 mile from his house, when someone came up behind him and fired a single bullet into his head just behind his left ear. Smith collapsed backward onto the sidewalk. When first responders found him, one of his earbuds was still in his ear. His lidless water bottle had come to rest upright, nestled into his armpit.
It took two months and a lengthy investigation, but Berkeley police detectives ultimately arrested 60-year-old Tony Walker on suspicion of Smith’s homicide. Walker lived on Dwight Way several hundred feet from the sidewalk where Smith was killed, according to court testimony.
The bulk of the prosecution’s case rests on the testimony of a Marine Corps veteran who has worked for the federal government for the past 10 years. Roger Ellis — Berkeleyside is using a pseudonym to identify him due to concerns about his safety following a drive-by shooting at his home — said he and Walker went to a gun shop in June to buy ammunition, and that Walker later confessed to having killed someone.
Ellis told police he saw Walker just days before Smith’s killing with the same type of gun and ammunition used in the homicide, according to court testimony. Police have not found that gun — described as a .40-caliber Glock 22 — but they did locate photographs from Ellis’ cellphone of what he said was that weapon. Ellis said he took pictures of the Glock and its magazine before the shopping trip to ensure the men bought the right ammunition. During the hearing, those images were projected onto a large screen in the courtroom behind the witness stand.
Walker’s attorney Mark McGoldrick, from the Alameda County public defender’s office, argued that the evidence against his client was insufficient and circumstantial. No one saw the killing. No one saw the killer flee, he said. McGoldrick indicated through his questions that Ellis might have been driven to testify to keep himself out of trouble and by the $50,000 reward police announced to help solve the case. Ellis also lied to police multiple times when detectives first questioned him, McGoldrick said.
After four days of testimony, however, Judge Gaffey said it had been “easy to get to a holding order” — to allow the case to proceed to trial — given the amount of evidence presented by Alameda County Deputy District Attorney Adam McConney.
“There is reasonable cause and probable cause and more,” the judge said.
Gaffey also cautioned that the standard of proof for this type of hearing is much lower than at trial, requiring only that a reasonable person would have a “strong suspicion” of the guilt of the accused. The judge said McConney presented “way more” evidence than would be required to establish that.
Gaffey described Tony Walker’s alleged confession to Ellis as “a significant piece of evidence,” adding that members of the jury would have to hear it and decide whether they found it credible.
The question of motive did not come up at any point during the hearing. Smith had no known enemies or outstanding disputes, and police said they found no evidence that he was missing any property when his body was found.
Seth Smith’s final walk in Berkeley
On Monday, June 15, at about 10 p.m., Seth Smith left his home in the 2200 block of Dwight Way, a few blocks from the UC Berkeley campus. Smith, who was just shy of his 20th birthday, was entering his third and final year at Cal and had nearly completed his studies as a double major in economics and history.
Smith said goodbye to his roommate and headed west on Dwight, walking on the southern side of the street, according to court testimony. He took his cellphone but left his wallet at home. Surveillance cameras captured him, wearing a gray long-sleeved shirt and blue jeans belted at the waist, as he strolled through the summer night. He felt safe in Berkeley and enjoyed walking through the city, his mother told Berkeleyside previously.
Smith was several blocks west of Sacramento Street when someone shot him once at close range, killing him instantly. Several people told police they heard a single, loud “pop” at about 11 p.m. No one identified it as gunfire or reported it, however.
It took more than 30 minutes before a man walking his dog noticed Smith sprawled on his back on the sidewalk near a bus stop bench on Dwight near Acton Street. It didn’t initially concern him because he thought the man “was sleeping, in typical Berkeley fashion,” testified BPD Officer Nicholas Hom last week. When the man got closer, however, he saw blood pooling around the person’s head. He called police immediately, Hom testified.
At the scene, police found a single cartridge casing, but it didn’t lead far. It didn’t match any other bullets or guns from the National Integrated Ballistic Information Network, a database of ballistic evidence, according to court testimony.
Police said they had to piece together exactly when Smith had been killed from circumstantial clues because there were no witnesses to the homicide. An exterior camera on an AC Transit bus helped narrow the window: The camera captured Smith’s body on the sidewalk at 11:10 p.m. Police said they also used cellphone location data to pinpoint Smith’s time of death: His phone had been travelling west on Dwight as Smith made his way through town but, at 10:56 p.m., on Dwight Way just past Acton Street, the phone stopped moving.
Tony Walker quickly became a suspect, police said
Police did not arrest Tony Walker until Aug. 20, but they identified him as a suspect just days after Smith was killed, according to court testimony.
Investigators initially became interested in Walker because of a phone call, Berkeley Police Detective Andres Bejarano testified last week.
Bejarano said his supervisor in the homicide unit, Sgt. Jennifer Wilson, had gotten a call from someone who told her to look into Tony Walker, who lived close to where Smith’s body was found. Walker, who has a significant criminal history dating back to at least 1982, according to court records, lived in an apartment building a few hundred feet from the bus stop area where Smith was killed.
In court, Bejarano did not say who made that critical phone call to police, or what else they might have said to Wilson, beyond that Walker lived nearby, just east of the crime scene.
On Friday, June 19, four days after Smith’s homicide, police set up surveillance outside Walker’s home in the 1400 block of Dwight Way and detained him under the guise of a probation search. Walker had been placed on probation after a felony gun arrest on Sacramento Street in South Berkeley in 2016.
On June 19, police searched Walker’s apartment and identified several pieces of evidence that interested them, Bejarano said. On the kitchen table, Bejarano said, police found a spiral notebook open to a handwritten letter to Walker’s neighbor “Nelly” telling her how to add money to inmate accounts at Santa Rita Jail.
Defense attorney McGoldrick objected when prosecutor McConney introduced a photograph of that letter into evidence. But McConney argued that it illustrated “consciousness of guilt” and the judge said it could be received.
McGoldrick later asked Bejarano whether the letter was dated, and Bejarano said it was not.
In a kitchen drawer, wrapped in plastic packaging that had originally held chicken breasts, Bejarano said police also found various items used to clean firearms. Walker told police he’d had the items “for years,” and McGoldrick said the 2018 expiration date on the plastic bag corroborated that.
A few weeks later, homicide detectives went to talk to Tony Walker again, Bejarano testified, and Walker made it clear he found the repeat visits tiresome.
“A white kid gets killed and the damn whole world stops,” Bejarano said Walker complained, before adding, “‘Fuck that white motherfucker.”
Police had not mentioned anything to Walker about any “white kid,” Bejarano testified.
McGoldrick pointed out, during cross-examination, however, that the case received a significant amount of media attention in Berkeley.
Bejarano said Walker was also “ranting” during that day’s outburst about how police don’t investigate the killings of Black people with the same vigor as they had brought to this case. When Walker learned police planned to search his apartment again, he was vexed, Bejarano said.
“Do you really think I’m dumb enough to keep anything in my house after you guys have already searched it?” Bejarano said Walker asked.
McGoldrick pointed out that Walker had cooperated with investigators and gave them his cellphone passcode during the investigation. Walker also repeatedly denied any involvement with the Smith homicide, McGoldrick said.
No DNA linking Tony Walker to the homicide
On the night of Smith’s death, Walker told police he was home and never left, Bejarano testified. But Walker’s cellphone connected to three different towers in Berkeley around the time of the killing, the detective said, which police took to mean that he was on the move.
Walker primarily used a bicycle and the bus to get around, according to court testimony. During the investigation, detectives seized Walker’s bike, a dark-colored Diamondback, as evidence.
They tested it for blood and found none, according to court testimony. There is no DNA from any of the evidence that links Walker to the case.
Police also said, in response to questions from defense attorney McGoldrick, that they had found no video of anyone trailing Smith on Dwight Way at any point during his June 15 walk.
Prosecutor McConney countered by asking investigators whether they had located any surveillance video at all of Smith walking on Dwight Way west of Sacramento Street. They had not, police said. That left the last few blocks of Smith’s final walk, and the last moments of his life, undocumented.
Cameras on two buildings close to the crime scene might have captured the area, but police were unable to view any footage from them, despite multiple attempts, according to court testimony. (No explanation was provided as to why.)
Police said they did find one camera, at Dwight and Acton Street, that showed a cyclist traveling west on the south side of Dwight Way at 10:55 p.m., one minute before Smith’s phone stopped moving. McConney played the video, a black-and-white wide-angle fisheye view, once in court. From the gallery, the cyclist wasn’t much more than a black blur in the distance moving across the low-lit street.
As part of the investigation, police spoke with at least three people — identified in court as Elmo Dill, Walker’s brother Ken, and someone called “Wishy Washy,” his name in Walker’s cellphone contact list — who said Walker did not have a gun, according to court testimony.
But Sgt. Wilson also testified that Dill said Tony Walker was his friend and that “he would not speak against him.”
Prosecutor McConney entered Dill’s criminal history — which includes multiple counts of the rape and sexual assault of a victim younger than 14 — into evidence to demonstrate a lack of credibility. Ken Walker also has multiple felony convictions, including at least one for robbery, according to court testimony.
Walker’s web history focused on guns in the days around the killing
During the hearing, Berkeley homicide detectives also testified about texts and web searches they said they found during the investigation.
Wilson said Walker’s YouTube history, which was otherwise dominated by “hundreds and hundreds of music videos,” included 15 videos about gun handling, cleaning or shooting in the days before and after Smith’s homicide. They included searches about .40-caliber Glocks, Wilson said. Police also found a deleted note on Walker’s cellphone about a gun cleaning kit, she said, and he had searched online about what she said appeared to be a type of gun-cleaning bristle brush.
Walker “mostly used YouTube for music,” Wilson testified. “It was just a few days of those searches.”
On June 16, the morning after Smith was killed, Wilson testified, Walker searched online for the term “breaking news” at 7:21 a.m. That day, he also texted his friend Elmo Dill that he was “Still waitin’ on da news,” adding: “I wanna see it.”
In the following days, Wilson said, Walker continued to search online about breaking news in Berkeley, and his browser history included articles about Smith’s fatal shooting and the $50,000 reward offered in the case.
Prior to the homicide, Wilson said Tony Walker exchanged several texts with Elmo Dill about items she took to reference firearms. In one of them, she said, he wrote that he needed to learn more about a particular item, “especially how to clean it,” he wrote, adding: “A clean one is a good one. Delete this shit.”
The texts did not mention guns by name but did include at least one slang term — “thang” — that often is used to reference firearms.
Witness puts same type of gun used in homicide in Walker’s hands
Another break in the case came July 2, when police served a search warrant at Ellis’ home in Oakland, Bejarano testified. Police said they started looking into Ellis after finding texts between him and Walker on Walker’s cellphone.
Ellis had been the first prosecution witness to take the stand when the preliminary hearing began Nov. 10. He wore a tailored brown suit and tie with Italian dress shoes. He was clean-shaven and his short hair was neatly trimmed.
Ellis, whose testimony spanned two days, said he had known Walker for about 20 years and, until this summer, considered him a friend. When asked by prosecutor McConney to describe the relationship now, Ellis said he “felt as though it was a friendship that was betrayed.”
On the day of the search warrant, investigators detained Ellis in handcuffs in the back of a police car. Inside his home, they found two firearms registered to Ellis along with a significant amount of ammunition, which he said was mostly for the gun range.
During the interview that day, Ellis told police he and Walker had gone up to Triple A’s Sporting Goods, a gun shop in Vallejo, on June 13. It was the first time police heard about the shopping trip, but it became a key element in their investigation.
Ellis said Walker had asked him during the first week or two of June to buy him some ammunition. Walker had never asked for anything like that before, Ellis said. But Ellis didn’t ask Walker why he wanted it, he testified.
Tony Walker, a convicted felon, is prohibited from owning guns and ammunition because of his criminal record.
Ellis said he didn’t think about the legality of the situation and justified the shopping trip as “a favor for a friend.”
Ellis initially declined to make the buy, he testified, but Walker pressed him about it several times and, “as a favor to me,” said he would pay for ammunition and a new magazine for Ellis if he agreed.
The day before the shopping trip, Ellis testified, Walker came over and brought a .40-caliber Glock 22. Neither man knew exactly what type of ammunition the gun took, Ellis said, so Ellis used his cellphone to photograph the Glock, its magazine and one of its bullets to refer to at the gun shop.
Police said they ultimately recovered those photographs through a forensic analysis of Ellis’ phone. Date and location metadata from those images corroborated Ellis’ testimony, according to the prosecution.
Detectives said they had learned through a crime lab analysis that Smith had been slain by a .40-caliber bullet fired from a Glock or “Glock-type” firearm. But Ellis was not aware of those details when he told police about the Glock, according to testimony.
During the trip to Vallejo, Ellis testified, Walker was not his usual jovial self. Ellis said Walker was “somewhat distant, in a different mood than what I was normally used to.” It seemed, Ellis said, that Walker was “in a different state.”
Ellis said Walker gave him $200 in cash so he could buy their ammunition and other items, including a gun cleaning kit Walker wanted. Afterward, they talked about having lunch, but Walker just wanted to go home, Ellis said.
Ellis drove Walker back to Walker’s apartment on Dwight Way where they went inside and divided up the ammunition and other items. Ellis said he watched Walker remove the old magazine on the Glock and replace it with the new ammunition and magazine.
Then Ellis left, but it wasn’t the last time he saw Walker or his gun that day, he said. Shortly after Ellis left Dwight Way, he testified, Walker called him to ask for help to “break down” his Glock, to take it apart, because he was having trouble figuring it out himself. Ellis said he initially declined because he was already home and didn’t feel like going out again.
But Walker got upset and hung up on him, Ellis said, so he did some research online and found a YouTube video about how to disassemble the Glock. Ellis said he went back to Walker’s place for the second time that day to show his friend how the process worked.
Police said Walker’s cellphone data corroborated the trip to Vallejo and that Walker himself admitted to taking the trip. Text messages between Ellis and Walker also corroborated numerous details about Ellis’ account of the day.
A receipt from the gun shop showing two separate line-items for ammunition was also entered into evidence, but the document did not specify the caliber of ammunition purchased.
And there were other details that remained elusive: The store’s surveillance footage from June 13 was no longer available when police went to review it, and store staff didn’t specifically recall either man shopping that day, according to court testimony.
Tony Walker’s alleged confession
A week or so after the trip to the gun shop, Ellis said, Walker got in touch with some disturbing news: Walker said the Berkeley police had come to his apartment on Dwight Way and searched it, and that he was under investigation. Walker also told Ellis to delete his texts and that they should probably stop texting altogether, Ellis testified.
The men agreed they shouldn’t text about the situation, so Walker went to Ellis’ place in Oakland and was clearly “very concerned,” Ellis said. Walker was acting nervous and said he was worried detectives would tie both men to the Vallejo ammunition buy, Ellis said.
According to Ellis, Walker told him to tell police, should they ask, that someone had broken into his car and stolen the ammunition.
“I acted like I agreed,” Ellis testified, “but in my mind, I wasn’t agreeing to that.”
Ellis said he promised Walker he would look into whether police would be able to trace the purchase back to him. But he didn’t follow up.
Ellis said, as he reflected on Walker’s past, he began to feel very uneasy about the ammunition purchase, and thought, “Maybe I made a big mistake by actually doing something like that.”
During another visit, Ellis said, Walker had something even worse to tell him.
“He told me that he had killed someone,” Ellis testified. “I was in disbelief.”
McGoldrick, during cross-examination, was incredulous.
“He just showed up, knocked on the door, and said he had shot and killed someone?” McGoldrick asked. “‘Good morning, I shot and killed somebody’?”
“Pretty much,” said Ellis. “That was the essence of it.”
Ellis said he was so taken aback that he did not ask Walker for details about what had happened. All Ellis wanted to know, he said, was what Walker had done with the Glock. Walker said he had taken it to the Berkeley Marina and gotten rid of it, Ellis said. It was a short visit that began and ended abruptly.
McGoldrick asked police whether any of the cellphone records they reviewed ever placed Walker at the marina, and detectives said none of them had.
During their last meeting in June, Ellis said, Walker was “very menacing” with him. Walker showed up unannounced, according to testimony, demanding to know why Ellis hadn’t gotten back to him about whether the ammunition purchase could be traced back to him. Walker wanted to talk again about what Ellis would tell police if they came knocking, Ellis said.
“I’m not going back to the penitentiary,” Ellis said Walker told him. Ellis said Walker also told him, “Remember my brother,” which Ellis took to mean that Walker had people keeping tabs on him. After Walker left, Ellis said he deleted or blocked Walker’s number.
All of those exchanges happened, Ellis said, before police came to his place with the search warrant July 2. Ellis admitted he did not tell police that day about Walker’s alleged confession to the killing. But he did tell them about the gun shop trip and that he had seen Walker repeatedly with a .40-caliber Glock, details that were never made public in police statements about the case.
“I don’t think that’s just a stroke of luck that he happened to pick the right weapon,” McConney told the judge.
On cross-examination, McGoldrick repeatedly referenced a transcript from July 2, pointing out how Ellis repeatedly said he wanted to help police and swore he was being honest — while withholding information about the alleged confession. Ellis also told police he didn’t know anything about a murder.
“You were playing dumb, right?” McGoldrick asked.
In response, Ellis testified that he had been concerned about his safety, given what Walker had told him, and also knew he needed to consult an attorney before saying anything that might get him into trouble.
Ultimately, Ellis did not come clean with police until early August, after someone drove by his house and shot up his car while he was asleep in bed. He said the gunfire left him afraid for his life. He called Sgt. Wilson in the middle of the night to tell her he was ready to talk, he testified.
“I was very scared at that point,” Ellis said. “I felt as though Tony Walker was sending me a message not to contact police.”
No evidence was presented as part of this past week’s hearing that linked Walker to the drive-by shooting, McGoldrick pointed out in court.
McGoldrick also asked Ellis when he first learned about the $50,000 reward in the case and whether he wanted to get that money.
“I don’t want to be in this situation,” Ellis replied forcefully. His car was shot up and he was displaced from his home, Ellis said. He’d had to get an attorney, take money out of his retirement account and liquidate some of his stocks as a result of the case, he added. “So the reward money is secondary in my mind.”
But if his testimony does convict Walker, and he ultimately does get any of the reward money, he said, when McGoldrick pressed him, “that would help me get back on my feet.”
Extra courthouse precautions amid COVID-19
Throughout the four-day hearing, which began last week Tuesday and concluded Monday afternoon — with a break for Veterans Day — defendant Tony Walker sat alone at the defense table. His attorney, Mark McGoldrick, attended the proceedings virtually, a process many courts have put into place amid the ongoing coronavirus pandemic. (No explanation was provided during the hearing as to why McGoldrick was not in court and he declined to provide a reason after the hearing.)
Walker, who wore a yellow jumpsuit over a white long-sleeved shirt, as well as orange jailhouse sandals, was mostly silent throughout the proceedings, other than brief morning and afternoon greetings to the judge. At various points, he closed his eyes, brought his elbows up to the table and rested his chin on his folded hands for extended periods of time. He sometimes appeared to be sleeping.
Initially, there was only one deputy in the courtroom, but he was joined last week by a second deputy, who remained until the end of the proceedings, after Walker returned from a court recess noticeably angry about something that had taken place during the break.
Otherwise, aside from court staff, no one but this reporter attended the hearing, which took place at the East County Hall of Justice in Dublin. Berkeleyside had to secure express permission in advance from the judge to attend the hearing because access to the courthouse is restricted due to COVID-19.
Deputies screened potential visitors at the door to ensure they had permission to come inside and required corroboration — from court staff or the criminal docket — to allow entry. Everyone who got past security had to fill out a COVID-19 screening survey and provide a phone number in case follow-up contact was needed. As a result, the courthouse overall was sparsely populated. The water fountains were closed, as was the clerk’s office. Day after day, the hallways were nearly always empty.
Unsurprisingly, everyone in the courtroom wore masks. Each witness who took the stand was required to swap their own mask for a large plastic face shield provided by the court, presumably to allow the judge and others to see their faces clearly while they testified. A large square of white fabric hung down from the bottom of each face shield to cover the neck, almost giving the impression of a Santa beard.
At the end of the hearing, Judge Gaffey held Walker to answer on all four felony charges against him and ordered him to remain in custody without bail. Walker is scheduled for arraignment on the charges Nov. 30.
Seth’s mother: “It doesn’t change the fact I lost my only son”
On Wednesday afternoon, Seth Smith’s mother, Michelle Rode-Smith, told Berkeleyside her family had tried to get permission to view the hearing remotely, but the judge told them he was too concerned about it being recorded, given the high-profile nature of the case, to allow it. So she and her sister listened online to the court’s audio feed.
She said it had been somewhat reassuring, in the end, to hear the judge’s ruling.
“The fact that it’s going to go to a jury is good because I don’t want this person back on the street,” Rode-Smith said. “I don’t want to worry that any other student is walking down the street and their life is in danger.”
But she said the sense of relief only goes so far.
“Until there’s a conviction and I know he’s no longer on the street at all, we’re not going to really rest,” she said. “And even then it doesn’t change the fact I lost my only son.… My firstborn, my only son. It’s really hard.”
Rode-Smith said the family was having a particularly difficult time with the holidays approaching. Seth’s father, she said, had decided they weren’t going to do Thanksgiving this year. The loss is still just too painful.
“You didn’t know Seth. But he was brilliant, incredibly intelligent, crazy smart,” she said, pausing. “We just had such excitement for his future.”