Some trees and a man died for this

Michael Vilkin claims John Upton threatened him repeatedly

Michael Vilkin (right) and defense attorney Richard Berkon
  • Michael Vilkin (right) and defense attorney Richard Berkon

“Mr. Vilkin protected himself,” said attorney Richard Berkon, speaking for a man accused of killing his neighbor. “This case was justified. It was self-defense.”

Trial began yesterday, June 5, for an Encinitas man charged with murder in the shooting death of a person with whom he had a yearlong dispute over the removal of shrubbery on a vacant lot.

Land owned by Vilkin

Land owned by Vilkin

John Upton

John Upton

Berkon claimed Michael Vilkin, 63, had suffered bullying and intimidation and threats while he worked to clear the brush on two undeveloped acres he bought at 2902 Lone Jack Road.

John Charles Upton, 56, a man who rented a home on an adjoining property, repeatedly confronted Vilkin, Berkon claimed. “He can’t set foot on his land without something coming from Mr. Upton.”

Upton demanded to know why Vilkin was “ruining the view” and removing trees that provided privacy from other neighbors, the defense attorney said in opening statements.

Upton, described in an autopsy report as 6 feet 2 inches tall and 236 pounds, was “cursing [and] getting nose-to-nose with Mr. Vilkin,” who is 5 feet 5 inches tall and 165 pounds, the defense attorney claimed.

Vilkin, who immigrated to the United States from the former Soviet Union in the 1980s, had phoned the sheriff’s department asking for help multiple times, his attorney claimed. The week before the shooting, Vilkin called for help and the deputy who responded witnessed Upton “screaming and yelling and cursing” and trying to “get in the face” of Vilkin, according to the defense attorney.

March 28, 2013, was the last meeting of the two men. Vilkin shot Upton twice, first in the belly and then one shot to the forehead, with a .44 caliber revolver that Vilkin had brought with him to the property. “Mr. Vilkin fired in self defense. He was justified in shooting Mr. Upton that day,” Berkon told the jury.

Trial resumes Monday morning, June 9, in San Diego’s North County Superior Courthouse.

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You don't shoot a second shot in the head if it's self defense. Right now he thinks what his lawyer says will let him get away with murder. He's gonna be surprised.

The prosecutor claims that Vilkin planned ahead, and brought the large revolver with him in a large, plastic carrying case.

It will be up to the defense to make a case of self-defense, since the testimony about the events that day sound more like murder by lying-in-wait. Whatever happened prior to that day is actually irrelevant, and unless he can make a good case for fearing for his life and safety at that moment, it was murder. Oh, and then there was buying a huge piece like a .44 cal revolver, a weapon that is overkill in almost any situation. Berkon, good luck with that as a defense. (Maybe you could cut a plea that will let him out of the slammer before he dies there.)

The adult son of the deceased man, named James Upton, took the witness box during trial last week. He said he lived in the guest house on the property, and saw Michael Vilkin working on the adjoining property “almost every day.” James said he had interactions with Vilkin because his pitbull named Leila often went onto Vilkin’s property and then James would retrieve his dog. “He actually said he liked her around,” James told the jury.

James also told the jury that he was familiar with his father's contacts with Vilkin and that John Upton “never” yelled nor threatened Vilkin, but “was trying to tell Vilkin not to cut all the trees down” -- and did warn Vilkin that another neighbor was going to sue him.

James said it was just after 9 a.m. on a Thursday morning, March 28, 2013, when his father’s live-in-girlfriend burst into his bedroom and declared: “Man, get up man, your Dad’s been shot!” James said he went outside and found his father on the ground with “two huge pools of blood” -- on Vilkin's property. James said he could see Vilkin nearby and remembered him as “really calm.”

James is expected to continue in the witness box when trial resumes tomorrow morning, June 9, 2014.

Evelyn Zeller, who described herself as John Upton's "life partner" took the witness box this morning, June 9, 2014. She confirmed that "yes, we liked our privacy" and that she had "some interactions" with the man who came to work on his property which adjoined their place. Zeller only knew the neighbor by his first name, Michael, and said she walked her dogs on his property and "I would share with him." Zeller said she told the man it was "not wise" for him to cut down the brush on his acres. Their relationship was cordial for about two months, Zeller told the jury, but eventually his response became "Get the f--k off my property." She will continue her testimony after the court's lunch break.

My heart and prayers go out to my family during this difficult time. It has been more than a year since my cousin Johnny was murdered in cold blood by this hothead psycho. What a tragedy to have to suffer through the murder of a loved one and to be forced to relive the horror and to go through hell yet again more than a year later. I pray for an expedient trial and prosecution of this monster. May the peace of The Lord be with the Upton family on both the West Coast and the East Coast and may His will be done.

Sheriff's detective Troy DuGal testified that the .40 caliber Glock handgun found in John Upton's nightstand was actually registered to someone named "Sommese." The detective said John Upton did have one .22 caliber pistol registered in his name, but that weapon was never located. Because murder defendant Michael Vilkin is claiming self-defense, his attorney appears to create suspicion that Upton could indeed have been armed or threatened Vilkin with a handgun. When Evelyn Zeller and James Upton were in the witness box, they were asked if they removed any weapon near the body of the fallen man, when they approached immediately after the fatal encounter.

These frequent comments about how a firearm is "registered" to someone are meaningless. Why? There is no firearms "registration" system in the US. As to why law enforcement keeps using that term is a mystery. The closest meaning can be that a firearm was purchased through fully legal channels, and that a record was made. In California there are some strict requirements about purchase of handguns, and records are kept. But the vast majority of firearms in the US have nothing that could be described as "being registered." They can change hands as gifts, inheritances, and barter. There are now requirements that when they change hands it be handled by federally licensed firearms dealers. However, in the final analysis, there is NO firearm registration system in the US today, and to imply there is makes no sense and means nothing at all.

The jury was not able to construct a circumstantial case that John Upton was carrying or even still possessed the .22 caliber pistol registered to him on the morning he was killed. The ex-cop on the jury confirmed what we all kind of knew, and had already had confirmed for us through the testimony surrounding the .40 caliber found in a nightstand: as you say above, private transfers of firearms without any record is legal in California.

It seems HIGHLY unlikely that Zeller or James Upton removed a gun. Zeller never even had a chance to go back to the body as Vilkin threatened her as well and the police arrived at the scene just after James Upton saw his dad. To me, it is beyond a reasonable doubt that James was in the state of mind to see a gun and think that he must remove it so a self defense claim couldn't be claimed. He just said his father bleeding and dead on the ground....I very much doubt his first thought was to hide a gun. He testified (which was confirmed by first responders) that the first thing he did was walk in the direction of Vilkin just after he saw his dad on the ground. IF there was a gun and he knew Vilkin just shot his dad, surely he would have picked it up to defend himself as he approached Vilkin. The suggestion that Upton had a gun is preposterous despite the missing 22.

The jury continues to deliberate the case. Yesterday, one juror who reportedly is an English professor sent out a note asking the judge to define the word "and" as it is found in certain printed jury instructions. Then late Wednesday, June 18, near the end of their second full day of deliberations, the jury is requesting read-back of Evelyn Zeller's testimony -- she is the woman who lived in the rented home with John Upton.

The juror who had questions about "and" (whether its use between each part of a law or only at the end changed the way we were supposed to understand the logical relations between the laws' parts) was not an English professor, although that sounds like something an English professor might ask about in a graduate seminar, maybe.

Unfortunately, the juror--later dismissed for other reasons--would not take the word of the two of us with extensive experience teaching English at universities. I even named the rhetorical device for him (polysyndeton) and made an argument for why in a legal context it does not change the relations of the parts. He was having none of it.

At that point in the deliberations, one of our little bylaws was that I, as foreperson, was happy to submit any question on behalf of the entire jury, even if only one person wanted to ask. Technically, then, I guess an English professor submitted but did not ask the "and" question.

Michael Vilkin took the witness stand, and testified all day Thursday June 12 and half of Friday June 13.

It is interesting that they requested Evelyn's testimony as she didn't have much relevant to say about the murder itself. Maybe they already have a decision on the death of John Upton but are ow considering the secondary charge. I hope we get a verdict tomorrow...otherwise more and more likely for a hung jury.

We wanted to hear Ms. Zeller's testimony at that point because we had to pause deliberations about the murder charge while we waited for responses to a couple of jury notes. With half an hour to wait for the judge to answer, we began discussing the assault charge.

It was very interesting to me that it was that discussion that, in the end, helped us discard self-defense as a justification for either crime.

It was also the discussion that led to a juror attempting to share an experiment he had done at home. We notified the judge, the juror was dismissed, and as a new jury, we did not feel the need to request Ms. Zeller's testimony.

First thing today, June 19, the jury sent out note number four to the judge. One juror asked the court "what does imminent and immediate danger mean" as found inside one of the juror instructions. The judge instructed the jury to refer to another, written page of instructions. After the jury finishes their morning break in just a few minutes, they will hear a couple hours of read-back of Evelyn Zeller's testimony, and then resume deliberations.

That note indicates two things:

  1. The majority of our deliberations focused on making sure that we all understood the legal terms so that we were confident that we all started with the same understanding of the state's definitions of the crimes in question.

  2. The juror who submitted the note, the same who was dismissed later that day, was having difficulty following our discussion; two elements of justified self-defense are that the person "reasonably believed" that danger was imminent, and that immediate action was necessary to prevent that danger from arriving.

We tried very hard to help him express his confusion and his ideas, but he chose to try to demonstrate them to us in a manner that was very clearly in violation of our jury instructions.

The judge is excusing one juror right now, for misconduct. One male juror did admit to the court that he was conducting his own experiments at home, and then this morning he brought some items into the courthouse to demonstrate to other jurors. This activity was interrupted by the bailiff. Every one of the other jurors will now be questioned, to discover if they have been influenced by the now-excused juror. One female alternate is expected to replace the excused juror, so the jury would become 10 men and 2 women; the jury will be required to begin deliberations all over again, from the start.

It was just announced that the jury has come to unanimous verdicts. The judge will delay reading for about thirty minutes, until 4 p.m., to allow family and interested persons to gather in courtroom.

The jury first began hearing evidence on June 5. The morning of June 17, the original jury began deliberations. The morning of June 19, one male juror was dismissed and a female alternate was sworn in. Late afternoon of June 20, it was announced that there are verdicts. Vilkin has been charged with the murder of John Upton and assault upon Evelyn Zeller. Defense attorney Rich Berkon is now sitting in the gallery with Mrs. Vilkin, who has been present for all court appearances of her husband.

Verdicts: guilty of first degree murder of John Upton and guilty of assault with a firearm on Evelyn Zeller. The defendant Michael Vilkin looks stoic and shows no emotion. His wife continues to read her Bible, with her head down, as she has done every day of the trial. The family of Upton holds hands and tries to hold back tears.

When the jury was filing into the room, before the verdict was announced, Vilkin was watching the jurors and he looked frightened -- maybe he could read their faces. By the time Vilkin took his seat to hear the verdicts read, his face was grim and set. The elderly man showed no emotion nor movement whatsoever -- he did not blink nor move a muscle -- while all the guilty verdicts were read aloud by the court clerk.
Prosecutor David Uyar said the possible sentence for the first count, murder in the first degree, is doubled by the use-of-firearm allegation, and 63-yr-old Vilkin could get 50 years prison on that count alone. The prosecutor also said that he expects family members of the shooting victim, John Upton, will come to speak to the court on the day set for sentencing, in August.

Who you callin' elderly? He's only 62. The fact that he looks old and wasted may be more to do with his life in the Soviet "workers paradise." Nonetheless, the jury reached the correct verdict. As I've said before, there was no need for him to be armed at all, based on the previous confrontations. But Vilkin went out and bought a huge "hip cannon" and showed up that day with it in his hand.

The usual use of such a piece is to point at at the person who is threatening you, and let him know that further advance or activity will carry a deadly result. But he didn't do that, and admitted he didn't do that. He just whipped it up and fired, and then walked over to the victim and shot him in the head. Self defense? Oh, come on folks!

The only thing we lack here is a real motive. But psychos don't need anything that looks to the rest of us like a real motive. As I've predicted from the start, Vilkin will die in prison. And for what? We will never know.

Interestingly, one of our jury members was a Vietnam veteran and retired police officer who happens to own the exact same model of .44 magnum. His description of the weapon, its operation, what it means to own one, etc. was very powerful.

Thank you for your informative comments. We in the public often never learn of how a jury deliberated and reached its verdict. Especially when verdicts go in a totally unexpected direction, it is easy to assume the worst. Your dismissed juror is the sort of person who can in some cases result in a huge miscarriage of justice when the rest of a jury "throws up its hands" and votes the wrong way. Your insight here is unusual and very enlightening.

It was a profound honor to serve in this role, and I encourage anyone who thinks about avoiding jury duty to reconsider.

To ask your participation in exchange for not having an appointed or elected individual decide your fate, in the event that you end up in criminal court, is very little, and all twelve of us in the second jury learned so much about our relationship to the law, how to reflect as reasonable people on our own presumptions and what other reasonable people have to say about them--and most importantly that that kind of exchange should be happening among neighbors with disputes, to name one pertinent situation.

In many versions of the events of March 28, 2013 that we considered, there was only one unreasonable person at the scene; I have lost count of the number of moments we listed over the months before when reasonableness was possible but rejected for whatever reasons by Mr. Vilkin.

Now may we all rest assured that some appellate court does not overturn this conviction? Don't count on anything. That errant juror may be used in an appeal, and some panel of learned judges may decide that the trial, deliberations and verdict were tainted. That doesn't happen often, but often enough to give one shivers. After all, a technical appeal is what ultimately put Tuite back on the street.

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