OAKLAND (CBS SF) -- After two days of emotional testimony, Ghost Ship warehouse master tenant Derick Almena became combative with prosecutors during their cross examination Wednesday morning.
Prosecutors allege that Almena and Ghost Ship warehouse creative director Max Harris, 29, who both face 36 counts of involuntarily manslaughter, are criminally responsible for the fire because the people at the music party didn't have the time or opportunity to escape the blaze.
They claim the warehouse didn't have important safeguards, such as fire sprinklers, smoke alarms and lighted exit signs at the time of the deadly December 2016 blaze.
COMPLETE COVERAGE: Deadly Ghost Ship Warehouse Fire
Almena had testified that he never allowed debauchery or rave parties at the warehouse when he was questioned by his attorney Tony Serra. Those statements led to a contentious exchange been Almena and Alameda County prosecutor Autrey James during cross examination.
James said a Jan. 3, 2015 police report indicated that Almena had told officers that there had been a wild New Year's Eve party, which Almena didn't organize, at the warehouse a few days earlier in which condoms were left on the floor and his son put one of the condoms in his mouth.
Confronted by that report and a video of his statement to police, Almena said, "Did it happen? I hope not, it's horrible."
Serra labeled the line of questioning a 'character assassination' but admitted Almena's combative response may have been a mistake.
"It is obvious wise to never be combative," Serra said outside the courtroom. "On the other hand, if a prosecutor repeatedly says something that at least the client and the client's lawyer believes he didn't say -- of course he has to say -- 'I didn't say that.' Keep in mind, he hasn't slept in three days. He's up there fighting for his life...He does come to court emotionally drained."
After court Tuesday, Serra told reporters, "My God are they that desperate? First they resort to rats and mice and now condoms?!"
Defense attorneys issued several objections during the cross examination.
"You saw co-counsel and I objecting over and over again," Serra said. "Many of those objections were sustained. We talked with him obviously during the break. We kind of tried to pat him on the shoulder and calm him down...You got to maintain your composure. He wasn't so-called combative after that."
James said the only reason he introduced the police report and video is that it contradicts Almena's testimony that he didn't allow debauchery or raves at the warehouse.
"It goes to his credibility," the prosecutor said. "If he says something that goes against the evidence, he should be confronted."
Alameda County Superior Court Judge Trina Thompson, who is presiding over the case, said she agrees that the evidence produced by James "does go to the honesty and veracity" of Almena and should be allowed.
However, she also agreed to review the entire video of Almena's statement to police about the New Year's Eve party so she sent jurors home at noon Wednesday so she and the attorneys in the case can look at the video and discuss it.
In earlier testimony, Almena admitted that the 10,000-square-foot building where up to 25 people lived didn't have an automated sprinkler system or fire alarm system and didn't have smoke detectors in its public spaces.
Asked by James if he had operational permits for assemblies such as the party at which the deadly fire occurred, Almena said, "I didn't know I had to (get one)."
When Serra was asked if he thinks the jury has made their minds up already, he was quick to answer. "Yes, they are smiling at us . They aren't smiling at the DA," he said.
Almena will continue testifying when jurors return Thursday morning.
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