He came to San Francisco to hang out on Haight Street and catch the Furthur concert at the Bill Graham. Less than six months later, after telling police he’d committed a homicide on Christmas Day 2010, an act to which there was up to 15 witnesses, according to police and court documents, Dustin Scott Tolboe left town a free man.
Tolboe, 24, was charged in San Francisco Superior Court on Jan. 5 with the murder of 60-year old Donald Ray Tanksley, a Bayview native and fixture at the Hippie Hill drum circle — the other regulars of which knew him as Zambu — who sold crafts on Haight Street and returned empty beer cans to supplement his Social Security income.
It was a beer can that led the pair to get into an argument at the corner of Haight Street and Masonic Avenue shortly before 1 a.m. on Dec. 25, 2010, a scuffle that culminated with Tolboe striking the small-statured Tanksley in the face with a skateboard so hard that Tanksley’s jaw was broken and bone fragments lodged in his sinus, according to the medical examiner.
Tanksley was removed from life support at San Francisco General Hospital on Dec. 29, 2010, after the subsequent fall to the pavement put a six-inch crack in Tanksley’s skull and caused brain swelling so severe he suffered a stroke in the emergency room a few hours after he was hit.
After initially telling police that he wasn’t present at Tanksley’s attack, Tolboe told SFPD Sgt. Greg Kane, “I cracked that guy with my skateboard. He needed it,” according to court filings obtained by the Appeal.
After initial hearings, a judge deemed there was sufficient evidence for a trial in March. It seemed an open-and-shut-case: cops and prosecutors had witnesses, a confession, and — according to police — a video recording of the incident. Or so Tanksley’s family and friends were led to believe.
Michelle and Steven Tanskley, younger sister and brother to Donald Ray, entered the Hall of Justice on May 20, expecting opening arguments in Tolboe’s trial. Before the trial was scheduled to begin, Steven exited the courtroom to fetch a bottle of water. By the time he returned, it was all over: the DA had moved to drop the case, a judge had agreed, and Tolboe was free.
The case is still technically open, and Tolboe — who is rumored to be either back home in Utah or in Arizona — could be charged with the crime again at any time, according to Stephanie Ong Stillman, a spokeswoman for District Attorney George Gascon, whose office inherited the case from current Attorney General Kamala Harris.
The surviving Tanskleys, however, appear to have given up hope that Tolboe will be recharged, or that the case is even being investigated. Michelle says she phoned the Hall of Justice to find out the latest on the case in October. She has yet to receive a call back. Neither Michelle nor Steven have heard from police since last spring.
“I heard all my life, ‘Does a black man’s life mean anything?'” Michelle Tanskley said, in a recent interview. The Tanskleys are black; Tolboe is white. “I’ve heard that all my life — it never bothered me until I heard my brother take his last breath and said to myself, ‘So that’s what that saying means.'”
Tolboe is no hardened criminal: a native of rural Box Elder County to the northeast of Salt Lake, he served time in Weber County jail in Utah on nothing more severe than outstanding traffic warrants in 2006 and 2009 before earning his high school equivalency diploma in 2010 from Dale Young Community High School in Ogden, Utah, according to sheriff’s records and newspaper reports. In San Francisco, his criminal history prior to Christmas 2010 also consisted only of outstanding traffic warrants, according to court records.
Neither was Tanskley any saint: in between trips to Key West and Hawaii to play his beloved drums, he developed a drinking habit, according to his family.
“He was a beeraholic,” Steven Tanksley says, adding that a drunken argument preceded the severe fall down a flight of stairs and the broken leg that led Tanskley to walk with the three-foot long, brass-headed cane he had with him on that Christmas morning. While Tanksley had spent time behind bars, it was for nothing more severe than public drunkenness or marijuana possession, according to Steven Tanksley (DA staff declined to make public Tanskley’s arrest record to the Appeal).
After making plans via telephone with Steven and another brother to host them both at his San Francisco Housing Authority apartment on Woodside Avenue on Christmas Day, Tanksley was likely “celebrating” on Christmas Eve, Steven says. Toxicology records agree: Donald Tanskley had a blood-alcohol content of 0.20 in his five-foot-8, 145-pound frame, according to medical records.
As he pushed a shopping cart down Haight Street after midnight on Christmas Day, it may have been impaired judgment that led Tanksley to stop at the corner of Masonic, where a crowd of about 15 people had congregated on the northwest corner in between the Muni bus shelter and the outside wall of a clothing store.
There, Tolboe — who went by the street name of “Frank,” and whose own hustle was panhandling, he would say in court — and some friends were drinking beers out of paper bags, according to testimony; Tanskley left his cart at the corner and limped, cane in hand, to grab at one of the beers (likely looking for an empty can, his sister surmises).
Apparently he grabbed a beer that belonged to Tolboe. Tolboe and a friend, Charles “Tazz” Hubert, snatched the beer back. A third witness, Israel Castro, told police the crowd attempted to get Tanskley to leave. As Tolboe and Tanskley squared off, Tazz began to push Tanskley’s shopping cart away. “Hey!” Tanskley yelled, according to witnesses. “That’s my cart!”
Tanskley, surrounded and agitated, began to wave his cane in the air, according to witnesses. A fight seemed inevitable. “What are you fuckers doing?” shouted Jacob Gould, another street figure who would eventually become the prosecution’s key witness. “It’s Christmas. What are you doing?”
Exactly what happened next depends on who you ask. Tanksley, likely scared “because there was more of us than him,” as Tolboe later told police, swung his cane and struck Tolboe’s skateboard in midair (so hard that the cane broke, according to Tolboe’s public defender; other witnesses dispute that Tanskley ever swung his cane, and Steven Tanskley says at trial he saw the cane, currently locked in an SFPD evidence locker, “and it ain’t broke.”).
Tolboe then “countered” and hit Tanskley with the skateboard, according to the prosecution’s court filings, a “jab” in self-defense, the defense would later claim; a “jab” so hard that “even a sober person would have fallen down,” according to the medical examiner’s account.
The crowd scattered, with Tolboe fleeing on his undamaged skateboard, according to court filings. Tanksley, intoxicated and with his jaw broken, had fallen to the sidewalk, where SFPD Sgt. Pilar Torres, driving past in his patrol car, found him unconscious and bleeding from the mouth shortly after 1 a.m.
Within seconds of arriving on scene and radioing for an ambulance, a man and a woman approached Torres and told him a man on a skateboard had hit Tanskley. A second officer stopped Tolboe two blocks away. Tolboe denied any involvement, and the skateboard had no marks on it, according to court filings. Tolboe went on his way.
In the morning, multiple sources led SFPD Sgt. Greg Kane back to Tolboe, who was recognized by a store owner as “having thrown a skateboard at someone” earlier in the week, according to filings. But it was the account of Gould — who had been arrested once for assault with a deadly weapon, and another time for assault and battery, according to court records, and who sources say is a chronic inebriate well-known to Haight Street beat cops — that led Kane to arrest Tolboe, who was lingering near the scene of the crime at 10 a.m.
Gould, who, “appear[ed] very nervous and… saying he wasn’t a snitch,” pointed at Tolboe and said, “that’s the dude who hit the old black guy with the skateboard, ” according to court filings. Tolboe was arrested, and ten days later, then-DA Harris charged him with homicide in Tanskley’s death.
In court later, prosecutor Scot Clark argued that the lack of any definitive evidence that Tanksley had hit or tried to hit Tolboe, Tanskley’s disadvantage in age and size (Tolboe is 5 foot 6 and 170 pounds, according to his intake records at Weber County Jail in Utah), and Tolboe’s initial lying about the situation were all proof that Tolboe had not acted in self-defense and was aware he had committed a crime. None of this mattered — because of Gould.
The case all rested on Gould, the lone witness prosecutors sought to bring to trial, the man who was “very nervous” when talking to police and who repeated time and again that he “wasn’t a snitch.” It may have been the code of the streets, it may have been the call of the bottle, or something else, but Gould could not be located by police or by prosecution, which asked the court for a continuance once in order to find their case; at the second, later date, the DA asked the judge to dismiss the case because of an inability to meet the burden of proof, according to court records.
That took the Tanskley family — who held a memorial service for their brother at Bayview Opera House in March, to which 150 people came, followed by a memorial drum circle on Third Street — completely by surprise. Clark “was pushing for life” for Tolboe, according to Steven Tanksley. “That was what he led us to believe. He told us, ‘We’re going to take him all the way,'” Steven Tanskley told The Appeal.
Shortly after the case was dismissed, Clark left the District Attorney’s Office. He is said to be in Riverside County at present and could not be reached for comment.
The Tanksleys don’t believe Tolboe meant to kill their brother, merely that he did. They didn’t want Tolboe to serve life in prison or even more than a few years; they would have been happy with a manslaughter conviction and just enough time behind bars “to have him sit and think about it for a while,” Steven Tanksley said. “Not no five months.”
Friends or family of Tolboe could not be reached for this story. His principal at Dale Young Community High, where Tolboe earned his diploma in spring 2010, did not return an email or telephone message seeking comment; a receptionist at the school said privacy laws meant that no school staff could comment. There are multiple Tolboes in and around Dustin Tolboe’s latest recorded home address in rural Tremonton in Box Elder County, Utah; their phone numbers are unlisted.
“This was a case of self defense from the start — the evidence never changed,” said Seth Meisels, Tolboe’s public defender, who offered no further comment. “It wasn’t until the day of trial before the DA admitted that and dismissed the case.”
The SFPD’s Media Relations Unit declined requests to interview Sgt. Kane, the investigator, or other police from Park Station, which patrols the Haight, and provided no other information other than to say the case is still being investigated.
The case does not mar the SFPD’s records, however — since there was a charge filed in the crime, even though it never went to trial, the case counts as a “clearance” and is considered “solved” for the purposes of police statistics.
Short of answers, the Tanksleys aren’t left with much. Steven Tanksley has the sets of drums and a couple canes his brother had left at his apartment. Michelle Tanskley has a tattoo of a red star — the same star her brother had tattooed, with the addition of a golden halo — she had inked at a tattoo parlor on Haight Street, a block from where her brother died.
And they have, in the plastic box to which they were delivered to the family, the ashes of their brother. Occasionally, they must remind their 88-year old mother — the first person to receive a call from authorities on Christmas morning to say that something had happened to her son — that, yes, “Donnie” has passed.
They also have a lesson. “Our family was betrayed by the court system,” Michelle Tanskley says, showing a hint of anger for the first time during a 45-minute interview. When asked if her brother’s case means that it’s possible to get away with murder in San Francisco, she pauses before asking a rhetorical question of her own.
“If the roles were reversed, what would it have looked like? What would have happened?”
Photo of Donald Ray Tanksley: Courtesy Tanksley family