Every Reasonable Doubt (18 page)

“Let’s just concentrate on our next witness,” I said, ignoring his comments. “I’m purposefully saving our more aggressive tactics for Oscar Lopez. When he takes the stand tomorrow, he’s the one I plan to go after.”

T
he prosecution began day two of the preliminary hearing by calling Oscar Lopez, the one witness who posed the most significant threat to Tina Montgomery’s freedom.

Lopez had smooth brown skin, a waiflike physique, and bad teeth. He was dressed in jeans and a faded cotton shirt. When he sat down in the witness box, he looked like a scared teenager. He had a nervous habit of running his fingers through his dark, greasy hair every few minutes and his eyes darted all over the courtroom, but never in the direction of the defense table.

Julie began her direct examination of Lopez from her seat. She looked unusually smug as she took him through his workday on the night Max Montgomery was murdered.

“Mr. Lopez, tell us what you saw that night after you stepped out of the elevator onto the fifth floor.” Lopez spoke fairly decent English, but with a strong Spanish accent that made it difficult to catch his every word.

“I saw a lady, a black lady, walking down the hallway.”

“What was the lady wearing?”

He paused. I assumed he was trying to remember the lines Julie had fed him. “A black dress.”

“Please describe the dress.”

“It was very shiny.”

“Was it a long dress?”

I stood up. “Objection, leading.” My objection was technically valid, but I knew I would be overruled. My only goal was to throw off Julie’s flow.

Judge McKee grimaced. “Overruled,” she said, giving me a hard look to let me know she knew exactly what game I was playing.

Lopez looked from Julie to me to the judge and then back to Julie again, uncertain of what was expected of him following the exchange of legal jargon.

“Mr. Lopez, was the woman wearing a long dress or a short dress?” Julie asked again.

He seemed confused. “Long,” he said wringing his hands. “I think.”

Julie kept her cool, but Sandy winced. Tina’s black cocktail dress wasn’t long. It fell just below her knees. Score one for the defense.

“Did you get a good look at the woman?”

He nodded.

“Mr. Lopez, you need to answer audibly,” Julie said.

The word “audibly” had apparently thrown him.

Judge McKee leaned over the side of the bench and peered down at the trembling witness. “Mr. Lopez, you have to answer ‘yes’ or ‘no.’ The court reporter cannot transcribe a nod of the head.”

“Oh, okay,” Lopez said, even more frightened now that he’d been admonished by the judge.

Julie took over again. “Is the lady you saw on the fifth floor that night in this courtroom today?” she asked.

Lopez kept his eyes on the floor of the jury box. “Yes.”

“Can you identify her for us?”

Lopez lifted his head and looked over at Tina. “That’s the lady,” he said. He turned back to Julie, then looked as if he’d forgotten something. “Yes, that’s the lady,” he said again. This time he dramatically extended his arm and pointed a finger in Tina’s direction. A classic prosecution-inspired move.

I felt Tina flinch, but the blank expression on her face did not change. We had warned her to avoid any emotional extremes, negative or positive.

“Did the woman have anything in her hands?” Julie asked.

“Yes. A knife,” Lopez said anxiously. “With a black handle.”

“And where was she going?”

“Into room 502.”

After a few more questions that painted a clear picture that Mr. Lopez saw Tina marching off to kill her husband, it was my turn.

Lopez had refused to talk to Detective Smith, placing us at a definite disadvantage. It surprised me that Julie hadn’t spent any time establishing how long Lopez had been on the fifth floor and where he was standing in relationship to Tina when he supposedly saw her go into Max’s hotel room. I had to make a snap decision. Hammer away at him on these facts now, or save it for trial. If I ignored it now, Julie would assume we had missed it. Later, at trial, both he and Julie would be caught off guard when we brought it up. Even though I knew our case wasn’t strong enough to cause Judge McKee to find a lack of probable cause, I decided this information was too important to leave until trial. First, though, I had to discredit Lopez as much as I could without divulging our suspicions that his whole story about seeing a woman with a knife was a big fat lie.

“Mr. Lopez, have you ever worn glasses?”

“No, Miss,” he said proudly.

“And is your eyesight pretty good?”

“Yes, very good.”

He smiled at me and I smiled back. He seemed to prefer my line of questioning to Julie’s. That would soon change. “When’s the last time you had an eye exam?”

“I don’t remember.”

“Was it in the last five years?”

“No.”

“The last ten years?”

“No, I don’t think so.” He nervously looked to Julie for advice she couldn’t give him.

“So it’s been at least ten years since you’ve had your eyes examined?”

“Probably.”

He finally figured out that I was trying to suggest that his eyes had failed him on the night of Max’s murder and he resented me for it.

“Have you ever had your eyes examined, Mr. Lopez?”

“Sure. Yes.” Lopez nervously bit his fingernail.

“And was it here in the United States?”

He looked worried now. “No. Back in Mexico.”

“Now, going back to the night of Mr. Montgomery’s murder. How far away were you from the woman you believe you saw on the fifth floor?”

“About ten feet.” He sounded increasingly unsure of himself.

“Can you estimate ten feet for me?”

“Objection, calls for speculation,” Julie said without any real conviction.

The judge didn’t even blink. “Overruled.”

Lopez was again confused by the legal banter.

“Go ahead,” I said, “you can answer the question?”

“You want me to show you what is ten feet?” he asked.

“Yes,” I said. “Measuring from where you’re seated, show me how far away you think ten feet would be?”

“From here,” he said, pointing to the rim of the witness box, “to the back of that table.”

“Let the record reflect that Mr. Lopez has identified the distance from the outer edge of the witness box to the rear of the prosecutor’s table,” I said. The distance Lopez estimated was easily more than thirty feet, not ten. “Mr. Lopez, the woman you saw, how was her hair styled?”

He paused. “I don’t remember.”

“Do you remember what color shoes she was wearing?”

“No.”

“What about earrings? Was she wearing any earrings?”

“No, I don’t know.” He seemed to shrink an extra inch with each “no” answer.

“Was she wearing a watch?”

“I don’t know.”

Lopez could see that Julie was perturbed. He was obviously concerned that his series of “no” answers might make the prosecutor mad enough to deport him.

“Exactly how long did you observe the lady?” I asked.

“Only a few seconds?”

“How many?”

“Just a few, I don’t know.”

“More than ten?”

“I don’t know.”

“Less than ten?”

Julie was on her feet this time. “Objection, asked and answered, argumentative, calls for speculation. Mr. Lopez has stated that he doesn’t remember how long he looked at Mrs. Montgomery in that hallway. No need to keep badgering him.”

“Sustained. Let’s move it along, counselor,” Judge McKee warned.

Julie had just gotten in a pretty nice swipe, referring to Mrs. Montgomery’s presence outside Max’s hotel room as if it were fact. I hope she didn’t pull that at trial.

“What were you doing on the fifth floor, Mr. Lopez?”

“I was delivering dinner to room 529?”

“Was room 529 located at the same end of the hallway as room 502.”

He paused to revisit the floor plan in his head. I could have handed him a diagram of the floor, but he wasn’t my witness and I wanted his memory to fail him. “No, 502 is on the other end.”

“Did you see where the woman went?” I asked.

“She went down the hallway.” He looked over at Julie. “Toward number 502.”

That had to be another prosecution-fed response. “Did you actually see the woman go into room 502.”

He froze. “No,” he said, softly as if he had failed.

“Then where did she go?”

“I don’t know,” he admitted.

“So let me get this straight, you were headed for room 529, but you supposedly saw a woman at the opposite end of the hallway?”

“Uh, no, I—I, I just saw her walking by.”

That was news to me. “She walked past you? I thought you said she was at the other end of the hallway, ten feet away?”

“Yes.”

“Yes, what?”

“I saw her at the end of the hallway.”

“But did she actually walk past you?”

“No, no,” Lopez said, shaking his head, confused now. “She walked past me down to the end of the hallway.”

“Hold on Mr. Lopez, I need you to be very clear. Did the woman walk past you or not?”

His shoulders drooped. “No, I don’t think so.”

“Was the woman’s back to you?”

Out of the corner of my eye I could see Julie begin to rise from her seat, probably to accuse me of beating up on Lopez again. But then she sat back down.

“Probably.”

“Probably? You’re not sure whether the woman’s back was to you or not?”

“Probably, yes.”

“Is it yes, Mr. Lopez, or is it you’re not sure?”

He glanced nervously at Julie. “Yes, I’m sure.” He pointed at Tina. “It was that lady, I’m sure.”

“That’s not what I asked you, Mr. Lopez. What I’d like to know is whether the woman’s back was facing you when you saw her on the fifth floor?”

“Yes, I saw her back.”

I still didn’t get as clear of a response as I’d wanted, but this would do for now. The testimony Lopez had just given would not play well for the prosecution before a jury. Juries didn’t like shaky IDs. If Lopez only saw the woman from the rear, how could he be so sure it was Tina? Julie would no doubt try to better prepare him for trial, but if he tried to change his testimony, we’d pull out the prelim transcript and make an even bigger fool out of him.

“Mr. Lopez, what’s the lighting like on the fifth floor?”

“Objection, vague and ambiguous.”

Before the judge could respond, I retreated. “Your Honor, I’ll rephrase my question.”

“Mr. Lopez, were the lights on the fifth floor as bright as the ones in this courtroom?” I stopped and looked around the room.

Lopez followed my gaze. “Uh, no, darker.”

Julie was about to spring up from her chair at any second.

I sauntered over to the defense table and picked up a photograph.

“I’d like to introduce a photograph which has been previously marked as Exhibit 15.” I handed the document to Mr. Lopez.

“Do you recognize this photograph, Mr. Lopez?”

“Yes, it’s the hotel. The fifth floor. I can see the room numbers. It’s the hallway, where I saw the lady.” He eyed Julie. “I mean, Mrs. Montgomery.”

I turned and looked over my shoulder.
Was Julie sending him eye signals?
“Does that picture accurately reflect the lighting on the fifth floor the night Mr. Montgomery was killed?”

“Yes,” he said, staring at the picture.

So far all I’d done was shore up the testimony Julie had elicited. I walked back to the table, and looked down at my witness outline, but my eyes did not focus on a single word. I needed some time to think. I was going to take one last shot. Lopez was such a shaky witness, maybe if I pressed him hard enough, he would give me the answer I needed.

“Mr. Lopez, the lighting in that hallway is not very bright and you were several feet away from the woman. Are you certain the woman you saw at the end of that hallway was my client?”

Lopez looked over at Tina as if he were reexamining her face. Then he glanced at Julie. “Yes,” he said, nodding his head vigorously. “I am one hundred percent positive that is the lady. I know for sure because she turned around and looked back at me,” he said, suddenly gaining confidence. “That’s what made me remember her. She looked at me like she was about to do something bad.”

It was my turn to freeze up. I wanted to ask him exactly what kind of look that might be, but I didn’t want to make matters worse.
Damn.
Where should I go from here? My mind went blank. I felt like I was about to drown and my life preserver was just inches out of my reach. I stayed planted, trying to look composed, my hands held out in front of me, my fingers forming a teepee. When you get a bad answer, one you’re not sure you can get the witness to retract, the best response is to move on to another topic. Act like it never happened. But a case of nerves had attacked my brain and I couldn’t think of another question. All eyes were off Lopez and on me.

I turned to the judge. “Your Honor,” I squeaked, “I have no further questions of this witness.”

T
he judge called a recess just before noon. David, Tina, and I headed for the courthouse cafeteria where we all ate turkey sandwiches on stale bread, pretty much in silence. There wasn’t really much to say. Lopez had identified Tina walking down a hallway, knife in hand, with an evil-intentioned look on her face. If we weren’t able to shake his identification at trial, Tina might as well pack up her toothbrush now. Fortunately, neither David nor Tina brought up that last zinger Lopez had zapped me with. I already felt bad enough.

When we returned to court after our lunch break, Julie called her next and final witness, Max Montgomery’s personal assistant. The prosecution planned to use her to paint a picture of Max’s extracurricular activities, setting the scene for Tina’s motive to kill.

Ernestine Frye was petite and polished, and looked like an older version of Tina. She’d been Max Montgomery’s right hand for over twenty years, following him through three separate career moves.

She testified, quite reluctantly, about the many women who called Max’s office for reasons that obviously had nothing to do with business. She reminded me of President Clinton’s Betty Curry. She was fully aware of Max’s wrongdoing, but it wasn’t her job to play morality police.

After Julie completed her questioning, sufficiently painting Max as the louse that he was, my only goal was to show that Frye had no evidence that Tina knew about her husband’s affairs. This would go over bigger with the jury, and would probably have no impact at all on Judge McKee, but I might as well get my practice in now.

“Mrs. Frye, you often helped Mrs. Montgomery with her charity work, didn’t you?” I asked. It wasn’t my plan to put her on the spot if I could help it. She didn’t want to be here anymore than I wanted her to be.

“Yes, we worked together on several fundraisers.” Her voice had an eloquent air about it, as if she had been taught the importance of enunciation even before she had learned to talk.

“Can you describe the type of things you helped her with?”

“Basically anything she needed. I would address envelopes, help with the food planning, scout out locations. Things of that nature.”

“And you considered Tina a friend, didn’t you?”

“Yes, I considered Mrs. Montgomery to be a friend,” she said unconvincingly.

Of course, most people are on a first-name basis with their friends, I thought. I would have to ask her to refer to Tina by her first name at the trial.

“In fact, Mrs. Montgomery often dropped by the office to invite you to lunch, didn’t she?”

“Yes, quite a few times.” Mrs. Frye smiled nervously. She did not trust me.

“And around Christmastime, she would take you on shopping sprees at Macy’s?”

“Yes,” she nodded. “Yes she did.”

“And Mrs. Montgomery also sent money to your granddaughter when she was attending college at Spelman, didn’t she?”

“Yes.”

I cleared my throat and continued, softening my voice. “And during all of this time, you knew Mr. Montgomery was cheating on his wife, correct?”

Mrs. Frye’s eyes registered shock. Or was it embarrassment?

Before she could respond, Julie was on her feet. “Objection, asked and answered.”

“Sustained,” the judge said.

I had to get to the point. “Mrs. Frye, you never shared with Tina the fact that her husband was cheating on her, did you?”

She looked down at her hands. “No, I didn’t. It wasn’t my place.”

“And Tina never asked you any questions about her husband’s affairs, did she?”

“No.”

“And for all you knew, she didn’t know anything about them?”

“That was my assumption,” Mrs. Frye said, anxious to throw Tina a bone. “Mr. Montgomery did his best to keep everything from her.”

“Did you ever get any angry calls from women Mr. Montgomery was sleeping with?”

She looked down at her hands again. “Yes.”

“How often?” I asked gingerly.

“I don’t know,” Mrs. Frye said softly.

“More than five times?”

“Yes,” she said guardedly.

“More than ten times?”

“Yes.”

“More than twenty times?”

“Probably.”

She looked up at me, her eyes begging me to put an end to this inappropriate public display. I ignored her plea. I had a job to do. “Would you say any of these women sounded angry enough to kill him?”

This time Julie was irate. “Your Honor! Objection! Calls for speculation!”

“Sustained,” the judge said, annoyed.

I kept moving. “Mrs. Frye, to your knowledge, did any of the women ever threaten Mr. Montgomery?”

She perked up again, sensing another opportunity to help Tina. “Yes.”

“Tell me about those threats.”

“Well,” she began slowly, “when Mr. Montgomery tired of a woman, he simply stopped returning her calls. Some of them got very upset when I wouldn’t put them through. They threatened to call his wife, to come down to his office. To do whatever they had to do to get him to talk to them.”

“Did any of them threaten him with physical violence?”

“I can’t remember any names, but I do remember a couple of women who did.”

I made a mental note to have Detective Smith follow up on that information. “In your opinion, did those threats appear to be serious?”

Julie was on her feet again.

This time I didn’t wait for the judge’s ruling. “Your Honor, I’m asking for the witness to give me her opinion regarding whether the threats appeared—in her opinion—to be serious. That’s perfectly allowable.”

Judge McKee paused as if she weren’t sure whether the question was appropriate or not.

“Overruled,” she bellowed after a moment’s pause. “Ms. Henderson, you may proceed, but I’m not impressed.”

I nodded at Mrs. Frye, urging her to continue.

“Yes, some of them seemed quite serious. I told Mr. Montgomery that I wanted to report the calls to the police, but he wouldn’t let me.”

“Did you feel Mr. Montgomery’s life was in danger?”

“Yes, I did.” She definitely wanted to help Tina. I could see it in her eyes.

“Are you aware of Mrs. Montgomery ever threatening her husband?”

Her eyebrows arched in disdain. “Heavens no. Mrs. Montgomery was much too dignified to behave like that.”

“I have no further questions.”

Judge McKee turned to Julie. “Anything else, Ms. Killabrew?”

She hesitated, then stood up. “Just a few more questions,” she said. “Mrs. Frye, you were assisting Mrs. Montgomery with the fundraiser the night her husband was killed, is that right?”

“Yes.”

“And you worked alongside her for most of the night, didn’t you?”

“Yes.”

“But at some point during the evening, Mrs. Montgomery disappeared, isn’t that right?”

“Objection,” I said. “Beyond the scope of the cross.”

The judge looked aggravated. “I’m going to allow some leeway here,” she said. “You can continue, counselor.”

Mrs. Frye squirmed in her seat. “I wouldn’t say she disappeared. she just had some matters to attend to.”

“Did you happen to ask anybody where she went?”

She paused. “Yes, I asked the vice chairperson if she’d talked to Mrs. Montgomery before she left?”

“And what did the vice chairperson tell you Mrs. Montgomery said?”

The irritated look in David’s eyes told me I should be objecting. He scribbled the word “hearsay” at the top of his legal pad.

I didn’t know where Julie was headed, but I was out of my chair. “Objection, calls for hearsay.”

The judge scowled at me, and Julie looked annoyed. David just turned away.

“Ms. Henderson,” the judge said impatiently, “this is a preliminary hearing. Hearsay testimony is permissible at a prelim, though not at trial. When you go home tonight, I suggest you brush up on the rules of evidence.”

I shrank back into my seat.
You little prick.
David was trying to screw me. I gave him a hateful look, but he refused to meet my gaze.

“You can answer the question, Mrs. Frye,” the judge said.

“I’m sorry. I’m not sure I remember the question.”

Julie walked closer to the witness box. “I’d be glad to repeat it,” she said smiling. When Mrs. Montgomery disappeared that night and you asked the vice chairperson if she’d talked to her, what did the vice chairperson tell you?”

Mrs. Frye looked apologetically at Tina and averted her eyes. “She told me that Mrs. Montgomery said she was going back to her room.”

“Did you happen to go to Mrs. Montgomery’s room to see if she was okay?”

“Yes.”

“And did you find her there?”

“No.”

“And how long was it before she eventually returned?”

“I’m not sure. An hour maybe.”

After a short recess, the prosecution closed its case. I informed the court that the defense did not intend to call any witnesses. There was no reason to. We didn’t have a single witness, except Tina, who could refute the prosecution’s testimony. And we didn’t want to educate the prosecution about our defense, what little there was.

On the way out of the courtroom, I pulled David off to the side.

“That little stunt you pulled in there wasn’t funny.”

“What’re you talking about?” he said, feigning ignorance.

“I’m talking about your telling me to make that hearsay objection when you knew hearsay testimony was permissible at a prelim.”

He stuck out his chest. “I don’t know what you’re talking about. I didn’t tell you to do anything. I was just doodling. I had no idea you were taking cues from me. I thought you were the lead attorney.”

You asshole!

“Anyway,” he said, turning to leave, “I guess instead of brushing up on the rules of criminal procedure, you should’ve been reading the evidence code, huh?”