When he opened his mouth, however, the image disappeared. Judge Tso had little compassion or understanding for people who wound up in his courtroom. Neither Ben Bernard nor Ron Applegate had ever worked with a more no-nonsense man than Judge Tso. He was known to hand down ruthlessly tough sentences for misdemeanors, advising defendants that their punishments were for their own good and warning them not to show up in his courtroom again unless they wanted to grow old in prison. Convicts believed Judge Tso. He did not mince words and he did not let common criminals and their attorneys make the rules in his courtroom.
Tso looked over the upper rim of his glasses and cast a disgusted look toward Dan Montecalvo. There were many things Tso did not like about criminals, but among them there was nothing he hated more than a defendant who had chosen to represent himself. The man’s a fool, Tso thought. He sorted through several dockets on his desk and then looked up, first at the prosecution and then at the defense.
“Are all parties present for The People v. Dan Montecalvo?” Tso asked matter-of-factly. Both attorneys nodded and Dan Montecalvo stood up.
“Your Honor, we have just a few questions here before we . . .”
Judge Tso took off his glasses and leaned over the edge of his bench toward Dan Montecalvo. “Sit down. Immediately. This is my courtroom and you will ask questions at the proper time. Is that understood?”
Dan remained standing. “Your Honor, I just . . .”
“Sit down!” It was a command and Tso stared at Dan incredulously. “Sit down immediately before I charge you with contempt of court.”
Ron Applegate tugged inconspicuously on Dan’s suit jacket and reluctantly Dan sat down. At the other end of the table, Ben Bernard shrugged his shoulders imperceptibly and cast a confused smile toward the jury.
Judge Tso was furious. He placed his glasses back on his head and continued to stare at Dan.
“I understand, Mr. Montecalvo, that you have chosen to be pro per, to represent yourself in this murder trial. Well, I have said it to others like yourself and I will say it again now,” Judge Tso stated. “A man who represents himself has a fool for a client.” He paused. Every eye in the courtroom was on Dan Montecalvo.
“Are you absolutely certain you want to do this thing?”
Dan nodded proudly. “Yes, Your Honor.”
“Very well. I will warn you ahead of time that I intend to make you follow the same rules of argumentation and cross-examination as any other attorney. I will give you no preferential treatment and I expect you to conduct yourself in a professional manner. Do I make myself clear?”
Dan nodded again.
“There will be no talking out of turn,” the judge added. “This is my courtroom; you will follow my rules.”
Ron Applegate watched his client receive the verbal lashing and looked across the room at the jury. They were looking disapprovingly at Dan. Ron wished he could fade into the brown paneled walls and disappear. If this had been a football game, they would be well on their way to a blowout. Ron hoped it was not an indication of things to come.
“We will hear from the prosecution now,” Judge Tso said as he leaned back in his chair.
Ben Bernard stood up and smiled pleasantly toward the judge. “Thank you, Your Honor.” He turned calmly toward the jury and made eye contact with each person as he began to speak. Bernard always opened with the kind of statement his opponent might give. This tactic did two things. First it made him appear humble to the jury. Second, it took the wind out of the defense’s opening statement.
“Mr. Montecalvo, Mr. Applegate, Your Honor, ladies and gentlemen of the jury.” Bernard nodded toward each party. “As the court indicated to you during jury selection, nothing I say to you at this time or, in fact, at any time during the trial is evidence. All the evidence comes from the witness stand by way of testimony, by way of exhibits. That’s what we will urge you to listen to and look at very carefully.
“What I will give you is something of a road map to help you notice the points of interest along the way.” He looked like a tour guide about to take his passengers on a trip through Disneyland. “It is by no means complete nor will it cover everything that we intend to prove. But it is an overview of what I believe the people’s case will show.”
Ben Bernard proceeded to introduce the points of interest. He told the jury how Dan answered the telephone with a “jaunty” hello when the 911 emergency operator called him back the night of the murder. In what sounded like an afterthought, Bernard added, “Of course, Dan’s first call to 911 came a full five minutes after the neighbors heard gunfire.”
Bernard cocked his head at a curious angle. “I wonder what Dan was doing during those five minutes?” He shrugged pleasantly, then directed the jury toward another landmark on the road map. Sounding embarrassed for the defendant, Ben told the jurors how Dan had lied to police from the beginning of the investigation.
“We believe our evidence will show that Mr. Montecalvo tried to throw the police off from the beginning,” Bernard said. Several of the jurors were nodding in agreement.
He continued, telling the jurors that there was absolutely no sign of anyone else having broken into the house. Again he drew on the very information his opponent had been planning to use by mentioning the slit in the screen door. “No one has any idea how long that slit was there,” Bernard said, again shrugging his shoulders. “It certainly doesn’t indicate there was a burglary.” Again the jurors appeared to agree with their friend, the prosecutor.
Bernard discussed how none of the neighbors had seen anyone leave the Montecalvo home after they heard gunshots. This, of course, was not the whole story. After all, Applegate would present Suzan Brown’s testimony that she had heard someone in her backyard that night. But the opposing side could not object to information in opening statements since these statements were not considered official testimony.
“Dan told the police he rushed to his wife’s side, knelt down, and took her pulse.” Bernard’s voice grew softer. “Mrs. Montecalvo was shot twice in the back of the neck. There was a lot of blood. Especially on her face and neck. If Dan took her pulse, why didn’t he have any blood on his hands? By the way, there was no blood on the telephone he used to call the nine-one-one emergency operator, either. We don’t know if he wore gloves, but we did find surgical gloves in his storage items after the murder.”
Ron Applegate could hardly believe how badly things were going. The jurors were practically hypnotized by Bernard’s monologue. They were nodding and smiling and frowning on cue.
“Please listen carefully to the evidence. This, as you know, is a case of circumstantial evidence,” Bernard said, not a bit ashamed of the fact. “Every little bit and piece of the puzzle is important to this case. Listen carefully. Use your common sense.” Bernard smiled. “One more thing.”
Twitching anxiously in his seat, Ron Applegate rolled his eyes. He knew that Bernard was about to deliver one of his infamous punch lines. Ron was sure it was the first of many to come during the trial.
“Two years later, when Mr. Montecalvo was arrested and taken to the Burbank Police Station, Detective Arnspiger will testify that Mr. Montecalvo lowered his head and said, ‘I knew you guys would get me some day.’ ” Bernard shook his head sadly. “Listen to all the evidence very carefully. I think you will find it a most fascinating case. Thank you.”
It was all the jurors could do to keep from applauding in anticipation of the fascinating show the prosecutor had just promised them. They were preparing to enjoy the tour.
“Mr. Montecalvo or Mr. Applegate, do you wish to address the jury?”
Ron Applegate took a deep breath and stood up. “Yes, Your Honor.” Dan had agreed that Ron should make their opening statement.
“Mr. Bernard, ladies and gentlemen of the jury,” Ron began without emotion. “As you already know, everything that Mr. Bernard just told you is not evidence. None of it is evidence. It is merely his opinion of what he feels the cas
e will show in his interpretation of the evidence.” From his seat, Bernard noticed that several jurors looked doubtful. “Likewise, what I am getting ready to say is my interpretation of what I feel the evidence will or will not show in this matter.
“The evidence in this case will show that Daniel Montecalvo’s wife, on March 31, 1988, was killed by an intruder. That in June of 1989 Mr. Montecalvo filed a wrongful death suit against the city of Burbank naming certain police officers for negligently allowing his wife to bleed to death.” Ron waited for a moment before delivering his own punch line. “Nine months later Mr. Montecalvo was charged with first degree murder.”
The jurors did not appear to have understood the significance of the statement. For the next twenty minutes, Applegate bored the jury with numbers and technicalities. No longer were the jurors on a thrilling sight-seeing tour. They were back in the confines of a courtroom anxious to get on with the trial and back to their own lives.
When Applegate finished, Judge Tso ordered the prosecution to call its first witness. The jury looked relieved when Ben Bernard stood up. After all, the prosecutor had promised them that the case would be fascinating.
“The prosecution calls William Strong.”
Pastor Strong walked into the courtroom and took the witness stand. He was conservatively dressed and honest looking. As Ron Applegate watched the man adjust the microphone before him he wondered what plan Ben Bernard was about to unveil.
The prosecutor asked Strong about his relationship with Dan and Carol and their relationship with each other.
“Every time I talked to them—on a friendship and a ministerial level,” Strong was saying, “it was very clear to me that the most important thing in Dan’s life was his wife.” As the pastor spoke, Bernard maintained eye contact with him, nodding agreeably. “They had a good relationship. There were some difficulties, of course, as with any relationship. But based on my experience with both of them, they had a lot of love for each other.”
Bernard looked concerned. “Did Mr. Montecalvo ever express what those difficulties were?”
“No. I would say they were my observation, not his.”
Bernard nodded in understanding and smiled at the pastor. “What did you observe, if I may ask?”
“Well, Carol was very active in church and Dan did not attend as often. She was always trying to get him to follow the Lord in a closer manner; the way he had after his conversion when he was formerly incarcerated in prison.”
Bedlam instantly filled the spectator section and Dan turned angrily toward Ron Applegate. Both sides had agreed early on not to disclose Dan’s prior record. An article about Dan’s background had appeared in that morning’s newspaper, but the reporters knew the topic was considered taboo inside the courtroom. Now it was out in the open.
Judge Tso rapped his gavel on the bench. “Silence!” he said. “This courtroom will come to order.”
Bernard contained his excitement. He had not planned for the minister to mention Dan’s prison record. His reason for putting Strong on the stand was to prove that at least in some circles Dan expressed a fervent love for Carol. That being the case, his actions at various bars would prove those expressions of love to be inconsistent.
But since Strong had mentioned Dan’s record, Bernard was not about to touch it. Everyone had clearly heard what Strong had said. Now the defense would probably use the incident to request a mistrial. Bernard quickly switched topics. When he was finished, Ron Applegate approached the bench.
“Your Honor, Mr. Bernard was told to admonish his witnesses not to reveal things regarding my client’s past prison and jail history. And that either was not done or in any case the evidence came in through this witness.” Applegate paused. “Therefore I request a mistrial.”
Bernard broke in. “Well, as the court saw, I tried to stop him from saying it. Everyone had been told we are not getting into any prior record. Of course, I think it is rather humorous that the defense brings this up now. Because the Los Angeles Times this morning has splattered Mr. Montecalvo’s prior record all over the front page.”
“Well”—Judge Tso did not look amused—“the jury has been admonished not to hear, read, or look at anything in the press and I will assume they have complied with that. However, I am sure the revelation of the defendant’s past history was not intentional on the part of the prosecution. Therefore, the motion for a mistrial will be denied. I am suggesting we leave it at that because to bring attention to his record now would only highlight it to the jury.”
Ron Applegate could feel his stomach turning. There was no way he could leave the pastor’s statement alone. He would have to ask Dan about his background so that the jury would not wonder whether Dan had been in prison for a previous murder. He wondered if the situation could possibly get any worse.
The answer came later that day when Judge Tso held a bail-reduction hearing to have Dan’s bail reduced from one million dollars to no more than ten thousand dollars. Several witnesses testified for and against Dan out of the presence of the jury. Included among them was Officer McKillop, who told the judge how Dan had threatened him and his family after he had arrested him in January for carrying a loaded weapon. When Judge Tso had heard all the testimony he looked at Dan.
“Why should I reduce bail for you, Mr. Montecalvo?”
“Your Honor, I have been a suspect in this case for two years. I knew I was going to be arrested any day, sir. I defied the police to arrest me. I wanted them to arrest me, to give me my day in court so I could clear my name and my marriage.”
Judge Tso frowned curiously. “You did what?”
“I told them, ‘Arrest me!’ ” Dan looked ready to burst into tears. “I told them, ‘let’s go to court with this case.’ I’m not running from anybody, sir. I am not a flight risk.”
“Very well,” Tso responded, and Applegate thought he looked unaffected by Dan’s emotional plea. “The court has considered the seriousness of the charges against Mr. Montecalvo, and the fact that other than one or two associates and the Reverend Strong, the defendant has no roots in our state. Based on this incident of January as well as the threats attributed to the officer, I believe the defendant is a flight risk. For that reason bail will no longer be one million dollars. Instead this defendant will be denied bail at any amount. That is all. We will resume tomorrow,” Tso said, rapping his gavel once and rising to leave.
Across the room, Lorn Aiken stood up in disgust and left the courtroom. He had seen enough to make him sick. Dan was going to go down in hot, searing flames, and there was nothing he could do. He had never dreamed the first day would go so badly. Especially when Dan had not yet asked a single question.
Chapter 40
In the following days Ben Bernard painted a very careful picture of what had transpired at the murder scene. He called every officer and paramedic who had been there to testify. Each one had a useful observation.
There was Officer Rick Medlin, who had watched from a side yard as Dan appeared to walk without a limp down the hallway. The man had obviously been shot, but there was a question as to whether his limp was real or manufactured.
“As soon as he looked up and saw the police activity and the helicopters outside, he immediately grabbed his right side and began yelling that he had been shot and needed help,” Medlin stated sincerely. The jurors were hanging on every word.
Ben Bernard nodded as if trying to make sense of this new bit of testimony. “That strike you as rather strange?”
“Yes, sir.” Medlin searched for the right words. “It was almost like it was . . . show time, you know?”
Bernard nodded again, casting a sad glance toward the defendant. “Yes. I believe I do know.”
Next came Officer Glen Sorkness, who had interviewed Dan that night at St. Joseph’s hospital.
“Were you present when Mr. Montecalvo was told that his wife had died?” Bernard lowered his voice respectfully.
“Yes, I was,” th
e officer answered.
“Could you describe his demeanor at that time?”
“He immediately appeared to become very upset. He started sobbing.” The officer’s voice grew quieter as his mind seemed to drift backward in time, remembering the incident. “However, I looked closely at his eyes at the time.”
“Did you observe anything noteworthy about his eyes?” The jurors were rapt with attention.
“Yes,” the officer stated. “His eyes were dry. There were no tears.”
During cross-examination Ron Applegate tried to instill doubt about the officer’s testimony because he had not mentioned the lack of tears in his initial report. But the damage had already been done. The jurors—especially several of the women—were staring angrily at Dan for having shed no tears over the death of his wife.
Bernard called Patrick Lynch, who had recently been promoted from detective to sergeant, to the stand and began asking him about his initial investigation and finally about the first of several conversations he’d had with Dan in the days after Carol’s murder. That discussion had taken place in the hospital and midway through it, Lynch had mentioned that police were still searching Dan’s home.
“At that time he just got very irate, he blew up.”
Bernard looked surprised. “What did he say?”
“He told me he wanted all the police officers off his property, he didn’t trust the police. He wanted us out of his house and off his property. For a man in his condition he was very upset.”
Before Lynch left the stand, Bernard asked if he or any other officer had checked the bookcase for hidden guns.
“No, sir. It was an oversight.”
“Thank you. No further questions.”
At first Dan allowed Ron Applegate to cross-examine Lynch. But when Dan became frustrated with watching, he intervened and on the morning of October 1, he took over. The moment he did, Applegate knew their position had just gotten worse.
Final Vows Page 27
