Applegate continued. “Of course, Dan also has to know that he can hide his weapons in the bookcase because Burbank Police do not search bookcases. He has to figure they will never find the weapons in a bookcase.” Applegate’s voice took on a note of mock brilliance. “ ‘I know, I’ll hide the guns in the bookcase. They’ll be safe there. It will be the perfect crime.’ ”
Applegate rolled his eyes. “Then, in that short time after dialing nine one one, Dan has to cut the screen, jimmy the file cabinet, jimmy the cash box, hide the guns, take the paper towel and registration documents and put them in Carol’s hands, run outside, drop the registration sticker on the driveway, and finally”—Applegate caught his breath—“go back inside to answer the nine-one-one call.”
Strolling in front of the jury, Applegate looked angry and frustrated. “This is their theory. It is why this man is sitting here today. This is what they think happened.”
Applegate then asked the jury to do something that the other attorneys in the room would likely have agreed was a very smart move. He asked the jury to consider the testimony they’d heard and assume for a moment that there was no insurance on Carol.
“With that assumption in mind, look at the evidence as to whether or not Mr. Montecalvo killed his wife. Then I would like you to understand that adding a motive does not bring any more evidence to that crime scene.”
Applegate stood still for a moment and stared at the jury. “This has been a trial on motive and character assassination. We’ve spent all this time with people coming in to tell you why you shouldn’t like this man.” Applegate pointed to Dan, who carefully kept his gaze away from the jury box.
Applegate shrugged. “He is not a likable person. He does things we don’t like. We don’t like his lifestyle. We don’t like the people he associates with. But having a drinking problem does not make him a murderer. Being a gambler does not make him a murderer. Please, when you examine the evidence, don’t confuse it with the character description and motive.”
Later on Applegate dealt with the inadequacy of Dan’s questioning. “He is on trial for first degree murder and he is cocounsel. He has that right. Because he is not an attorney, you may not have liked the way he handled it. However, that does not make him guilty of murder.”
Applegate brought his final argument to a close. “Please do not convict Mr. Montecalvo because you don’t like his lifestyle. Look at the evidence and see if you have been convinced beyond a reasonable doubt. I am certain you have not. Thank you.”
As with all such trials, the burden of proof in the Montecalvo case lay with the prosecution. For that reason, Ben Bernard was entitled to a final rebuttal argument after the defense was finished. Bernard used the time to attack everything Applegate had said. As for the sequence of events, Bernard reminded the jury that by some accounts, five full minutes passed between the time neighbors claimed to have heard gunshots and Dan’s first call to 911.
“What was Dan doing during those minutes while Carol bled to death?” Bernard asked the jury. “Perhaps that’s when he cleverly hid the guns and made certain the registration tag was in the driveway.”
Bernard raised one eyebrow and shook his head incredulously. “As for some kind of frame because police are worried about being sued, it makes no sense at all. Police get sued all the time. That is no reason to put careers on the line by manufacturing evidence against a person.”
Fifteen minutes later, Ben Bernard finished his rebuttal. “Dan Montecalvo is an admitted liar. Dan Montecalvo doesn’t know the truth when it hits him in the nose. And I suggest the evidence points to the fact that Dan Montecalvo killed his wife, that woman whom he called a saint, the woman who meant everything to him. He said he worshipped the ground she walked on,” Bernard said softly. “But the truth was he treated her like dirt. Thank you.”
The jurors received their final instructions later that afternoon and early the next day. After that they set about the task of sorting through the overwhelming circumstantial evidence against Dan Montecalvo. The process took all day Thursday, Friday, and part of Monday.
Both Ben Bernard and Ron Applegate worried about the time it was taking the jury to reach a verdict. The jurors had been advised that if they could not agree on first degree murder, they could agree to a lesser murder charge.
Finally, just before lunch on Monday, November 5, the jury foreman presented the court clerk with a verdict. Both attorneys and various members of the press were contacted; Dan was moved up to the courtroom, and by 1:40 P.M., all necessary parties had arrived at Department J. The jurors were in their seats when Judge Tso entered the room.
He cleared his throat and sorted through the documents on his desk. Looking up, he addressed the jury. “I understand we have a verdict?”
The jury foreman stood. “Yes, Your Honor. We do.”
Judge Tso nodded. “Will you hand the verdict slips to the bailiff, please?” For several seconds a tense silence filled the courtroom. “We will have the clerk read the verdict now.”
Dan closed his eyes, looking small and insignificant next to Ron Applegate. Ben Bernard appeared relaxed, leaning back in his chair as if he were about to take in a good football game in the comfort of his living room.
The court clerk held the verdict slip in her hand and began reading. “We the jury in the above entitled action find the defendant Daniel J. Montecalvo guilty of murder in violation of penal code one eighty-seven A, a felony, as charged. We further find the murder to be in the first degree. . . .”
The clerk kept reading, but everyone had heard enough. Dan dropped his head dramatically into his hands. Those sitting near him heard him quietly moaning to himself, “No, no, no. I didn’t do it. This is all wrong. No, no.”
A red flush crossed Ron Applegate’s face. He had failed an innocent man, making this the single lowest moment of his legal career. Even worse was the knowledge that before the trial had started, Ben Bernard had been willing to plea-bargain the charges down to manslaughter in exchange for a guilty plea. Applegate had refused. If Dan was innocent, there could be no plea bargaining. Justice would be served only if he left the courtroom a free man.
He quickly gathered the paperwork in front of him and leaned toward Dan. “I’m sorry,” he whispered. “We must continue to fight. You can’t give up.”
Meanwhile, Ben Bernard was whirling in the heady effects of what had become a stunning victory. A first degree murder conviction based purely on circumstantial evidence was virtually unheard of. As the jurors were excused, several of them stopped to shake the prosecutor’s hand and congratulate him on his fine job.
When they had filed past, Brian Arnspiger grabbed Bernard’s hand and shook it firmly. A broad grin covered the detective’s normally stern face. In his mind he could hear the sound of yet another prison door slamming shut.
“Unbelievable,” he said. “I mean it. Best darn job I ever saw, Bernard.”
Bernard reached out and shook the detective’s hand. “Listen, your investigation did it. I didn’t have anything without you.”
They looked across the room and saw that Dan was crying and complaining about not having had a fair trial. The bailiff said nothing as he handcuffed him and led him out.
“Can you believe they went for murder one?” Brian said as Dan disappeared from sight. “I never dreamed we’d get that kind of conviction.”
Bernard scratched the top of his balding head. “I’d have been happy with manslaughter.” He shrugged. “I guess they saw Dan for who he was.”
“I can’t wait till the sentencing.”
“Are you coming back for it?”
Brian nodded. “Wouldn’t miss it.”
Dan’s conviction on charges of first degree murder made the front pages of all the local newspapers. In many television and print accounts Ben Bernard was credited with having prosecuted the case perfectly. Overnight the phone in Bernard’s office began ringing off the hook. Everyone wanted to know how a prosecuto
r who had been willing to plea-bargain a case down to manslaughter had achieved a murder one conviction based entirely on circumstantial evidence. Bernard was as surprised as anyone else. He had presented a good deal of evidence against Dan. But he believed that Dan would have come out better had he not represented himself.
Members of the press were not alone in recognizing the feat Ben Bernard had accomplished. In the days after the conviction his superiors discussed his being promoted to a more prestigious management position. He would be further removed from the courtroom, but after the Montecalvo case, Bernard was ready for that.
The sentencing of Dan Montecalvo came at 1:30 P.M. on Monday, December 3. First, the judge heard from Carol’s father. Although the man had not been as close to his daughter as he would have liked, he blamed some of their later separation on Dan. Pointing an accusing finger at Dan, the white-haired man spoke angrily. “You betrayed us, you betrayed her. And if that wasn’t enough you killed her.” His eyes brimming with tears, the man asked Judge Tso to hand down the stiffest penalty possible.
Both attorneys were then given time to make final comments. Ben Bernard asked for a severe penalty to assure that no other well-meaning woman ever need fall victim to the dishonest ways of Dan Montecalvo. Applegate asked the judge for leniency, reminding him that Dan was virtually harmless and that he had not been convicted on any physical evidence. Judge Tso listened passively to the entire proceeding. When finally he spoke, he went over the evidence, assuring the defense that he was aware of Dan’s disturbed childhood and the lack of physical evidence. For a moment Bernard wondered if Judge Tso was going to be easy on Dan. But then Tso told Dan that killing his trusting wife for financial gain was the epitome of evil and cowardice.
“And so,” he continued, “after carefully considering all the evidence and the circumstances of this case, this court has decided to sentence you to the maximum prison time for your crime allowed by law. In this case, that means you will serve a sentence of twenty-seven years to life.”
As the judge continued advising Dan of the specifics regarding his sentence, Applegate remained motionless in his chair. He felt as if he and Dan had just been banished to Siberia. The sentence was the ultimate defeat.
Several feet away, Brian Arnspiger jumped to his feet and began furiously pumping Ben Bernard’s hand. “This calls for a celebration.”
Bernard felt as if the world was turning in slow motion. The sentence was the toughest permissible by law. He smiled. “Yeah,” he said. “Let’s get out of here.”
Before they left, Carol’s father approached them.
“I know nothing’s ever going to bring back our Carol,” the man said, his voice choked with emotion. “But what you two did for her this past year . . .” His eyes filled with tears and he didn’t finish his sentence. “I can only say thank you and take comfort in knowing Carol is at peace with God. If there was ever a person who took to heart the teachings of Christ, it was Carol. Somewhere, right now, my little girl is smiling. I really believe that.”
Carmelo Tronconi shook hands with Bernard and Brian and then turned to leave. By then, Dan had been taken from the courtroom to a waiting transport bus which would take him to the county jail. He would stay there until he was assigned a cell in one of the state penitentiaries. As the bus pulled away from the courthouse that afternoon, Dan stared at the clear outline of the San Gabriel Mountains. “Why don’t they believe me, Carol?” he asked out loud. “Why?”
Seventeen days later, on December 20, Dan did something that made even Ron Applegate wonder about him. He married Carol’s longtime friend, Maree Flores. As had come out at the trial, Dan had proposed to her before it even began. Her sons, now nineteen and twenty-one, believed Dan innocent and had given their approval of the marriage. After all, Dan had shared their home for several months and they liked him.
“Look, Mom,” her older son, Juan, had said after Dan had proposed. “Dan’s been nice to me and Lino and he’s been a friend to you. You two have been through a lot. If this makes you happy, I’ll support you.”
Before the trial Juan had spoken with Dan by telephone. “Dan, my mom’s been in other situations where someone seemed nice and then later they let her down. She doesn’t need that. Make sure you treat her good.”
Dan was impressed with Juan’s concern. “I promise you this much,” Dan told the young man. “I will love your mother as long as we both are alive. You have my word.”
After that the couple had sought approval to be married after the trial, and all parties had agreed on the December date just five days before Christmas. The ceremony took place in Judge Lawrence Tate’s chambers and was over in minutes. After a chaste kiss, the first the couple had ever shared, Dan looked at his bride and took her chin in his hands.
“If anything ever happens to me, Maree, keep fighting. I don’t care if I’m alive or dead. I want my name cleared. I want my marriage to Carol to be remembered for what it was. Do you understand?”
Maree nodded and brushed away the tears that slid down her cheeks. She loved Dan and was ready to fight to see that justice was served in his case. Just then, a bailiff interrupted the newlyweds and led Dan away in handcuffs. The honeymoon was over.
Chapter 44
Three weeks had passed since Dan’s sentencing, and Suzan Brown thought she was losing her mind. She had left the motel in Glendale and had moved to a rundown rented house in the city of Ontario, east of Los Angeles. She had read and reread articles about the verdict and sentencing and knew only that something had gone terribly wrong. The police had no guns, and still they convicted Dan for something she was convinced he didn’t do.
Suzan had hidden herself away in her newly rented house agonizing over her next move. At times she gave in to her body’s intense cravings for speed and for several days at a time she would exist in a hazy surrealistic world that bordered on drug overdose. Almost immediately she befriended a host of drug users, many of whom hung out in her depressed neighborhood. They soon began using Suzan’s two-bedroom flat-roofed house as a crash pad. Now, rumpled clothing littered the floors and dirty dishes began piling up throughout the scantily furnished rooms. A week earlier Suzan had run into a former lover, a tank-shaped woman who promptly moved in with her. The lovers got a mixed-breed dog named Joanie and several mangy cats, all of which slept and ate in the house, giving it an odor some people said they could smell from the road.
Still, with all the people and animals around her to occupy her mind, Suzan often found herself sitting in her wheelchair, staring straight ahead at the stained walls of her house. She thought about Vietnam and realized she would rather be in the middle of a war than haunted by guilt. She would have been surprised if she’d slept a total of eight hours in the past three weeks.
Finally she could no longer stand it. Dan didn’t kill Carol. Not for financial gain, or because he was angry with her, or for any other reason. Suzan knew that her sanity would not return until she told someone what had really happened that night.
She wheeled her chair to the refrigerator, opened it, and grabbed a shoe box from the second shelf. Sifting through loose change, used toothpicks, and crumpled pieces of paper, Suzan found what she was looking for—the phone number for Chuck Lefler and Gene Brisco. She stood up quickly, reached for the telephone, and began dialing. She had one digit left to dial when she suddenly hung up.
At that moment it occurred to her that she did not need to tell anyone the truth. What she needed was speed. Lots of it. Yes, speed would make everything okay. She hurried out the door and walked across the street to the check-cashing establishment on the corner.
With more than two hundred dollars in hand, she set out for the dealer’s home, just two streets away. She walked up to the house and rang the doorbell. Someone new answered the door, but in San Bernardino County, everyone was new to Suzan. She handed over her money and asked for enough heroin-tainted speed to get her through the weekend. The man who had answered the door sudde
nly flipped out a police badge and snapped handcuffs on her wrists.
If Suzan thought the guilt was bad in her apartment, it was unbearable in San Bernardino County Jail. She constantly had to fight to keep the image of Dan in prison out of her mind. After two nights, she reached into her shorts pocket and pulled out the business card with the number for the investigators. After receiving permission to make a phone call, she began dialing. This time she did not hang up.
Gene and Chuck were in their office going over the details of various cases. Since learning about Dan’s sentencing, a depression had fallen over the office. An innocent man had gone to prison, and with Dan’s conviction, the court was no longer willing to finance an investigation into his innocence. For that reason, Chuck had decided to put the case behind him. Gene, however, constantly found himself thinking of new angles and by then had decided to continue working the case on his own time.
The detectives were in their office discussing a current investigation when the telephone rang.
“Give me Gene,” the caller said gruffly. Chuck thought the voice sounded faintly familiar as he handed the phone to his partner.
“Hello?”
“Hey. It’s Suzan Brown,” she barked, and Gene immediately snapped to attention. “Need to talk with you a minute.”
“I’m listening.”
“About Carol”—Suzan coughed loudly into the phone—“well, you know. Gotta tell you Dan didn’t do it. Dan didn’t kill her.”
“I know that, Suzan,” Gene said, his Texas drawl slow and confident. “You ready to tell us who did?”
Suzan paused and for a moment it seemed as if the walls of the jail were closing in on her. “Yeah. Guess so.”
“Where are you?” Gene needed to find out. They were on the verge of a breakthrough.
“County jail. San Bernardino. They caught me in a drug buy.”
Final Vows Page 32
