“No, I didn’t. I told you, I didn’t. I never took that junk, and I never gave it to Tracy, either.”
Harper was sitting on a chair, not saying a word. She finally did speak, though.
“Damien,” she said, “I believe Olivia. Remember, we sent that sample of Oxycontin into a lab, and it tested as pure heroin. I still think that Robert Dunham killed his brother in that way. It’s been an unfortunate coincidence that Olivia also had high-grade heroin in her medicine cabinet and she had antibiotics in her system, which caused a false positive, but-“
I looked over at mom, who was taking another puff of her joint.
“Mom, you have to come clean, totally clean. That UA wasn’t a false positive, was it? I’m putting an expert on to talk about false positives, but I have a feeling that I’m going to have to call him off, too.” I shook my head. “You have to come clean, Mom, you have to come clean.”
“Damien, I don’t do that junk.”
I raised my eyebrow. “But you do take Oxycontin when it’s offered to you, don’t you?”
She looked at Harper, on whose face was an expression that I couldn’t discern. “I was having a bad night, and Tracy offered me some of his hillbilly heroin. I don’t do no real heroin, I know what kind of crap those drug dealers put in those street drugs. But Oxycontin, if I can get ahold of that, I’m gonna take it. Tracy offered some to me and I took it that night. But, I swear, Damien, he gave the drug to me, not the other way around.”
“Mom,” I said, “those hillbilly heroin pills you took were actual heroin. You do know that, right?”
“Yeah, I know that now. I know that somebody put actual heroin into those capsules. I thought I felt weird when I took it, weirder than when I’ve taken Oxycontin before.”
“Mom,” I said. “What’s the whole story? The real story?”
Mom looked at Harper desperately. “Harper, I didn’t do nothing wrong. I swear, I didn’t. See, Tracy and me, we had a deal. He gave me Oxy every week in exchange for me having sex with him. I swear, I don’t do horse and I never have. I swear I didn’t give Tracy no drugs. I swear.”
Ah, so the truth was FINALLY coming out. And it wasn’t pretty.
“So, Mom, you were prostituting yourself to Tracy in exchange for Oxy. Is that what you’re saying?”
She nodded her head. “I guess, if you want to put it that way. Me, I just thought of it as him giving me drugs and me giving him sex. I mean, I’m not no prostitute. I don’t take money for sex, only drugs.”
I stood up. “Mom, that’s the very definition of prostitution. You take something of value in exchange for sex.”
Harper was calmer. After all, it wasn’t her nutso mother sitting in the living room with us. “Olivia, so, you’re saying that the night that Tracy died, he shared his Oxy with you?”
“Yeah.”
Harper looked at me. “Damien, remember, that Oxycontin bottle that we found in Dr. Dunham’s office only had one pill left in it. He took one, Olivia took one, and there was one left. That means that there were four pills that weren’t accounted for in that bottle.”
I nodded my head. “Yeah, okay, so, Mom, how many Oxy pills did Dr. Dunham give you that night?”
“Just the one,” she said.
That meant that the other four pills in that bottle must have actually been Oxy, and only the three pills were tainted. Or maybe my mother didn’t get a tainted pill, but consumed Oxy.
Harper looked at me. “So, the Nifedipine bottle really did have pure heroin in it, and Olivia actually did have heroin in her system when she dropped a dirty UA.” She stated the obvious, but I needed to hear it in her words.
“No, I didn’t do horse that night, I did Oxy.”
“Yes, but, Olivia, those Oxy pills that Tracy gave you were replaced by pure heroin. That’s what this case is all about, remember?” I said.
“I know, I know, I keep forgetting,” Mom said.
“But somehow the cop on the scene never saw the signs that Mom was high,” I said, remembering my cross-examination of Officer Conrad. “No dilated pupils, no weird behavior, no odd syntax. Nothing.”
“Yeah, but the cops came the next day when Olivia woke up,” Harper reminded me. “They were on the scene at 10 AM the day after Olivia and Dr. Dunham got high. Obviously, the high and the signs of her being high had worn off by then, but the drugs remained in her system. So, we could re-call Officer Conrad to ask him more about signs that Olivia was high, but grilling him won’t necessarily show anything dispositive, let alone something that would help us out in this case.”
I nodded my head. “That’s true.”
Harper cocked her head. “Okay, so you took heroin with Tracy that night, yet nothing really happened to you.” She raised an eyebrow. “Nothing happened to you. So, it probably wasn’t the purity level of the drug that killed Tracy. If it were, Olivia would have probably also died, or, at the very least, been put into the hospital.”
“Yeah, nothing happened to me, except I floated around the room for several hours, but, other than that, I was fine.”
“So, you did feel different that night than when you took Oxy before?”
“Yeah, much different. It was much stronger than usual.”
So, she probably did take a tainted pill. I wondered about the other four pills that Dr. Dunham had apparently taken before he went to Mom’s home. They must have just been Oxy, although I wondered why Robert only tainted three of the pills and not the others.
That was a mystery that probably wasn’t going to be resolved.
Harper narrowed her eyes. “Let me see your file,” she said to me. “I need to take a closer look at all of Dr. Dunham’s medical records.”
I had subpoenaed Dr. Dunham’s medical records, to see if there was any health issue that he had that would have caused his death. I didn’t really see anything in the records, however. They were extensive, and I had reviewed them thoroughly.
Harper looked through the records closely. “There’s something missing here,” she said. “There’s something missing. I just know it.” She checked her watch. “Dammit, why do I think that there’s something missing in these medical records?”
“What’s missing?” I asked her.
“I don’t know,” she said. “I just think that there’s something in Dr. Dunham’s background that would have explained why it was that Dr. Dunham died. I mean, if that heroin was that strong and that pure, then Olivia would have also been adversely affected, and she wasn’t. What if Dr. Dunham was allergic to heroin and Robert Dunham knew that? What if-“
She shook her head. “What if Dr. Dunham took heroin earlier in his life, almost died, the doctor found out that he was having an allergic reaction, and this was covered up? He was rich, his family was rich, they would have had the means to cover it up if something like that happened. What if he checked into the hospital under an assumed name when that happened?”
“What assumed name?” I asked. “We’ve never uncovered any kind of assumed name that he might have used over the years.”
Harper sat down after reviewing every single record with a fine-toothed comb. “An alias…”
I looked over at my Mom, who was looking like she was thinking about something. “Try this name,” she said. “Tracy Wheeler. That was the name that he gave me when he tried to pick me up that one night in that bar.”
“Really? You never told me that, Mom,” I said. “It would have been helpful to have known that he sometimes went under a different name.”
“I didn’t think about it until Harper just started talking about him using an assumed name, but that rang a bell.”
Harper was immediately on the phone with Anna. “Anna, I need to see if you can find me any kind of medical records for a Tracy Wheeler. DOB 1/19/63.” She nodded her head. “Thanks.” She looked at me. “Anna is going to call back if she can find anything.”
Five minutes later, Anna called back, confirming Harper’s hunch.
“I see,” Harper
said. “Send them to me PDF.” She got her iPad out, and looked at it. “Thanks.”
She apparently got into her email, and then snapped her fingers at me. “Look. Right here.”
I looked at the PDF, seeing that a Tracy Wheeler, with Dr. Dunham’s DOB, did have a serious medical issue when he was only 15 years old. He had been brought into the ER, unresponsive, and it was found that he had taken heroin. It was also found that he had gone into anaphylactic shock, and the medical records indicated that Dr. Dunham had an allergy to the drug.
“Did the autopsy miss this?” I wondered aloud.
Harper nodded her head. “Probably. Look at this.” She pointed to some medical journal articles that indicated that anaphylactic shock was typically not detected by a post-mortem examination. The study showed that fatal anaphylaxis was often not detected because of how rapidly the person died, and because the person often died of shock and not asphyxia. The conclusion was that just because an autopsy didn’t find that anaphylactic shock was the cause of death didn’t preclude it as the actual cause of the person dying.
“But I’ll bet that Robert knew that his brother was allergic to heroin,” I said. “I’ll bet he was one of the only ones who knew this. The family covered this incident up.”
“Dr. Dunham almost died once before from taking heroin,” she said. “And Robert had to make a bet that the heroin was going to be fatal this time, because he knew his brother’s history.”
I nodded. “Looks like I’m going to have to re-call Robert to the stand, or you will. You can ask him on the stand about his brother’s previous incident with taking heroin. He’ll lie like he always did, but we need to get the piece of evidence on the record anyhow. If you don’t ask him about that, then there’s no way to get that piece of evidence into the closing argument.” Closing arguments were restricted to facts put into evidence, which meant that if we never brought this up, we couldn’t use it as an argument. “But I doubt that the judge is going to let me re-call him. I know the rule on that, and a witness can only be re-called if another witness brings in evidence that contradicted the earlier testimony.”
Harper nodded her head. “We can bring Olivia to the stand, have her state that Tracy went by the name of Tracy Wheeler when he met her, and then use that as an excuse to bring Robert Dunham on to ask him if he knew about the alias, and then use that to open the door.”
“No, dammit,” I said. “That won’t work. We’ll just have to re-call Dr. Warren. She performed the autopsy, and, at the time that she was giving her testimony, I had no idea that anaphylactic shock was even in the realm of possibilities. I reserved the right to call her in my own case-in-chief, which means that she was not technically released from the court after the state called her in its case. That’s the only way we’re going to be able to get this piece of information into evidence, assuming that the judge won’t allow me to re-call Robert Dunham.”
Harper nodded her head. “That’s good thinking. We’ll bring in Dr. Warren as our witness, and ask her about the anaphylactic shock thing. We can get her on the record as stating that it’s difficult to detect anaphylactic shock in a post-mortem exam, and that means that we can probably get this new theory into our closing argument. It won’t be as good as us asking Robert if he knew that his brother had used an alias or if he knew that his brother almost died, previously, of anaphylactic shock caused by exposure to heroin, but it is what it is.”
I looked at my mom. “Well, Mom, you screwed things up with your lying. You caused me to lie in my opening statement. You caused me to lose my chance to press Robert on whether he knew that his brother had a history of a severe allergic reaction to using heroin. If we lose this case, it’s on you and only you. If you would have been honest with me from the start, things would have gone much smoother. Thanks a lot.”
Harper put her hand on my shoulder. “Damien, don’t beat her up too much. It’s unproductive. At least she finally did come clean, and we have another avenue to explore. We have another theory on what happened here, and, in my mind, Robert Dunham looks more guilty than ever. He was the best person to be in the position to know that his brother had an allergy to heroin and was in the best position to know just how to kill his own brother. If Olivia never did come clean on what she did, that she took a heroin pill just like Dr. Dunham did, then we never would have thought of this angle. So-“
I nodded my head. “Lemons, lemonade, I know. But still. Damn you, Mom.”
Chapter 34
The next day, I conferred with the judge. “I have new evidence that I need to ask of Robert Dunham,” I said. “So, I need to re-call him.” I knew that the judge probably wasn’t going to let me re-call Robert, but I had to try.
“No can do,” Kevin said. “You had your chance. You know the rules. You snooze, you lose, brother.”
Judge Watkins shook his head. “Mr. Williams is right. You cannot re-call a witness unless you need the witness to rebut testimony of a later witness. That’s not the case here, is it?”
“Well, actually, my witness, my defendant, Ms. Ward, is going to testify that Dr. Dunham used the assumed name of Tracy Wheeler when he tried to pick her up in the bar where they met. I would like to ask Robert Dunham about whether he knew that his brother used an alias.”
“And where are you going to go with that, brother?” Kevin asked me. “So, Dr. Dunham used a different name. So what?”
Judge Watkins nodded his head. “I’m inclined to agree with Mr. Williams. You can re-call Robert to ask him if he was aware that his brother used an assumed name, but that would be the only thing that you can ask him. You won’t be able to ask him anything else, so is it worth it to you to get him back on the stand?”
I took a deep breath. “No. I suppose it wouldn’t.”
“Okay, then,” Judge Watkins said. “I’m going to call the jury in and we’re going to get the show on the road again.”
I looked over at my mom, silently cursing her. I could have had the chance to grill Robert on the anaphylactic shock incident, but there was no way I could do that.
Then I got an idea. “Your honor, I would like the opportunity to bring Dr. Littman on as my own witness. Dr. Littman and Dr. Warren. I put them both on my own witness list, just to be safe.” That was a practice of mine – every one of the prosecution’s witnesses showed up on my own witness list, just in case I needed to call them as my own witnesses, as I was going to have to do in this case.
Judge Watkins nodded his head. “Any objections, Mr. Williams?”
“None, your honor,” Kevin said.
“Permission granted. Let’s bring in the jury.”
I took a deep breath. Perhaps Dr. Littman knew something about the Tracy Wheeler anaphylactic shock thing. I wouldn’t be surprised if he did know about that. After all, he had to ask Dr. Dunham about drug allergies, and if Tracy was honest, he probably told him about it.
I tapped my fingers on my table as the jury filed back in. I was going to call my mother to the stand first, and then call Dr. Littman and then Dr. Warren.
Then I thought better of it. Crap. If I called my mother to the stand, she was going to contradict everything I promised the jury I was going to deliver. Everything. The UA was correct, and the cops really did seize actual heroin from her home. She was going to testify that Tracy was dead when she woke up, and that Tracy actually gave her drugs, not the other way around, but everything else she was going to say was going to be directly contradictory to the evidence that I promised in my opening statement.
I felt nervous when the jury was seated and waiting for my evidence to resume. What to do? I felt that I had drawn a lot of blood in my examination of Sharita and Robert Dunham. I felt like I put reasonable doubt in the minds of the jury that those two were actually behind the killing of Dr. Dunham. If I put my mother on the stand, and she was going to admit the truth, then the jury would reasonably conclude that she was probably lying about everything else.
Better not call my mother and let the jury for
get all that I had promised to show. Better to do that then to call my mother to the stand and have Kevin hammer away at her about her lies.
Judge Watkins looked at me. “Counselor, call your first witness,” he said.
I took a deep breath. “The defense calls Dr. Littman.”
My mom poked me in the side and I gave Harper a look. I think that Harper understood, because I saw her whispering to Mom as Dr. Littman took the stand. Mom was sitting at the defense table, shaking her head rapidly and pointing at me, and Harper was apparently trying to get her under control.
Dr. Littman approached the stand. He was aware that he was on my witness list, so he was prepared to testify on my behalf. I don’t think that he was prepared to testify first, however. But he didn’t seem too ruffled by the change in plans.
I knew that Dr. Littman probably didn’t know that Tracy Wheeler was a thing, but I wasn’t sure. Nevertheless, I needed to get that piece of evidence into my closing argument, and asking Dr. Littman about it was the only way that I could do it.
Dr. Littman was probably around 80 years old, with white hair, and looked like he had seen it all. He had a gruff demeanor, but I liked the guy. He seemed like somebody who wasn’t going to BS anybody.
He sat down, was reminded that he was still under oath, and I got to work.
“Dr. Littman,” I began. “I know that you testified earlier on behalf of the state, and that you testified that you did not see any indication that Dr. Dunham was a drug user. You also testified that Dr. Dunham did not have any underlying health issues. Just to remind you.”
He nodded his head. “That’s right. I’ve been seeing Dr. Dunham for the better part of 30 years, and I’ve never known him to have so much as a high blood pressure reading. But you have my records, you know that.”
“I do,” I said. “Have your records. But I wanted to ask another question. Were you aware that Dr. Dunham might have been allergic to heroin? That consuming heroin would have caused him to go into anaphylactic shock?”
Until Proven Guilty Page 23
