Sam went on to attack the remainder of the State’s case, pointing out shortcomings and deficiencies. Daniels eyed him steadily throughout the argument. “Your Honor,” Sam concluded, “for these reasons my client asserts the State failed to meet its burden. We ask that you dismiss this matter and set my client free.”
Daniels studied Sam intently, then turned to Ann. “Does the State care to respond?”
“Of course, Your Honor. May it please the court,” she began. “The State has met its burden of proof to this point. As the court and counsel are well aware, to prevail at this time, the State does not have to have proven each element of the charge beyond a reasonable doubt, but rather, the State needs only to have made a prima facie case with respect to each element.
“The defendant does not appear to contest that the crime occurred on or about October 31, or that it occurred in Custer County, or that the decedent was C. Emily Smith. Those elements, then, are conclusively established. The sole issues relevant to this motion, then, are whether the State has made a prima facie case that Tommy Olsen killed the decedent, and whether he did so purposely and with premeditated malice.
“Your Honor, the State’s witnesses have testified that the defendant’s blood was found at the scene, that his fingerprints were found on the murder weapon, that his semen was found in and on the victim, that he was observed in and around her home in the days immediately preceding her death, that his name was on her planner, and that he visited with her the evening prior to her death.
“Further,” she continued, “the evidence indicates that Defendant Olsen killed the decedent with a knife he brought to her house, then hid the knife in his garage, thereby indicating purpose, premeditation, and malice. Surely, Your Honor, the evidence presented is sufficient to withstand this motion, and we’d ask the court to find that as a matter of law the State has met its burden, and therefore deny the motion.”
“Mr. Johnstone? Your motion; you get the last bite at the apple,” Daniels said.
“Your Honor, what the State again fails to address is that there are other, unidentified fingerprints on the scene and on the weapon, and there is another man’s semen on the scene. There were other appointments in her appointment book, and she had many, er, acquaintances.”
“Objection, Your Honor!” Ann said, on her feet. “The decedent is not on trial.”
Daniels looked at Ann dolefully. “Overruled.”
“Moreover, Judge,” Sam continued, “the fact that the couple was in a dating relationship and the fact that there was obviously drinking going on would all militate against premeditation,” Sam argued. “Judge, we’d ask you to grant the motion and enter a judgment of acquittal.”
“Thank you, Mr. Johnstone,” Daniels said. “I’ve made my decision.” Sam’s heart sank. This was a bad sign for Tommy, and while it was inconceivable the judge would grant the motion at this point due to the low level of proof required, denying it with so little reflection would be seen by some as indicative of the strength of the State’s case. At the State’s table, Ann sat quietly and confidently, staring at the old judge, expecting the quick denial she had witnessed at each of her prior jury trials.
“I’ve decided I’m going to reserve decision on the motion,” Daniels said.
Ann was stunned. She stole a glance at Sam, who showed no emotion. Tommy leaned over to Sam and whispered, “What does that mean?”
“It means we have a chance,” Sam whispered back, as Daniels shot him a reproving stare. “But nothing more,” he added cautiously, trying desperately not to raise his client’s hopes.
“Ms. Fulks, is the State prepared to proceed?” Daniels asked.
“We are, Judge,” Ann said, angrily shuffling papers in front of her.
“Mr. Johnstone?” Daniels took a drink of water. “Has the defendant decided whether he will testify?”
“He will testify, Your Honor,” Sam said.
“All right,” Judge Daniels said. He then advised Tommy regarding his right to remain silent, and the potential repercussions of testifying. Tommy indicated he understood, and explained that while Sam had cautioned him, it was his decision to testify.
“Good enough,” Daniels said. “Bailiff, let’s get the jury back in here.”
Daniels stood and all followed his example. After the jury had been seated, the judge ordered everyone to be seated. “Is the State satisfied the jury is present?”
“We are, Your Honor,” Ann replied.
“Mr. Johnstone?”
“The defendant is satisfied the jurors are present, Your Honor.”
“All right, ladies and gentlemen of the jury, when we were together last, the State had rested its case-in-chief. It is now the turn of the defendant, if he so chooses, to put on a defense. You are reminded that the sole burden is that of the State; the defendant is not required to defend himself.” Daniels turned to Sam. “Mr. Johnstone, call your first witness.”
50
Sam stood. “Thomas Olsen,” he said.
As a murmur ran through the gallery, Tommy took the witness stand, looking anything but an imposing figure. By the time he had been sworn and seated, the courtroom was silent. Adjusting the microphone, he looked like a schoolboy called to the principal’s office, rather than a former Marine charged with murder. Sam took a deep breath and began.
“Will you please state your name?”
“Tommy, er, Thomas John Olsen.”
“How old are you?”
“Thirty-five.”
“Where do you live?”
“Here in Custer.”
“And how long have you lived here?”
“My whole life, except for the fifteen hundred days I did in the Corps.”
“Did you see action?”
“I did.”
“Are you a disabled vet?”
“I am.”
“Did you know a woman named Emily Smith?”
“I did.”
“How so?”
“She was my divorce attorney.”
“Are you now divorced?”
“I am not. She filed for me, oh, I guess maybe six or eight months ago?”
“So, you are a married man?”
“I am,” Tommy replied, looking at Becky in the back of the crowd. Some in the audience snuck a look at her as well.
Sam then led Tommy through a rather lengthy background of how he and Becky had met, married, and loved, then how things had changed, ultimately resulting in his filing for divorce. Juror 465 sat staring at Tommy, arms folded.
“And did you ever see Miss Smith socially?”
“Yes.”
“When?”
“Well, I seen her in the office, of course.”
“Let me ask it this way: have you ever been in Miss Smith’s home?”
“Yes.”
“And when was the last time you were there?”
“Halloween night. We ran into each other at a party, then went back to her place.”
Juror 465 clearly disapproved. “So you didn’t go to the party with her?” Sam asked.
“No, I met her there.”
“What kind of party was it?”
“A Halloween party.”
“Was it a costume party?”
“Yes.”
“Did you dress up?”
“Yes.”
“As?”
“I was an assassin.”
The audience groaned, but Sam had to ask. Better to get it in on direct. “And did Emily dress for the party?”
“Yeah. She was, well, I guess, a hooker. Lady of the evening.” Tommy smiled slightly as the audience tittered nervously.
Sam allowed the low murmur to dissipate under Daniels’s harsh glare before he continued. “And so you met at the party?”
“Yes, we ran into each other at the party, hung around a little bit, and then decided to go back to her place for a nightcap.”
“Whose idea was that? To go back to her place?”
“Hers.”
Sam snuck a look at Juror 465, whose eyes were fixed on Tommy. She looked angry.
“So, you went back to her place, then?”
“Yes. Took separate cars. She was there when I got there.”
“How did you get in?”
“She gave me a key.”
“So, you got back to her place. Then what happened?”
“Had a few drinks.”
“Then what?”
“Then. . .” Tommy drifted off, as though he was thinking back.
“Did you have sex?”
“Yes.”
“Was it consensual?”
“You mean did she want to?”
“That’s what I mean.”
“Yeah. Woman like that, she knows what she wants,” Tommy said. Seeing the look on Juror 465’s face, Sam knew he needed to follow up. The problem was, he didn’t know what his client might say.
“What do you mean when you say ‘a woman like that?’” Sam asked.
“I mean she was a strong, independent woman. Ran her own business—you know? She wasn’t your shy, retiring, uptight type that might need a little encouragement. She knew exactly what she wanted and wasn’t no one gonna tell her otherwise.”
Juror 465 was almost nodding as Tommy finished. “So, you had consensual sex?”
“Yeah.”
“Where?”
“What do you mean? You asking if—”
Sam intervened quickly, before Tommy said something that made Juror 465 faint. “I mean where in the house? In the bedroom, kitchen, or somewhere else?”
“Well, I guess we started fooling around in her kitchen. Then I cut myself.” Tommy raised his hand as if to show the jurors the scar on his finger. “And it bled like hell, er, a lot, so we used a bandage and some tape she had to staunch the flow of blood.”
“How did you cut yourself?”
“We were doing tequila shots. I was slicing a lime.”
“Did you bleed a lot?”
“Objection. Witness not qualified to answer,” Ann said.
“Your Honor, I’m not asking for a medical opinion,” Sam replied. “I am merely attempting to elicit his opinion as a layperson as to how much he bled.”
Judge Daniels stared at Sam for a moment while he thought about it. “You can answer,” he decided.
“Like a stuck pig,” Tommy said. “I didn’t think I was ever going to stop bleeding. I guess maybe it was all the alcohol making my blood thin, but—”
“Your Honor, I object,” Ann said, again on her feet. “Move to strike. The witness has not been designated as an expert.”
“Sustained, as it pertains to everything after the words ‘stuck pig,’” Daniels said, before Sam could reply. “Just answer the question, Mr. Olsen.”
“Mr. Olsen,” Sam began. “Did you bleed in her kitchen?”
“Yeah. That’s where we were doing the shots.”
“And so you tried to stop the bleeding?”
“Yeah, I applied pressure, then tried putting a cold compress on it using a dish towel. Then we went upstairs.”
“Why?”
“That’s what she wanted.”
“And did you bleed in her bedroom?”
“Maybe,” Tommy allowed. “First we went to the sink in her master bath. I looked for a bandage while she kept pressure on my finger. Then, when the bleeding finally slowed, I put some hydrogen peroxide I found on the wound and put on the bandage.”
“Then what happened?”
“Then we, uh, went to the bed.”
“And you had sex?”
“Yeah.”
“Then what?”
“Well, she was sleeping.”
“She was asleep?”
“Well, after, yeah. She fell asleep, and so I left.”
“Why?”
“Why?”
“Why not just spend the night?”
“’Cause I had to work in a couple hours, pack my lunch, take a shower, stuff like that.”
“You expect the jury to believe that you got cut slicing limes?”
“It’s true. I was drunk.”
Juror 465 was staring at Tommy, disbelieving. “And so you left.”
“Yeah.”
“Did you take anything with you?”
“From her house, you mean?”
“Yes.”
“No. What would I take?”
“Mr. Olsen,” Daniels interrupted. “Just answer the questions. Don’t ask any of your own.” Sam saw that Juror 465 was almost beaming at Daniels.
“Mr. Olsen,” Sam began. “When you left, was Ms. Smith alive?”
“Oh yeah,” Tommy answered earnestly. “She was alive.”
“How do you know?”
“Because I heard her snoring when I left.”
Sam allowed the murmurs and titters to die down before continuing. “And how did you leave?”
“I went right out the front door.”
“And what time was that?”
“Oh, I’d say maybe a quarter after five.”
“How do you know that?”
“Well, it was almost 5:30 a.m. when I got to the emergency room. It’s only a few minutes from her place to the hospital.”
“You went to the ER?”
“Yeah. I couldn’t get the bleeding to stop, so I went to the ER and the doc gave me some stitches and I was good to go.”
“After the ER, did you stop anywhere?”
“No.”
“See anyone you recognized?”
Tommy was silent for a minute. Finally, he answered, “No.”
“So, no one can attest to your story?”
“What?”
“You don’t have anyone who can corroborate—agree with—what you’ve testified to here today?”
“No. Well, the ER docs. But other than that, it was just me and her.”
“Thomas,” Sam said, using Tommy’s given name for the first time. “Did you kill Emily Olsen on Halloween night?”
“No, Sam. I didn’t.” Tommy looked to the jurors. “I would never hurt anyone. I’m a good man and a good dad.”
Sam sighed. That was a mistake he’d warned Tommy not to make. By attesting to his own character, he’d opened himself up to a character attack by Ann. Sam posed additional questions on a variety of subjects, but only one thing really mattered: Tommy had denied killing Emily. That was all the jury would remember him saying on direct. He turned to Ann. “Your witness,” he said, and returned to his table, dreading what was to follow.
51
“So, Mr. Olsen,” Ann began, “your story is that you met Ms. Smith at a party, and then the two of you went to her home and had some tequila, whereupon you conveniently cut yourself—”
“Objection, Your Honor,” Sam stated.
“Sustained,” Daniels said. “You know better, Ms. Fulks.”
Ann nodded briefly. “Apologies, Your Honor,” she said, and returned her glare to Tommy. “And then she helped dress your wound, the two of you had sex, and then you left her blissfully fulfilled—is that right?”
Sam let it go.
Tommy was confused. “Huh?”
Ann watched Tommy carefully. He seemed truly confused. “You’re telling this jury that when you left Emily’s apartment, she was alive and sleeping in her bed—is that right?”
“Yes.”
“Can you account for her throat being cut?”
“No.”
“Can you account for her throat being cut with a bayonet that was later found among your possessions?”
“No.”
“Can you account for your fingerprints being found on that bayonet?”
“Of course. It was mine.”
Good answer, Sam thought.
“Now, Mr. Olsen, you’ve had some difficulty with the law, have you not?”
“I’ve had some stuff, yeah.”
“And fair to say that most of your difficulties with the law have involved drugs and/or alcohol?”
“Well, yeah.”
“Objection,” Sam said. It was futile. Tommy had opened the door when he testified he wasn’t a bad guy.
“Overruled. Fair game now, counsel. Answer the question, Mr. Olsen,” Daniels said.
“Well, I guess I can get pissed, like every other guy.”
“You suffer from PTSD, right?”
“Yeah.”
“Are you seeing a counselor?”
“Sometimes.”
“How often?”
“I’m not sure.”
“Weekly?”
“Not that much.”
“Monthly?”
“Well—”
“You haven’t seen him at all this year, have you?”
“No, but I’ve been in jail for a while now, thanks to you.”
Sam cringed, but Ann ignored it. “Ever been in a fight?” she asked.
“Lots of times.”
“Isn’t it true that you’ve been convicted twice in the past year for mutual combat?”
“Objection,” Sam said. Again, it was futile, but he needed to try and break Ann’s rhythm.
“Overruled.” Judge Daniels shot Sam a scathing look, one matched by Juror 465, who was clearly enjoying seeing Tommy grilled. “Counsel, you know very well your client put character in question. Answer the question, Mr. Olsen.”
“What was it?” Tommy asked.
“Isn’t it true that twice in the last year alone you’ve been cited for mutual combat—fighting in public?” Ann said.
“Yes.”
“And it’s true, isn’t it, that officers from the Custer Police Department and/or Custer County Sheriff’s Office were called to your home on three occasions?”
“No.”
“Mr. Olsen,” Ann began, “I could call—”
This was objectionable, and Sam was on his feet. “Your Honor! May we approach?”
“Please,” Judge Daniels replied. When Sam and Ann had approached the bench, the judge nodded, and Sam put his objection on the record. “Your Honor, if counsel inquires about collateral matters on cross she is stuck with his answer. She may not introduce uncharged conduct if she doesn’t get the response she is seeking.”
“Your Honor, I’m only trying to show the defendant’s propensity for violence.”
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