by David Staats
Dure rose to cross-examine. “Mrs. Thistle, this incident you related took place some time ago?”
“About . . . nine years.”
“About nine years ago?”
“Yes.”
“It could have been ten?”
“Maybe. I don’t think so.”
“At any rate, you are not one hundred percent sure exactly when this took place?”
“No, not one hundred percent.”
“You did not see anybody?”
“No.”
“You did not see the person who was shouting?”
“No.”
“You did not see anyone else?”
“No.”
“So you do not know if more than one person was present?”
“Well, she had to be talking to someone?”
“That is your assumption?”
“Well, of course.”
“And if we go along with your assumption, you did not see to whom this woman was talking?”
“No.”
“It could have been a dog?”
“It didn’t sound like it – and I don’t think the Houlihans had a dog.”
“But you did not see who it was?”
“No. “
“It could have been anybody?”
“I mean, who would it be? Saturday morning, in the backyard?”
“That is my point. You did not see, and you do not know?”
“That is true.”
“No further questions.”
The judge said, “I see that it is ten minutes before five. Court will stand adjourned until ten o’clock tomorrow morning.”
The next morning, as the various actors filtered into court, Prosecutor Preston seemed to be intentionally keeping a poker face; but it was unmistakable that there was a certain buzz going on in the prosecution team.
When the judge called the court to order, Preston called Lieutenant Harold Wisdom to the witness box. He first established that Lt. Wisdom was a member of the Canterbury police force, and that he had investigated this case and was familiar with it. “Lt. Wisdom, have you recently done further investigation in this case?”
“Yes.”
“What were you looking for, and what did you find?”
“As you know, the defense has been complaining that the victim’s head has not been located.”
“Yes, we’re all aware of that.”
“Right. And it’s something we have been searching for all along. When the defense raised the question in court yesterday, I went back to the file and looked through it carefully. Then I had some officers re-search the residence, the grounds around it, and the defendant’s shave-ice trailer.”
“Did you find anything?”
“Yes, sir. We found the missing head.”
Mild gasps could be heard in the courtroom.
“Where did you find it?
“In the defendant’s shave-ice trailer.”
Exclamations sounded in the courtroom.
“There will be order!” said the judge.
Mr. Preston continued. “Where in the defendant’s shave-ice trailer?”
“In the back of the trailer, the part where the shave-ice was prepared, there is a refrigeration unit. We found it in there.”
“I show you this photograph of the inside of the back of the defendant’s shave ice trailer. Is this an accurate depiction of what it shows?”
“Yes.”
Preston addressed the judge. “Your Honor, the Commonwealth moves the admission of this photograph in evidence. Commonwealth’s Exhibit No. 5.”
Preston gave the photograph to Dure to inspect. He, in turn, showed it to his client.
Sounding disgusted, Dure said, “No objection.”
“The photograph is admitted,” said the judge.
Preston placed the photograph on the projection device, which caused the image to be displayed on the computer screens throughout the courtroom.
“Now Lieutenant,” said Preston, “may I ask you to step down from the stand and, using this marker, indicate exactly where the head was found?”
The Lieutenant drew a circle on the photograph around a stainless steel refrigeration unit. When the Lieutenant returned to the stand, Preston continued: “Now, Lieutenant, I show you this photograph. Will you tell the court what it shows?”
“That’s the head. That’s what we discovered in the refrigeration unit.”
The same procedure of admitting the photograph into evidence was performed.
“May it please the Court,” said Preston, “since this photograph is rather gruesome, I request the Court’s permission to show it to the jury by passing it from juror to juror, rather than to put it up on the display.”
“Mr. Dure?” said the judge.
“No objection,” said Dure.
“Alright, Mr. Preston,” said the judge. “You may show the photograph to the jury.”
Preston took the photograph and handed it to juror number one. This was a man in his fifties with a mustache. His face expressed revulsion, and he passed the photograph to the next juror, a stiff-looking woman in an olive-colored dress. She took one glance, quickly turned her head away and passed the photograph on. When all fourteen jurors had seen the photograph, Preston re-took possession of it.
“No further questions, Your Honor,” said Preston.
Dure stood up to cross-examine.
“Lieutenant, where was this trailer when you found this . . . evidence in it?”
“In the garage of the defendant's house.”
“Did you have a search warrant to enter the premises?”
“We did.”
“Did you have a search warrant to enter the trailer.”
“We did.”
“Does the Canterbury police force do slip-shod work?”
“No.”
“Would you say the Canterbury police force is a professional force?”
“Yes.”
“The Canterbury police force performs its work professionally?”
“Yes.”
“Especially on a murder case, is the Canterbury police force is careful in its work?”
“We are careful in all of our work.”
“Then, you don’t make any special effort to be thorough in the investigation of a murder?”
“I’m not sure what you mean by ‘special effort.’”
“An effort more meticulous than, say, in a case of a stolen bicycle?”
“We obviously deploy more resources in investigating a murder than a stolen bicycle. Murder is the most serious crime. We deal with it with the seriousness it deserves.”
“In a murder investigation, is the Canterbury police for thorough and complete in its work?”
“Objection,” said Preston. “Counsel is badgering the witness.”
“Your Honor,” said Dure, “this is cross-examination in a murder trial. The prosecution gave no notice of this evidence – it’s an ambush witness – and then the prosecutor runs interference for the witness on cross-examination. I am wondering what is the Commonwealth afraid of.”
“Your Honor,” said Preston. “We just discovered this evidence yesterday evening. This is the earliest we could have given notice.”
“Gentlemen,” said the judge. “approach the bench.”
When the lawyers and the court reporter had gathered at the far corner of the bench, the judge said, “I do not like this kind of argument and speaking motion in front of the jury. If you have anything more than a one- or two-word objection, approach the bench with it. Don’t toy with me on this. I can hold either or both of you in contempt. You are on notice. As to this particular objection, I will overrule the objection.”
The players returned to their places.
“Now,” said Dure. “You – and by you, I mean the Canterbury police force – searched this trailer on Monday, June 8, when you first investigated this crime, isn’t that correct?”
“Yes.”
“And you searched it thoroughly?
”
“I would assume so. Again, I did not personally conduct that search.”
“Wouldn’t you agree, Lieutenant, that the fact that the police searched the trailer on June 8 without finding this head is conclusive evidence that the head was not in the trailer on June 8?”
The lieutenant’s face was becoming flushed. “Not conclusive,” he said. “Unfortunately, sometimes people make mistakes.”
“Not only did the police search the trailer on June 8, but they searched it so thoroughly that they released the trailer back to the defendant at the end of the day, isn’t that right?”
“Yes.” The lieutenant was curt.
“Now, wouldn’t you conclude that the head that you found last night had been placed in the trailer after June 8?”
“That is certainly a possibility.”
“What efforts have the police made to determine how and when and by whom the head was placed in the trailer?”
“We just found it last night.”
“In other words, the police have made no efforts to determine how and when and by whom the head was placed in the trailer?”
“I don’t think that’s correct. We do not have any reportable results in such a short time.”
“What specific efforts have the police made to determine how and when and by whom the head was placed in the trailer?”
“I don’t know.”
“You will agree with me that the defendant could not have done it while he was in custody?”
“That makes sense.”
“Is it true or not true that the that the defendant could not have placed that head in his trailer while he was being held in custody?”
The lieutenant looked over at Houlihan. Houlihan was wearing the same pained expression he had been wearing for most of the trial. There was now, however, an added note of curiosity in his face. The lieutenant said, “I do not see how he could have, but I am not going to say that it was impossible.”
“You are not willing to say that it was impossible. So, you are saying that it was possible for the defendant to have escaped from jail, gone somewhere to retrieve the head, gone to his home, planted it in his own trailer, then, got back into jail, all without being discovered?”
The lieutenant’s face turned red again. “No, that would not have been possible.”
“Thank you, Lieutenant. Now, I noticed that the photograph produced by the prosecution was of the exterior of the refrigeration unit. Did the police take any photographs of the inside of that unit?”
“I believe so.”
“Did you give copies or originals of those photographs to the prosecution?”
“I would have to think that we did.”
“Your Honor,” said Dure. “I should like for the prosecution to produce those photographs.”
“Mr. Preston?” said the judge.
“We will produce them, Your Honor.”
“When might we expect them?” asked Dure.
“We will do it by close of business today, Your Honor,” said Preston.
“No further questions,” said Dure.
“I have some re-direct,” said Preston.
“Proceed,” said the judge.
“Lieutenant, when was the defendant arrested?”
The lieutenant checked his file again, “It was early in the morning of June 16.”
“And when did the police release the trailer into the possession of the defendant?”
“On the afternoon – or evening – of June 8.”
“So, the defendant could have put the head in his own trailer during that week from June 8 to June 15?”
“Yes, he could have.”
“Now, Lieutenant, I am sure that defense counsel would love to argue that there would be no reason for the defendant to do such a thing. In your professional experience as a law enforcement officer, can you suggest why a murderer in the defendant’s position might have done such a thing?”
“Objection,” said Dure. “Calls for speculation.”
“Approach the bench,” said the judge.
At the bench conference, the judge said, “I told you, Mr. Dure, no more than one or two words in an objection. You are skating on thin ice. I do not like lawyers to put argument to the jury through the form of objections.”
“I apologize, Your Honor,” said Dure. “The point seemed so obvious that I merely said it automatically.”
“Mr. Preston?” said the judge.
“Your Honor, the lieutenant is obviously an expert in law enforcement, and as an expert, he is permitted to opine on hypothetical questions. It is equally obvious what argument defense counsel wants to make, and the Commonwealth is entitled to put in evidence to counter it.”
“If it please the Court --” said Dure.
“The objection is overruled,” said the judge, cutting off Dure’s argument. The bench conference was over.
Preston now re-asked the question.
“For one thing,” answered the lieutenant, “in my experience, criminals often do stupid things. Sometimes you just have to scratch your head trying to understand their actions. But, in this case, a clever criminal might have reasoned that, because the police had already searched his trailer, it would be a good hiding place. He would anticipate that we would not search it again. And we wouldn’t have, if the defense hadn’t made such a big deal in court yesterday about the head’s not being found.”
“Thank you, lieutenant. You’ve been very helpful.” Preston let the jury see his big smile.
“Do you wish to re-cross-examine the witness?” said the judge to Dure.
“Your Honor, I should like to defer re-cross until we receive the photographs promised by the prosecution.”
“Very well,” said the judge.
“The Commonwealth re-calls Dr. Cleveland McCann as its next witness,” said Preston.
When Dr. McCann had taken the witness stand, Preston began with: “Dr. McCann, you had earlier examined the corpse identified as belonging to Tiffany Houlihan, did you not?”
“Indeed, yes, as I earlier testified.”
“Now, last night you were asked to do further examination, were you not?”
“Late last night, yes,” said the doctor, seeming a little put out about it.
“Please tell the Court about that examination,” said Preston.
“I was presented with a desiccated caput,” testified the doctor. “I found a penetrating wound in the dextral tempora. Upon performing an exploratory section, I found and extracted a lead pellet. This pellet, or bullet you might call it, had penetrated the frontal lobe to the corpus callosum and was undoubtedly the cause of near-instantaneous death. An unusual phenomenon with this specimen is that the laceration of the epidermis had been cauterized, as had the wall of the penetration wound.”
“Doctor, when you mentioned the bullet had penetrated the frontal lobe, you meant the brain, right?”
“Yes, in layman’s terms, the brain.”
“And for my benefit, what does ‘cauterize’ mean?”
“That means singed, or burned.”
Preston retrieved a small plastic baggie from the prosecution’s table. “I show you this bullet and ask if you can identify it.”
The doctor took the baggie in his hand and peered at what was in it. “Yes, this is the pellet which I removed from the caput.”
“Doctor, were you able to identify to whom this head belonged?”
Dure leaned over to whisper to Houlihan. While Dure and Houlihan were whispering, something the doctor said grabbed Dure’s attention. Dure sat upright and turned to give his attention to the testimony. The doctor was saying, “The blood type, AB negative, is consistent with the blood type of the body previously identified as Tiffany Houlihan . . . and this morning I received a report from a forensic orthodontologist stating that the caput is that of Tiffany Houlihan.”
“Thank you, Doctor, no further questions.”
“Is the Commonwealth not going to move the introduction of the bullet in
evidence?” asked Dure.
Preston, having already sat down, stood again and addressed the judge: “No, Your Honor.”
“May I see it?” asked Dure.
Preston delivered the baggie to Dure, who looked closely at it, then opened the baggie and poured the bullet out. He approached the witness. “Doctor, this bullet seems to be strangely deformed. Is this the condition in which you recovered it from the head?”
“Yes.”
“You did not do anything to it to deform it or modify it?”
“I did nothing to it, not even clean it. It was exactly in that shape when I removed it from the caput.”
“If I may,” said Preston, standing and interrupting, “the Commonwealth can present testimony to establish a chain of custody, and I will represent to the Court that that is the bullet that was removed from the head.”
“I will accept that,” said Dure, “and the defense moves the admission of this bullet in evidence.”
“Does the prosecution object?” said the judge.
Preston looked annoyed, but he said, “No objection.”
“It will be admitted as exhibit D-1,” said the judge.
“Doctor,” said Dure, “you previously opined that the cause of death was decapitation. Does this evidence change your opinion?”
“Well . . . not really. Decapitation remains a sufficient cause of death.”
“Doctor, I suggest to you that the victim had been shot in the head and thereafter was decapitated. Is that within the realm of medical possibility?”
“It’s possible, yes.”
Dure nodded. The doctor volunteered a clarifying comment. “We have no way of knowing if the decedent had been shot first or decapitated first.”
“You think maybe somebody cut off the head and then used it for target practice?” asked Dure with such pronounced sarcasm that the doctor’s face flushed.
