A Prosecutor for the Defense (David Brunelle Legal Thriller Series Book 4)

by Stephen Penner

  Ayala’s comfortable demeanor slipped a bit. He shifted in his seat. “Not until the next morning, actually,” he admitted. “The folks from the medical examiner collected the body that night. I got a call halfway through the autopsy from Dr. Tuttle.”

  Westerly interrupted just enough to orient the jury. “Who’s Dr. Tuttle?”

  “Dr. Tuttle is the medical examiner,” Ayala told the jury. “She was performing the autopsy when she noticed something suspicious. A couple of things actually. So she called for a detective and it was my case.”

  “Thank you,” Westerly interjected. “So what did Dr. Tuttle find suspicious?”

  Again an objection flashed through Brunelle mind. ‘Calls for hearsay.’ Ordinarily one witness can’t tell the jury what another witness told him. Westerly should have to call Dr. Tuttle to testify about what she found suspicious. But Brunelle had two problems: first, Dr. Tuttle would undoubtedly be testifying, so no real point to objecting, and second, as long as Westerly could tie it to why the detective took whatever steps he took next, the judge would overrule the objection. It had a non-hearsay use, that it, it didn’t really matter if it was truly suspicious, as long as it impacted Ayala’s next steps. So Brunelle sat on his hands again. He was beginning to fully appreciate how frustrating being a defense attorney could really be.

  “There were two things,” Ayala replied. He ticked off fingers to the jury. “First, there were bruises on her throat. Second, there was no blackening to the interior of her lungs.”

  “And what did that suggest to Dr. Tuttle?” Westerly asked.

  Ayala nodded and turned somberly to the jurors. “It was murder.”

  Brunelle rolled his eyes mentally. Very dramatic. Bravo.

  “So what did you do with this information?” Westerly confirmed Brunelle’s hearsay objection would have been overruled.

  “The first thing I did was return to the scene,” Ayala said. “The second thing I did was contact Dr. Stephenson.”

  “Why did you go to the scene first?” Westerly asked.

  “Well, before I contact a suspect,” Ayala explained to the jurors, “I want to have as much information as possible. If it was murder, then the fire was probably deliberately set. Arson. To try to cover up the murder. I wanted to see if there was any evidence of that.”

  “And was there?”

  “Yes. It was fairly obvious. Pretty amateur, actually. Someone used an accelerant—like gasoline or lighter fluid—and sprayed it on the walls every ten feet or so. There were scorch marks leading from the floor straight up to the main burn damage which was a few feet off the ground. Fire burns up, so the scorch lines told me there had been some flammable fluid poured down the walls.”

  “Then what did you do?”

  “As I said,” Ayala confirmed, “I went to speak to Dr. Stephenson.”

  Westerly folded his arms across his chest and raised one hand to his chin. “Now, did you speak to any other officers before you contacted Dr. Stephenson?”

  Ayala nodded. “Yes.”

  “Why?”

  Again a turn to the jury. “Dr. Stephenson had been informed the night before by some patrol officers that his wife had died in a fire. I wanted to see what reaction he’d had when he was told.”

  “And what reaction did he have?”

  Again a possible hearsay objection, but again Westerly had set it up so it had a non-hearsay use: how it impacted the detective’s subsequent steps.

  “They said he didn’t really show any emotion,” Ayala answered. “And the only thing he asked was, ‘Were there any witnesses?’”

  “’Were there any witnesses?” Westerly confirmed. Not because he hadn’t heard it, or didn’t know damn well that was exactly what Ayala was going to say. He just wanted the jury to hear it more than once.

  “Yes, sir,” Ayala answered. “Were there any witnesses.”

  Brunelle suppressed a wince. That really did hurt. He glanced at his client, but Jeremy was busy scrawling on his legal pad. Poor guy. He was a nervous wreck. But then again, Brunelle supposed, he probably should be. He was on trial for murder.

  Westerly nodded for several seconds, letting the words really sink in for the jury. “So, did you contact Dr. Stephenson?”

  “Yes. I called him at work and he agreed to come to the station,” Ayala explained.

  “Why would he do that?” Westerly questioned.

  After all, Brunelle knew the suggestion, he’s a murderer.

  “The other option I gave him was that I come to his office.” Ayala smiled to the jury. A few smiled back. Damn it. “I find the threat of the police coming to someone’s work usually is enough to get them to come to the station.”

  “So what happened when Dr. Stephenson arrived at the station?”

  Brunelle looked up, trying to mask his sudden spike of interest. This was a dangerous area for Westerly. What happened was Jeremy lawyered up and got arrested. But they couldn’t tell the jury Jeremy refused to answer questions. That would be a comment on his right to remain silent. Grounds for a mistrial, and maybe even a dismissal if Brunelle could convince the judge they’d done it on purpose—unlikely, Brunelle knew, but he could hope.

  Westerly’s problem was that something as brief as ‘We arrested him,’ might look like the cops jumped to conclusions, but failure to mention the arrest would leave out the logical progression of the investigation. Brunelle raised a hand to his chin and waited for Ayala’s response, expecting he would like it either way.

  “We introduced ourselves,” Ayala started slowly. Brunelle wondered if Ayala had gotten the ‘don’t mention him invoking his right to remain silent’ memo. But he supposed twenty years on the force had probably taught Ayala not to testify about that. “I explained that the autopsy had revealed his wife had murdered.”

  Westerly shifted his weight. He wasn’t supposed to lead the witness. He was supposed to ask open-ended questions. But another, ‘What happened next?’ might encourage Ayala to say something he shouldn’t.

  “And was Dr. Stephenson eventually placed under arrest for the murder of his wife?” Westerly gave in and led him. Even if Brunelle objected and the objection was sustained, Ayala would know what to say next. So Brunelle didn’t bother.

  Ayala got it. “Yes, sir.”

  “Thank you, detective.” Westerly breathed a sigh of relief. “No further questions.”

  Carlisle looked to Brunelle. “Cross examination?”

  Brunelle smiled as he stood up. “Yes, Your Honor.”

  This would be brief too, but no need to say that every time. The jury knew to pay attention now. He took the same spot at the bar. If he needed to be slightly confrontational with Jeremy’s business partner, it was absolutely necessary with the lead detective.

  “You’ve been a police officer for a very long time, haven’t you?”

  Ayala nodded and smiled to the jury. “Yes.”

  “You’ve done lots of different kinds of cases and interacted with different kinds of people, correct?”

  Another nod. “Oh, yes.”

  “And different people react differently to similar situations, right? How one person reacts to their car being stolen might be very different than the next, for example, right?”

  Ayala’s nod was a little bit more begrudging this time. “Yes,” he admitted. “I think that’s generally true.”

  Ayala wasn’t stupid. He knew where Brunelle was going. And Brunelle knew he knew. He just didn’t care.

  “I imagine you’ve responded to a lot of violent crimes, too, correct? Are people’s reactions always the same at, say, a domestic violence call?”

  Ayala twisted his mouth a bit. “Not exactly the same, but there are patterns people fall into.”

  Brunelle smiled. Ayala wasn’t going to give it up without a fight. Good.

  “Right,” he said. “Some victims are glad you’ve come to help, others are angry you’re there. Some cooperate and tell you what happened, others recant and say nothing happened, eve
n when they’ve got a black eye and blood running out of their nose, right?’

  Ayala hesitated, but nodded. Brunelle had nailed it. “Yes, that’s true.”

  “And you never know which of those reactions you’re going to get until you arrive and start talking to people, right?”

  Again a moment’s hesitation, but then the admission. “Right.”

  “There’s no right way to react, is there?” Brunelle pressed. “Everyone’s different, aren’t they?”

  Ayala frowned slightly, but agreed, “Yes, everyone’s different.”

  Brunelle could smell the smallest amount of blood in the water. “So, what’s the right way to react when someone tells you your wife is dead?”

  Ayala hesitated, which was perfect, since Brunelle really didn’t want him to answer that question. It was too open-ended. Cross exam was all about leading the witness. That was the first rule of cross: lead, lead, lead. So he jumped into the breach and rephrased the question. “You can’t say my client’s reaction wasn’t within the normal range for someone who’d just been told his wife was dead, can you?”

  “Well…” Ayala seemed ready to say just that.

  So again, Brunelle rephrased. Or rather redirected. His question alone had made his point. Time to make another. “In fact, you weren’t even there when he was told, were you? You just heard about it later, from a patrol officer who might not have anywhere near your experience, isn’t that right?”

  Westerly stood up. “I’m going to object, Your Honor. Counsel keeps asking compound questions.”

  Carlisle nodded like an owl bobble-head. “Objection sustained.” She didn’t even ask Brunelle for a response. “One question at a time, counselor.”

  Brunelle nodded to the judge. The objection was well taken. “You weren’t actually there when my client was told his wife was dead, were you?’

  Ayala sat up straight. “No, sir.”

  “Thank you.” Brunelle nodded. Point made. Time to move on. “You did the fire investigation yourself, is that correct?”

  Ayala pondered for a moment. “I wouldn’t call it a fire investigation exactly. I investigated the crime scene and saw evidence of arson.”

  “But you’ve never been an arson investigator, have you?” Brunelle remembered their interview weeks earlier. He knew Ayala did too.

  Ayala surrendered a small grin. “No, sir. That’s correct. But I’ve seen plenty of fires.”

  Brunelle nodded affably. “Of course you have. And you’ve seen plenty of dead bodies. Do you perform the autopsies?”

  Ayala’s grin faded a bit. “No, sir.”

  “And you’ve carried a firearm for twenty years or more,” Brunelle went on. “Fired tens of thousands of rounds at the firing range, I’m sure. Do you examine bullets and casings for ballistics comparisons?”

  Ayala crossed his arms. The smile was gone. “No, sir. The crime lab guys do that.”

  “Have you ever worked a case with fingerprint evidence?”

  “Yes, sir.”

  “Did you do the fingerprint comparison yourself?”

  “No, sir.”

  “Have you ever collected DNA from a suspect?”

  “Yes, sir.”

  “Did you do the DNA analysis yourself?”

  “No, sir.”

  Brunelle could have gone on, but he knew when to stop. “But in this investigation—this murder investigation—you felt qualified to do the fire investigation yourself, is that right?”

  Ayala uncrossed his arms and finally remembered to talk to the jury again. “I inspected the scene. When I did that, I saw obvious scorching from the use of an accelerant. I don’t need to examine the gun to know when somebody’s been shot, and I didn’t need a fire investigator to tell me that fire had been deliberately set.”

  Brunelle actually believed Ayala, but it didn’t matter. Not when he had a job to do. “Could you tell when it was set?”

  Ayala cocked his head. “When?”

  “Yes, when,” Brunelle repeated. “Was it set before or after Vanessa died?”

  Ayala’s brow knitted together. “Dr. Tuttle concluded it was set after she died.”

  “So that conclusion was based on the autopsy,” Brunelle clarified, “not your fire investigation?”

  Ayala considered a moment longer, just to be certain, then answered. “That’s correct.”

  Brunelle nodded. “Thank you. No further questions.”

  As he sat down, Jeremy broke the legal pad rule and whispered, “What does that have to do with anything?”

  Brunelle just smiled. If Jeremy was wondering, then so was the jury.

  Chapter 36

  After Ayala, Westerly called a parade of lesser witnesses. Officers and firefighters and evidence technicians. Jeremy’s question to the police began to seem prophetic: there were no witnesses. Not really. No one saw the fire start or Vanessa die. It was all collecting evidence afterward, taking statements, writing reports, blah blah blah. Necessary for the investigation, but boring for the jury. Still, Westerly had to call the witnesses necessary to prove his case. And he knew to finish strong.

  “The People call Dr. Sylvia Tuttle.”

  The small-framed medical examiner flitted into the court room, clad in a well-tailored brown suit, and quickly took her seat on the witness stand. She was a sparrow to Carlisle’s owl.

  Westerly started with the usual: name, rank, serial number, and medical degrees. Tuttle had been with the medical examiner’s office for X years, she’d done over X-thousand autopsies, she went to X medical school, and did her residency at X hospital. Then it was time to get to the important stuff: the autopsy.

  “Did you perform an autopsy in this case, doctor?” Westerly asked.

  “Yes,” Tuttle replied with a confident nod. “I performed an autopsy on Vanessa Stephenson.”

  “And afterward,” Westerly stepped over to his counsel table and picked up a multi-page document, “did you write an autopsy report regarding your findings?”

  Tuttle nodded again. “Yes, I did.”

  “Would it help your recollection if you could refer to your report while testifying?”

  “It might,” Tuttle replied. “I do a lot of autopsies. I did four that day, if I recall correctly.”

  Westerly handed Tuttle the report, which he’d previously had marked as an exhibit by the bailiff. Tuttle identified it as her autopsy report and Westerly moved on to the details.

  “What did you determine was the manner of death in this case?”

  Tuttle raised her chin slightly. “The manner of death was homicide.”

  Brunelle noticed she was delivering her answers to Westerly, not the jury, which suited him just fine. Still, he found it curious. She’d undoubtedly testified enough times to know she should turn to the jurors when answering questions. Maybe, Brunelle let himself hope, she was a bit uncomfortable in her conclusions.

  “How did you reach that determination?” Westerly asked.

  “It was a combination of several factors,” Tuttle replied. “The external examination, the internal examination, and the circumstances under which the body was found.”

  Brunelle liked that answer. It gave him room to push her around on cross.

  “Let’s start with the external examination,“ Westerly said. “What did you observe that helped you conclude this was a homicide?”

  “There was bruising to the throat,” Tuttle answered. “Specifically, fingerprint bruises.”

  “And what are fingerprint bruises?” Westerly asked wisely. There might well be someone on the jury who would think that meant the killer actually left his fingerprints behind.

  “Fingerprint bruises are bruises that are the size and shape of fingerprints,” Tuttle explained. “They don’t actually leave behind fingerprints, but they are made by pressure from fingers. It tells me that she was strangled manually and not with some sort of ligature, which would have left a long, thin bruise around the entire neck.”

  Brunelle recalled that Tuttl
e hadn’t actually noticed those bruises until she opened up the lungs. Another fertile area for cross. Recalling that Kat had been there for that interview, he turned back quickly to glance at her, wondering what she thought of Tuttle’s testimony.

  Kat and Lizzy had spent every minute of the trial sitting in the front row, right behind Jeremy. It was important that the jury knew the defendant had family who cared about him. Up to that point, Kat had been there just for moral support—Jeremy’s and Brunelle’s. But this was different. Brunelle didn’t care how she was feeling about the father of her daughter being tried for murder—well, not just that anyway. He cared what she thought about Tuttle’s testimony professionally.

  But Kat wasn’t looking at him, or even at Jeremy. She was leaning forward, her chin on her fist, staring intently at her colleague on the stand.

  Brunelle smiled to himself at her professional intensity, and turned back around. He needed to pay attention to the witness too.

  “What did you discover,” Westerly asked, “during the internal examination that helped you determine it was a homicide?”

  Tuttle finally turned to the jurors. “When I cut open her lungs, they were perfectly pink inside.” Something she was sure of, Brunelle noted.

  “And why was that significant?”

  “Because when someone dies of smoke inhalation,” Tuttle explained to the jury, “the inside of their lungs are blackened.”

  “And that wasn’t the case here?”

  “No.”

  “So what does that mean?”

  “It means,“ Tuttle announced, “that she was dead before the fire started.”

  Westerly took a moment to nod and pretend to gather his thoughts. Brunelle knew he wanted that bit of logic and conclusion to sink in with the jury before he moved on.

  “So if the manner of death was homicide,” he finally asked, “what was the cause of death?”

  “The cause of death was strangulation.”

  “And how do you know that?”

  “The combination of bruising on her throat and the fact that she wasn’t breathing during the fire,” Tuttle explained. “And there was no other indication of any other cause of death such as blunt or sharp force trauma.”