Juggling Evidence (A Robin Starling Courtroom Mystery)

by Michael Monhollon

  I sat in district court waiting for the sheriff’s office to show up with my clients. Here on the day of the preliminary hearing, I had no plan of action and no theory of the case. I’d already said hello to Matt Nolan, who was sitting in the gallery behind the rail. There was nothing to do but wait.

  Finally, Steve Bruno and Lynn Nolan entered the courtroom, followed by a deputy sheriff. They were wearing street clothes, but had their hands cuffed in front of them. I frowned. There was no jury in a preliminary hearing, but they should have been uncuffed outside the courtroom.

  “How’d you sleep?” I asked them as the deputy sheriff uncuffed first Lynn, then Steve Bruno.

  Bruno answered. “About as well as you’d think.” He’d always been lean, but his eyes seemed more sunken and his cheeks more hollow than I remembered.

  “Will it all be over soon?” Lynn asked.

  I made a face. “I’m afraid not. Sit down.” They both dropped tiredly into chairs, and I said, “This is a preliminary hearing. The prosecution doesn’t have to prove anything beyond a reasonable doubt. It only has to show probable cause to hold you for the crime of murdering Derek Nolan.”

  “And it’s not hard to show probable cause?” Bruno asked.

  “No. Especially not in this case, where they’ve got a staged suicide and the handgun in Lynn’s closet.”

  “What have they got against me?” he asked.

  “We’ll find out. Hearsay’s not admissible in a preliminary hearing any more than it is in a final trial, so we’ll get a look at some of the prosecution’s major witnesses. It’s what makes this rigmarole worthwhile.”

  He nodded. Lynn was staring off into space and didn’t seem to be paying attention.

  Aubrey Biggs entered the courtroom, and I sat up straighter. I hadn’t expected to face the district attorney himself in the preliminary hearing. Biggs, ironically, was a short man with a puffy face and a full head of curly hair. Though I’d never seen him in court, he had a reputation for being good. “Ms. Starling,” he said, stopping at my table and extending a hand across it.

  I stood and took it.

  “It’s an honor to meet you,” he said. “I know you by reputation.”

  “Likewise,” I said, though Aubrey’s tone seemed more consistent with an insult than a compliment.

  The bailiff came in, bringing with him a cluster of people whom I took to be witnesses in the case. I recognized James Jordan and Stephanie Hoard, the cop who had been so irate at not finding Lynn Nolan in Steve Bruno’s room at the Berkeley Hotel. Another cop in uniform looked familiar: I thought he might have been one of the responding officers the night of the murder. Also there were Liz Lockard and several people I didn’t recognize.

  A man with thinning, red-blond hair looked in at us from the judge’s chambers, and I had another sinking feeling. I knew the man. He was the court reporter for District Judge Cochran, whose courtroom I had once fled midtrial to avoid arrest.

  Cochran came in, and we all stood. He held out a hand, palm downward as he took his seat, and we all sat.

  “Are we all here?” Cochran asked. He was only in his mid-thirties, young for a district judge. His dark hair was clipped close, and he had a trendy goatee.

  “Aubrey Biggs for the prosecution,” Biggs said, standing.

  “Good morning, Mr. Biggs,” the judge said with a half-smile.

  “Robin Starling, your honor,” I said, getting to my feet.

  “We meet again,” Cochran said. Out of the corner of my eye, I saw Bruno and Lynn both glance in my direction.

  “Once more into the fray,” I said.

  “Don’t push it, Ms. Starling,” Judge Cochran said.

  “No, your honor.”

  “Steven Bruno, will you stand?” the judge said.

  Bruno stood beside me.

  “You are represented by Robin Starling?”

  Bruno looked at me as if he were reconsidering the wisdom of that, but he said, “Yes, your honor.”

  “Lynn Nolan?”

  Lynn stood.

  “You are likewise represented by Ms. Starling?”

  She said she was.

  Cochran told them about their constitutional rights and asked them if they understood those rights. They said they did. “We’ll now go on to a reading of the complaint.” He read it, charging each of them with feloniously killing and murdering one Derek Nolan against the peace and dignity of the commonwealth. The complaint didn’t tell us anything more about the case than we knew already, but it was all part of the dance.

  “Because this is a felony case, I will not call on you to plead,” Judge Cochran told the defendants, both still on their feet. “This is a preliminary hearing. I will be hearing evidence in accordance with the rules of evidence applicable to criminal trials in Virginia, but the standard of proof is not beyond a reasonable doubt. My job is only to determine whether there is sufficient cause to charge you with the crime named in the complaint. If I find there is, I will certify the case to the appropriate court having jurisdiction and will commit you to jail or let you to bail pending the main trial. At this hearing, you may cross-examine witnesses and may call witnesses on your own behalf. You may also testify in your own behalf, but you are not required to do so. Do you understand the purpose of the hearing today?”

  “Yes, your honor,” they both said, not quite in unison.

  “You may be seated. Mr. Biggs, would you like to make a brief opening statement?”

  “I would, your honor. Before I do, let me say that this case has some unusual elements, and I would like for the testimony of the witnesses to be reduced to writing.”

  Cochran looked at the witnesses in the gallery of the courtroom. “Do you have some reason to believe that one or more of these witnesses will become unavailable before the main trial?”

  “No, your honor.” He looked at me. “I have reasons that I would prefer not to go into at the present time, but that I think will become apparent as the hearing progresses. I have provided these reasons to Circuit Judge Nancy Robinson and have an order signed by her that the testimony be reduced to writing.” He took the document to the bench and then came by my table to give me a copy. This being only my second preliminary hearing, I had never seen such an order before, but it seemed to be in proper form.

  “Very well,” Cochran said. He gave his stenographer a nod, and the stenographer went after his Stenograph. “We’ll take just a few minutes to get set up.”

  It didn’t take even that long. When the stenographer told the judge he was ready, Cochran nodded at the prosecutor. “Mr. Biggs.”

  Aubrey Biggs went to the podium facing the judge, where he paused to adjust his glasses and smooth his tie. “Your honor, the prosecution’s burden in a preliminary hearing is to show probable cause for holding the defendants to answer for the murder of Derek Nolan. The evidence will show that he was killed with a Smith & Wesson .38 caliber revolver, which was found in a shoebox in defendant Lynn Nolan’s bedroom. A different gun, a 9mm automatic, was beside the body not far from the decedent’s right hand, and a purported suicide note was on the printer of his computer. The 9mm automatic and the note carried Lynn Nolan’s fingerprints. The Smith & Wesson, the murder weapon, had been wiped clean.

  “The Nolans’ marriage may not have been a happy one. The defendant at the time of her arrest was bruised on one side of her face. It is possible and even likely that she was the victim of spousal abuse. The defense may introduce evidence of this abuse as justification for the crime, but it is the state’s position that the bruising, inflicted many hours prior to the shooting, does not rise to the level of legal justification. To the contrary, we will show that Mrs. Nolan had taken a lover, defendant Steve Bruno, which may have been the motivating factor in both the abuse—if there was abuse—and the murder itself.

  “That’s the gist of our case, your honor. The details will emerge as the trial proceeds. I don’t think I need to take up the court’s time with any more right now.” Biggs sat down.
As an opening statement, his remarks were pretty sketchy, but in a preliminary hearing there was no jury to sway. The beauty of the statement, from the prosecution’s point of view, was that it gave me almost nothing to work with.

  “Ms. Starling?” Cochran said. “Your opening statement.”

  I stood. I had no theory of the case, at least none that I could produce any evidence to support. “The defense will reserve its opening statement until the beginning of its case, your honor,” I said.

  Cochran nodded. “Mr. Biggs, call your first witness.”

  Biggs called Officer Justin Taylor, one of the two police officers who were first on the scene. After he had identified himself, Biggs asked him whether, on the evening of October twenty-third, he and his partner had gone to the Nolan residence on Grace Street.

  “We did.”

  “Why?”

  “The dispatcher sent us.” Taylor had evidently given testimony before. He didn’t try to tell us what the dispatcher told him. He didn’t say, for instance, that someone at the house had dialed 911 and hung up, that the dispatcher had tried calling back and received no answer. From Taylor’s mouth that would be hearsay, because his knowledge was based on what others had told him. The prosecution could establish the facts by calling the dispatcher, but I thought it unlikely that Biggs would bother.

  “What did you find when you got to the house?”

  “It’s one of those old row houses in Church Hill with servant quarters in the basement,” Taylor said. “One set of steps goes up to the front door; another set goes down to a separate apartment, which was set up as an office. The front door to the main house was closed, but light was coming from the open door of the lower apartment, and a young man was standing on the steps.”

  “Do you know who?”

  “Yes. The young man sitting in the gallery behind the defense table.”

  Biggs turned. “Matt Nolan, will you stand please?” He asked Taylor, “Is that who you mean?”

  “Yes, it is.”

  “What did you do next?”

  “My partner asked if everyone was all right. The young man said not exactly.”

  “Those were his words?”

  “Yes.”

  “Then what happened?”

  “A woman came to the door and said there was a body.”

  “Could you identify that woman?”

  “It’s the woman sitting next to the defendants.”

  Biggs turned to me with his eyebrows raised, as if this were a surprise to him. “Counsel for the defense?” he asked his witness. “Robin Starling?”

  “Yes, sir.” I’d expected this, but what really chapped my behind was that Judge Cochran was looking at me as if this were a suspicious development.

  “Then what happened?” Biggs asked.

  “My partner Reagan McNally and I went down into the apartment, which as I said was fixed up as an office. The decedent was lying by an overturned chair behind the desk. There was a woman standing over him.”

  “What woman?”

  “The defendant, Lynn Nolan.”

  “Did she say anything?”

  “Yes. She said, ‘It’s my husband. He’s killed himself.’”

  “She wanted you to think it was a suicide?”

  “She…”

  “Objection,” I said, interrupting as I jerked to my feet. “Officer Taylor hasn’t been qualified as a mind reader.”

  Cochran looked at Biggs, who didn’t say anything. “Sustained,” he said.

  “She told you it was a suicide, didn’t she?” Biggs asked.

  “Objection,” I said again. “Leading.”

  “Sustained,” Cochran said. On direct examination, it is generally not permissible to ask questions phrased in such a way as to suggest the answer.

  “Did she say anything about how her husband met his death?” Biggs asked.

  “Asked and answered,” I said.

  Biggs looked at me. “I’ll withdraw the question,” he said. He went to his table and picked up an eight-by-ten photograph. He handed it to me. The picture had been taken from the side of the desk. It showed the overturned chair, the body with the out-flung arm, the pistol lying on the carpet. I handed the photograph back to him, and Biggs, getting a nod from the judge, took it to the witness.

  “I show you a photograph and ask you if this is what you saw.”

  Taylor took it. “Yes. This shows the position of the body relative to the desk and to the credenza behind it, and shows the position of the pistol relative to the body.”

  “I’d like to have this marked State’s Exhibit 1, your honor.”

  The court stenographer marked it. Biggs went back to his table and picked up another photograph. He brought it to me, then showed it to his witness and asked him to identify it. This went on for some time. When Taylor had identified nine photographs, and they had all been marked, Biggs moved to admit them into evidence.

  I half-stood. “No objection.”

  My clients looked at me unhappily as I dropped back into my seat.

  Cochran said, “State’s Exhibits one through nine are admitted into evidence.”

  “No further questions,” Biggs said.

  “Ms. Starling, you may cross-examine.”

  I went to the podium. “Officer Taylor,” I said. “How far away was this pistol from the decedent’s hand?”

  “A few inches.”

  “From the right hand?”

  “Yes.”

  “One of the photographs showed paper on the printer. Do you know how many sheets?”

  “One, I think.”

  “Did you read it?”

  “Not then.”

  “But subsequently?”

  “Yes.”

  “What did it say?”

  Biggs stood. “Your honor, we will be introducing this paper at a later time. It is itself the best evidence as to what it said.”

  “Is that an objection?” the judge asked him.

  “Yes, your honor.”

  “Sustained.”

  “Officer Taylor,” I said. “How long have you been a police officer?”

  “Fifteen years next month.”

  “In that time, at how many death scenes have you been present?”

  He shifted in his seat. “Somewhere between six and a dozen.”

  “Here we have a man who had evidently been sitting at his desk. He has a bullet wound in the side of his head and a pistol near his right hand. It looks at least superficially like the scene of a suicide, does it not?”

  “I suppose so.”

  “No further questions.”

  “No redirect,” Biggs said. “Call Dr. William Birdsong.”

  Birdsong was a deputy coroner with the medical examiner’s office. After establishing his credentials, he testified that Derek Nolan had died of a gunshot wound to the right side of his head. “The bullet entered the head just over the ear, moving on a flat trajectory, and flattened against the skull on the opposite side of the head. There was no exit wound.”

  “How far away was the gun when the bullet was fired?”

  “More than two feet, probably more than three.”

  That eliminated the possibility of suicide, though even on day one I’d had no hopes of it.

  “Can you tell us when death occurred?” Biggs asked.

  “Based on the temperature and the condition of the body, along with the contents of the stomach, I would say between eight and eight-forty-five, probably between eight-fifteen and eight-thirty.”

  “Did you recover the bullet?”

  “I did. Police detective James Jordan was present. I put the bullet in an envelope and sealed it. Both of us signed the envelope across the flap and I turned it over to him.”

  “Cross-examine.”

  I crossed to the podium. Biggs’s examination had been very brief, asking for conclusions without eliciting any of the facts on which those conclusions were based. Since I was going to be seeing this same witness in the jury trial, I needed to know
those facts.

  “How did you establish the probable time of death?” I asked.

  “Well,” Dr. Birdsong said, settling himself more firmly in his chair, “I first examined the body at the scene, beginning my examination at 10:36. At that time, rigor mortis had not begun, and there was no postmortem lividity. Body temperature was 95.4 degrees. Since at room temperature the body would be expected to lose about one-point-five degrees per hour, that would put the death right at eight-thirty — perhaps just a few minutes earlier.”

  “That seems unusually precise. I’d like to go through each factor in turn. My understanding of rigor mortis is that its absence tells you only that death occurred within the last three to six hours.”

  “That’s correct.”

  “So the lack of rigor mortis tells us that death occurred no earlier than 4:36 that afternoon.”

  “Absent unusual circumstances, yes.”

  “And the absence of postmortem lividity also gives no more than an outside limit on the time of death.”

  The doctor was nodding. “Four hours,” he said.

  “So death occurred no earlier than 6:36.”

  “That’s right.”

  “And when you say the rate of cooling is about one-point-five degrees per hour…”

  “It’s a range, generally from one degree per hour to one-point-five.”

  I did a quick mental calculation. “So based on body temperature alone, the time of death could have been as early as seven-thirty.”

  “That’s right.”

  “And isn’t there usually some uncertainty about the exact baseline temperature from which the cooling started?”

  “Yes, there is.”

  “Which would even further expand the possible range for time of death.”

  “Yes.”

  He was beginning to irritate me.

  “Since the only other factor you referred to was the contents of the stomach, I can only assume that those were themselves conclusive.

  “Yes. The stomach was full, and digestion of the contents had only just begun. Death occurred within thirty minutes of eating, perhaps within fifteen.”

  “Did you have dinner with the decedent, doctor?”

  “I did not.”

  “You didn’t call him on the phone and interrupt his dinner?”