Second Degree (Benjamin Davis Book Series 2)

by A. Turk

  Davis thought, Pierce is just baiting Tanner.

  The judge’s retort was an old Rolling Stones’ song, which he practically sang, “Well, you can’t always get what you want.”

  Davis recognized the lyrics. He sang them to his children on many occasions.

  “I’ll give you half an hour. That should be more than sufficient.”

  Pierce was just preserving the record for an appeal. She’d argued that Judge Tanner’s failure to recuse himself was reversible error. “Please note my objection.”

  “Let’s hear why I’m unqualified to sit on this case.”

  “This is a simple motion. Judge Tanner issued three search warrants for Robyn Eden’s apartment, and they contained inaccurate information provided by the Hewes City Police Department. The affidavit of Detective Haber, upon which the search warrants were issued, was based on the assertion that Dr. Garcia had been convicted of possession of a controlled substance, possession of drug paraphernalia, and endangerment. These statements were not true. The only criminal record of Dr. Garcia was a pretrial diversion in Kentucky for dispensing and prescribing a controlled substance.”

  Pierce was correct. Haber’s affidavit was inaccurate because the information provided by the Deputy Clerk of Jefferson County was incorrect. Judge Tanner issued the three search warrants on the bogus affidavit.

  Pierce continued, “As the court stated at the beginning of this hearing, in two weeks the motion to suppress will be heard, and it is the defendant’s position that Judge Joe Tanner shouldn’t hear that motion because of his involvement in the issuance of the search warrants.

  “Under Tennessee law and the Code of Judicial Conduct, the court must recuse itself. The question is not whether His Honor is biased, but rather to the ordinary citizen, is there the appearance of impropriety? The court’s search warrants uncovered the evidence that the defendant is entitled to exclude. We submit that the average citizen on the street would be concerned that this court, because of its involvement in securing the search warrants, would conclude that Judge Tanner could be biased, therefore the appearance of impropriety.”

  “Mr. Davis, what do you have to say?”

  “We’ve briefed this issue. We think the second and the third search were consensual. The apartment manager gave consent to the second. Senator Valerie Daniels, the victim’s sister and guarantor of the lease, gave the Hewes City police permission for the third. We also contend that whether the search warrants were properly issued isn’t relevant to this court’s ability to hear this case. We also believe that the court is eminently qualified and that there isn’t even the appearance of impropriety.”

  Judge Tanner was known for his bench rulings. Unlike most judges, he was prepared and didn’t take many matters under advisement. “I’ve heard arguments, and I’ve read the briefs. I am prepared to rule.”

  The judge read from a piece of paper. He’d obviously handwritten what he was going to say before the hearing. “The defendant has moved to recuse the court because the court issued three search warrants, which the defendant asserts were based on an affidavit containing inaccurate information. The defendant asserts that the discovered evidence should be excluded. In 1979, the Tennessee Supreme Court in Hawkins v. State rejected such an argument as the basis for recusal. In conclusion, the court finds that no reasonable person would question the court’s impartiality.

  “The hearing on the motion to suppress shall proceed in two weeks.”

  He turned to Davis and said, “Mr. Davis, you have a motion to increase the existing bond. You’ve asked to submit evidence in support of this motion. What evidence?”

  “That depends, Your Honor. I’ve asked Ms. Pierce to stipulate as to the conditions of her client’s probation in the Jefferson County, Kentucky, Criminal Court. Ms. Pierce has not responded. The court could take judicial notice of those conditions.”

  “And what would you prove, Mr. Davis?”

  “That Dr. Garcia knowingly and intentionally violated his conditions of probation by leaving the continental United States and going on vacation with Ms. Eden in Nassau, Bahamas. The court can also take judicial notice that Nassau is not part of the United States. I can present plane reservations for flights and receipts for purchases on the island.”

  “When did this trip occur?” Tanner asked impatiently.

  “Ten weeks before Ms. Eden’s death. That’s when he impregnated the victim.”

  The judge hadn’t yet read the autopsy report. He was shocked, which was the effect Davis wanted. The courtroom was silent about two minutes while the judge digested this latest information. He decided to just move on with the pending motion.

  “What do you have to say, Ms. Pierce?”

  Pierce stood and addressed the court, “I’ve been advised that Dr. Garcia’s probation officer, Mr. Baxter, was aware of that trip and gave him permission to go.”

  Davis jumped to his feet. “I remind the court that Dr. Garcia was born in Majorca and holds dual citizenship. I’ve not been able to communicate with Mr. Baxter. He recently retired and hasn’t returned my telephone calls or responded to my letters.”

  Pierce set Davis up beautifully. She produced the affidavit of Alan Baxter, retired probation officer, that confirmed he gave Garcia permission to leave the country for the vacation.

  Pierce then added, “Dr. Garcia will also sign an agreement not to make application to the Majorcan government for a substitute passport, which can be provided to that government.”

  “Does that satisfy you, Mr. Davis?”

  “No, sir. Dr. Garcia has access to money. Even without his passport he could disappear from the jurisdiction of this court. He’s surrendered his Tennessee medical license, neither he nor his parents live in the state, and the Kentucky probation has not restricted his travel outside the country. I’d like to ask the court to deny bond and hold him till trial, but I know that would be overreaching.”

  Tanner stated, “You’ve asked to increase the bond to $2 million. I’ll split the difference. The bond is increased to $1 million. Officer, please take Dr. Garcia into custody and process him in the Hewes County jail until he satisfies the additional $500,000 required for him to remain on bond.”

  A small victory, Davis thought. Charlie Garcia will spend a short time in jail, and his parents will lay out more money.

  It was actually a better victory than Davis thought. Charlie spent two days in the Hewes County jail while Señor Garcia arranged the wire to the clerk’s office. He had to move some funds around. In the meantime Charlie was intentionally placed in a cell with an inmate who might try to get to know Charlie better. Charlie remained awake more than forty hours to protect his honor.

  CHAPTER FORTY-SIX

  A CRITICAL HEARING

  Friday, November 24, 2000

  Charlie understood that today’s hearing was critical to the defense of his case and his acquittal from all charges. If the three search warrants were held invalid, the sex video, sex toys, and drugs seized at the apartment would be excluded from evidence. If the jury never got to see the video, handle the sex toys, or learn about the drugs at the apartment, Pierce assured Charlie that the jury would have reasonable doubt as to murder.

  The parties, through their briefs, had their opportunity to emphasize whatever legal points and precedents they felt were persuasive. The oral argument lasted all morning, first Pierce, next Steine, and then Pierce again.

  Charlie begrudgingly had to admit that old man Steine had done a masterful job. He was also very satisfied with Pierce. She emphasized all of the reasons to exclude the evidence and hold the search warrants invalid, but something about Steine drew the listener, especially the judge, because Steine directed all of his attention at him. The old man was going to be a real problem at trial. Charlie needed to get his father to neutralize Steine.

  Judge Tanner adjourned court until three and indicated at that time he would rule on the defendant’s motion to suppress the search warrants.

  Pierce elect
ed to have a working lunch, so Charlie, Harrelson, and his father lunched together. In a quiet voice at a restaurant in walking distance of the courthouse, Mother’s, Charlie broached what was on his mind, “Steine’s a real problem. He’s too good. The judge respects him, and a jury will love the old bastard. Davis is good, but in a criminal trial, he’s out of his element. How can we get Steine out of the picture?”

  Harrelson, who had no problem bending the rules and often broke some, didn’t like where this conversation was headed. “Charlie, you’re already in a lot of trouble. We might not want to complicate things.”

  Charlie was prepared for this objection, “He’s an old man with a heart condition. Why would an accident be suspicious? These proceedings must be stressful for him. I know they are for me, and I’m fifty years younger. We just need to figure a way to nudge him ever so slightly over the edge, and then he’s gone.”

  Harrelson responded too loudly, “You’re playing with fire.”

  Señor Garcia remained quiet throughout the conversation. Charlie could tell he was thinking and didn’t want to commit one way or the other.

  At three o’clock the parties returned to the courtroom. Judge Tanner took the bench, and after everyone was seated, he began, “This is the defendant’s motion to suppress the July 5th, July 6th, and July 8th search warrants issued by this court.”

  Pierce stood and was acknowledged by Judge Tanner. “Your Honor, the defendant renews his motion for the court to recuse itself from ruling on this motion and to remove yourself from the case because the court erroneously issued the search warrants.”

  “I’ve ruled on that motion, Ms. Pierce. Don’t push your luck.”

  Pierce was trying to goad the judge, hoping he might say something that would help on appeal. She wasn’t afraid of him. Charlie didn’t think she was afraid of anything.

  “Judge, I just note for the record that it’s the position of the defendant that the court is committing reversible error and that the trial of this cause will be null and void, a waste of taxpayer dollars.”

  “I’m sure that you and your client are worried about the taxpayers. I will not tolerate any further interruptions of my rulings. Sit down and shut up.”

  Charlie understood what Pierce was doing. She’d shared her strategy before they returned to court. If Judge Tanner was going to suppress the evidence, Pierce’s exchange would make no difference in the outcome of the judge’s decision. However, if Judge Tanner was going to hold that the search warrants were valid, then by her disrupting his ruling and angering him, Tanner was more likely to make a mistake and create appealable issues.

  The judge got back on track. “The first question that must be considered is whether Dr. Garcia has standing to challenge the search warrants. The undisputed proof is that Dr. Garcia was a guest at Ms. Eden’s apartment. Under the law an overnight guest does have an expectation of and is entitled to privacy. It is also an undisputed fact that Dr. Garcia over the last year gave money to Ms. Eden, which she used to pay her expenses, including her rent and other expenses associated with the apartment. However, the proof is also clear that Dr. Garcia was not a tenant on the lease. Ms. Eden and her sister, Valerie Daniels, were. Dr. Garcia did have his own key and did enter the apartment when he wanted, without the continuous permission of Ms. Eden.”

  Charlie whispered to Pierce. “Where’s this going?”

  “I don’t know, but it seems to me like he’s about to exclude the search warrants. Just listen.”

  “It is undisputed that twice on July 4th the Hewes City police at the apartment and then again at the Hewes County Hospital asked and were refused by Dr. Garcia to search. As an overnight guest, it was within his right of privacy to refuse the search.”

  Charlie smiled and squeezed Pierce’s hand. She squeezed back. Charlie was confident for the first time that the search warrants would be thrown out. The system was about to work despite that convincing old man. Charlie refocused on the judge.

  “Detective Haber on the morning of July 5th submitted to this court an affidavit, upon which this court issued the first of three search warrants. Detective Haber’s affidavit contained inaccurate information. The affidavit asserted that Dr. Garcia had been convicted of improperly prescribing a Schedule III drug to the victim in Jefferson County, Kentucky, during the 1999 Kentucky Derby. This was not completely accurate. Dr. Garcia was not convicted. He pled ‘no contest’ and was placed on probation. There was no conviction or guilty plea. For this reason I must rule that the first search warrant is invalid and must be struck.”

  Charlie turned to Harrelson and his father. “One down and two to go.”

  “As to the second search on July 6th, which is based upon the consent of the manager of the apartment complex, I also hold that this search was invalid. The apartment manager testified that he was unaware that Dr. Garcia, who was at least a regular overnight guest, had refused to give permission to search. The manager also testified that on July 6th, he was told that there was a valid search warrant issued by this court the day before. For these reasons, I hold that the second search on July 6th was not consensual and was not valid.”

  Charlie got an encouraging look from both his father and Harrelson.

  “The third search, on July 8th, based on the consent of Valerie Daniels, who was on the lease, is the most troubling. Did Ms. Daniels have greater property rights in the apartment than Dr. Garcia? She was a tenant, and he was an overnight guest. She did have a greater property right, even if Dr. Garcia gave Robyn Eden rent money. How she used the funds was in Robyn Eden’s discretion. However, could Ms. Daniels, vested with her greater privacy rights, overturn Dr. Garcia’s refusal to search? I hold that she did not, and therefore the third search was invalid.”

  Pierce grabbed Charlie by the arm. They were three for three. All three searches had been struck down. Charlie looked over at the Davis team. They didn’t look despondent. In fact, Steine smiled at him.

  “As discussed in Mr. Steine’s brief, this court holds that despite the fact that the searches of July 5th, July 6th, and July 8th have been struck down, the court finds that the tapes, sex toys, and drugs found at the apartment are admissible into evidence under the Inevitable Discovery Doctrine, which is discussed in the last two pages of Mr. Steine’s brief. According to the United States Supreme Court in the Nix case, if the evidence is in plain view and the police are on site for a legitimate law enforcement reason, a valid search warrant is not required for the police to take into evidence those items in plain view. It was Dr. Garcia who called 911. He had a reasonable expectation that the Hewes City police would come to the apartment and render assistance.

  “On the floor of the bedroom was a dying Robyn Eden. In front of the bed was a camera on a tripod, and it was running. It was reasonable for Dr. Garcia to expect the police to want to view the tape, to determine what happened to Robyn Eden.

  “At the time the police arrived, it was reasonable for the police to enter the bathroom of the apartment to see if anyone else was present or if there was anything in plain view that could assist them in the care of Robyn Eden or to determine what happened to Robyn Eden. In plain view were the drugs that proximately caused Robyn Eden’s distressed medical condition and ultimate death. Also present at the bedside and in the bathroom in plain view were the sex toys depicted in the video used by Dr. Garcia with Ms. Eden. Whatever was found in the nightstand drawer was not in plain view and therefore inadmissible. All other evidence in plain view will be admissible at this trial. A written order will be filed tomorrow, consistent with my ruling.

  “I’m also entering a gag order. We’re not going to turn this case into a circus. As much as I don’t want to, I’ve decided that the jury’s going to be sequestered, so it makes sense to limit what the parties say to the press. Nothing will be said. Your only words will be, ‘no comment.’ Listen up, if anyone violates this gag order, especially the lawyers who are officers of this court, they will be my guest in the Hewes County jail. Don’t te
st me, people.”

  With that Judge Tanner handed down a detailed pre-prepared gag order, which he was confident would be obeyed. The judge left the bench. Pierce and Charlie were stunned. They half expected at least one or more of the searches to be held valid, but Steine had placed so little emphasis on the Inevitable Discovery Doctrine that they were genuinely surprised by the fact that Judge Tanner had hung his ruling on that alone.

  Charlie thought, We’ve got to get rid of that old man. He even growled at the old man as Steine and Davis left the courtroom.

  CHAPTER FORTY-SEVEN

  THE CONSPIRACY MOVES FORWARD

  Thursday, December 21, 2000

  Harrelson met Señor Garcia for an early lunch at the 21 Club on the Upper West Side.

  “Hello, David, what do you hear from Ms. Pierce about Charlie’s upcoming trial?”

  It was a rhetorical question. Señor Garcia was in constant contact with both Harrelson and Pierce. He knew more about the defense than Pierce since he and Harrelson were orchestrating the defense and fabricating most of the evidence.

  Harrelson and Señor Garcia were the only two who knew all of the details of the false testimony and contrived expert testimony. It was better that Charlie didn’t know the details; Charlie actually liked it that way. Pierce would ultimately be fully informed because she would be the one introducing the evidence. They both knew Pierce had her price, and she’d do anything to win. She was ruthless. That’s what they liked about her.

  “Have you heard any more from Baxter?”

  “He’s got the witness lined up. She has agreed to twenty-five up front and another fifty after she testifies. He assures me that Nix will be convincing and that her testimony will be extremely damaging to the state’s case. He has all the information he needs, so she’ll testify with sufficient detail and she’ll be believable. I’m still working on getting access to the evidence locker of the Hewes City Police Department. I’ve been looking through the personnel to find someone who has access and is desperate. I’ve got the DNA expert lined up if we can plant the evidence.”