Second Degree (Benjamin Davis Book Series 2)

by A. Turk

  Morty broke the tension, “Just think, in twenty years you’ll be having this conversation with Sammie, maybe sooner.”

  Davis would argue the preliminary motions. There were several motions filed by both parties. For the most part, they addressed pretrial evidentiary rulings. These motions were important for several reasons. First, each side needed to know what evidence would be admitted, so they could be prepared at trial. Second, these pretrial decisions allowed the trial to move quicker. A jury didn’t tolerate delay, and whoever they believed was unreasonably delaying the trial would pay for it. Last, motions in limine preserved issues for appeal. They forced the judge to articulate his rulings, so they could be considered and ruled upon by the Court of Appeals.

  In the courtroom Davis turned to Sammie and asked her to identify the defendant’s pending motions.

  Sammie spoke directly to Judge Tanner, “Well, there are a total of seventeen motions, thirteen by the defendant and four by the state. I don’t know in what order the court intends to address them.”

  Tanner briskly said, “Just tell me what they are, Ms. Davis.”

  “Starting with the defendant’s motions, (1) To exclude from evidence Dr. Garcia’s probation for improperly dispensing drugs to Robyn Eden in Kentucky; (2) To exclude from evidence the fact that Dr. Garcia surrendered his Tennessee medical license; (3) To exclude from evidence the fact that the state of New York had suspended Dr. Garcia’s New York medical license; (4) To exclude from evidence the sex video of Robyn Eden and Dr. Garcia made July 4th; (5) To exclude from evidence acts of violence by Dr. Garcia against Robyn Eden throughout their relationship; (6) To exclude the testimony of the state’s expert witnesses because of a break in the chain of evidence; (7) To exclude from evidence statements made by Dr. Garcia to Detective Haber at Hewes County Hospital because he didn’t receive his Miranda warning; (8) To require the state to explain what happened to certain cell phone photos taken by Dr. Garcia of Robyn Eden on July 4th; (9) For the court to sequester the jury, to live in a motel, after their selection; (10) To reconsider the court’s ruling on the validity of the search warrants and the Inevitable Discovery Doctrine; (11) To exclude any reference to the two civil lawsuits filed in Davidson County, in which the Davis law firm represented Dr. Nichols; (12) To exclude any reference to the Princeton police report of Charles Garcia; and (13) To exclude any reference to Dr. Garcia’s juvenile pretrial diversion for drug possession.”

  Sammie took a breath. She didn’t envy Judge Tanner for his responsibility to decide each of those motions. “The state has four motions: (1) To exclude the testimony of the defendant’s expert witnesses for opinions that are not based on good science; (2) To refer to the defendant as Mr. Garcia, rather than Dr. Garcia, because he no longer has a valid medical license; (3) To exclude the nude photographs of Robyn Eden and her old boyfriend Ron Harris taken in 1994; and (4) To exclude evidence of Ms. Eden’s pregnancy.”

  Davis could tell that the judge was unhappy about the number of pretrial motions.

  “I’ve got a headache just listening to you list them,” Judge Tanner said, and he wasn’t joking.

  Louder than he intended, Davis whispered to Sammie, “I can’t believe I’ve got to argue all of them.”

  “Just take them one at a time,” Sammie responded.

  Tanner as usual took control. “We have a lot of work in front of us before we begin this trial and select our jury. I’ve read all of the briefs, and it will not be necessary for us to have oral argument on all of the pending motions. Let the record reflect that neither party has waived oral argument on any of their motions, but several of these motions are in my sole discretion as a matter of law. Therefore, I have the right to refuse oral argument and rule on those motions.”

  Davis was surprised that Judge Tanner would refuse oral argument on any of the motions. It was common courtesy for the court to at least allow some argument if a party took the effort to file the motion. Often a court would limit the time of argument, but it was rare, particularly in a murder trial, to refuse oral argument. Davis just held his breath and waited for the court’s rulings.

  “First, I will sequester the jury. Despite the gag order, I expect this case to be heavily reported, locally and possibly nationally. I don’t want our jury poisoned by publicity. It will be hard enough to find an acceptable jury without exposing them to the opinions of the media, which are often ill informed and wrong. This jury is going to base its decision on the evidence, the testimony from the witness box, and the documents and information that I deem admissible. I am also putting the parties on notice that I intend to liberally allow challenges for cause. I want a fair and impartial jury.”

  Davis didn’t like the way that this hearing was starting. It sounded like Judge Tanner was going to bend over backward in an effort to have a clean but defendant-friendly trial. The state, unlike the defendant, certainly didn’t want the judge to commit reversible error. A retrial, after an appeal, would be a financial nightmare for the state and for Davis personally and professionally.

  “The defendant will be referred to as Mr. Garcia. He no longer holds a valid medical license.”

  Davis sighed with a little relief. At least this clown wouldn’t be disrespecting the entire medical profession by being called “Doctor.”

  “On the motions to exclude the experts, well, I’m going to let the jury listen to their testimony, weigh the science supporting those opinions, and decide whose testimony they’re going to rely upon. I will give each side great latitude in the effort to impeach that testimony, but bottom line, that’s the job of the jury.”

  Tanner paused and took a sip of water. “We’ve all got our witness lists and three boxes of exhibits. We’re going to use the exhibit numbers from the exhibit list instead of introducing them in sequential order. Exhibit 133 will be introduced as Exhibit 133. You know the drill.”

  Pierce and Harrelson risked failing to disclose Danny Nix on their witness list. She would be an impeachment witness, who would contradict evidence introduced by the state, but only if Tanner permitted her to testify.

  Davis hoped the motion to exclude the defendant’s experts would be granted. The defendant’s experts had impressive resumes, and their testimony tried to establish that Mr. Garcia did not have the requisite intent to kill Robyn Eden.

  “Mr. Davis, that only leaves two of your motions for argument, but before we begin, I must ask you a question. Is it the state’s position that Mr. Garcia corrupted Ms. Eden and that he was the cause of her unorthodox sexual behavior?”

  “It’s the state’s position that Mr. Garcia did assert control over Ms. Eden, in part through their doctor-patient relationship and in part through their sexual role-playing and untraditional sexual behavior.”

  “In that case, I am going to allow the pictures of Ms. Eden and Mr. Harris into evidence. A jury could find that Ms. Eden, based on those photos prior to meeting Mr. Garcia, was willing to be photographed nude and had a long history of sexual deviance.”

  Those photos showed just that. Which was why Davis filed the motion to exclude them.

  “Now I want to discuss the state’s motion to exclude the pregnancy. It’s right there on the autopsy report. That’s an important piece of evidence. Why would the court agree to exclude proof of the pregnancy, Mr. Davis?”

  Davis knew the motion was a long shot. The pregnancy made the drug-using victim look like a horrible person. The average Hewes County citizen couldn’t fathom why a pregnant woman would take drugs. The pregnancy also helped Garcia. Again the average Hewes County citizen would find it hard to believe a father would be complicit in giving drugs to the mother of his child. Davis needed to convince the judge to exclude this damaging evidence and preserve the issue for appeal.

  “Your Honor, when the state received the autopsy report, the state was faced with the decision whether to charge the defendant with a double homicide for Ms. Eden and the child. The state chose to indict as to Ms. Eden’s death only. The death of th
e child is not relevant to the murder of Ms. Eden and should be excluded.”

  The judge said, “That’s a pretty creative argument, Mr. Davis, but motion denied. The fact that Robyn Eden was pregnant is a fact that both sides are going to have to live with. Quite frankly I don’t know what a jury will do with this information, but I suspect that they will consider it important. They have a right to know.”

  Truthfully, no one knew how a jury would take it.

  “Ms. Pierce, I’m not going to let in the juvenile drug possession or the Princeton police report. They are remote as to time, and therefore the prejudicial effect outweighs their probative value under Rule 403 of the Rules of Evidence. Even though the two civil lawsuits are close in time, they were mere allegations, and the cases were settled. It is my understanding there is a confidentiality clause in each of those settlement agreements, which I intend to honor. It’s ironic, Mr. Davis, that your clients were also parties to those same settlement agreements, so through your clients, you and Mr. Steine, as Dr. Nichols’s attorneys, are also bound.”

  At the time the confidentiality clause in the civil lawsuits made good sense. Davis thought he was through with Mr. Garcia, but he was wrong.

  “It’s fair to say that the relationship between Ms. Eden and Mr. Garcia was a complex and tumultuous one. I think the jury needs to sort through the facts and decide what that relationship was and what part each of them played. I’m letting in what happened in Kentucky and any other bad acts committed by either Mr. Garcia or Ms. Eden that explain their relationship. Let the chips fall where they may, and let the jurors come to their own conclusions. The probation, physical abuse by Mr. Garcia, sex tapes, still photos, and sex toys all come in.”

  It was clear to Davis that Judge Tanner had decided to let State v. Garcia be a knockdown, drag-out fight. That would be fine in a civil case, the kind Davis had always tried. The burden of proof was a mere preponderance of the evidence, a slight tipping of the scale. But in a criminal trial, the state’s burden was beyond a reasonable doubt, and that was a much higher burden for Davis to meet.

  “That leaves only two motions. I would like oral argument on the missing July 4th cell phone pictures and exclusion from the testimony of Detective Haber as to what Mr. Garcia said to her at the hospital. Mr. Davis, what’s the state’s explanation for these missing photos?”

  Davis stood and replied to the judge, “Your Honor, neither my associates nor I were involved at the early stages of the investigation, and the first time we were made aware of this alleged problem.”

  “Mr. Davis, you’re standing before this court as the state of Tennessee, not Benjamin Davis. You’re responsible for the actions of all of the agents of the state, including the Hewes City Police Department, which controlled the crime scene and the evidence taken into its possession. Have you inquired about these photos?”

  “There are two hundred seventy-two still photos. I’m not sure what I’m looking for.”

  “Which ones are missing, Ms. Pierce?”

  “Your Honor, Dr. Garcia distinctly remembers that Ms. Eden on July 4th inserted a large black sex toy, first in her mouth, and Dr. Garcia took two pictures with his cell phone. Those photos were not produced by the state.”

  Judge Tanner corrected Pierce, “Your client, the defendant, is Mr. Garcia, not Dr. Garcia.”

  Davis waited a few moments to let Judge Tanner’s rebuke of Pierce sink in.

  “Your Honor, we question the veracity of Mr. Garcia.”

  “Well, we’re going to let the jury hear the testimony and decide if the state destroyed these photos. I’m going to ask the jurors a preliminary question, and if they conclude the state did destroy evidence, then I will charge them accordingly.”

  The last thing Judge Tanner did was to hear testimony from Detective Haber about her conversation at the hospital with Mr. Garcia to determine whether such testimony should be heard and considered by the jury.

  “Based upon what the detective has said, despite Mr. Garcia’s affidavit, Mr. Garcia at the time of the conversation did not require a Miranda warning. At that time the apartment had not been searched, and Mr. Garcia was viewed as a grieving boyfriend and was not under investigation. Mr. Garcia can explain to the jury that when he spoke with Detective Haber, he felt threatened and under suspicion. The jury will determine who’s telling the truth.”

  Judge Tanner looked at his watch and smiled. “Seventeen motions in less than three hours. That’s got to be a world record. Let’s hope the trial goes as smoothly. I’ll see you all in court tomorrow to begin picking the jury. Hopefully we’ll have another productive day.” Then Judge Tanner walked from the courtroom, leaving the parties stunned that the motions had been decided.

  CHAPTER FIFTY-ONE

  PICKING A JURY AND

  JURY INSTRUCTIONS

  Wednesday, February 7, 2001

  It was a big day for both the defense and the prosecution. That was true for the first day of any trial. Morty, Sammie, and Davis were prepared. They’d divided the responsibilities of the trial fairly equally among them, but Davis took the lead. Davis and Sammie were concerned that the old man might run out of steam. If so, they’d outlined contingency plans to take up the slack.

  Bella was back at the office, like always, holding down the fort. There would be no Davis & Davis without her perseverance. Sammie would report to her at lunch.

  Amy Pierce was equally prepared. Her two associates helped her get the case ready for trial, but they were back at the office. Pierce wanted all the credit. She also believed that if she sat alone at the defense table, while the state had three lawyers, it might appear to the jury that the defense was an underdog.

  David Harrelson wasn’t a trial lawyer, nor was he licensed in the state of Tennessee, so he was relegated with Señor and Mrs. Garcia to the audience. Charlie’s parents were there for the duration, throwing their economic and emotional support behind their son.

  Hewes County was an affluent community, clearly divided between Hewes City and the rest of the county. The total county population was just under forty thousand with almost twenty thousand living in Hewes City. There were two high schools, one inner city and the other rural. This lent itself to competition between the two schools. In general the population was educated, fifty-eight percent with college degrees and eighty percent with a high school diploma. Not everyone agreed whether this was a good or bad factor for Charlie Garcia. Davis felt it worked against him.

  The newshounds were out in force. All of the local press and also USA Today, the New York Times, the Washington Post, and a few regional papers. This case had literally good sex appeal, and the media loved good sex appeal. Because cameras weren’t allowed in the courtroom, the playing field was evened out between TV and print news media. The national news coverage of the trial would make picking a jury much more difficult. Judge Tanner made the right decision to sequester the jury.

  All of the parties were subject to a gag order, so the lawyers avoided the reporters like the plague. Judge Tanner promised if they gave anything to the press, they’d be his guests in the Hewes County jail.

  In many ways, even though his future was uncertain, Charlie was relieved that this day finally arrived. His arrest six months earlier had shaken his world, and he’d lived in fear of incarceration ever since. It was no way to live. Charlie was convinced that the trial was a necessary evil for him to move on with his life.

  Judge Tanner took the bench precisely at nine. “Good morning, everyone. Let’s pick a jury. Any preliminary matters before we get started?”

  Neither side offered anything to the court, so the selection process began. All of the potential jurors had completed juror questionnaires. They started with a jury pool of one hundred eighty, and that number was reduced to one hundred thirty-nine based on their responses to questionnaires. For example, six jurors were excluded because they knew one of the lawyers, and two were excluded because they knew one of the potential witnesses. Judge Tanner excused thirty-three
jurors because of either business or family commitments.

  The selection process began with Judge Tanner spending the first fifteen minutes explaining what being sequestered meant: “This case is expected to last at least two weeks, and the jury will be sequestered at the end of each day of trial in an undisclosed hotel. You’ll be away from your families and work for at least two weeks. Does this create an unbearable conflict for any of you?”

  Surprisingly only seven hands went up. Davis expected more, even though several others had already been excluded. These seven did have commitments so the judge released them. The rest of the ninety-three jurors wanted to serve. The response was unprecedented. Any other panel would have dozens of persons seeking to be excused. The Garcia case, which was highly publicized, had titillated the community. Everyone wanted to hear the evidence and decide the case.

  The judge continued to ask questions, and four other jurors were excused.

  Davis stood and began the inquiry for the prosecution, “Ladies and gentlemen, Mr. Garcia has been charged with second-degree murder. The state alleges that he supplied the drugs, which proximately caused Robyn Eden’s death. If the state proves that essential element of its case, would any of you be unwilling on moral grounds to find him guilty of murder, where Judge Tanner might sentence him to life in prison?”

  No one raised his or her hand. Davis continued, “Without trying to be sensational, the state intends to introduce into evidence a videotape of Mr. Garcia and the victim engaged in various sex acts, which will leave nothing to the imagination. This is not soft-core pornography …”

  Pierce jumped up and objected, “Mr. Davis is characterizing the evidence, Your Honor. I object to him referring to the video as pornography, soft, hard, or otherwise.”

  The judge turned to Davis for his response. “The United States Supreme Court, through Justice Potter Stewart, proclaimed that it knew what was pornographic when it saw it. I’m confident that this jury will know what this video is when it sees it.”