Second Degree (Benjamin Davis Book Series 2)

by A. Turk

  “You may be wondering why I’m spending this valuable time to prove Mr. Garcia a liar. Ms. Pierce will argue so what if he’s a liar? That doesn’t prove he’s a murderer. Well, that’s true, but if you conclude that he’s a liar, then as Judge Tanner will instruct you, his whole testimony can be thrown out, and you can base your verdict on circumstantial evidence. As the finder of the facts, you may make reasonable inferences from the evidence.

  “My point is, if you disregard Mr. Garcia’s testimony, then all of the circumstantial evidence that supports the charge of murder has greater weight and supports a conviction. I’ll explain this point later in my closing.”

  Davis had the jurors’ attention; they were hanging on his every word. He’d become each juror’s professor in a school room, wise by years of experience.

  “How plausible is this part of the defendant’s testimony? Mr. Garcia claims that he didn’t know that Robyn Eden was injecting narcotics by IV. That’s an outright lie. His testimony is insulting to your intelligence. Don’t forget Dr. Limbaugh’s testimony. You’re all pawns to be deceived and manipulated for Mr. Garcia’s own purposes. At the time he was a medical doctor. He had lived with her and had the most intimate contact with Ms. Eden. You saw how close he got to her femoral area. He saw those linear injection sites. You’re reasonable people. He suspected her use. Another insult to your intelligence!

  “What about his shaving kit found in the master bathroom, where the crushed oxycodone and syringes were in plain view? He never explained why the kit was there. He claimed that he never went into the bathroom. He lied about not being in that bathroom.

  “Ms. Pierce will argue that all the state has is circumstantial evidence as to the murder charge. That’s not true. We have Mr. Garcia in his own voice and words proving his perjury. Remember this part of the video.”

  He played the snippet of video where Mr. Garcia stated clearly, “Put pressure on it.”

  “He didn’t tell the paramedics that Ms. Eden had taken narcotics through an IV at her groin. No question from the video he knew she’d injected herself; she was bleeding. You heard the testimony of the paramedic, which was admitted by the defendant; he failed to disclose the IV drug use. That lie killed her. That information could have made a difference in her treatment and the outcome. He could have walked into the bathroom, collected the crushed oxycodone and the syringes, and given them to the paramedics. His testimony claims he didn’t think of it. Another lie. He was a doctor. He knew better than you and I what was going on in that bathroom. You saw the video. She flew out of that bathroom like a top.

  “He had one last chance when Dr. Mann questioned him at the hospital. He lied again. He fails to tell Dr. Mann about the IV drug use. This isn’t a mistake. This is intentional. He made a mistake when he gave 911 the wrong address. That cost Ms. Eden four minutes and brought her that much closer to her death.

  “And what about Dr. Mann’s testimony? He was the only physician who actually examined Ms. Eden. Dr. Mann testified that the injection sites were linear. Both he and Dr. Davenport testified that only someone with medical training could have made such a pattern. Mann testified that whoever injected Robyn had medical training. Mr. Garcia was a licensed surgeon. She was a songwriter/receptionist.”

  Davis was under no time constraint. He talked straight through to lunch, and he did an articulate and convincing job.

  Judge Tanner made a joke that maybe he should have put a time limit on the lawyers, but it was too late now.

  CHAPTER SIXTY-FIVE

  THE DEFENDANT’S

  CLOSING ARGUMENT

  Saturday, February 24, 2001

  Davis had put Pierce in a difficult position. There would be four hours of court time this afternoon, and if Pierce took as long as Davis, he might give his second closing argument the next day. That wasn’t acceptable to Pierce. She called for a bench conference and forced Tanner out of fairness to require Davis to tell them how long his second close would take. His response was less than two hours, and she got Judge Tanner’s commitment to finish closings today or, if necessary, tonight.

  Pierce had to focus on the murder charge. Charlie Garcia was without question reckless. She’d argue to the contrary, but acquittal on count two was a long shot.

  Pierce began, “We’re almost at the end of our journey together. We’ve all invested a lot of time and energy, and after you’re instructed by the judge, you’ll deliberate and render a verdict. That’s the whole purpose of this process. It’s important that you get it right. A man’s freedom for a very long time is at stake.

  “As you have been told a number of times and will be told again in the jury charge by Judge Tanner, the burden of proof is on the state. In order to convict, it must prove beyond a reasonable doubt each element of each crime charged. It is critical that when you deliberate, you remember the definition of beyond a reasonable doubt, which is ‘the standard that must be met by the prosecution’s evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty. If the jurors or judge have no doubt as to the defendant’s guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant’s guilt beyond a reasonable doubt and the defendant should be pronounced guilty. The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused’s guilt, but only that no reasonable doubt is possible from the evidence presented.’”

  Pierce paused for effect. She wanted that definition to sink deeply into the minds of the jurors. She pointed out that Mr. Garcia claimed he didn’t prescribe or give Robyn Eden the oxycodone. The state failed to prove that was a lie. The state would have introduced evidence of the prescription if there was one.

  “Mr. Davis made certain predictions as to what I might say. He did that because he’s a very smart man, and he knows the law. He was right that I’d argue that proving my client a liar does not prove he’s a murderer.”

  Pierce figured she might as well give some fake deference to Davis; it brought her closer to the jury. “I’m sure you don’t like Charlie Garcia. In your eyes he was born with a silver spoon in his mouth, had an incredible education, earned a profession, and then blew it. Dr. Townsend testified that he had no control of his own downfall. Mr. Davis would say that’s a lot of rubbish. You heard the testimony. You decide.”

  She was certain that the women on the jury despised Charlie Garcia. She was equally confident that the men didn’t like him either, but a few envied him. He satisfied the fantasies of each man on the jury and then some.

  Pierce walked back to the podium and got a drink of water. She didn’t want to break up her next thought. She took three deep breaths and moved very close to the jury.

  “Yeah, Mr. Davis is a very smart man and a good attorney, but he still can’t answer these next few questions. Why doesn’t Danny Nix’s testimony create reasonable doubt as to who distributed or provided Robyn Eden with the oxycodone?

  “Ms. Nix testified that she gave Ms. Eden eight pills for sex on June 30th. Her DNA was on Exhibit 146, so we know she was telling the truth about knowing Robyn Eden in the biblical sense. That proof alone creates reasonable doubt as to one of the critical elements of second-degree murder.”

  Again Pierce stopped for effect. This part of her argument would save Charlie Garcia from serving twenty-five years in jail.

  “Mr. Davis could call Ms. Nix a liar, like he did Mr. Garcia, but why would she lie? Arguably the defendant has at least a motive to lie: avoid prison. What’s her motive? I submit that by admitting that she traded the drugs that caused the death of Robyn Eden for sex only puts her in harm’s way. The state might try to arrest her and prosecute her. She has no motive to lie. Let Mr. Davis explain that one.

  “We know that Ms. Nix t
estified that she was intimate with Robyn Eden. We’ve got the best evidence to corroborate that testimony, her DNA on one side of Exhibit 146. It was drugs for sex, oxycodone.”

  Pierce was feeling pretty good. A murder conviction wasn’t likely to happen.

  “Danny Nix’s testimony is fatal as to the murder charge. There’s no proof the oxycodone came from the defendant. Maybe Mr. Davis can explain. Listen carefully when he stands up and summarizes the proof.

  “Oh, yeah, let’s not forget Robyn Eden’s searches on the Internet for all different types of drugs including oxycodone. She got the drug through Nix, the Internet, or somewhere else on the street. There’s more than reasonable doubt on this point.”

  Pierce spent the next twenty minutes arguing that there was reasonable doubt through expert testimony if the oxycodone actually was the cause of the overdose. Robyn Eden had taken hydrocodone for years, both orally and by IV. It was possible, with a reasonable degree of medical certainty, that the filler over time clogged her small arteries, causing death. She reminded the jury that if the proximate cause of death wasn’t the oxycodone, a Schedule II drug, then there was no possibility of a murder conviction.

  She said, “If the cause was anything else, then you can’t find beyond a reasonable doubt that Charles Garcia murdered Robyn Eden. If you find that the oxycodone killed Ms. Eden, then you must find beyond reasonable doubt that the source was the defendant. In light of Ms. Nix’s testimony, you must acquit on the murder charge.”

  Over the next thirty minutes Pierce discussed reckless homicide and why the jury shouldn’t convict. She could tell from the jurors’ faces that Charlie was in trouble. It was difficult to argue convincingly that Charlie Garcia didn’t act recklessly.

  She finished by reminding them, “Charles Garcia doesn’t have to prove anything. That’s the state’s burden. The judge will charge what all of the elements of that crime are, and the state must prove them beyond a reasonable doubt.”

  Pierce thanked the jury and sat down. It was four forty-five.

  Judge Tanner gave the jurors a comfort break, and when they returned, he told them that Mr. Davis was up last and they’d finish tonight. The jury chose to take an early dinner and come back at six to hear Mr. Davis after they’d eaten.

  CHAPTER SIXTY-SIX

  THE LAST WORD

  Saturday, February 24, 2001

  The Davis team elected to skip dinner and talk about Pierce’s closing and how Davis should respond to the questions she posed. They went back to their small office in the DA’s offices. Davis found some peanut butter and crackers and shared them with his co-counsel. He ate twice as many as either Morty or Sammie. He was famished. He’d eaten nothing since lunch and was feeling a little anxious.

  They sat around the small conference table and asked the same question they’d asked before. Somehow it seemed very relevant again. How the hell did Pierce find Nix? She testified that she’d never met Charlie Garcia. That was probably a lie, but the state never proved that lie. Who else, other than Garcia, could have found this witness?

  Davis was the one under fire, so he broke the ice. “I’ve got to call Nix a liar, and I’m confident she is, but what’s her motive? Did she hate Robyn, or is this self-proclaimed lesbian in love with Charlie Garcia? If we had video of any combination of a threesome, I could explain their testimony and even Nix’s DNA and the lie. I bet there is a video of a threesome; it just wasn’t in plain view. Even if we could find those videos today, it’s too late. They’re not in evidence.”

  Davis announced that the tail he put on Nix after she testified confirmed she’d left not only Hewes County but also the state of Tennessee. That information was provided to Davis courtesy of the TBI. Davis was a state prosecutor, so he called in a favor with the TBI. Nix got on a plane to Atlanta and then had reservations to go to Rio. She was gone and with her a motive.

  “What about the old faithful motive of monetary gain?” suggested Sammie.

  Morty was quick to respond, “We didn’t prove it.”

  Davis stayed quiet a few minutes. Morty and Sammie were watching him carefully, waiting for him to share his thoughts.

  Finally he spoke, “We ask the jury to infer it from her character. Is Nix the type of person who would engage in a threesome? Is Nix the type of person who would take money for false testimony? Pierce will object and Tanner might sustain, but the seed will be planted. I’ve got nothing better. That’s what I’m going with.”

  No one had a better suggestion so that became the response to Pierce as to Nix’s motive.

  They entered the courtroom, and Davis marched straight to the podium. It was six on the dot. Davis knew he had to be mindful of the time. Pierce had successfully limited his argument to less than two hours, and it would have been a mistake to keep the jury the full two hours until eight o’clock.

  For forty-five minutes Davis methodically went over the important exhibits and testimony with the jury. It wasn’t as theatrical as his first closing, but it was informative and refreshed the jury’s recollection of the proof. He then turned to Pierce’s questions. He answered the easier ones first.

  “As to the motive behind Ms. Nix’s testimony, I want you to know I’ve given this a lot of thought. Danny Nix admitted she exchanged drugs for sex. You got to watch her testify and are the sole judges of her credibility. Did you think she was a truthful witness? She testified that sex with Robyn Eden was the best she ever had. Maybe she engaged in a threesome with Robyn and Charlie Garcia?”

  Pierce jumped up and yelled, “Objection, there’s no proof of that in evidence.”

  Judge Tanner didn’t rule right away. Davis suspected he was contemplating the impact on appeal if he overruled Pierce’s objection.

  He cleared his throat and said, “The jury is the judge of the credibility of the witness. If this jury believes Ms. Nix lied and gave false testimony, then the jury can infer whatever motive the jury deems plausible. Mr. Davis is suggesting a possible motive. The jury must determine whether that motive is valid. Overruled, Ms. Pierce.”

  With a green light from Tanner, Davis floated the idea that Nix accepted monetary compensation for her testimony. There really wasn’t a factual basis, except that the allegation was true.

  Davis finished up by thanking the jurors for their service and wished them good luck in their deliberations. It was seven thirty-eight, and Judge Tanner let the jurors go to their hotel.

  CHAPTER SIXTY-SEVEN

  JURY CHARGE

  AND THE VERDICT

  Sunday, February 25, 2001

  Judge Tanner welcomed the jury and explained how the day would proceed, “I’m about to read to you the jury charge. A copy of this document will be available in the jury room, just like each of the exhibits. Listen carefully, but remember if you need to refresh your recollection, it will be in the room for your review.

  “After I instruct you, I will randomly draw three names, and those jurors will be excused. The remaining twelve will begin deliberations.”

  Judge Tanner gave the preliminary charge, the portion of the charge that applied in every criminal case and every jury trial. He explained that as a jury, they were a collective body, and it was each member’s obligation to listen to each other. They were to weigh the evidence, the documents made exhibits, and the testimony from the witness stand. They were the judges of the facts. They had to sort through the conflicting testimony and find the truth.

  The judge explained that the judge charged the defendant with two counts: second-degree murder and reckless homicide. “Each of these crimes has separate elements that must be proven to convict. You can prove second-degree murder two ways. These are two distinct subsections. If you prove either of them beyond a reasonable doubt, then you must convict for second-degree murder. The first is the knowing killing of another that results from the unlawful distribution of a Schedule II or I when such drug is the proximate cause of the death of the user.

  “The question you must answer under the first def
inition is whether the state proved beyond a reasonable doubt that Charles Garcia knowingly killed Robyn Eden.

  “Under the second subsection, you must ask yourself the question, did the state prove beyond a reasonable doubt that Charles Garcia distributed, either sold or gave Robyn Eden oxycodone, a Schedule II drug, and that such drug was the proximate cause of her death. If you find those elements beyond a reasonable doubt, then you must convict for second-degree murder. If you find that the hydrocodone was the cause of Robyn Eden’s death, then you must acquit on the second-degree murder charge because hydrocodone is a Schedule III drug, not I or II.

  “Second-degree murder is a Class A felony punishable by a minimum prison term of ten years to a maximum of life imprisonment.”

  Judge Tanner next discussed the elements of count two, reckless homicide: “A reckless homicide is a killing by reckless conduct. A defendant acts recklessly when the state proves beyond a reasonable doubt that he or she is aware of, but consciously disregards a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all of the circumstances.

  “Reckless homicide is a Class E felony. It is punishable by an imprisonment of a minimum of one year to a maximum of five years.”

  The judge spent twenty minutes discussing the law and the jury process, “I want each of you to take pride in what you’re about to do. You’re part of a very important process. I have absolute confidence you’ll sort through all the evidence and find justice for the defendant, the victim, the victim’s family, and our community. Go and deliberate.”

  The jurors filed out to do their job.

  Davis, Sammie, and Morty went back to the DA’s offices and found some cards and started playing gin. Davis sucked one Tootsie Pop after another. His favorite flavor was raspberry; he avoided the chocolate ones. Morty and Sammie played the first hand, and then the winner played Davis. Morty was the better player, and he quickly started racking up the points. Davis got tired of cards and suggested that they walk over to Mother’s and get some lunch.