PART 35

by John Nicholas Iannuzzi

  She testified through the interpreter that after Hernandez had dropped her off at her place of employment, the morning of July 3rd, he drove away. He returned a little after noon. They walked to the bank, where Mrs. Hernandez cashed her paycheck. She said she was paid on July 3rd because of the holiday, the fiesta, the next day. They went to have lunch, walking back to her building at about five minutes before 1. They met German Ortega in front of the building, and they had all laughed because Mrs. Hernandez had introduced her husband to Ortega at the very spot when they were going out to lunch. At 1 P.M., Mrs. Hernandez testified, she gave Hernandez a dollar to buy gas, and returned to work.

  On the way home that night, she testified, there were crowds milling about Stanton Street, and many policemen were near her car. Upon telling the police who she was, she was taken to the station house. She testified that no one else had been with Hernandez in the car or anyplace else when she was with him that morning and early afternoon. Siakos turned the witness over to Ellis.

  Responding to Ellis’s questions, Mrs. Hernandez testified that she had waited for Hernandez to pick her up after work that day, but he had never arrived. She went home by herself on the subway. When she reached Stanton Street, and had identified herself, the police searched her purse, and took her to the precinct house. There, detectives asked her where she had been, where she worked.

  “He’s getting ready to impeach her credibility with this statement,” Sandro said, handing Sam a photostat of a police DD5. According to the report, Mrs. Hernandez had told a detective on July 3rd that she had left Hernandez in their apartment that morning.

  “If the cops can perjure themselves on the stand, what’s to stop them from writing out a phony DD5?” said Sam. “But she handles herself all right. Let’s wait and see.”

  Ellis asked Mrs. Hernandez if she had said to any policeman that she had left Hernandez at the apartment when she went to work on July 3rd. Certainly not, she replied firmly. He asked her, as he read from the DD5, whether she actually lived at 163 Stanton Street. She said she did. He asked whether it was true she and Hernandez had a child, and if he was in a day-care center while she worked. All that he read from the DD5 was the truth, Mrs. Hernandez said, except for her having left Hernandez in the apartment that morning.

  “All they asked me was where was I, where was I,” she said through the interpreter. “That is all. They wanted to know where had I been that day, and I kept saying I was working, I was working, I was working. They didn’t ask about when I went to work.”

  Ellis had no further questions. Sam rose and asked Mrs. Hernandez if she had been in that station house all night, except when the police took her home briefly to search her apartment.

  “Yes,” she replied. She said she had even fainted from fatigue on the station house steps as she left there the morning of July 4th. Sam had no further questions.

  Siakos stood. “Ramon Hernandez,” he called. Hernandez, tall, lean, dark, rose and walked to the stand. The jury watched him intently. He looked out at Siakos as a player looks at his coach. He was totally uneasy.

  Through the interpreter, Hernandez testified that he did not see Luis Alvarado at all on July 3rd, 1967; that he did not plan a burglary with Alvarado; that he was never in or on the building where the policeman was killed. He said that he had, in fact, broken into an apartment on 119th Street in El Barrio at approximately 11A.M. that day. He testified that he pulled the job alone. Once again, he repeated that he met his wife for lunch, got a dollar for gasoline, left her at about 1 P.M., and drove to the pawnshops.

  Siakos had Hernandez identify the suits and the radio he had pawned. He also identified the signature cards from the pawnshops. He said he had had identification in a wallet which belonged to one Antonio Cruz, who had lent him the wallet in return for a bag of heroin. Hernandez said that after leaving Sid Goodman’s at about 2:15, he had gone to 387 Essex Street to buy heroin from a man called Angel Belmonte. He then drove to his house on Stanton Street, arriving about 2:35 or 2:40.

  The street was filled with policemen, and there was an ambulance. He double-parked and ran up to his apartment. As soon as he got inside, he prepared a hypodermic and injected himself. Calmer, he began to fix a sandwich. In a few minutes, the police arrived. He remembered the stolen goods in the trunk, and wanted to allay their suspicions, never realizing they were looking, not for a double-parking violator but for a murderer. He told them that someone else had had the car all day. One of the officers grabbed him by the neck, he testified, pulled him close, shouted that Hernandez’s jacket was wet, that he was lying about not being out. The cops dragged him out the door and down the stairs.

  Hernandez denied having anything to do with the burglary or murder at 153 Stanton Street. He lifted his hand to God and swore he did not participate in the crime. Siakos had no further questions.

  Sam Bemer rose. He asked if Hernandez had ever told the police that he had, in fact, participated in the crime. Hernandez replied he had told them many things, but these things were not true. He testified that he told them what he had told them because he was afraid, because he was being beaten. Hernandez said that the only reason he gave the name of Luis Alvarado to the police was that they were beating him, insisting that another man was involved with him in the shooting, and that this other man was a Negro. Hernandez testified that the only man dark enough that he could think of was Alvarado. He said that they refused to believe that he shot the cop himself, insisting it was a tough Negro who shot the cop. Sam had no further questions. Ellis rose to cross-examine.

  A court officer whispered to Siakos that Artie Horowitz, proprietor of Excelsior Pawn Brokers, was in court. Siakos asked the judge if it would be possible before Ellis began the cross-examination of Hernandez, to have Horowitz take the stand. The judge permitted the interruption.

  Horowitz, whose slick hair and uncooperative attitude Sandro remembered very well, said that there had been a total of eighty-four transactions on July 3rd. The pledges of Antonio Cruz were numbers 57 and 58. Horowitz said that Antonio Cruz could not have pledged the suits in the morning. There was no question whatever that the transaction took place in the afternoon. He could not say at exactly what time. Siakos had no further questions.

  On cross-examination, Horowitz said that he himself had taken these pledges, but that he could not recognize the man who pledged the articles. He only knew that he took the transaction because the pledge tickets were in his handwriting. He remembered Detective Mullaly’s coming into the shop months before the trial and asking questions. Ellis asked him if his memory was better when Detective Mullaly was in the shop or now when he was on the stand. He said his memory was exactly the same. Ellis asked him if he remembered telling Detective Mullaly that the pledges could have been transacted any time between 11 A.M. and 3 P.M. Horowitz replied that he might have said that, the afternoon certainly being after 11A.M. Ellis asked no further questions.

  “Let’s recess for lunch now,” said the judge.

  Sandro had arranged to share the lunch-pail duties with Siakos. Sandro took the first day. He brought four hot dogs and two apple turnovers for the defendants. They wolfed it all down just before the afternoon session began.

  In the afternoon, Hernandez resumed the witness chair. Ellis began his cross-examination. Hernandez repeated the story about the burglary on 119th Street. He said he had gained access to the apartment by swinging from a fire escape and through a partly open window. He said he never mentioned the uptown burglary to the detectives questioning him at the police station because they didn’t want to know that. They just kept beating him, hounding him to confess to the murder. He said that he had burglarized the apartment on 119th Street because he was desperate for money for heroin. He said that after the pawnshops, he had bought two bags of heroin from Angel Belmonte. Ellis asked Hernandez to describe Belmonte.

  Sam leaned over to Sandro. “You watch the blond guy that’s been spotting for Ellis. As soon as Ellis gets all the information about this
guy Belmonte, the spotter is going to take off, and the police’ll have Belmonte in this court as sure as we’re sitting here.”

  Sandro turned slowly and looked out at the spectators. Sure enough, after Ellis had exhausted Hernandez’s memory of Belmonte, the spotter stood and walked out.

  Hernandez testified that Mullaly and several other policemen came into his apartment on the afternoon of July 3rd and wanted to search it. He was then wearing his jacket and hat. He said he was not breathing hard and was not sweating profusely, even though he had just taken a shot of heroin.

  “He full of chit, man,” said Alvarado, leaning over to Sandro and Sam. “When he take that shot, he sweat for sure.”

  “Well, he’s trying to be cute with Ellis,” said Sam. “Watch Ellis tear his head off. When you get on the stand, just answer the questions you’re asked, nothing more, nothing less. Don’t try to be smarter than Ellis.”

  “I’ll be okay,” Alvarado assured them.

  Hernandez testified that after being beaten horribly, he had admitted certain things concerning the murder to the police. But these admissions, he insisted, were based on information that the police supplied.

  Ellis dug into his file and removed some typewritten papers. He handed a copy of the typed pages to Siakos. It was the typed question-and-answer statement that Assistant D.A. Brennan obtained from Hernandez the morning of July 4th.

  “So this is the way he’s going to get the Q. and A. in,” said Sam. “I knew he couldn’t risk not using it.”

  Siakos asked for a few moments to read the document. The court granted a short recess.

  Upon resumption, Ellis questioned Hernandez about the assistant D.A.’s examination of him in the station house on July 4th. He was trying to establish that Hernandez’s testimony did not agree with his statement to Brennan. Hernandez said he didn’t remember either the questions or the answers because they were beaten into him. The judge struck out his answer as not responsive.

  In the statement Hernandez had allegedly told Brennan that he had met Alvarado at the Hotel Ascot the morning of July 3rd. Hernandez now testified that he had said that to the D.A. but that he had lied.

  Siakos rose. “Your Honor, I object to having the statement read since it is not in evidence. Further, I would like to request that the voir dire be reopened to question the validity of this statement because Mr. Ellis is attempting to use it as an additional confession. The beating that the defendant Hernandez said he received is the continuing cause of this statement. I object further that there is no proof of the accuracy of the statement, the method of its being taken, or the ability of the stenographer or interpreter who recorded it.”

  “This is not being used as a confession,” said Judge Porta. “It is not being used for the truth contained therein, but merely to impeach the witness’s credibility by a prior inconsistent statement. Overruled, Mr. Siakos, except that I direct Mr. Ellis to produce the D.A. who took this statement, the stenographer, and interpreter at the proper time.”

  “This is the proper time, Your Honor,” Siakos persisted. “If it’s not done now and the statement is later found to be inadmissible, the damage would have already been done, and it would be grounds for a mistrial.”

  “Overruled. Continue, Mr. Ellis.”

  “Hernandez, do you remember the following questions asked of you on the morning of July fourth, 1967, and these answers? Question: ‘Now, my name is William E. Brennan. I am an assistant district attorney in Manhattan. Do you understand? Answer: Yes. Question: Now, in this room are Detectives Tracy and Mullaly, Mr. La Fontana, an interpreter, and Mr. Connors, a stenotypist. Do you understand that so far?’”

  Ellis read on. Brennan had explained the defendant’s rights to him. Brennan then asked Hernandez for his name and address and about his background. He asked questions about the hotel on the morning of July 3rd, about meeting Alvarado, about talking with Alvarado, about stealing, about the size of his habit. The answers were the same as those Mullaly had testified to.

  “Do you remember being asked those questions, Hernandez, and giving those answers?”

  “Some of them,” the interpreter said.

  “Will Mr. Siakos concede that I’m reading the statement accurately?” Ellis asked.

  “Without conceding anything as to the truth of this alleged statement, Mr. Ellis is reading what is here correctly.”

  “Perhaps further questions will refresh your recollection, Hernandez: Question: How long were you riding around? Was it one hour, two hours, or three hours? Answer: Minutes. Question: How long were you talking to him in the hotel? Answer: Until about ten o’clock. Question: Do you know what time it was when the shooting took place? Answer: No. Question: Was it in the morning or the afternoon? Answer: I believe it was in the afternoon. Question: If you left the hotel around ten o’clock, weren’t you driving around for a few hours before you came to Stanton Street? Answer: Yes, sir.’

  “Now, do you remember those questions and your answers?” Ellis asked.

  “Some.”

  “This Hernandez is so dumb,” Sandro said, “he didn’t even remember what the cops beat into him. He’s fouling up the confession for them.”

  “That’s a break for us. It makes the confession look ridiculous if the man who was there doesn’t know what happened.”

  “And do you now deny that these things you said are true?”

  “I was beaten. I was afraid.”

  “Did you say that to the D.A.? Did you tell him that?”

  “I was going to save it for my lawyer.”

  Ellis stared at Hernandez. “Perhaps these questions will refresh your memory: ‘Question: Where did you go when you went into the building? Answer: Went to break the door. Question: What floor did you go to? Answer: Second floor.’”

  “It was the fifth floor,” Sandro whispered to Sam.

  “The jury knows it, too. Look at number five.” Sandro saw Youngerman, the telephone repairman, frowning with confusion. “This is going to help us.”

  Ellis went on. “‘Question: How did you open the door? Answer: I open with a crowbar. Question: Who had the crowbar? Answer: Luis. Question: Well, then, did you open the door with a crowbar? Answer: Luis opened the door. Question: So you didn’t use the jimmy? Answer: No. Detective Tracy: Did you use your shoulder? Question: Did you push the door open? Answer: No, sir. Question: Luis used the jimmy? Answer: Yes, sir.’”

  “Did you say those things to the D.A., Hernandez?”

  “Some of them.”

  “But now, after you’ve had almost a year to think about it, you say these things aren’t true?”

  “They were a lie then, too.”

  “Did you tell that to the D.A.?”

  “No.”

  “Perhaps these questions will help your memory. ‘Question: Well, did you go into the apartment to take the radio out? Answer: No, he brought me the radio. Question: What color was the radio? Answer: Black. Question: You sure it wasn’t red? Answer: No, sir. (At this point, Detective Johnson left the room and brought back a red radio.)

  “‘Question: Is this the radio? Answer: Yes. (Mr. Brennan then said, Let the record indicate this is a red radio.) Question: Was it red? Answer: Yes, that’s the radio. Question: So when you said black, were you mistaken? Answer: Yes, I was mistaken.’”

  “Jesus Christ,” said Sam, “this is beautiful.”

  “Why the hell is Ellis using this stuff? It can’t be helping.”

  “Just think what we could do on summation if he didn’t use it. We’d be able to say that they never confessed to the D.A., that they denied the crime, and Ellis was afraid to reveal it. He’s stuck, and it’s beautiful.”

  Ellis repeated Brennan’s questions. They were about the TV set and the roof and the policeman coming onto the roof. Hernandez’s answers still followed Mullaly’s version.

  “‘Question: Is that true, Luis grabbed the cop from behind? Answer: Yes. Question: Did Luis knock the cop down? Answer: He shot him.’”

>   “He’s not reading the whole statement,” Sandro whispered quickly. “He’s skipping whole sections.”

  “They must hurt him,” Sam replied. “We’ll read them for him.”

  “Siakos should read the rest of this to the jury.”

  Sam nodded and leaned over to whisper to Siakos. Siakos nodded.

  Ellis finished reading. He pointed out that at no time had Hernandez made a complaint, not even in reply to the D.A.’s direct questions about being ill-treated.

  “Your Honor,” said Ellis, “that completes what I intend to read from this statement. Now with Your Honor’s permission, I’d like to bring someone into the court for Hernandez to identify.”

  “You may, sir.”

  “Angel Belmonte,” called Ellis. A court officer went through the side door to the witness room. He returned with a dark-haired man in a white shirt, tieless.

  “Did I tell you or not?” asked Sam.

  “Is this Angel Belmonte who you bought drugs from on the afternoon of July third?” Ellis asked Hernandez.

  Hernandez nodded. The interpreter said it was.

  “Twenty-five dollars says Belmonte denies it when Ellis puts him on the stand,” said Sam. “Belmonte probably has charges against him or he will next week, and they’ll give him a break for this testimony.”

  “I have no further questions,” said Ellis.

  “We’ll take our luncheon recess now.” The judge retired from the bench.

  After lunch, Siakos rose. Hernandez testified that Detective Johnson had taken him to the washroom before he saw the D.A., and Johnson told him that if he didn’t say the right things to the D.A., they’d take him back to the third floor and break his balls. He said that he believed they would. Siakos took the question-and-answer statement.

  “Mr. Hernandez, do you recall these questions and answers?”

  “Objection, Your Honor. That document is not in evidence. It can only be used as a prior inconsistent statement, and defense counsel may not impeach his own witness.”