Easy Errors

by Steven F Havill

  “And Dr. Perrone will testify in detail, of course. But I’m interested right now in the conclusions that you and Deputy Torrez might have developed at this point.”

  “When he saw the bullet that the medical examiner recovered from the victim’s skull, he said that the remains of the slug looked like a ricochet to him. I don’t know what he thought before seeing the recovered projectile.”

  “Well, after seeing the projectile, then. How is it that he would come to view it as the result of a ricochet?”

  “He mentioned to me only that the sharp edges of the deformed bullet appeared consistent with striking something sharp during the trajectory. Normally soft-nosed bullets mushroom, sometimes quite evenly, when striking tissue. This bullet was clearly damaged by striking something sharp first.”

  “And did the deputy develop a hypothesis about that?”

  “He did.”

  “What was his hypothesis?”

  “I can tell you what he did, Counselor. What his thought processes were, you’d have to get from him.”

  Schroeder smiled benignly. “And what did he do?”

  “He climbed the windmill and examined the sails. What some folks call the blades.”

  The DA moved the large portrait of the windmill front and center. “He climbed up here?”

  “Yes. To the maintenance platform below the transmission housing.”

  “And the purpose of that expedition was?”

  “He examined each sail in turn.”

  Schroeder glanced at the jury. “And his determination?”

  “The sails had been peppered with small-caliber bullet holes—eleven of them. And three from a larger-caliber gun.”

  “Did any particular damage draw the deputy’s attention?”

  “Yes. One of the bullet strikes appeared to have hit one of the cross members.” I nodded at the large schematic of the windmill sail that Schroeder put on the easel. “That’s where the wheel arms bolt to the inner wheel band, to support the set of sails.”

  Schroeder stepped across to the displayed sail, and pushed the heavy castered easel carrying the windmill sail closer to the jury rail. “It would be helpful if you would all step down here for a closer look at this to understand what Sheriff Gastner means.” He beckoned them down, and they milled about the sail, peering at the damage.

  When they returned to their seats, Schroeder slid the contents of an evidence bag into his hand.

  “Sheriff, do you recognize this?”

  “Yes, I do.”

  “Would you describe it, please.”

  “That’s the bullet that Dr. Perrone removed during autopsy from Darlene Spencer’s brain.”

  Schroeder placed the heavy, deformed fragment in a small white plastic dish and handed it to the jury. “Were you able to determine the caliber of that projectile?”

  “Yes. It was measured at four hundred-thirty-thousandths at the base. What would be termed forty-four caliber.”

  “Forty-four? Why is a bullet that measures four-thirty referred to as forty-four, Sherifff?”

  “A historical issue, Mr. Schroeder. A thirty-eight is not a thirty-eight, a forty-four is not forty-four. It’s an inaccurate reference that’s been with us for more than a century.”

  “I see. Anyway, you determined that this was fired from a forty-four-caliber gun.”

  “Yes.”

  “Did there come a time when you were able to establish specifically which gun?”

  “Yes. We recovered two forty-four-caliber firearms from a truck owned by Clifton Bailey.”

  “Where was the truck parked when you did this?”

  “D’Anzo Chrysler-Plymouth, here in Posadas.”

  At this point, Schroeder slipped an enlarged photo of the pickup onto the easel. “Do you recognize this vehicle?”

  “Yes. That’s the vehicle in question, owned by Clifton Bailey.”

  “And where were the two firearms?”

  “In a locked toolbox inside the rear camper shell.” More photos were lined up showing the interior of the camper shell, the toolbox, and the box lid raised to show the guns in place.

  “You said that this truck was stored at the dealer’s here in Posadas. What prompted you to investigate here?”

  “We had evidence that a vehicle had been involved in a collision with a stump near Bender’s Canyon. We talked to a witness who may have heard the crash. He did not see it happen, but he’s sure he heard it. The truck made it back as far as the local saloon, where Mr. Bailey called a wrecker. The waitress at the saloon recalls that incident.”

  “I see.” He placed an FBI photo montage on the easel. “Ladies and gentlemen, I would like to call your attention to exhibit B-thirteen. Sheriff, will you explain what we’re looking at, please?”

  “That’s a series of comparison photos showing the bullet fragment from the victim’s skull compared with a bullet that Deputy Torrez recovered from a test tank, fired from one of Mr. Bailey’s firearms, in this case a Ruger Super Blackhawk, forty-four magnum revolver.”

  Schroeder hefted the revolver. “Would you identify this exhibit, please.”

  “That’s the forty-four magnum just mentioned, owned by Clifton Bailey.”

  “And the results of the comparison?”

  “I am convinced that both bullets were fired from the same gun.”

  He looked at me quizzically. “Were you present at these tests?”

  “Yes.” And they were performed by a rookie deputy just days on the job, I wasn’t tempted to add. If this case ever went to trial, however, a good defense lawyer would have a field day.

  “So…” He stood with a hand on his jaw, thinking. “And this third comparison?”

  “That’s one of the slugs recovered from Herb Torrance’s stock tank. Tests showed that that bullet also was fired from Mr. Bailey’s forty-four-caliber handgun.”

  He frowned. “So in your opinion, we have a match, then. The deformed bullet removed from the victim, the bullet recovered from the stock tank, and the bullet fired during your department’s own laboratory testing. All from this revolver.”

  “Yes.”

  “Mr. Gastner, returning to an earlier question. In your career, have you had occasion to investigate the results of a magnum-class bullet wound to the head?”

  “Yes. Both human and livestock.”

  “And in those cases—any of them—was the damage inflicted similar to that suffered by the victim, Darlene Spencer?”

  “No.”

  “How did they differ?”

  “In every case, the magnum round exited the skull. In all cases but one bovine incident, the rounds blew away large portions of the skull caps.”

  “But that is not consistent with the damage to Darlene Spencer’s skull, is it?”

  “No, it’s not. The damaged bullet you’ve shown the jury did not exit the skull.”

  “Enough to kill instantly, however.”

  Schroeder had planted that grim question just right. When I answered, “No, it did not,” the jury visibly flinched.

  “Again, we’ll be talking to Dr. Alan Perrone shortly, but it’s your experienced opinion that death was not instantaneous?”

  “There’s reason to believe that the victim probably lived through the night.”

  “Lived through the night, alone and hurt,” Schroeder echoed. I glanced at the jury, and the magnitude of Clifton Bailey’s mistake in demanding an opportunity to testify was clearly written on their faces. At that moment, they would gladly have supplied the rope for a lynching.

  He turned and looked at the site schematic. “It appears…no strike that.” Schroeder turned to look at me. “One hundred and ninety feet, more or less. Why was Darlene Spencer almost two hundred feet away from the scene of the shooting, apparently concealed in brush and shrubs?”

 
“Tests with Luminol suggest that she had walked some distance away in order to go to the bathroom.” Schroeder put a large, bizarrely patterned photo on the easel.

  “Can you explain what we see here, Sheriff?”

  “That’s a photo taken at night, showing the images produced when Luminol touches bodily fluids. On the right is an area where we’re quite sure that the victim first urinated. The amount of urine present suggests that. When finished, she stood up, or started to stand up, and was struck. The area on the left is where she fell, and where her body remained until she was discovered the next day.”

  “You said that you believe she was conscious most of the night.”

  “No, I didn’t say that, Counselor. I said that she was alive until sometime the next morning.”

  Schroeder nodded his acceptance of the correction. “But then, no one—not the youngsters, or for that matter any of the adults present in the canyon—no one made any attempt at rendering first aid to the victim?”

  “I don’t know the answer to that, Counselor. The three adults all claim that they did not know she was there and hurt. They did know that she said she was going to the Suburban, which was in that general area. By that time, the light was failing. We do know that when everyone eventually left the area, Darlene Spencer was left behind.”

  Chapter Twenty-nine

  There were some looming tangles to this case, though—and I think that Dan Schroeder knew that. Maybe even Clifton Bailey knew it. But Schroeder wanted the power of a Grand Jury indictment, so he didn’t touch the tangles. But Lewis Bennett did.

  Bennett, juror number 8, a young welder employed by Consolidated Mining, looked sideways at me, his brow wrinkled like a prune. “According to what we’ve heard,” Bennett said slowly, “there were seven people in the canyon that evening.” He held up seven fingers. “How do we know who actually fired the bullet that ricocheted off the windmill and then struck Darlene Spencer? She didn’t shoot it, so that leaves six, right?”

  “Correct,” I said. “Unless there was someone else in the canyon that night that we don’t know about.”

  He waved a hand at the windmill. “If the bullets match, it doesn’t really matter that it was a ricochet or not, right?”

  “Correct,” I said. “Unless issues of intent are considered.”

  Schroeder started to speak, but Bennett charged ahead, undaunted. “So even if we narrow it down to a bullet from Mr. Bailey’s gun, do we know which one of the six, or which ones…do we know who fired the fatal bullet?”

  I looked at Schroeder, as if to say, “Do you want me to answer that?” He gave a little nod.

  “Other than material in the depositions of the three men, no, we don’t.”

  “Do we get to see those depositions?”

  “Most certainly you do,” Schroeder said. “Most certainly.” He straightened up and pushed away from his lectern. “And that brings us to an important point. Sheriff Gastner, were the three men tested for blood alcohol at some point during the night of the shooting?”

  “Yes.”

  “And the results of those tests?”

  “Mr. Bailey tested one-point-nine. Mr. Torkelson tested one-point-eight. Lieutenant Smith tested at one-point-one.”

  “Did they have alcohol in their possession?”

  “Yes. They had made a stop at the Broken Spur Saloon to purchase a significant amount of alcoholic beverages. Empty cans and broken bottles that carried their fingerprints were inventoried at the scene.”

  “And the four children?”

  “There is evidence that three of them had not consumed any significant amount of alcohol before the shooting incident, but certainly did during the incident. After the crash in Posadas, only Elena…Ellie…Torrez tested absent for alcohol.”

  “So we can imagine that the alcohol flowed freely that night.”

  I didn’t reply, but could imagine the defense attorney, in the heat of trial, blanching as she leaped to her feet to object. I suspect that Dan Schroeder knew that as well. Part of his arsenal, perhaps saved for just such a moment, included the impressive inventory of beer cans and liquor bottles.

  “Sheriff, during your long career, you have served at one time or another as a firearms instructor, have you not?”

  “Yes.”

  “Both with children and adults?”

  “Yes.”

  “And here we have a situation where three adults have apparently joined four youngster for a shoot-fest of some sort. It is usual to include alcoholic beverages at such an event?”

  “Of course not.”

  “Would you, as an experienced, certified instructor, call the mixing of alcoholic beverages with the shooting sports grounds for a charge of criminal negligence?”

  “Yes.”

  Schroeder nodded with satisfaction. “Is shooting at private property condoned by certified instructors such as yourself?”

  “Of course not. Vandalism with a firearm is a serious crime.”

  “And finally, is there some sort of tenet that exhorts people engaged in the shooting sports to be certain of the backstop when they shoot?”

  “Yes.”

  This time, Schroeder moved to the railing and rested his balled fists on the polished wood. “What we have here is an instance where the targets of this Grand Jury violated every circumstance of common sense possible.” He held up a thumb. “They were most likely under the influence of alcohol, as were the youngsters in their company. They were engaged in vandalism, destroying ranch property located on private property. They fired carelessly, so much so that, when one of the children left the group to relieve herself, she was struck by a ricochet.” By this time, he was holding up a whole handful of fingers. “And most puzzling of all, no one rendered no first aid for the victim.” He paused. “If by some fluke they didn’t know that she had been hurt, we can only say that they should have known.

  He paused to let it all sink in. “Did they know she was down in that canyon? Yes, they did. Were they shooting, or allowing one of the children to shoot, in that general direction? Yes, they were. I want you to remember each of those points as we continue with the rest of the witnesses.”

  In a moment he turned to me. “For the moment, let’s recess.” He looked at each juror in turn. “When we return in thirty minutes, we’ll hear from State Medical Examiner Dr. Alan Perrone and from Deputy Robert Torrez. During the break, do not discuss the case among yourselves, and most certainly not with anyone else. You’re welcome to use the jury commons to stretch and get some air.” He smiled. “See you back in thirty minutes.”

  The DA beckoned to me, and we used Judge Hobart’s chambers for privacy. He held up a small notecard.

  “Susan is asking for a plea,” he said as I closed the door behind us.

  “Oh? I’m not surprised, I guess.” Susan Eskildsen was a seasoned defense trial lawyer, and she would know a crap shoot when she saw one. It was her luck to draw all three as clients.

  “Well, see, here’s the deal. Two of the depositions agree. Both Smith and Torkelson recount that it was actually Orlando Torrez who fired at the windmill, several times, using Bailey’s revolver, while Bailey stood beside him, hands over his own ears. Nobody recounts hearing the ricochet whine off, so it could have been any of the three shots that struck Darlene. But after a time, both Smith and Torkelson remember that Orlando started having breathing difficulties. Smith even remembers it was just after Chris walked down to the Suburban to get more ammo.”

  “And Darlene didn’t scream, or shout, or anything,” I said. “They claim that Chris Browning went back down into the canyon to get another box of carbine ammo from the Suburban…and that’s when he found Darlene. If he was going to take a leak and dump some beer, that grove of shrubs was a good spot. And from there he could see Darlene’s body.”

  “That’s right. That’s a possibility. An
d we may never know the real answer.” He sat on the corner of the judge’s desk. “Look, I know that we have some holes that we may not be able to repair. Like why didn’t the kids load the wounded girl into the Suburban? Panic time, is my guess. The kid sees the hole in her head, and then on top of that, Orlando is turning purple, so they get him in the car. And off they go. The three men claim they never saw Darlene’s body, assumed that she’d left with the other kids…and Clifton claims that they were concerned for Orlando…that’s why Bailey claims he chased them for a ways with his truck. To see if they could help somehow.”

  Schroeder shrugged. “I see an easy indictment. But lots of legwork for the trial.”

  “What’s Eskildsen want?”

  “She says Bailey wants to plea to reckless endangerment of a child—there’s no way around that. A slam dunk, and he knows it. He wants no charges brought against his buddies, except them taking their share of the restitution for the vandalism.”

  “That’s ridiculous. What’s all that going to net Bailey?”

  “I’m predicting Hobart will give him ten years. I’m hoping that he will. Eskildsen is going for two years. He’ll have a felony on his record, so no firearms ownership ever again after he’s released. And he’ll lose everything he owns to the Spencers after the civil suit finishes with him. It’s my guess the civil case will hit both Smith and Torkelson as well.”

  I nodded.

  “Hell of an expensive bullet, huh?” Schroeder said. “What’s your take?”

  “I want jail time for all of them,” I said. “Anything else, anything less, is nonsense. And they share equally in any full restitution to Herb.”

  “I was going to call Susan back right now, and if she agrees to the plea, there’s no point in wasting more Grand Jury time. We can let these good people go.”

  “Eskildsen can be convincing,” I said. “She has to convince the trio to take very real jail time, and Bailey isn’t going to be able to protect his friends. They go down with him. Anything less…to hell with it. If they don’t agree to that, I say we go to trial.”