by Parnell Hall
“To clean out her desk.”
“That makes no sense.”
“It makes sense to me. I can’t help it if it doesn’t make sense to you.”
Dirkson cocked his head. “The defendant told you this?”
“I beg your pardon?”
“This theory you’ve just given me for why she went down there at ten o’clock-did she tell you this?”
“Not in so many words,” Cunningham said. “You asked me for a reason why she went down there at ten o’clock. So I gave you one. It is my reason, but it’s based on things she told me. One, that she didn’t want to meet Frank Fletcher and, two, that she wanted to clean out her desk.”
Dirkson’s eyes narrowed. “Are you trying to tell me you never asked her why she went down there at ten o’clock?”
“Of course I did. She told me she went down there to clean out her desk. Just like I said.”
“No, no,” Dirkson said. “Didn’t you ask her why she waited until ten o’clock to go down there?”
“Certainly not.”
“Why not?”
“Because we’re friends. I didn’t cross-examine her the way you’re cross-examining me. I merely asked her what happened. And when she told me, I believed her.”
Dirkson took a breath. “What about the petty cash drawer?”
“What about it?”
“Did she tell you whether it was open or shut when she found it?”
“Yes, of course,” Cunningham said. “She found it open, and the police found it shut. She can’t understand how that happened, unless one of the officers was careless and closed it.”
Dirkson stopped, glared at the witness in exasperation. He knew Cunningham was lying, but he couldn’t seem to faze him. And with every answer, Cunningham was just making things worse. Dirkson hated to let him go, but it occurred to him Cunningham was his witness, and if he came up with anything he could recall him later on.
“All right,” Dirkson said. “No further questions.”
Steve Winslow stood up. “Mr. Cunningham, you testified the defendant got home from her dinner with you sometime after eight o’clock?”
Dirkson, who had just sat down, lunged to his feet again. “Objection, Your Honor.”
Judge Wylie sighed, pointed to the sidebar.
When they had gathered there, Judge Wylie said, “Yes, Mr. Dirkson?”
“Your Honor,” Dirkson said. “This is the very situation I had anticipated. This witness is friendly to the defense and hostile to me. You will notice at what great pains he went to sneak in the time element, when Your Honor had already ruled it inadmissible. Now that he has, the defense attorney is going to build on that by cross-examining him on it, at which point the witness will cheerfully lie and commit perjury in order to build up an alibi for the defendant.”
“As you can bring out on redirect,” Judge Wylie said.
“How can I establish that with a witness who continually lies?” Dirkson cried in exasperation.
“I will thank you to lower your voice,” Judge Wylie said. “We are at the sidebar, not in chambers. Now, I am going to take you last remark as being uttered in frustration. Since you are the district attorney, I am going to assume you don’t really want to be lectured by me on how to cross-examine a witness who may not be telling the truth. As to the objection, it is overruled. The defense may certainly cross-examine on any matter that came out on direct. Now, let’s get on with it.”
When they had resumed their positions, Judge Wylie said, “The objection is overruled. The witness will answer the question.”
In the back of the courtroom, Mark Taylor nudged Tracy Garvin. “Got him.”
Tracy nodded. Taylor was right. Steve Winslow had virtually guaranteed a not guilty verdict. He had manipulated Dirkson into a position where Larry Cunningham would sink his case for him. Amy Dearborn would be off the hook, and so would they.
So why didn’t she feel good about it?
Tracy sat, listened, while Steve Winslow repeated the question.
“So, Mr. Cunningham, the question was, that as I understand your testimony, the defendant got back to her apartment sometime after eight o’clock. Is that right?”
“Yes, it is.”
“I’d like to pin this down, get it straight in the minds of the jurors. You took Amy Dearborn out to dinner, is that right?”
“Yes, it is.”
“You ate at the Abbey Pub on 105th Street?”
“Yes, we did.”
“What time did you pick her up?”
“Sometime between six-thirty and seven.”
“You picked her up at her apartment?”
“That’s right.”
“Her apartment is how close to the restaurant?”
“Two blocks.”
“So it took you no time at all to walk there?”
“That’s right. Just a few minutes.”
“You sat in the restaurant and had dinner?”
“Yes, we did.”
“And I believe you testified that over dinner you discussed the trial that Amy had been through that afternoon-the one where she was found innocent of petty theft?”
“That’s right. We did.”
“What was her reaction to the trial?”
“She was elated, of course. She had been found innocent in record time. There was no question in the mind of the jurors that she was innocent. She felt totally vindicated. Oh, and she did mention, she felt you had done an excellent job.”
Steve Winslow smiled and bowed. “Thank you very much. Now, as I understand it, after dinner you were going to take the defendant to a movie. Is that right?”
“Yes, it is.”
“And what time did the movie start?”
“Eight o’clock.”
“Eight o’clock?”
“That’s right.”
“But you say you didn’t leave the restaurant until after eight o’clock.”
Cunningham smiled. “But we didn’t see the movie.”
“Yes, but you intended to. If you intended to go to an eight o’clock movie, how come you didn’t leave the restaurant until after eight o’clock?”
“I can explain that,” Cunningham said.
“Please do.”
Cunningham turned to the jury. “The Olympia Theater is on Broadway and 106th Street, which is only a block away. It would take at the most five minutes for us to leave the restaurant, purchase tickets and go in. Plus there’s always five to ten minutes of previews of coming attractions. As if happens, it was nearly eight when we were preparing to leave the restaurant. Which would have given us ample time. However, before we left the restaurant, I made a phone call and checked my answering machine. I found I had a message from a client, summoning me to a business meeting. Unfortunately, I had to go. I happen to be a consultant in the stock market, and when a client has a tip he wants to act on, tomorrow will not do. So we couldn’t go to the movies because I had to go to work.” Cunningham shrugged. “Once we weren’t going to the movies, there was no longer any rush to get out of the restaurant. We finished our coffee, settled up the bill. Amy went home and I went to work, and we didn’t get out of there until after eight.”
“I see,” Steve Winslow said. “So you can personally give the defendant an alibi until sometime after eight o’clock?”
“Yes, I can.”
Steve Winslow nodded. “Thank you, Mr. Cunningham.” He turned to the bench. “Your Honor, I think I have a few more questions, if I could have your indulgence for a moment, please.”
Steve turned, walked back to the defense table, leaned over to Amy Dearborn. In a low voice, he said, “How’m I doin’?”
That startled her. “Fine I guess,” she said. “What do you need to know?”
“Nothing, really,” Steve said. “I’m just stalling for time.”
“Huh?”
“Just taking a break before the big push. But I suppose I really should ask you something.”
“What?”
“You ever go
to bed with this guy?”
Amy’s eyes widened. “Damn it,” she said.
“Can I take that for a no?”
“What the hell are you doing?”
Steve shrugged. “Like I said, I had to ask you something. Now nod your head like we just conferred over a very important matter.” When Amy just stared at him, he said, “That’s fine. And away we go.”
Steve Winslow walked back to the witness stand. He frowned, thought a moment. “Mr. Cunningham. You have stated you were going to an eight o’clock showing at the Olympia theater?”
“Yes. But I believe I stated the movie actually starts about ten after. What with previews and everything.”
“I understand that,” Steve said. “And I wasn’t disputing the time element. I was merely stating that you and Amy Dearborn were going to what would generally be referred to as the eight o’clock showing. Is that right?”
“Yes, that’s right.”
“Is it?” Steve said. “Mr. Cunningham, do you recall a conversation I had with you prior to this trial, when I asked you what movie you were going to and you had no idea?”
“No, I don’t recall that at all.”
“As I recall the conversation, you stated that you were going to the Olympia theater all right, but you had no idea what was playing there. I pointed out to you that the only two choices were a eight o’clock showing of a romantic comedy, or a nine o’clock showing of a rap movie. Is it not true that it is only since that conversation that you made up this whole explanation of how the movie you going to started at eight o’clock, but with previews and everything it would have started at eight-ten, and that’s how you got out of the restaurant so late?”
Cunningham looked at Steve Winslow as if he couldn’t believe he was asking him that. “Absolutely not,” he said. “Why would I do such a thing?”
“I’ll tell you why,” Steve said. “Is it not a fact that while Amy Dearborn may have thought she was going to the movies, you never had any intention of doing that at all? Is it not a fact that the reason you didn’t know when the movie started was because you didn’t plan to go? Is it not a fact that after dinner, instead of going to the movies, you were going to take Amy Dearborn back to her apartment and try to get her to go to bed with you?”
“Why, you son of a bitch!” Cunningham exclaimed.
“Objection!” Dirkson shouted. “Incompetent, irrelevant and immaterial.”
“It is an impeaching question, Your Honor.”
Judge Wylie banged the gavel, silencing the attorneys and the rumble from the spectators in the courtroom. “The objection is overruled. Witness will answer.”
“Is that not a fact, Mr. Cunningham?”
“No, it is not a fact. And I object to the insinuation.”
“I’m sorry about that,” Steve Winslow said. “But these allegations come up, and they have to be aired. I would think you would welcome the opportunity to set the record straight.”
“On that score, I do,” Cunningham said. “And I may say there was absolutely no truth to that allegation. We were going to the movies.”
“It was always your intention to go to the movies?”
“That’s right.”
“And the only reason you didn’t go was because you got a phone call from a client summoning you to work?”
“That’s right.”
“Well, that’s not quite right,” Steve said. “I phrased the question incorrectly. You didn’t get a phone call. You got a message on your answering machine, isn’t that right?”
“Yes, it is.”
“You called your answering machine, got a message from a client asking you to meet him that night?”
“That’s right.”
“You made this call to your answering machine at a little before eight o’clock on the night of the murder?”
“That’s right.”
“Is that so? Mr. Cunningham, do you have call-forwarding?”
There was a pause. Cunningham, who had been snapping out the answers to the questions, choked on that one.
Dirkson filled the void. “Objection, Your Honor. Incompetent, irrelevant and immaterial.”
Judge Wylie, looking at the expression of the witness, rather reluctantly said, “Objection sustained.”
“I’ll withdraw that question and ask another. Mr. Cunningham, whatever you might say to the contrary, was it not your intention that evening to go back to the defendant’s apartment? Is it not true that for that reason you set call-forwarding on your phone to transfer your calls to hers? Is it not true that when you called from the restaurant to get your messages, you didn’t call your answering machine, you called hers? Because your messages had been transferred there?
“Only there wasn’t any message for you on the answering machine, was there? The message you heard was for her. It was a message from Frank Fletcher, your hated rival, asking her to come down to the office. It was an arrogant, obnoxious message, implying a past relationship. When you heard it, you were outraged. But you hid it well. You went back to your table, told Amy a business matter had come up and you would have to leave.
“Only it wasn’t at eight o’clock. You left the restaurant at seven-thirty, as Amy Dearborn has always maintained. She went home, and you went straight down to the office, found Frank Fletcher and shot him dead.
“Is that not a fact, Mr. Cunningham?”
On the witness stand, Larry Cunningham had gone white as a sheet. He opened his mouth, closed it again. Blinked his eyes. Failed to answer.
In the silence that followed, Steve Winslow murmured, “No further questions.”
48
For Someone who’d just been handed the solution to a murder case, District Attorney Harry Dirkson did not look particularly happy. He stood next to the desk in Judge Wylie’s chambers and rubbed his head. “Let me hear it again.”
“Yes, let’s have it again,” Judge Wylie said. “If I’m going to dismiss this case, I’d like to be sure of my grounds.”
Steve Winslow leaned back in his chair, looked over at the judge. “Sorry I couldn’t get you a confession,” he said, “but the number of people who break down in court and say, I did it, is somewhat smaller in real life than it is in books.”
“Spare me,” Dirkson said. “Just get on with it.”
Steve Winslow looked up at him. “I don’t like your attitude and I don’t like your tone. If you don’t want to hear this, I’m perfectly happy to walk out now and let the case go to the jury. Now, you take a minute and consider whether or not you think they’d convict.” He paused a moment, let that sink in. “If you nail Cunningham, you still come up with a killer. Which will look a little better in the scorebook than losing all the way around. Now, you want to hear this or not?”
Dirkson said nothing, looked away.
“Yes, let’s have it,” Judge Wylie said. “I think I have the picture, but let’s nail it down.”
“It’s really very simple,” Steve said. “We have your basic, simple crime of passion. Larry Cunningham killed Frank Fletcher in a jealous rage. He was infatuated with the defendant. Unfortunately, the feeling was not mutual. Amy Dearborn had no interest in Cunningham-he simply wasn’t her type. She was willing to let him buy her dinner now and then, but that was it.” Steve shrugged. “Not entirely admirable, I suppose, but somewhat less heinous than murder.”
“Yeah, yeah,” Dirkson said. “What about Cunningham?”
“Well, there’s your picture,” Steve said. “We have your repressed young man carrying a torch in a one-sided love affair. Just the type to pop his cork and go berserk when he thinks she’s being hit on by someone else.”
“Never mind the motivation,” Dirkson said irritably. “For my money, anyone will kill anyone. Just tell me how he did it. More to the point, how can I prove he did it?”
“He did it just like I said in court. He took Amy out to dinner with the hope of getting her into bed. It was a vain hope by the way, but guys like him never quite believe that. He w
as going to kiss off the movie, get her up to her apartment, and make his move. He was obsessed, so the fact it had never worked before wasn’t enough to dissuade him.”
“How do you know it had never worked before?”
“My client told me.”
“Big deal. I wouldn’t take her word for anything.”
“Gentlemen, please. Let’s not digress,” Judge Wylie said.
“The point is,” Steve said, “he was planning to get her up there. So at the end of dinner he went to check the answering machine. Not that he was expecting to get a message. More than likely, he was just laying the groundwork for skipping the movie He intended to tell her something had come up, they didn’t have time to go to the show, but he had time to come up to her place for a while.”
“You know that for a fact?” Dirkson said.
“No, I’m making it up. It just seems plausible to me.”
“I need more than that.”
“I don’t.”
Dirkson looked at him. “Huh?”
“If you don’t convict this guy, it’s no skin off my nose. I’ll give you what I’ve got, but frankly I’m getting a little sick of the sarcastic interruptions.”
“You haven’t given me a fact yet.”
“You haven’t shut up long enough for me get to one.”
Winslow and Dirkson glared at each other a moment. Then Dirkson waved it off, flopped into a chair. “Get on with it,” he said.
“Okay,” Steve said. “For whatever reason, at the end of dinner Cunningham went and made a phone call. He said he was checking his answering machine, but actually he was checking hers. Why? Because he had call-forwarding on, transferring his calls to her phone.” Steve pointed to Dirkson. “And there is a fact that you can check. First that he has call-forwarding. And second, that on the night in question it was routing his calls to her phone.”
“Will there be a record of that?” Dirkson said.
Steve shrugged. “I haven’t the faintest idea. But it’s something to check out. If there’s a record, it will help. But there should be other proofs.”
“Such as what?”
“You might try cabs.”
“Huh?”
“Cunningham beat Amy down to the office and had time to get in, kill Fletcher and get out. If she went home, checked the answering machine and went straight down there, that would be cutting it rather close. I doubt if a man on that sort of time schedule would take the subway.”
