by David Ellis
She held her breath as she watched the tape.
Ronnie Masters walked over to Alex with a piece of paper rolled up in his hand. “What the fuck is this?” he asked, slapping the paper down on the table.
“I don’t know,” Alex answered, seated in the chair with his hands in manacles. “What is it?”
Ronnie kept a distance but pointed at it. He couldn’t stand still. “That’s the paper tonight. The Watch, on-line. Look at the fucking headline.”
Alex read it aloud. “‘Defense blames drug dealer in Miroballi trial.’”
Ronnie paced a small area and pointed at it again. “It says Shelly’s not going with self-defense anymore. When the fuck did that happen?”
Alex looked at Ronnie. “Take it easy—”
“I’m not gonna ‘take it easy,’ okay? I’m not gonna be the scapegoat here, got me? I’m not going to jail for you. I’ll tell them. I’ll tell them everything.”
“Ronnie”—Alex came out of his chair, as best he could with his hands shackled. “What the hell are you doing? They can—”
“I don’t care what you or your lawyer says. I’m not—”
“Ronnie, shut up! What the hell are you doing?” He nodded his head upward.
Ronnie looked around the room. He seemed to understand the reminder. He moved closer to Alex and pointed a finger at him. “Do not mess with me,” he warned in a softer, but no less firm voice that came through perfectly clear on the tape.
“What the hell are you—”
“Alex.” He moved away but kept his finger directed at Alex. “Don’t forget what I said. Don’t make me do anything here.”
He left the room. Alex called after him but to no avail.
Shelly fell back in her chair. “That tape isn’t coming in,” she said.
Morphew sat next to her in a chair. He was a gentleman, more or less, and he seemed above outright gloating. But he was awfully pleased. “Who needs the tape?” He pointed at her file. “The tape just explains how we first came upon him. It shows we’re not springing this on you.”
Morphew motioned to the plea agreement he’d given Shelly. “We got him last night and finalized the deal this morning,” he told her.
The plea agreement was signed, only an hour ago, by a public defender representing Ronnie. That answered the question of why Morphew had seemed preoccupied. In exchange for receiving immunity for obstruction of justice charges, Ronnie Masters agreed that he would truthfully testify to the following:
(1) That he was present at the place and time of the shooting of Officer Ray Miroballi, to wit, February 11, 2004, at approximately 8:00 p.m., in an alley intersecting the avenues of Gentry (200 south block) and Donnelly (200 south block);
(2) That the reason for his presence at that place and time was that he was driving to the City Athletic Club, at 155 South Gentry, to pick up the defendant, Alex Gerhard Baniewicz, from a basketball game;
(3) That at the aforesaid place and time, he witnessed the defendant, Alexander Gerhard Baniewicz, discharge a firearm that resulted in the death of Officer Raymond Miroballi;
(4) That at the aforesaid time and place, after witnessing said shooting, he drove his car back to his residence;
(5) That he was aware, after the fact, that the defendant, Alexander Gerhard Baniewicz, had met with Officer Raymond Miroballi but that he was unaware of the reason for these meetings;
(6) That on February 25, 2004, between the hours of 8:00 and 9:00 P.M. at the location of the defendant’s detention, the defendant, Alexander Gerhard Baniewicz, admitted to meeting with Officer Raymond Miroballi on more than one occasion in the past and stated that he had “been playing a dangerous game” with Officer Miroballi;
(7) That he knowingly and deliberately failed to disclose the aforementioned facts to law enforcement despite being asked for any information relating to this matter; and
(8) That he knowingly and deliberately lied to law enforcement about his whereabouts on the night of the shooting.
“Oh, Ronnie,” she mumbled. He had kept himself entirely out of the fray. He didn’t know why Alex was talking to Miroballi, he was going to say. He didn’t participate in a cover-up of the crime. Sure.
She looked up at Morphew.
“Sorry, Counselor,” he said, and she sensed that, on some level, he meant it.
“You’ve been recording everything all along?”
“Actually, no. We really don’t do that as much as we should.” He shrugged. “I got to thinking that somebody must have helped your guy. I mean, we never found the gun. Where could he have put it that we didn’t look? That meant Ronnie. So a few weeks ago, I got the bright idea. Only Ronnie hadn’t been coming around. He stormed in last night and we were ready for him.”
“But he didn’t admit to disposing of the weapon.”
“No, he didn’t.”
She waved the paper in her hand. “Have you given me everything on this kid, Dan? You’re expecting me to believe that this all came about as a hunch?”
“I am. Because it’s true.” He leaned into her. “You think I’m going to withhold evidence from you? That’s not a smart career move.” He straightened again. “We’ve been by the book all along, Shelly, and you know it. C’mon, let’s go talk to Petey.”
They went to the judge. Shelly objected to the “ambush” but she had no chance. The prosecution was entitled to continue their investigation. They had just come upon this tape, and it spawned an interrogation of Ronnie Masters. He waived the right to counsel—Shelly had been provided the waiver as well—and ultimately had secured the services of the public defender to work out a deal.
“I’ll allow a brief continuance, Ms. Trotter,” the judge offered. “After we finish our witnesses today.”
Only twenty minutes ago, she had said the words to Alex—that she would put Todavia in that alley, the gun in his hand. Nobody, besides a homeless man, would say otherwise. It was a good case. And now this.
She got up from the chair in a daze. She felt like she’d been hit over the head with a brick. She had only one thing going for her.
Ronnie had made the decision easier for her.
She was allowed all of five minutes to show this to Alex. “Thank God,” he said, when he learned that Ronnie was off scot-free. “There’s no way Ronnie gets in trouble now?”
“That’s right. Tell me what’s true and what’s not,” she said, referring to the numbered paragraphs that would constitute Ronnie’s principal testimony.
He reread the allegations and looked at Shelly. “Every word of this is true.”
She felt like the floor had collapsed beneath her. She was back at the bottom of the mountain again.
“We still can say self-defense,” Alex offered. “This doesn’t say it wasn’t self-defense.”
“Let’s proceed,” said the judge as the jurors took their seats. “See what we can get in before lunch.”
“The People call Julio Sanchez,” said Morphew.
68
Partners
“MY NAME IS Julio Edgar Sanchez.” Ray Miroballi’s partner was in uniform, his hat in his lap. The sizeable witness stand, the high railing, dwarfed him. His hair was neatly combed; his skin was smooth and almost glossy, possibly the result of perspiration. This would be a tough memory for the officer, and his encounter with Shelly when she accosted him had not been the most pleasant, either. All in all, there were probably many places Sanchez would rather be.
Dan Morphew was comfortable directing police officers, something that came with every case. He moved with efficiency through the essentials—shield number, years on the force, assignment to the second precinct of Area Four.
“Ray was my partner for three years,” said Sanchez.
Shelly had to continually work her way out of the avalanche that had just fallen on her. Ronnie Masters would put the gun in Alex’s hand, when no other credible evidence could have. Ronnie had turned on Alex out of fear. And Alex was letting him.
“Take you t
o February eleventh of this year, Officer.” Morphew now used the lectern centered between the prosecution and defense table, but moved behind it so the defense could look at the jury, and vice versa. Shelly had continually reminded Alex that the jurors would sneak glances at him throughout the trial, not seeking confrontation but wanting to look at the person they were judging.
“We got started that day at one o’clock. We worked the precinct.”
“You were patrolmen.”
He nodded.
“Officer, an audible answer, please.”
“Yes, we were patrolmen. We drove a patrol car. Squad Thirteen.”
“What was your shift?”
“One to nine.”
“And describe the day for us, Officer. February eleventh.”
“Well, I can’t remember every detail, y’know. But it was a normal day. We drove around the second.”
“The second precinct?”
“Right, the second precinct.” Sanchez described the boundaries of the second precinct in Area Four. The precinct included such neighborhoods as the Andujar projects on the west side and the city’s downtown.
“We made a couple arrests that day, I’m pretty sure. Like every day. Nothing big happened, though. Not until later.”
“And what happened around seven-thirty that evening, Officer?”
“We were by the train station. Ray said he wanted to head over to the City Athletic Club. We were going to pay a visit to his confidential informant.”
“Now, when you—”
“Objection.” Shelly got to her feet. “Move to strike based on lack of foundation, your Honor. This witness has no idea about any confidential informant.”
The judge nodded. “Lay the foundation, Counsel,” he said to Morphew.
“Yes, Judge.” Morphew pointed at Alex. “Officer, before the night of the shooting, had you ever seen the defendant before?”
She could object to that, too, but she didn’t want to show her hand.
“Yeah, I saw him a couple of times before.”
“Describe these times.”
“Ray met with the kid a couple of times.”
“Where? When?”
“They met at Abbott Park. It’s down south of the commercial district. I think the first time was right around Thanksgiving—”
Right. The first time Alex had met with Miroballi was November 24 of last year.
“—and the second was, I think, beginning of December.”
Also correct. December 1, 2003, was the second time they had met.
“I went with him. Ray said you never knew with a confidential informant. He said he wanted some backup just in case.”
“Object to the hearsay,” said Shelly.
Morphew was prepared on this point, naturally. These were critical facts for him. “These statements go to state of mind. They aren’t offered for the truth of the statements. They’re offered for the fact that they were made.”
“I’ll allow them,” said the judge.
“Judge.” Shelly was on her feet. “State of mind, at this point, has no relevance. This is a thinly veiled attempt to establish—”
“I said that I will allow it, Counsel. Your objection is overruled.”
The word on Judge Dominici was that he was a prosecutor’s judge. Most, but not all, former prosecutors who assumed the bench were. This didn’t mean that they jumped up and down and applauded the prosecutor and booed and hissed at the defense attorney. It was always more subtle. Subtle, as in, at a critical evidentiary juncture of the case, you go the prosecutor’s way.
The judge was wrong on this, and she had to make her case for the court of appeals. She argued, despite the judge’s attempt to close debate, for the better part of a minute.
“You are overruled,” the judge repeated.
“So I watched from my car,” Sanchez continued at Morphew’s prompting. “Both times. Alex over there and Ray talked for a while. Then Ray would go back to his car and I’d go home, too.”
“On each of those days, Officer, did you ask Ray afterward what had happened?”
“Yeah.”
“And what—what information did he give you?”
“Information about the Columbus Street Cannibals.”
They had rehearsed this well. They were dancing around the hearsay rule.
“What kind of information did Officer Miroballi say to you, after he had talked with the defendant each of those times? Can you be more specific?”
“Information on the Cannibals’ drug dealing. Places. Amounts. Future plans for drug purchases.”
“Did Officer Miroballi tell you the defendant’s name?”
“No.”
“Did Officer Miroballi, to your knowledge, register this confidential informant?”
“Objection.”
“Overruled.”
“Judge,” Shelly said, “now it’s Mr. Morphew making the assumption that my client was somehow a confidential informant.”
“Counsel.” The judge removed his glasses. “There has been more than enough foundation to demonstrate that the defendant had been supplying information about drug deals to Officer Miroballi.”
“There hasn’t been any,” she said quickly. The judge’s words had hurt badly, said as they were in the jury’s presence. She felt the heat come to her face. Her objection had gone south on her. Now the judge was placing his official stamp on the prosecution’s theory. “This is assumption stacked upon assumption.”
“You are overruled, Ms. Trotter. You’ve made your record and now we’re going to continue, if that’s all right with you.”
“We move for a mistrial, your Honor. This is unbelievably prejudicial and unfair.”
“That motion is denied. Mr. Morphew, proceed.”
Shelly took her seat. She didn’t know if she was angrier at the judge or herself.
“No,” Sanchez answered. “Ray didn’t register the defendant. Something like this—drugs and especially the Cannibals—people want to be sure of privacy. Ray, he didn’t even tell me his name. It’s, like, a trust thing.”
Morphew paused a moment. “All right, sir. Now let’s go back to what we were originally talking about. Seven-thirty, the night of February eleventh, 2004.”
“Okay. Ray said he wanted to go see his informant.”
“Did he say why?”
“He—y’know, like I said, he didn’t want to tell me too much. I think he was worried for me, too.”
“Objection.”
“Overruled.”
“Go on, Officer Sanchez.”
“Ray, he didn’t say much detail or anything. He said to me, ‘I think this kid’s playing with me.’ He said—”
“Objection.”
“—‘I gotta get some answers from this kid.’”
“Goes to state of mind, Judge,” said Morphew. “Based on what the defense has pleaded pretrial, the state of mind of the officer is very much at issue.”
“No.” Shelly got to her feet. “No, it is not. His actions are relevant. My client’s state of mind is relevant. What was going through the officer’s head is absolutely not.”
“I don’t agree with that,” said the judge. “I’m going to allow it.”
“This is”—Shelly opened her arms—“this is simply wrong, Judge. This is entirely unfair. All of this so-called ‘state of mind’ evidence is entirely unreliable and inadmissible.”
The judge leaned forward on his elbows, staring at Shelly. “Counsel, the officer’s state of mind informs his actions. This is relevant testimony.”
“We are talking about an objective standard,” she said, referring, without using the words, to self-defense. “A reasonable-person standard from the standpoint of my client. Unless the officer was transferring his thoughts by telepathy to my client, his state of mind is of no relevance whatsoever.”
The judge didn’t seem to appreciate the sarcasm. “Over,” he said, “ruled.”
“Tell us again, Officer, since there was an interrup
tion—”
“Ray said, ‘This kid is playing games with me. I gotta get some answers from this kid.’”
“He didn’t say anything about hurting that kid, did he?”
“No. Just talking. Getting some answers.”
“Okay.” Morphew looked at the jury. “Now, did you see the defendant when you got to the City Athletic Club?”
“Not at first. Then he came out. So we drove over to him.”
“Did your partner say anything else about the defendant?”
Sanchez nodded. “Ray told me he saw the defendant holding drugs.”
“Objection,” Shelly said. “Total and complete hearsay.”
“Goes to state of mind,” said the judge. “Overruled.”
“What happened next?”
“Ray radioed it in.”
“To whom?”
“Dispatch. Police dispatch.”
“Did you turn on your overhead lights?”
“Yeah, we did.”
“Go on, Officer.”
“Ray got out of the car. He started walking toward the defendant.”
“What did you do?”
“I got out, too. Walked over, too, but not as far as Ray. Not over to the defendant. Kept a distance. That’s what we do. So I can see the bigger picture.”
“What did Officer Miroballi do?”
“He walked over to the defendant.”
“And?”
“The defendant ran.”
“How did the two of you respond?”
“Ray ran after him. Told me to get back to the car.”
“Was that unusual, in your experience?”
“No, it was normal. Standard. One chases by foot, the other by car.”
“What happened next?”
“Ray, he”—the officer caught himself, paused, cleared his throat—“well, the defendant over there ran into an alley about ten, fifteen yards away. Turned and went down the alley.”
“And Officer Miroballi?”
Sanchez gestured, swatted the air. His eyes had filled.
“You need a moment, Officer?”
