"Excuse me, your Honor. I didn't hear that, what did he say about honest?" Collucci was going to go big on this.
Rodericks looked at Collucci, "perhaps you should pay closer attention." Looking at the clerk, "would you please read the last response by the witness."
Reviewing the transcript, the clerk read, "Question, Sergeant, how did you know the first call was a diversion? Answer, Experience. It has happened a number of times in my career. Lieutenant Ackerly even asked how many calls they received. There was only one. The bad guys think by diverting officers away from the area they will improve their chances to get away. To be honest." pausing to look at the Judge, "The witness did not finish the answer."
"Are you up to speed now, Mr. Collucci?" Rodericks asked.
"Yes, thank you, the honest part threw me."
"Objection, your Honor, do we really have to tolerate childish editorializing by Mr. Collucci?" Hawk asked.
"Sustained, please approach." Rodericks ordered.
Sliding the microphone away from the bench Rodericks said, "Mr. Collucci, you'll have ample opportunity to impeach this witness. I will not tolerate such tactics during direct by defense counsel. If you cannot contain yourself, I will have you removed and let Ms. Fleming take over. Is that clear?"
"Of course, your Honor. I intend no disrespect; I simply did not hear the answer." Collucci answered, desperately trying to sound sincere.
Hawk laughed, "Oh that certainly makes it all acceptable."
"Enough," Rodericks said, "resume your questioning Mr. Bennett and as for you Mr. Collucci, take my words to heart."
Both lawyers returned to their respective tables.
"Do you recall the question I asked Sergeant?"
"Yes, I heard you perfectly well." Josh answered, watching as some of the jurors caught his sarcasm.
Hawk raised his eyebrow at the response, "Continue with your answer."
"As I was saying, to be honest," staring down at Collucci, "sometimes the tactic works. In this case it didn't."
"Objection, witness is assuming facts not in evidence." Collucci interjected.
"Your honor, if I can get through an entire answer, those facts will be in evidence. This is an experienced officer, he's been through these situations, he can certainly testify to his experience." Hawk challenged.
"Overruled, continue." Rodericks offered no explanation.
"Thank you, your Honor." Hawk, in a parade rest stance, continued. "Now Sergeant, if I recall correctly, you said you turned onto Grove Avenue as you headed to the scene. What happened next?"
Josh turned back to the jury, "Dispatch broadcast a description of a suspect, black male, blue-hooded sweatshirt, armed with a sawed-off shotgun, last seen running toward Six Corners.
As we came down Grove, near John Street, I saw a person that matched that description. As soon as he saw the unmarked car, he turned away, running toward Saint Domenicks."
"Were you certain that this was the suspect?"
"Yes, I was. He matched the description and it appeared to me he held something concealed under his sweatshirt and pants. I believed it was a weapon."
Collucci started to rise, and then reconsidered. I'll let this play out, he thought, when I am done with him they won't believe anything he's said.
Fleming watched his indecision and wondered if she was missing something. She did not enjoy being in this position but her conscience would not let her allow Collucci's political agenda to thwart justice. She needed to know what he was going to do.
"What did you do?"
"I yelled to Lieutenant Hamlin to call it in and took off on foot after the suspect. He ran around to the front of Saint Domenicks, up the stairs, and in the front center door. I came up the stairs, drew my weapon, called on the portable radio I was entering the church, and asked the responding units to set up a perimeter. I then went in the left side front door. As I..."
"Let me stop you there for a moment," Hawk interrupted, "Please explain to the jury why you decided to enter the church at that point."
Josh looked over at the jury; they were all watching him intently. "I knew this was a very popular church. The doors, unlike some churches, are open during the day for parishioners, and others, to come in.” Pausing a moment, he continued.
“I also know the Pastor of the church very well, Father Swanson. He is often inside the church during the day. I was concerned that someone, perhaps Father Swanson, was in there. I believed this suspect already shot two people and wanted to prevent anyone else from being shot."
"But why not wait for assistance? Wouldn't that make more sense?" Hawk asked, also watching the jury's attention on Josh.
"Under the circumstances, I believed getting inside to assess the situation was a better choice. In these circumstances, the suspect is panicked and not thinking clearly. I wanted to be able to evaluate the situation and keep him off-balance. Most of the responding officers were a few minutes away. Going in made the most sense to me. Protecting anyone inside overcame the risk."
Hawk let the jury digest that for a moment, then continued. "There was a risk to yourself as well, correct?"
Josh replied, "I wasn't concerned about myself, it goes with the job."
Hawk continued, "okay, as you came inside, what happened?"
"I came in low and went to the left, down behind the last pew. I quickly scanned the inside. I didn't see anyone, but it was very dark. I caught movement out of the corner of my eye and saw the suspect crawling behind the altar.”
Clasping his hands together, he continued. “I looked around again to make sure no one else was there, and then moved up the left side of the church until I could see the whole altar."
Josh looked down for a moment, recalling the scene in his mind. "As I gained a better view of the suspect, I could see he was crawling slowly toward the Sacristy."
"For my benefit, the Sacristy is?" Hawk asked.
"It is a room off the altar. The priests and altar boys use it to prepare for Mass." Josh answered.
"Thank you, okay so the suspect is moving what do you do?"
"I put myself behind the lectern on the altar, identified myself as a police officer. I ordered the suspect to stop moving."
"In those words? Sergeant, we are all adults here. I know the rush of adrenaline is coursing through your body. Please tell the jury the exact words you said." Hawk waited for the reaction. Several of the jurors leaned forward.
"Well, I said, stop right there you motherfucker or I will blow that fucking hood off with your black head in it." Josh looked a bit shocked by the words himself.
There wasn't much reaction by the jury, a few side-glances.
Hawk continued. "Sergeant why did you say those words?"
Josh glanced at the jury, back at Hawk, then once again to the jury. "I wanted to get his attention, I wanted him to know I was a police officer, I had my weapon drawn, and I wanted him to comply with my order to stop moving. It is important in these situations to get their attention right away. Using loud commands, sometimes laced with profanity, makes the point emphatically."
"And why did you say quote 'your black head' unquote?"
"Because I wanted there to be no doubt in his mind I was talking to him," Josh answered quickly.
Looking at the jury, Hawk said, "Okay what happened next, did he comply with your command to stop?"
"No, he looked back at me, and then continued to crawl. He was saying something but I could not make it out at first. I could only see one hand, his left hand, and I was concerned he held a weapon in the hand that I couldn't see."
Hawk watched as the juror pointed out by Chris kept nodding. As he did this, he would look to the jurors seated to his left and right and they joined in this silent agreement. Time to go for the hard part. This jury was with him now.
"Okay, now Sergeant, I want to take you through the next few moments step by step. Now you're in position behind the lectern, correct?"
"Yes, sir"
"Using it for
cover, right?"
"Yes, trying to minimize the suspect's view of me. I didn't want to give him a clear shot at me."
"Okay, does the suspect keep moving?"
"Well, he moves a bit, but I can see he's struggling, trying to decide what to do...”
"Objection, the witness is testifying as to the intent of someone else, he can't know what was going on in Mr. Machado's mind. It was just as likely he was terrified, lying there, unarmed, with the white cop pointing a weapon at him. Threatening to blow his black head off." Collucci interrupted.
"Your Honor, Sergeant Williams is testifying to what he was thinking, his perception of what the suspect was doing, not what Machado was thinking. He can certainly testify to that. Intent is the whole basis of the government's fantasy of racial motivation here. And he's putting words in Sergeant Williams’s mouth."
"They are his words," Collucci replied, "I am just refreshing the jury's mind about them."
"They are out of context and you know it." Hawk responded angrily. "You're trying to twist this testimony because it clearly contradicts the government's whole case."
Rodericks held up his hand to stop the argument, "All argument and discussion will be to the bench, not a shouting match between counsel. The objection is sustained, in part, and overruled, in part. Mr. Bennett, ask the question so it is clear you are eliciting Sergeant Williams perception and thoughts. Mr. Collucci, the jury will have the record available to them. They do not need your assistance in recapping it. Is that clear?"
"Yes sir," Collucci replied, sitting down quickly.
"Go on Mr. Bennett." Rodericks motioned with his hand.
"Thank you, your Honor. Now Sergeant, getting back to the moment leading up to the shooting. You testified Machado kept moving. He did not follow your command to stop. Is that correct?"
"Yes."
"And he was looking back at you and then toward the Sacristy, is that correct?"
"Yes."
"How far away from you is he at this point?"
Josh paused a moment to visualize the scene, "I would say fifteen to twenty feet."
"And could you see both his hands at this point?"
"No, I could only see his left hand. His right hand was under his body. I believed he was holding something in that hand," Josh's head dropped slightly and he looked toward the floor, then back up at the jury, "I thought it was a weapon."
Hawk studied the looks from the jurors. Some were clearly taken with Josh's words, but two seemed doubtful. One of them kept glancing at Collucci for his reaction. Collucci, apparently aware of this, kept shaking his head and writing notes.
Hawk thought, if people only knew how big a part theatrics play in trials they would be disheartened by the Justice system. Now, this was his stage and he intended to command it.
"Okay, Sergeant. What happened next?"
Josh inhaled deeply, "Machado kept looking toward the Sacristy. I became concerned that someone might be in there. Perhaps, someone saw Machado rush in and was trying to hide. I was worried Machado was trying to get to the Sacristy and take a hostage."
Hawk said, "What did you do?"
"I told him again to stop, the exact words were," pausing a moment, "which part of don't move motherfucker aren't you getting, asshole. Stop moving now or you're a dead man." He could not help a glance at the jury for their reaction.
"Did he stop moving?"
"No, he slowed a bit. That is when I understood his words. He kept saying them over and over," Josh stared at his hands again, "he said 'I tried to get him to stop, I tried to get him to stop...' Josh's voice trailed off a bit.
Hawk quickly continued, "What happened next?"
Josh looked at Hawk, sat up a bit, and said, "His right arm started to move from underneath him. He was looking right at me. As the arm started to move, the hand came into view. I could see a black object in his hand. I couldn't make it out but his arm continued to move and he pointed his hand right at me," Josh took another deep breath to calm himself, "I saw a glint of light, a reflection off the object, then I heard a loud metallic noise, it sounded to me like a weapon misfire. Machado started to raise himself up, continued pointing what I now believed was a weapon at me."
Josh stopped again to compose himself. He looked directly at the jury. "I believed he was pointing a weapon at me, I believed he was firing at me but the weapon misfired. At this point, I made the decision to fire my weapon. I fired three times. I saw Machado fall on his back. Just before he stopped moving, he said, "I tried to get him to stop…" Josh stared up, away from the jury, quickly wiping his eyes, trying to hide the tears.
"Sergeant, I realize this is difficult for you, what did you do next?"
Josh sat a moment staring blankly ahead, then answered, "I went to Machado, tried to stop the bleeding, and performed CPR," turning to the jury, "I didn't want him to die."
Hawk could see tears in the eyes of some of the jury.
After a moment, Hawk asked, "Now Sergeant I want to turn your attention to another matter. The incident involving misplaced evidence in a sale of alcohol to a minor. Do you recall the case?"
"Yes, sir, I do." He could not help but notice the reaction by some of the jurors.
"Now much as been made about the exhibits used in that hearing, can you explain that?"
"I can. I made an error in judgment. When I could not locate the evidence, I brought a similar container with the same brand of beer. My intent was only to show the court the type of items seized. I never testified or intimated that it was the actual evidence. The defense lawyer never asked me if they were"
"Why didn't the prosecutor ask?"
"Because there is no prosecutor, so to speak, the police, in this case it was me, presents the case."
"I see, so you never testified that it was the actual evidence?"
"No, sir."
"How did you establish the charge then?"
"We introduced the toxicology report from the Rhode Island State Toxicology lab. In fact, the defense agreed to the validity of the toxicology report. It was never questioned."
"So, let me get this straight. You brought a similar item to the court because the actual evidence could not be located. You never testified that it was the actual evidence seized. Is that correct?"
"Yes sir. I realize I should not have taken that path. We introduced the toxicology report and that was unchallenged. I suppose I was embarrassed we could not locate the evidence. I made an error in judgment."
"Did you inform Lieutenant Hamlin about this?"
"Yes sir, I did. She made it clear I was to inform the court about the exhibit. It never came up in the testimony."
"So you didn't misrepresent the exhibit as evidence?"
"No sir."
"And you didn't lie under oath?"
"No, sir. I never would."
Hawk a moment, returning to the table, stood in front of the chair, "One more thing Sergeant, did you shoot Mr. Machado because he was a black man?"
"No," Josh replied, "I fired because I thought he was trying to kill me."
"But if the circumstances were the same and the suspect white, or a woman, would you have done the same thing?"
Josh looked at the jury, "I fired at Mr. Machado because I believed he was trying to fire at me. I perceived him as a threat. I waited until the absolute last moment. I never wanted to kill anyone. Mr. Machado forced me to take action because he would not comply with my telling him to stop. I believed he was a threat to others and me. I did what I needed to do. If he stopped he'd be alive today." Eyes brimming, "I wish he listened to me. I tried to get him to…" The last words directed at the friendly juror.
Hawk looked at each of the jurors, catching their eyes, nodding his head. "Thank you, Sergeant. I have nothing further your Honor."
Rodericks looked at his computer screen, "I see it is 1:50, let’s take a short break and reconvene at 2:30."
"All rise."
The jury left the courtroom. Hawk, Symonds, and Josh headed
to the conference room.
"Well?" Josh asked.
"Bill, you watched the jury what do you think?" Hawk passed the question to Symonds.
"I think you did well. I did not get the sense the jury cared much about the other case. They were more interested in the shooting. I think saving the question about shooting him because he was black for last was perfect. If any of them cared about the creative testimony, it took their attention away from it. Collucci will try to leave that as the last thing they hear from you and he'll try to make you look like Richard Nixon covering up Watergate but overall I think it went well."
"I agree" Hawk said. "Our friend on the jury was acting like a cheerleader. They seem to like you Josh. Collucci will have to be careful not to attack you too much or it will backfire with them. However, we all know Collucci isn't subtle. It is going to be a long, painful cross for you. Just keep calm and don't let him rile that Irish temper of yours."
Josh smiled, "I will be the quintessential model witness."
"That's what scares me," Hawk replied, "your idea of quintessential."
The door opened and Chris Hamlin came in.
"Are you nuts?" Hawk said, "If Rodericks sees you he'll pop that vein in his neck."
"I'll be quick. Our insider friend called me." Registering the shock on their faces.
"Fleming? She called you?" Hawk asked.
"Yup, said she couldn't wait. Collucci found another case that Josh testified in and the Judge found him less than credible. She is trying to learn which case but Collucci will not tell her. He's starting to doubt her loyalty."
"With good reason I might add." Hawk answered. "Josh, any ideas?" Hawk asked.
"No, I don't recall any such thing. Unless," he paused for moment.
"Unless what?"
"Unless it was that informant case. You remember, Chris. Santiago shooting. The judge in the case ordered us to reveal the name of the informant we used on the search warrant. He ruled the informant was a witness and subject to cross-examination by the defense."
"Okay, so why did he find you less than credible?" Hawk asked.
"The Judge gave me twenty-four hours to produce the name of the informant. I told him I didn't need twenty-four hours and would reveal it right then. The prosecutor tried to object but was overruled. So I told him." Josh smiled.
Collision Course (A Josh Williams Novel) Page 30
