by Jim Dutton
“With that caveat, the defense motion is granted. Call your first witness Mr. Drummond.”
“The people call Sue Von Zandt to the stand.” Pepe was already up, moving to the courtroom doors to get Biker Sue from the hallway. Nick watched the jury as she entered. A few of the men smiled. Two of the middle-aged women grimaced. Biker Sue wouldn’t ditch her trademark blue bandana tied across her forehead. A checkered shirt, blue jeans and black, mid-calf boots completed her outfit. She was shown the witness chair and sat down with a resounding thump. The clerk swore her in.
Nick went to the lectern with Ms. Von Zandt’s witness binder. The binder included Nick’s witness question pages, which only contained subject categories and expected answers underneath. Nick never wrote out the questions. It was the expected answers that were important. He could craft the questions to pull out the answers he wanted. After each expected answer, the police report and page number were listed, or the prior grand jury transcript page where the witness had previously stated the expected answer. If the witness had difficultly remembering a portion of her expected testimony, Nick could easily refresh the witness’ memory with the specified report or transcript in the witness binder. Copies of the exhibits that Nick expected to show Ms. Von Zandt were also part of the binder. Rona prepared all of the witness books in this manner.
“Ms. Von Zandt, please state your full name for the record.”
“Nick, you can just call me Biker Sue, everyone else does.” A titter went through the jury. Judge Orsini favored Nick with a stern look as if to say, Control your witness.
“Ms. Von Zandt, this is a formal proceeding. I, and everyone else, will be calling you by your last name. Please, state your full name.”
“Yes, Mr. Drummond. It’s Betty Sue Von Zandt.” Nick proceeded to take her through some background questions, establishing that she was from Orange County and moved up to Yaak, Montana, ten years ago. He elicited that she was in the real estate business and had an office in Libby, some 35 miles south of Yaak. She was the primary agent handling real estate in Yaak and the surrounding area up to the Canadian border. Nick established that most of her clients were people who lived in Montana, either moving or looking for a vacation home.
“Ms. Von Zandt, I want to direct your attention to a year ago last September, 16 months ago. Did anyone stand out who came to your office about real estate? Didn’t fit your normal client profile?
“Sure did. A couple of city folk, driving a Cadillac, a Black Escalade, with dark tinted windows and fancy wheels. I thought I was watching a gangsta TV show.”
Lipman jumped to his feet, “I object to the witness’ last statement, move to strike it and request that the witness be admonished.”
Judge Orsini looked right at the witness, like it was just her and him in the cavernous room. “Motion to strike the reference to the TV show is granted. The jury is instructed to disregard that statement. Ms. Von Zandt, just answer the question posed. It’s improper for you to give off-the-cuff comments. Understood?”
“Yes, Your Honor.”
“Why did the Cadillac stand out to you?
“First of all, you hardly ever see a Cadillac in Montana. It’s mostly pickup trucks and standard American sedans. There are a few of those foreign cars, mainly the tourists “drivin’ em”. Also, no one has dark tinted windows. Be way too dangerous for driving at night. No street lamps in Montana to light up the various wildlife on the road. Trust me you don’t want to slam into a deer—it might end up through your windshield and into your lap.”
Judge Orsini interjected, “Remember just stick to answering the question.”
“Tell me about the person or persons who were in the Cadillac?
“A plump white guy, in his thirties, with glasses. Looked like he hadn’t been outdoors for a while. The other guy was a slender Mexican, also in his thirties, dressed like he was going out to a fancy dinner in Missoula. Hair slicked back, not a hair out of place.”
“Here’s a photo board with a number of pictures on it. Do you recognize if any of the photos show the white guy? Biker Sue took a close look at the board and pointed to photo C.
“That’s the guy, in photo C.”
“May the record reflect that Ms. Von Zandt identified photo C, who is one of the named defendants in this case, Lester Sendow, but isn’t on trial.
Judge Orsini responded, “The record will so reflect.”
“Do you see the Hispanic gentlemen in court today?”
Ms. Von Zandt stared around the room, at the audience, the jury, and the men at the counsel table. She was squinting. Nick was thinking, Oh shit, she can’t identify him. Nothing like looking like an asshole in front of the jury on the very first witness.” Nick went into crisis mode. “Your Honor, I see that the witness is squinting. Can I ask her some foundation questions about her eyesight?”
“Go ahead.”
“How’s your vision for seeing far away objects?”
“Not very good. I can see up close really well. But after 10 feet things get blurry. I have prescription motorcycle goggles for riding.”
“Does the DMV require you to wear glasses when you drive?’
“Sure does. But, I don’t want to look like some old lady wearing glasses. That’s why I got the special goggles.”
“Your Honor, can I escort the witness around the courtroom so she can see the people from a distance at which she can recognize someone?”
“I allowed you to start down this path. Go ahead.”
Nick approached her and took her by the arm. He was aware how unusual this procedure was and wanted to make as good a record as possible for appeal. He wasn’t going to directly take her to Defendant Lopez’ chair, and say, “Is this the guy?” Nick gave a running commentary for the record as he strode slowly up and down the middle of the aisle of the audience, having Ms. Von Zandt look in both directions. He then took her by his own counsel table where he held his breath. Pepe was Hispanic and looked like he could be in his late thirties. Nick took a mental gasp of relief as she went by Pepe without identifying him. Next Nick took her by the counsel tables of the two other defendants, both older than in their thirties. She passed that test. As Nick strode towards Luis Lopez’ table, Ms. Von Zandt stopped Nick.
“That’s him. I would know him anywhere. I never forget a face.”
Nick let a quick smile escape from his lips before going back to his demeanor that this was no big deal, pretending things like this happen every day in the courtroom; when in fact, this was the first time Nick had ever done this or seen it done. Nick was ecstatic that it didn’t turn into an O.J. moment where the prosecutor asked O.J. to try the bloody gloves left at the murder scene, and O.J. captivated the jury for what seemed like an eternity, struggling to get the gloves on. It gave rise to Cochran’s memorable line in final argument, “If it don’t fit, you must acquit.” It was an incident that stuck a dagger in every prosecutor’s heart.
“Ms. Von Zandt, what did they want?”
“They asked about rental property for a corporate retreat around Yaak. They asked about off-roading and how far Yaak was from the Canadian border. They talked about team bonding exercises.”
“Are there any convention centers in Yaak? Places for corporate team building?”
“Are you kidding me? The largest home you can rent would be 2,200 square feet and three bedrooms. Yaak has two bars, a gas station, a volunteer fire department, and a one room schoolhouse. Who ever heard of a corporate retreat where the only food you can order in town is burgers and fries?”
“Did either of them say what business they were in or where they were from?”
“Yeah, the white guy said he was an accountant from San Diego.”
“Did the other man say anything about his work or where he lived?’
“No, but he gave a dirty look to the white guy when he said he was an accountant from San D
iego.”
Nick asked a few more questions of Biker Sue. Then, the defense worked on her—trying to portray her as a flaky transplant from Orange County who couldn’t possibly remember an event 16 months ago. Unfortunately for the defense, the more they questioned her, the more certain Biker Sue was in her responses. She wasn’t dumb by any stretch of the imagination, and she saw what she saw. She wasn’t afraid to be herself. The words “back down” weren’t in Sue’s vocabulary. She had a steel spine.
Judge Orsini called for a recess after Biker Sue stepped down from the witness stand. Josh whispered to Nick, “You dodged the bullet on Sue’s witness identification promenade around the courtroom. What happened to the attorney’s adage, don’t ask a question unless you know the answer? Or don’t stick your neck out to be chopped off unless there’s no other alternative. Or you only make a Hail Mary pass when there’s two seconds left, not on the first play.”
“Okay. Okay, I get it. Once in a while you have to trust your gut. I rolled the dice. We won this time.”
After the recess, Nick called his next witness, Drury Betts. Nick played up his background as a wildfire fighter, jumping out of planes. Nick figured if he was impressed, the jury would be impressed. He used Drury to describe Yaak and the surrounding region. Drury was comfortable with maps and aerial views. He was able to point out, on various exhibits, the roads leading into and out of Yaak, as well as the old logging road that went to the Canadian border. Nick touched on his photography background, but didn’t spend much time on the technical aspects of photography. He didn’t want the jurors’ eyes to glaze over. Nick went through the various times Drury was in the vicinity of the border logging road when he saw off- road vehicles hauling duffel bags. Nick had Drury identify Luis in court as being the driver of one of the off-road vehicles he first saw in October. He also identified Lester Sendow as being Luis’ passenger from photograph C on the photo board. The jury was eating up the elements of Drury’s country living—from his Pabst Blue Ribbon beer to his behemoth four wheel truck called “Mammy”, short for Mammoth. At this point, Nick shifted the focus to the incident when one of the drug smugglers pulled a gun on Drury.
“After you set up on the U.S. side of the border and Zack set up on the Canadian side, waiting for off-roaders to come down the logging road, what did you see?”
“A Ranger off-road vehicle came down the logging road on the U.S. side the same time as an old model, long bed truck, rolled down the logging road on the Canadian side. We saw the duffle bag exchange between a pair of Hispanics, on either side. Zack and I snapped photos of the exchange.”
“What happened after the exchange?”
“When the two were walking back to the Ranger, I coughed, I couldn’t help it. It’s those damn lungs of mine, scorched too many times by hot smoke inhalation. My cough was like a rifle shot in the stillness of the early evening. The older of the two Hispanics came through the trees towards me. I got out of the crook of the tree I was set up in, and walked towards the noises he was making in the brush. For me, as a photographer, I had to make one of the toughest decisions in my life—delete the photos I had just taken in case he forced me to show him my recent photos or just pray it never came to that. Surprisingly, I did the smart thing. I deleted the dozen or so photos as I walked towards him.”
“What happened next?”
“He yelled at me to come out. I told him to shut up, he was scaring away the animals. When we met, the Hispanic had his hand on the handle of a gun stuck in his waist band. I told him in so many words to relax, I was just trying to take some photos of bear and elk. He didn’t buy it since it was almost dark. I tried to play nice. I asked him, ‘How do you like my camera?’”
“He pulled out his gun and placed the end of the barrel on my forehead, saying, ‘How do you like my gun?’ All these thoughts were going through my head. This is it. Zack is too far away to help and doesn’t have a gun. I always thought I’d die in a wildfire.”
Lipman leaped up, “Object, irrelevant and prejudicial!”
Nick responded, “Goes to his state of mind.”
Judge Orsini ruled, “I’ll allow it. Proceed.”
Nick followed up with the classic prosecutor “tell us more” question, “What happened next?”
“The gunman insisted on seeing my recent photos. He took my camera after I pushed the playback button. He took a few steps back, still training the gun on me, while he flicked his eyes back and forth between me and my most recent photos. All he saw were recent wildlife photos from Yellowstone National Park. He handed me back my camera, put the gun back in his waistband, and said, ‘It’s dangerous out in the woods at night. You never know what type of predator is roaming around.’”
“Do you remember what the gun looked like?”
“I can see it like it happened moments ago. It was a black, long barrel revolver, a 44 caliber magnum. A showy gun with real stopping power. Not a gun someone would carry if they wanted to be discreet.”
“The kind Clint Eastwood carried in Dirty Harry?” Nick waited for an objection. None came.
“Yeah, that’s right.” Nick stole a glance at the defense tables—they were engrossed in notes that they had been passing back and forth.
Nick ended his examination with Drury identifying the gun wielder as the person shown on photo F on the board. A stipulation was read into the record. The parties stipulate that the photo F on the board was Samuel Suarez, and DEA agent Lon Ruggers would testify that Suarez was a member of the Baja Norte Familia Cartel at the time of the events testified to by Drury Betts.”
Defense counsel Flanigan added, “It’s understood by the parties that the stipulation isn’t stating that the man in the woods was Mr. Suarez, just that photo F. depicts Mr. Suarez.”
Nick said, “That’s correct, Your Honor.”
The defense worked on Drury for some time. They referred to the police reports where he never said anything about the type of gun. Drury responded, “They never asked me what type of gun it was.”
Defense attorney Flanigan followed up with, “Weren’t you so scared looking at that big black barrel, that you couldn’t tell what gun it was, or identify who was holding it?”
“I’ve been fighting wildfires for twenty years. Several times a summer, I’m put in life and death situations where I have to keep my cool to survive. In those situations, as in this one, my senses sharpen, my acuity goes into overdrive, and I remember everything about the situation.”
Flanigan knew when to quit and had no further questions.
The trial court took the afternoon break and then it was Zack Reynolds’ turn. Josh smoothly directed Zack through several background questions, focusing on the fact that Zack had been a Detective with the Bakersfield Police Department. Zack made it clear that his pal Drury was the risk taker, that Zack didn’t think it was the greatest idea to set up photography blinds on people traveling along old logging roads at dusk, in off-road vehicles with duffle bags. Zack explained, “Drury can talk me into drinking warm beer and liking it.”
Josh focused on the incident where Suarez pulled a gun on Drury. “Once you saw the four men meet at the border, what did you do?”
“A little bit of Drury rubbed off on me. I was getting good photos of the faces of the Hispanics on the U.S. side, but because I was on the Canadian side, I just saw the back sides of the Canadian Hispanics. I decided to brush the rust off of my old Barn Owl hoot from when I was a teenager, and make a call. It came out pretty good, and when the Canadians turned in my direction, I got some clear shots of their faces. Drury gave me a ration of shit, excuse me, crap, later about the call. He said, ‘Any outdoorsman or naturalist knows that the Montana-Canadian border isn’t a habitat of the Barn Owl.’ It seems that the smugglers didn’t major in wildlife biology at college.”
“Objection, speculation.”
Judge Orsini responded, “Which part Mr. Lipman, tha
t they are smugglers, that they went to college or they didn’t major in wildlife biology?”
“All three Your Honor.”
“Granted, Mr. Reynolds’ last statement about smugglers, college and majors is stricken. You’re not to consider it.”
“Please describe Mr. Betts’ demeanor when you first met up with him after the persons at the border drove off.”
“He was ashen, and in a very emotional state for him. He usually speaks slow, draws out his words. As soon as he saw me, he was rapid fire and loud.”
“About how long was this after each of the parties at the border turned to walk back to their respective vehicles?”
“Only a few minutes.”
“What did the ashen-looking Mr. Betts say to you in this loud, rapid fire voice?”
Mr. Lipman leaped up, “Objection Your Honor, may we approach the bench for a sidebar?”
Judge Orsini responded, “Yes,” and motioned the court reporter to come over. Once the parties were huddled around the court reporter, Judge Orsini asked Josh, “What do you expect Reynolds to say?”
“I expect Reynolds to testify that Drury told him, ‘That Mexican son-of-a-bitch thrust a gun in my face.’ It’s an excited utterance, a rule 803(2) of the Federal Rule of Evidence exception to the hearsay rule. The credibility of the statement is assured because it was made to describe a traumatic event while the victim of the event was still in the throes of the excitement and anxiety caused by the event. We’ve set that foundation Your Honor.”
Judge Orsini turned to Mr. Lipman, “Defense?”
“The prosecution can’t have it both ways. Before they portray Mr. Betts as being so cool under pressure that he remembers every little detail, being used to life and death situations fighting fires. Now they want to portray him as a traumatized, excited victim, minutes after the event. Further, this is duplicative of Mr. Betts own testimony and wastes the jury’s time.”
Judge Orsini pondered the matter for a few seconds. “I’m inclined to go along with the defense on this one.”
