Dan’s tearful emotion was gradually being replaced with a vengeful anger. Bernard smiled to himself as he glanced at the jury. They appeared to be having an easier time than Dan’s friends had in knowing whom to believe.
“And then to have the threats from Sergeants Kight and Lynch, to know that the people who did this was still running loose, to be followed by the police, to have my phone monitored and tapped, to have the police show up at my neighbors’ doors wherever I moved, and to have the police telling them I was a murderer.” Dan’s voice was rising steadily as he revealed the reasons for his anger. “Well, after a while I didn’t know what to do so I went back to Vegas. It was an escape. Booze was an escape,” Dan said, turning angrily toward the judge. “These people had no right to do anything to anybody . . .”
Ben Bernard still had not moved to make an objection, but Judge Tso had heard enough. He stared at Dan, amazed at the man’s gall. “Wait just one moment. You were asked one question. Now, answer the question, please. I want to hear what your state of mind was.”
Dan leaned back in the witness stand and visibly tried to compose himself. “Immediately afterwards, Your Honor, I had this rage in me. I wanted to get even. And I just thank God that I never met the people that did this thing,” Dan said, his Boston accent thick. “But I also was enraged at the police. You can imagine being there in the house with your dying wife and asking them for help and they just stay outside for no reason. And then, knowing my wife might have lived. . . . And to come home to a house that was totally destroyed by these supposed public servants and then I . . .”
“Mr. Montecalvo”—Judge Tso interrupted him again—“please answer the question.”
“I went to a psychiatrist, a therapist,” Dan said. “I stayed in therapy for a while and I was very depressed. But I was also very mad.”
Throughout Dan’s testimony, Ben Bernard continued to sit calmly in his seat. His appraisal had been correct. In his opinion, Dan sounded like a whining, complaining liar who had chosen to blame his own mistakes on decent law-abiding police officers.
After lunch Dan tearfully told the story of what he remembered about the night Carol was murdered. Applegate was asking him about what happened after he was shot.
“I went to her,” Dan said.
“What position was her body in?”
“She was lying on her back. I could see her face, her eyes.” More tears trickled down Dan’s cheeks. “The glasses was down by her chest because she wears a chain, one of them loops that hold glasses in place, you know?” Dan’s accent grew more pronounced. “I remember looking at her—her eyes were opened—and I just remembered saying something like, ‘God, please.’ And I remember running to the phone.”
“What phone did you go to?”
“I went to the telephone in the study at the end of the hallway. But it didn’t work. Then I ran to the phone in the living room and called nine-one-one. And I told them something has happened, we need some help. Then I remember running back to my wife.” Dan sobbed again, taking several seconds to compose himself. “All I know then was, she wasn’t conscious. She was breathing, though. And I felt her pulse. I know she was alive. And all I remember is praying for her. I just prayed whatever I could pray, whatever.” Dan gulped back another sob.
“I just asked God to please let her be okay, and I opened the door and I expected people to come in to help us. Then the phone rang again and it was the nine-one-one people. We talked and I told them again what happened and she asked me if the people that shot us were still in the house and I said no.”
Dan was crying louder now. “And still nobody . . . nobody came. And then I heard a helicopter and I went to the front door and looked out. Police officers were everywhere but no one was helping us.”
Dan wiped his face again as fresh tears flowed from his eyes. “I asked them for help. I said, ‘My wife is bleeding and she needs help.’ But the officer only told me to come out and keep my hands where they could see them. All the while I kept saying they had to send someone inside. My wife was bleeding to death.”
Everyone in the courtroom was disturbed by Dan’s testimony, picturing Carol bleeding to death while police officers did nothing to help. Bernard wondered whether the jurors believed Dan’s story.
Dan continued, his voice strained from the force of his sobbing. “I told them my wife needed help and finally I got up and tried to run back into the house to be with her. But they knocked me down and tied me to a stretcher. I kept asking them about my wife and they wouldn’t tell me nothing. Not until later. At the hospital. That’s when they told me that my wife died.”
Applegate thought about the direction the proceedings were taking and decided the timing would never be better. “Mr. Montecalvo, have you ever been convicted of a felony?”
Dan was busy trying to dry his wet face with his sleeve and he appeared not to have heard the question. “I’m sorry. Could I have a tissue or a towel, please?”
Applegate moved toward the witness stand with a box of tissues and repeated the question. “Mr. Montecalvo, have you ever been convicted of a felony?”
Dan was clearly upset, but he now had his tears under control. His answer was quiet and humble. “Yes, sir.”
While still wiping an occasional stray tear, Dan recounted his bank robbery convictions in the 1970s. Applegate hoped the jury would see Dan as a man of sorrows who had not only had the misfortune of losing his wife but had been confused in his early years and paid for his mistakes with prison time. He looked at the jury but the expressions on their faces gave nothing away.
As the afternoon testimony continued, Ben Bernard began to see a pattern. Dan was refuting everything that suggested his guilt. If the jury was to believe Dan, they would have to believe that numerous police officers, detectives, and sergeants, as well as the patrons and employees of a handful of Burbank bars and restaurants, and some of Dan’s personal friends had all conspired to frame him in the murder of his wife. Ben made a mental note to point this idea out to the jury in his closing remarks. Before the day was over, Ben was able to cross-examine Dan. He started by asking Dan about his love for Carol.
“Now, you say that you worshipped the ground that your wife, Carol, walked on?”
“That is right,” Dan answered. By this time, his tears were gone.
“You thought she was a saint?”
Dan nodded emphatically. “I knew she was a saint.”
Ben cocked his head to one side and wrinkled his eyebrows. “Then, Mr. Montecalvo, let me ask you this, sir: Why did you find it necessary to be out trying to hustle other women?”
“I never was out trying to hustle other women, sir.” Dan’s answer sounded angry and defensive. “Bring those women in here.”
“Well, I believe we’ve done that, sir. Did we not? You’ve heard the testimony about you dropping hundred-dollar bills on the floor.”
“Ask people who know me. That’s ridiculous,” Dan said.
“Did that waitress make up the part about you waving a Sugar Daddy lollipop around?”
“Yes, she certainly did,” Dan answered defiantly.
“Did she make up the part that you were seen—for want of a better word—hustling other waitresses in that establishment?”
“Yes. Again, if I hustled those people, bring those people in here.”
Ben ignored Dan’s statement. “Did she make up the fact that you were seen necking with women in this same establishment?”
“That never occurred. Come on, please.” Dan seemed disgusted by the idea. “Bring these people in here. This is all innuendo.”
“In a court of law we call that testimony, Mr. Montecalvo. Not innuendo.”
When the cross-examination continued the next day, Ben Bernard’s questions seemed even more pointed and ruthless than usual, as if he had seen his opponent’s weakness and was moving in for the kill. The prosecutor had done his homework and found a document stating that Dan had once been pena
lized in prison for concealing a razor blade in the heel of his shoe. He picked up the document from the table and walked closer to Dan.
“Mr. Montecalvo, did you ever conceal something in a hollowed-out place, say, in 1975?”
A fleeting look of panic seemed to cross Dan’s face. “In 1975?”
“Yes.”
Dan shook his head. “No, sir.”
“Well, then, let me show you a document. United States Government. Has your name on it, certified by the custodian of records, Department of Justice. I will ask you to read this to yourself, sir.”
Dan took the piece of paper and read it. “Yes, sir?”
“I will ask you again, sir. Did you conceal a razor blade in a hollowed-out heel of your shoe, sir, on or about the eighteenth day of January 1975?”
“No, I did not.”
“Then this report is a lie?” Ben’s gaze was focused directly on Dan.
“I think the report was explanatory. I mean, I explained it to a particular committee involved. I think they were satisfied that the shoes were not mine.”
Ben raised one eyebrow. “You were wearing them, weren’t you?”
“Yes, sir, but if you notice the reason I was wearing them. I was in transit in 1975.”
“You were wearing somebody else’s shoes?”
“That’s right.”
Ben nodded sarcastically. Now that Applegate had introduced Dan’s prior record, questions about his time in prison were fair game. “So then, when they transfer a federal prisoner from one institution to another, they don’t let you wear your own shoes?”
“It really depends, sir. In my particular case, my shoes were totally gone. When I got to Washington or Oregon, they gave me another pair of shoes. If that razor blade was in those shoes when I started off at the U.S. Penitentiary, it wouldn’t have been discovered until we arrived in Tacoma, or whatever.”
Ben looked confused again. “Somebody else put it in the shoes?”
“Who knows who put it in there. I just know I didn’t. They gave them to me to replace my old ones.”
“Where did you get these shoes that somebody else put this razor blade in?”
“At one of the stops. When we were in transit.”
“The federal government gave you used shoes to replace your old worn-out ones?”
Applegate watched the questioning and wished, once again, that he could disappear from the room. The jurors could make the connection. If Dan had been caught with a razor blade in the hollowed-out heel of his shoe, then he might very well have hidden guns in a hollowed-out book. By then Applegate was certain that he should have trusted his hunches and not allowed Dan to take the witness stand. His testimony had served only to damage their case.
In fact, the single redeeming bit of testimony that day did not come from Dan. It came from his psychiatrist, Dr. Desmond Fung, who testified that Dan was indeed in a depression after Carol’s murder.
“Dr. Fung, what facts did you consider in coming to your conclusion that Mr. Montecalvo was suffering from depression after his wife’s murder?”
“I think he had—still has—a tremendous fear that he is going to be killed.”
“Anything else?”
“Well, he has tremendous difficulty because he feels he is being persecuted. Examination proved that he was very depressed. He was crying; he was tearful. He reported he was drinking a lot just to cope with this problem. He was unable to sleep. He was taking prescribed tranquilizers.”
Applegate was not satisfied. “Was there anything else that caused you, in your professional opinion, to believe he was suffering from depression?”
“Well, he felt like he was being accused of murdering his wife. And based on what he has communicated to me, he could not have done this. He feels like he is being wrongfully accused of something he hasn’t done. At the same time, I also feel that the marriage between him and his wife was perhaps the best thing that ever happened to him in his life. And he had lost that. He was still mourning over the loss of his wife even after two years.”
Applegate wanted to walk up and thank the man personally, but he refrained. “Thank you, sir,” he said. “Nothing further.”
Ben Bernard recognized that Dr. Fung’s testimony had been the most damaging so far to the prosecution’s case. A professional had determined that Dan had indeed loved Carol and mourned her death. Still, he was not terribly worried. The trial had been completely one sided so far. Later that afternoon, the defense rested its case. The following day both sides would give closing arguments, drawing the trial to a close. Dan’s fate would then be in the hands of the ten women and two men who made up the jury.
Chapter 43
On the windy morning of Halloween Day 1990—a full seven weeks after jury selection had begun—prosecuting attorney Ben Bernard gave his closing argument. If Bernard was good during the trial, he was brilliant that morning. Talking smoothly and making eye contact with the jurors, Bernard expertly recapped each bit of circumstantial evidence. He also reminded the jurors of information that was not evidence.
“If you noticed, during Mr. Montecalvo’s testimony from the stand,” Bernard said, raising an eyebrow, “he was sobbing and crying—emotional on direct examination. But under cross-examination, he was angry and mad. He wants to know what we’re doing to him. Why is Arnspiger framing him? What am I doing here?”
Bernard paused a moment and looked like a teacher about to answer the question that had stumped the class. “This is why: The man has two personalities. And I suggest to you now, the man led two lives.”
Several jurors nodded in agreement with Bernard’s assessment. Bernard continued. “I agree with Mr. Montecalvo, the best thing that ever happened to him was Carol. But he didn’t know how to deal with her. He lied to her. He cheated on her. He was out playing and drinking and gambling and chasing women, while she worked day and night to support him. She was insured for six hundred thousand dollars.”
Bernard stared at the jurors and knew they shared his contempt for the defendant. “Mr. Montecalvo was in debt. He was in trouble with the casinos. This was his way out.”
As Bernard continued, he questioned why Dan felt compelled to accuse many of the prosecution witnesses of lying. “Mr. Montecalvo characterizes himself in the manuscript he wrote as a chronic liar. . . . Yet he wants us to believe that everybody is lying about him, out to frame him, out to kill him.”
The jurors sat in rapt attention while Bernard accused the defense of using court time to try their civil suit against Burbank. “He is not defending himself on a murder charge. He is picking on the Burbank Police Department. He is attacking them. That is his entire defense.”
Finally, Bernard pleaded with the jurors to remember their common sense.
“You will be able to use the exhibits and the testimony. But you get to take something else back in that jury room with you.” He lowered his voice as the jurors strained forward, hanging on his every word. “Your common sense and logic. Do that. Please, do that. This does not all happen in a glass bubble. Your life experiences apply.”
Ben continued, full of emotion. “The evidence—I suggest to you—is overwhelming. I also suggest to you, ladies and gentlemen of the jury, that the only just verdict, the verdict that Carol Montecalvo calls out from her grave for, is a guilty verdict. Thank you.”
Ron Applegate was next. For nearly an hour he droned on about the tedious details of Carol’s murder. The position of her body, the way she clutched the registration papers and the paper towel in her hand, which bullet entered her body first. Even Judge Tso appeared to be bored by the proceedings.
But after lunch Applegate underwent a transformation. For the first time in the trial, he came across as both interesting and rational. The jurors noticed the change and sat straighter in their seats, listening to his reasons for thinking the defendant innocent.
In the spectator section, Gene Brisco and Chuck Lefler sat near Lorn Aiken. Despite th
eir hunches about Suzan Brown they had been unable to produce anything concrete during the trial. Now Gene and Chuck wondered if Applegate would be able to convince the jury of the truth. Lorn Aiken wondered the same thing. He was busy with other cases, but he couldn’t put Dan Montecalvo out of his mind. If there is justice, Dan will be acquitted, Lorn thought to himself. He watched with interest as Applegate continued.
Applegate reminded the jury that although Suzan Brown testified that she had seen Dan and Carol walking that night, Dan had testified that he had not seen her. Police did not believe that Dan and Carol had taken a walk because Dan was too busy planning her murder. When Suzan testified that she saw them walking, Dan could have had a perfect alibi.
“He told the truth,” Applegate said, his voice rising passionately. “He honestly told you that he didn’t recall seeing her that night. He could have lied and said, ‘Sure, I saw her.’ But he told the truth. That’s an example of someone who is not trying to hide something, ladies and gentlemen. Mr. Montecalvo is telling the truth.”
Applegate summed up the prosecution’s case in a way that made it seem ridiculously full of holes.
“If it happened the way the prosecution says it did, Dan had to plan it like this: He had to shoot his wife twice with a thirty-eight, shoot himself in the back in just the right place with a twenty-five—not knowing which way the bullet would go, not knowing whether he would even be conscious, not knowing whether the bullet would miss a vital organ, not knowing whether he would be bleeding and dripping blood everywhere while he tried to find some place to hide the weapons.”
For the first time since the trial began, Ben Bernard felt slightly concerned. The jurors seemed to be making a connection with Applegate. As if they were seeing the prosecution’s case in a different light for the first time.
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