Wiseguys in the Woods

by John P. M. Wappett

  Peter recalled one especially embarrassing event in the jury selection in a trial before Judge Manningham. There were any number of differences between prosecuting in Albany County and doing so here in Warren County. It was much more than the difference in population in which Albany held a 5 to 1 advantage. Because he had grown up in this community, it was much more likely that he would come across acquaintances in the course of his work. This most often happened when large numbers of residents were called into court to become potential jurors.

  In one such instance, Peter was working with a defense attorney and Judge Hill to select a jury for a trial. The panel of 70 or so individuals was brought to the front of the courtroom in batches of 16. The potential jurors were then questioned by the attorneys to establish their fairness. Any familiarity with the case or the parties was also explored for bias. As one batch came forward, Peter recognized his old high school gym teacher and JV basketball coach. As a matter of fairness, Peter asked him to describe his past career at Lake George school.

  “Now sir, during your time at Lake George, isn’t it true that you had me as one of your students in gym class for a number of years and that I even was a member of a JV basketball team you coached?”

  Dead silence, as the man considered the question and looked Peter up and down.

  “What did you say your name was?”

  “Peter Drake, coach” replied Peter.

  “Can’t say that I recollect you at all,” responded the man.

  “Your, honor. Despite Coach Leonardo’s answers, I was a student of his and so I consent to his not being part of this jury. Although, I remember him well, clearly, my athletic career was eminently forgettable.”

  Near the end of the second day, the two attorneys had selected the jury and alternates, so the judge recessed until the next morning. Gary Knobb, John Doe’s attorney did not want Peter to be able to give his opening at the end of the day, leaving the jurors to think about it overnight. Over the next week and a half, Peter’s presentation unfolded for the jury with few surprises.

  Try as he liked, Knobb, could not find any errors or oversights in the testimony of the various police and forensic witnesses called by the prosecution. As usual, FIU’s crime scene work and evidence handling was flawless. The chain of custody, while somewhat boring as testimony, was an essential portion of the case, particularly due to the fact that Peter had to satisfy a legal standard as well as the jurors’ own expectations.

  While a witness could satisfactorily testify that some unique item, like a handwritten letter, was written by a particular person whose handwriting the witness recognized, a different level of proof was required when the item of evidence was fungible, meaning it is just like any other similar item of which there are many. One bag of sand or cocaine or blood looks pretty much like any other.

  This issue most often came up in drug cases, because baggies of cocaine or marijuana all look alike and the point is that it has to be established that the baggie found in the defendant’s pocket is the same one that is sent to the lab and tested. Peter, who enjoyed learning the origins of legal concepts, knew that the chain of custody doctrine had developed as a result of the theft of the heroin from the French Connection case.

  Before that trial began, it was discovered that all of the heroin, that had already been tested by the lab, had been stolen from the NYPD evidence room and replaced with milk sugar. A re-inventory and retesting of all seized drugs in NYPD custody was ordered. As a result of several appellate court cases, it was determined that a defendant could still be convicted if the drugs in question were no longer available to be placed into evidence at the trial, so long as a solid chain of custody consisting of identity and unchanged condition was established between the initial seizure and the lab analysis.

  Peter’s case included several fungible items, including spent rounds fired from Doe’s gun that struck Sica and the wall behind him. The gun itself had been recovered in bushes near the store entrance and next to where the getaway car had been parked. Although Doe’s attorney told the judge and Peter that he was willing to stipulate to the chain of custody, Peter declined the offer, reasoning that it was better to bore the jury while showing the thoroughness of the investigation, rather than letting the jury speculate as to the chain of custody. Peter then went into the samples of blood found at the wine store. As there was no real dispute over who was where when the shooting broke out, he agreed to handle this evidence through stipulation. It is one thing to show attention to detail, but it is another to bore a jury to death for no good reason.

  The presentation of testimony went along with surprisingly few glitches. Despite his claim of amnesia, Peter called Sica as a witness in order to satisfy the jury that he could not recollect the robbery and subsequent shootout. Gary Knobb tried to make hay with the fact that Peter had granted Sica transactional immunity for possessing a handgun without a license, grilled him on the shooting incident in the nightclub, which Peter had to disclose as being Brady material but Knobb could not dent Sica’s story.

  Peter was beginning to mentally outline his closing arguments, assuming that the defense would call no witnesses. Peter’s last witness, Jennifer Smith, was doing very well, only breaking down as she described cradling Sam Taylor’s head in her lap as she sat on the blood-smeared floor of her store, hearing the approaching sirens and knowing that they’d be too late. Frantically fighting back his own tears, Peter gently thanked her for her courage in testifying and sat down at the end of his direct examination.

  As everyone in the courtroom tried to regain their composure, Peter had a moment to reflect on how much more easily he cried now, as opposed to just a few years ago. He suspected that scenes like the one that had just played out, were having a cumulative effect on him. He couldn’t even sing along with some songs that were poignant, without choking up.

  There was, of course, not a dry eye in the courtroom and Peter graciously consented to defense counsel’s suggestion of a short recess.

  Gary Knobb, who was no fool, was not going to make the mistake of spending a lot of time cross-examining Jennifer, as that would only reinforce her testimony by letting her repeat it in front of an already sympathetic jury. Peter realized that Gary would probably zero in on the actual shooting event in order to emphasize that it was not his client who fired the fatal shots, but Sica.

  “Jennifer, I would first like to apologize for putting you through this ordeal and I hope you appreciate the importance of this proceeding.”

  “Yes, I do, thank you.”

  “Now, directing your attention to the point in time after my client and his companion entered your store and drew their weapons, can you tell the jury if they immediately opened fire?

  “No, not right then. He (she pointed to John Doe) held out the bag to me and told me to fill it.”

  “What was the man we know as Bruno Sica doing?”

  “At first, he just stood there,… although I think he unbuttoned his jacket.”

  “Do you recall anything else happening prior to Mr. Sica drawing his gun and all hell breaking loose?”

  At this instant, Peter felt the shiver of a premonition and had just formed the thought that he had not asked her about observations other than what she had seen in the store.

  A flashback to the smell-of-blood-in-the-car testimony in the Ricky Cordell trial.

  “Well he began to reach into…No. Before Mr. Sica began to reach for his gun the other robber, the one who died, said something to Mr. Sica and he said something back. I just now remembered that.”

  “What was said by them, Jennifer?

  “I don’t know. It was…it was in another language, maybe Spanish or Italian. Mr. Sica seemed to be responding to what the other man said, but I didn’t understand him either.”

  “Do you remember any of the words or sounds?”

  Jennifer sat in thought for a minute or so, then her head snapped up. “Yes! I heard the robber say something that included ‘ZA ZA’.”

&n
bsp; “And it was then that Mr. Sica exchanged fire with the robbers and killed both the robber and your clerk, isn’t that correct?”

  “Yes, sir.”

  “Nothing further, your Honor.”

  Peter fought to keep emotion from his face as he sat stunned by the implications of her new recollection. Sica and the robbers KNEW each other. How else would the robber know to address Sica in his native language? And, given the fact that the robbers were not local and had no ID’s on them, the meeting in the wine store was not coincidence.

  It was not a robbery…it was a hit, staged to look like a robbery. Son of a friggin’ bitch!

  Peter stood and indicated that he had no further questions for the witness and that the People rested their case. The judge ordered a lunch recess and the general scuffle to leave the courtroom began.

  As he gathered his files and notepads together, Gary came up behind him and quietly said, “That was a surprise, wasn’t it?”

  Peter just rolled his eyes and nodded, first making certain that none of the jurors or press reporters could see his expression.

  Chapter 10

  After picking up lunch at the local Subway shop, Peter drove to the State Police substation, where he sat down with Sr. Investigator Ned Khoury, Abe Dorn, and Ed Carrier from FIU. They agreed that the prosecution’s case at trial had gone in without a hitch until that last surprise and that the presentation to the jury was a solid one.

  “The problem, as I see it, is a legal one, rather than a factual one,” Peter explained. “We have been operating on the assumption that Doe and his buddy were attempting to rob the store and that by initiating the gunfight they caused the death of the store clerk. If their intent all along was to kill Sica, then the felony murder rule does not apply.”

  “Why not?” Dorn asked. “So, during the felony of attempting to kill Sica, Doe killed the store clerk. Isn’t that the idea?”

  “Not quite, unfortunately, because although felony murder is when a non-participant is killed during the commission of an independent violent felony, in New York we have a list of eligible felonies and while robbery is in the list, murder is not. Can either of you think of any other explanation for what we just heard from Jennifer other than that it was a planned hit?”

  “I suppose it’s possible that Sica said or did something in the store that tipped the robbers off as to his nationality. Maybe they spoke in the parking lot before Sica and then the other two went into the store.” Ned shrugged his shoulders as if to say that it wasn’t much, but it was the best he could come up with.

  Peter rubbed his eyes more out of frustration than fatigue. “I suppose that I could recall Sica to the stand, but he can just continue claiming amnesia and probably would, especially given his reluctance to testify against a guy who shot him. I would dearly love to rattle his cage, though. Maybe confronting him with his argument in the nightclub and his morbid interest in ‘Wally’, together with pressing him on the exchange of words with the robbers will shake something loose.”

  Abe asked, “Won’t that confuse the jury even more?”

  “Probably, but I’ve already made up my mind that this case should not go to the jury to decide.”

  “So what are you going to do?”

  “I am thinking that I should try to get a plea on this case, rather than risk having the jury throw up their hands in confusion and disgust. Doe will probably accept 6 to 18 on Attempted Murder in the Second Degree for shooting Sica. That part of the case is still rock solid.”

  The next morning, Peter pulled Gary Knobb aside and told him what he wanted to do and gave him his word that as soon as he finished with Sica on the stand, he would dismiss the Felony Murder charge and offer the plea to Attempted Murder.

  Judge Ginola initially expressed reluctance to allow Peter to reopen his case, but relented when Gary Knobb indicated that he had no objection. Not surprisingly, Judge Ginola did not seem to think that there was anything significant in Jennifer Smith’s testimony yesterday. The legal implications were clearly wasted on him. Once again, Peter wondered what color the sky was in the judge’s world.

  A few hours later, Sica was produced from the jail and his attorney tried to block this recall. Judge Ginola denied Bill Dier’s motion to quash the subpoena.

  Sica fidgeted in the witness chair, looking hunted. It was clear that he had not heard about any of Jennifer’s testimony, having been kept in the holding cell, but he knew something was amiss. Peter, addressing the Court, requested permission to ask leading questions of the witness, which is not normally allowed when one is conducting a direct examination of a witness that you have called.

  A normal direct examination is done with open-ended questions since the whole idea of testimony is for the witness to tell the jury what his present recollection of events is, rather than the attorney telling the story through his questions.

  “Your Honor, the law allows for leading questions when the witness is hostile or when the witness is a child or, as here, when the witness is suffering from some disability. Mr. Sica has testified that he is suffering from amnesia due to the blow resulting from the bullet grazing his skull. As we do not know the extent of the amnesia either in terms of the time period affected or the degree of memory loss for the affected period, I request the Court’s permission to proceed with leading questions.”

  “What is the defense position, Mr. Knobb?”

  “No objection, your Honor. As usual, Mr. Drake accurately recites the pertinent law.”

  Peter replied with a smile, “Kindly fight the urge to walk over and hug me, sir.”

  Judge Ginola waited for the courtroom to quiet down. “Proceed, Mr. Drake.”

  As he picked up his notes and approached the witness stand, where Bruno Sica and his interpreter sat, Peter knew that he would have to be content with whatever contrived answers Sica might give, as there was no chance that he might cause the witness to trip up, due to the built-in delays in questions and answers caused by the interpreter. Sica, who clearly understood English, could simply feign confusion whenever he chose to, and request a translation. By the time that was done, he could frame his answer.

  “Sir. Do you remember your previous testimony in this case, that you had no recollection of the robbery due to amnesia caused by the gunshot wound?”

  “Yes.”

  “Do you remember testifying that you did not know this defendant?

  “Yes. I do not know him.”

  “Well, sir. My question is this. How did this defendant and his friend know to speak to you in Italian in the wine store that day, just before the shooting began?”

  Sica clearly went pale and then turned and muttered something to the interpreter, who then spoke back to Sica.

  “I do not remember this.”

  “Even if you do not remember this conversation, you can still tell this jury how this defendant knew that you spoke Italian.”

  “I do not remember this.”

  “Mr. Sica, do you typically walk around wearing a sign that says ‘I speak Italian’?”

  Judge Ginola leaned forward to approve an objection by the defense. None came.

  “I do not understand what you mean.”

  “Do you remember Mr. Knobb asking you about a shooting incident in a Lake George nightclub?”

  “Yes, I remember.”

  “Why did you get into an argument with Peter Jamison that evening at that nightclub and then shoot a gun into the ceiling?”

  The judge intervened, “Mr. Drake. You appear to be trying to impeach your own witness.”

  “Actually, your Honor, I am trying to explore the breadth of the time period for which Mr. Sica has no memory.”

  Judge Ginola looked unconvinced and made a point of looking over at the defendant’s table, but Gary, again, made no move to object.

  Peter went ahead with his examination. “I request that my last question to the witness be read back to him.”

  When that was done, Sica looked up at the judge expectantly.


  “You may answer the question, Mr. Sica.”

  “I do not remember this.”

  “Why were you so interested in the body that was found a couple of months ago during the renovation of Mr. Jamison’s storefront in Lake George?”

  Sica was now the shade of a linen tablecloth, as he again leaned over to whisper something to his interpreter.