Dying Declaration

by Randy Singer

  He jumped out of the car and hustled over to the outdoor pay phone, never taking his eyes from the vehicle. He reached into his pocket and pulled out Nikki’s card. He called her collect.

  She answered on the first ring.

  “Hello.”

  “I have a collect call from a Buster Jackson. Will you accept the charge?”

  “Yeah . . . sure.”

  “Nikki Moreno?”

  “Buster!” Her voice was crisp, wide-awake. “Where are you? What happened?”

  “Can’t say.” He glanced around to make sure nobody was listening. “But the doc is ready to sing. Take a subpoena to his crib tomorrow morning. If he doesn’t come to the door right away, go ahead and enter. You’re good at that.” Buster chuckled. “Tell Pops his homey came through.”

  Buster did not wait for a response. He heard Nikki calling his name through the receiver, but he placed the phone back on the hook.

  He glanced around nervously for the third time since he had pulled into the parking lot. He was thirsty, but he would not go inside; he would not allow a convenience store clerk to ID him.

  He walked toward the car and watched a minivan pull in next to the Lexus. He saw a father stumble from the driver’s seat, a mother rubbing her eyes in the passenger’s seat, and a few kids snoozing in the back.

  He wondered how they would feel if they knew that they had just parked next to a car with a dead man in the trunk.

  74

  NIKKI WAS STILL AWAKE when the sun came up Monday morning. She missed shaking the little guys out of bed, missed the sweet disposition of Stinky, even missed the morning wars with Tiger. She got ready quickly’a short miniskirt and white blouse for court, hair pulled back in a simple clip—and rushed into the law offices of Carson & Associates. She typed up a witness subpoena, thankful that the courts now allowed lawyers to do this on their own, so long as they filed a copy with the clerk. She signed Charles’s name. The subpoena commanded Armistead to appear in court for the ten o’clock sentencing hearing or risk contempt of court.

  By the time she pulled into the Woodard’s Mill subdivision, it was nearly eight o’clock. Her hands became moist on the wheel as the possibilities raged through her mind. She hoped for the best—that Buster had somehow talked Armistead into confessing the truth, whatever that might be. But she also contemplated the worst—finding Armistead dead in the master bedroom. But if that were the case, why would Buster call her and tell her to subpoena Armistead to court? Maybe Buster was just trying to protect Nikki, give her a legitimate reason to go to the Armistead house and get her fingerprints on things. That way the cops wouldn’t ask a thousand questions if Armistead was dead and Nikki’s prints were everywhere.

  No, she didn’t think Buster was that sophisticated.

  She pulled into the long tree-lined drive and parked directly in front of the three-car garage. She noticed that Armistead’s car was gone. Just a few hours ago she had been here and endured one of the longest nights of her life. It looked so different in the daylight. So . . . peaceful.

  As she walked toward the front door, her skin felt clammy. It was quiet, eerily quiet. She climbed the steps and rang the doorbell, just as she had done last night. It didn’t work. Then she remembered what Buster had done to the fuses. She knocked loudly.

  After a few minutes, it was obvious there would be no answer. The silence mocked her hopes that Armistead would somehow appear, ready to testify. She took a deep breath and pulled the key out of her pocket, reaching down to insert it in the door. Just to be sure, she first checked the knob. It turned and the door flung open.

  Not a good sign. If Buster had killed Armistead and wanted Nikki to have an alibi for having her fingerprints everywhere, then he would have left the door unlocked so she could enter without having to explain why she had a key. It was all adding up to a scenario that Nikki didn’t like.

  “Anybody home?” she called from the marble foyer. “I’m serving a court subpoena.”

  No answer.

  She planned to retrace her steps from the night before, purposefully touching things she had touched the previous night. That way she would have a truthful explanation for her prints. She started in the study. Everything seemed to be the way she had left it except—

  “Oh, my gosh,” she murmured, putting her hands over her mouth. She was staring at Armistead’s desk, looking at a neat pile of paper, the top page a handwritten memorandum addressed “To Whom It May Concern.”

  She started reading and groaned. Her hands trembled. “You promised,” she cried. She quickly finished the first page, cursing Buster Jackson as she read. “You promised,” she said again. “You promised!”

  She slumped into a chair, every bit of her energy sapped by this letter, and pulled out her cell phone.

  “Charles Arnold.”

  “He’s dead,” Nikki said. “Armistead is dead.”

  75

  AT 10:00 A.M., while Silverman finished his introductory remarks, Charles mouthed a silent prayer. He was seated with Thomas at the defense table, with Theresa and the kids in the front row immediately behind them. Nikki had not yet arrived.

  Things were happening so fast, spinning so far out of control, that Charles hardly had a chance to think things through. He was going on instincts, gambling instincts. He would sort it all out later.

  Charles rose to his feet, even though it was time for the prosecution to present evidence on the issue of sentencing.

  Silverman looked at him quizzically. “Mr. Arnold?”

  “Judge, I don’t want to delay these proceedings. But new evidence has emerged this past weekend that changes everything. On the basis of that new evidence—” he paused and glanced toward the Barracuda—“which clearly demonstrates prosecutorial misconduct, we would move for a new trial.”

  When Charles had begun speaking, there had been the usual rustling and murmuring that filled a courtroom as the proceedings begin. But suddenly the courtroom was stilled, the charges of prosecutorial misconduct captured everyone’s attention.

  Especially the attention of the Barracuda, who was predictably on her feet. “Does the desperation of defense counsel know no bounds?” she asked. “This is ridiculous.”

  Silverman glared at Charles. “Those are serious charges, Mr. Arnold. The court does not take them lightly.”

  “And I don’t make them lightly, Your Honor. We need less than half an hour, but justice requires that the court hear this evidence.”

  “What evidence?” the Barracuda demanded. Silverman cut her off with a scathing look.

  “Half an hour,” Silverman said. “No more. And if you don’t have some strong evidence, Mr. Arnold, you will be risking contempt. This is not the forum for taking cheap shots at the commonwealth’s attorney.”

  “Yes, Your Honor. Thank you, Your Honor.”

  Charles relaxed slightly and blew out a breath, knowing he was in too deep to turn back now.

  “Well?” Silverman said.

  “The defense calls Lieutenant Gary Mitchell.”

  Mitchell, the African American police officer who had testified in the racial profiling case against Buster Jackson, rose slowly in the back of the courtroom and made his way toward the witness stand. He looked the same as he had a few weeks before—somewhat stooped, a man whose body showed every one of its fifty-five years. Wrinkles lined his droopy face and pulled hard at the corners of his mouth and eyes. Charles had called him on the phone nearly two hours earlier because he sensed that Mitchell was a man of integrity, a police officer he could trust.

  “Please state your name for the record,” Charles began.

  “Lieutenant Gary Mitchell, Virginia Beach Police Department.”

  No sense wasting time on preliminaries, Charles thought. “Have you recently received any reports concerning a possible suicide by Dr. Sean Armistead?”

  There was a gasp from the prosecution table and a general stir from the courtroom. Silverman leaned forward.

  “Yes,” Mitchel
l said simply.

  “By whom and when?” Charles asked.

  “At about 8:15 this morning. By you.”

  The Barracuda scoffed. Spectators couldn’t resist nudging each other and whispering. Silverman banged his gavel and called for order.

  “What were the circumstances, as reported to you, that caused you to investigate a possible suicide?”

  “Objection,” Crawford said. “This is bush league.”

  “Is that an objection?” Silverman asked. “Bush league?”

  “It’s also hearsay,” the Barracuda griped. “Defense counsel can’t put a police officer on the stand to regurgitate what defense counsel said on the phone.”

  “I agree,” Silverman said.

  “I’ll rephrase,” Charles said, coming out from behind the counsel table and moving toward the front of the courtroom. “To your personal knowledge, did somebody discover a suicide note from Dr. Armistead?”

  “Yes. Your paralegal, Ms. Nikki Moreno, was apparently trying to serve a subpoena on Armistead this morning—”

  “Objection,” the Barracuda stated, sounding frustrated. “We’re right back into hearsay again.”

  “Sustained,” Silverman ruled.

  “Were you given a suicide note?” Charles asked.

  “Yes.”

  “By whom?”

  “Nikki Moreno.”

  Charles looked at Crawford and smirked. So much for hearsay objections.

  “Did the note cause you to look anywhere for a body?”

  “Yes, it did.”

  “Where?”

  “Well,” Mitchell said, shifting in his seat. “I didn’t actually look myself. But the note gave us a probable location for the body, so we called the state police and asked them to look.”

  “And where was that?” Charles asked.

  “Along the Blue Ridge Parkway. In the same spot where Dr. Armistead’s wife previously committed suicide. My understanding is that it’s the same spot where they were initially engaged.”

  The courtroom buzzed as reporters and spectators digested this juicy piece of information.

  “Was the body found?”

  Mitchell nodded, at first slowly, then more rapidly. “At 9:18 this morning, the body was located in the driver’s seat of Dr. Armistead’s car at the bottom of a sharp drop-off from a scenic lookout spot on the parkway. The car caught fire, so we’re using dental records to confirm the identification.”

  The Barracuda went white. Silverman watched Mitchell intently, soaking in every word.

  “Was it the same spot where Dr. Armistead’s wife had died?”

  “Yes, sir. It was.”

  Charles allowed the courtroom to absorb this news; then he turned and walked back to his counsel table. He grabbed three thick piles of documents. He took one pile—comprised of originals—and gave it to the witness. He placed the second pile on the Barracuda’s table. The third pile he kept as his own copy.

  “Can you please explain to the court what these papers are?”

  “This is what Dr. Armistead left behind. It’s more or less a suicide note with numerous attached exhibits.”

  Charles watched the Barracuda out of the corner of his eye. She was thumbing rapidly through the documents, doing her best to look unfazed.

  “What is the first page entitled?” Charles asked.

  “Well,” Mitchell replied, “it’s addressed ‘To Whom It May Concern,’ but it is actually entitled Dying Declaration of Dr. Sean Armistead.’”

  “And did you personally go to the Armistead house and compare the handwriting on this note with other samples of Armistead’s handwriting?”

  “I did.”

  “What did you find?”

  The Barracuda rose to object but then apparently thought better of it and sat back down. It was well-settled law that lay witnesses could give opinions about the source of handwriting.

  “It was definitely his.”

  Charles then placed his copy of the documents on his counsel table and went up to the witness box to retrieve the originals. He walked deliberately to the judge’s bench and placed the originals in front of Silverman. “With the court’s permission,” he said, “I would like to have this set of documents entered into evidence as the dying declaration of Dr. Armistead. Then I would like to read several excerpts.”

  The Barracuda stood to object. But Silverman didn’t let her get the first word out. “You know the law on this, Counsel. The exhibit will be admitted.”

  Charles returned to his counsel table and began slowly reading from the document.

  “I, Sean Armistead, intend this document to be a dying declaration and thereby admissible in the court case of Commonwealth versus Thomas Hammond. I have attached supporting documents that substantiate all the claims I am about to make and sincerely hope that they will be admitted into evidence as part of the case.

  “‘I must begin by apologizing to Thomas and Theresa Hammond, the Hammond children, as well as my own lover and wife, Erica Armistead, for so completely ruining their lives by my selfish actions. I pray that the Hammond family will find it in their hearts to forgive me and that my Maker will forgive me for what I have done to my own wife.

  “‘Second, let there be no mistake about my testimony in the Hammond case’it was perjury—’”

  The courtroom erupted, and Silverman had to use his gavel. Undeterred, Charles continued reading.

  “‘I lied about Theresa Hammond coming to me after her son died and telling me that he had been sick for five or six days. That never happened. As far as I know, he was only sick for three days.

  “‘I also lied about why I didn’t transfer Joshua to Norfolk Children’s Hospital. It was exactly as Mr. Arnold implied during his cross-examination. I didn’t transfer the patient because I didn’t want the doctors at that hospital to second-guess my decisions. My refusal to transfer may have cost Joshua his life.

  “‘I lied because I was blackmailed by Deputy Commonwealth’s Attorney Rebecca Crawford . . .’”

  A collective gasp filled the courtroom. At least one person sitting behind the prosecution table, totally blown away by the revelation, blurted out, “I can’t believe this.”

  Charles paused and looked at the Barracuda, surprised to see her as composed as ever, staring at the paper without emotion, as if she were following along and reading about someone else.

  “‘It wounds me to admit this, but I had an affair with Ms. Crawford after my wife became ill with Parkinson’s. When Erica found out about it, she confronted Ms. Crawford and then went into a deep depression, eventually committing suicide at the same spot on the Blue Ridge Parkway where we were first engaged. When I found out, I immediately called Ms. Crawford and asked her to come to my house. After first talking to the Chesapeake police, I then talked to Ms. Crawford. She told me that the police knew I was having an affair but did not know with whom. She convinced me to lie to the police and tell them that I was having an affair with a coworker.

  “‘After I went on the record with that lie, things deteriorated between Ms. Crawford and me. More and more, I came to see that she was just using me and protecting herself. When I confronted her, she said she would expose my lie and indict me for murder if I didn’t protect our secret and comply with her new demands. She assured me that any jury in the world would convict me if they found out my wife died under mysterious circumstances and then I lied about an affair to the police. In exchange for whitewashing the investigation, Ms. Crawford demanded that I pay four hundred thousand dollars to her election campaign. She said she planned to announce later this summer that she would be running for commonwealth’s attorney. She also demanded that I give perjured testimony to help convict Thomas and Theresa Hammond and thereby improve Ms. Crawford’s chances of getting elected.

  “‘I channeled the money for the election campaign through a bogus company named the Virginia Insurance Reciprocal. I had voluntarily made several deposits to that same company for the benefit of Ms. Crawford during
our affair and before Erica died. I have included bank statements for that company. If you investigate the accounts that received the wire transfers from the Virginia Insurance Reciprocal account, you will find that they are tied to Ms. Crawford.

  “‘To confirm the affair with Ms. Crawford, I have attached an itinerary for an alleged business trip to the Bahamas. It was really a one-week vacation with Ms. Crawford. The attached plane ticket receipt will confirm my itinerary. The airlines can confirm that she was on the same flight.

  “‘If any further confirmation of the affair is necessary, check with the waiters at the Beach Grill, our favorite hangout. I always used cash, so there are no credit card receipts, but the waiters will remember us. We went there several times a week and always left big tips.

  “‘I hope this statement is sufficient to undo the damage I have done in the Hammond case. I realize there is no way to undo the damage I did to Erica. I have no excuses and make none. I know it won’t make things better, but after signing this note, I, too, will take a final trip to the Blue Ridge Parkway. Erica deserved better than me, and I can never forgive myself for what I’ve done.’”

  Charles finished reading and glanced around the courtroom. He looked first at his own client, big Thomas Hammond, sitting at counsel table, hands folded, eyes closed, as if praying. Those in the gallery looked stunned, as if they had just witnessed the suicide themselves. The Barracuda was the only one in the courtroom moving to any discernible degree, scratching and marking her copy of the declaration.

  “And then he signed it at the end,” Charles said.

  Silverman stroked his chin and surveyed the courtroom, looking slightly dazed himself. In all his years on the bench, he had undoubtedly never had anything that remotely prepared him for this. He finally noticed that Lieutenant Mitchell was still on the stand. “May the witness step down?” Silverman asked.

  “Yes,” Charles said.

  “No objection,” the Barracuda mumbled.