Second Degree (Benjamin Davis Book Series 2)

by A. Turk

  “I withdraw my question.”

  Without missing a beat, Davis asked another hour of questions, including ones about sex toys and drugs. Several of the older women looked uncomfortable when he referred to various sex toys. The men just looked horny, and some of the younger men couldn’t take their eyes off Sammie. Davis suspected that several of them had erections from the combination of hearing his questions and looking at his niece.

  After Davis sat down, it was Pierce’s turn. She wanted to shame every woman over forty off the panel. She was convinced, and the prosecution agreed, that older women would blame the victim for her drug use and sexual promiscuity. Pierce wanted young men on the jury, the younger, the better. They were most likely to identify with Garcia and his lust and fetishes.

  She asked, “How many jury members have used a vibrator in their lovemaking?”

  It was Davis’s turn to object, “Your Honor, that’s a pretty personal question to ask these jurors. I don’t think they should have to identify themselves and be embarrassed in this courtroom.”

  Pierce was ready for the objection. “Your Honor, a man’s freedom for the remainder of his life is at stake. I need to find out which of these jurors are predetermined to guilt simply because my client and Ms. Eden used sex toys in their lovemaking.”

  Tanner pondered the issue a long minute and then ruled, “I’ll allow it.”

  Sixty-one women were left on the panel. After a good two minutes, in staggered succession nearly half of the women raised their hands, and so did ten males.

  Davis suspected that several others were too embarrassed to acknowledge the use of the marital aids.

  Pierce finished her questions after eliminating four women, all over the age of sixty-five.

  Judge Tanner broke for lunch. The court reduced the panel to ninety-three potential jurors, excusing the rest for cause.

  After lunch, the remaining potential jurors filled the jury box by lottery, fifteen jurors in the box, and the lawyers had to use their preemptory challenges to exclude jurors for perceived bias or any legitimate subjective reason. It was illegal to exclude potential jurors on the basis of race, sex, or age, but it was done all the time. The judge had given each side six preemptory challenges. Race wasn’t an issue in this case since both the defendant and the victim were white. Age and the sex of the jurors were issues. As one side or the other threw off a juror, a replacement candidate took the seat.

  By four thirty, a jury of seven men and eight women had been selected. The average age was forty-six. The men ranged in age from thirty to fifty-five; the women were more diverse. Two women were in their late twenties and two in their seventies. Pierce ran out of challenges, and the last two seated were the old ladies.

  Juror 1, Frank Bean, age fifty-one, was a car salesman in a blue blazer. Juror 2, Sandra Horton, age twenty-nine, was a dental assistant. David Thomas, juror 3, had shoulder-length hair and worked at a car wash. Also there were a college professor, an accountant, an assistant manager of Kroger, a few housewives, two state employees, and others from all walks of life.

  The three alternates from the fifteen-member panel would be selected by lottery at the end of the trial. That way all fifteen paid close attention, and no one knew who the actual twelve jurors were until right before deliberation.

  Davis was satisfied with the composition of the jury. He particularly liked the two older women. He hoped that the jury would be outraged by Charlie Garcia’s conduct and pity the loss of Robyn Eden.

  The judge finished the day by reciting from memory the preliminary jury instructions. He warned the jury, “Don’t engage any of the attorneys. They know not to talk to you and will appear rude by ignoring you.”

  Judge Tanner also admonished the jury not to discuss the evidence among them until after he had given the final jury instructions and directed them to deliberate. “The guilt or innocence of the defendant will be decided by you based on the evidence. The evidence is the testimony of the witnesses and the documents that are introduced. You are the judge of the credibility of the witnesses. If you disbelieve any part of a witness’s testimony, you have the right to discount or disbelieve all of that witness’s testimony.”

  Davis understood that even the slightest inconsistency in testimony could destroy a witness’s credibility. He’d learned that skill from his mentor and co-counsel Morty.

  “What the lawyers assert in the opening and closing statements is not evidence. You are the judge of the facts. I, as the judge, instruct you on the law. The prosecutors are here to present the state’s case against Mr. Garcia. In order for you to find him guilty, the state must prove each element of the charges beyond a reasonable doubt.”

  Judge Tanner explained to the jury each element of second-degree murder and reckless homicide. The instructions lasted more than an hour but provided them with necessary information. The verdict of this case was based upon the evidence but had to be decided within the confines of the law.

  Judge Tanner banged his gavel and bid the jury good night. He told them that the Hewes County court system owned an excellent library of DVDs because the jury for the next two weeks couldn’t watch TV, listen to radio, or read a newspaper or magazine.

  CHAPTER FIFTY-TWO

  OPENING STATEMENTS

  AND THE FIRST DAY

  OF PROOF

  Thursday, February 8, 2001

  Amy Pierce was prepared to give her opening statement. She’d practiced it in front of her associates and in front of the mirror several times. Soon she’d stand before the jury and without notes open for the defense.

  The state went first and last because the state had the burden of proof. She figured that was to her advantage. She got to hear the state’s arguments and then could dismantle them one at a time.

  Steine gave the state’s first opening statement. It was short and to the point. Mr. Garcia was guilty of second-degree murder because he supplied the drugs that killed Robyn Eden. He distributed or gave her the drugs that proximately caused her death. He was her doctor and her lover, who knew she was an addict. He spent the last days of her life exploiting her addictions for sex and drugs.

  “You’ll notice that the parties throughout this trial will refer to the defendant as Mr. Garcia, not Dr. Garcia. At one time the defendant held two medical licenses: one from the great state of Tennessee and one from the state of New York. He surrendered his Tennessee license, and New York suspended the other.”

  Steine pointed out several inconsistencies in Mr. Garcia’s statements given to the paramedics, the treating physician, and the police the night of the victim’s death as well as his behavior that night. Steine argued that under the law, a person could be dishonest through his acts but also through his omissions. The failure to disclose a material fact was a lie because it misled the EMTs and the emergency room doctor.

  Steine was very dramatic and expressive as he walked slowly around the courtroom. He reminded Pierce of an old lion, proud and dignified.

  He posed some questions to the jury: “The defendant was a medical doctor. Unlike you and me, he was used to dealing with medical emergencies. Because of his training and experience, the law imposes even greater obligations on him. He needs to explain to you why he failed to disclose what he knew to the professionals who were trying to save Robyn Eden’s life.

  “The defendant was with Ms. Eden for several days. The proof will show they didn’t leave the apartment. How did he not know what drugs she was taking? The drugs were left right out in the open, right next to the defendant’s shaving kit.

  “There is a graphic videotape that is the best evidence of what happened at the apartment. It’s important not only that you pay close attention to what you might see in the video, but also please pay close attention to what you hear. The strongest evidence is what the defendant in his own words says. His own words prove his guilt.”

  Steine had the jury’s attention. It wasn’t difficult to keep their focus as he paraded around the courtroom talking about
drugs and sex videos. He went on to describe the lesser offense of reckless homicide. Pierce thought the state overreached with its charge of second-degree murder. A jury verdict of reckless homicide was far more likely.

  He argued that if the jury, in its wisdom, failed to find second-degree murder, it was a no-brainer to convict the defendant for reckless homicide. He pointed out that Mr. Garcia failed to disclose to the paramedics at the apartment and then later to the hospital staff that Robyn Eden was an IV drug user. He argued, “Mr. Garcia lied by omission. He possessed critical information that would have helped with the care of Robyn Eden, yet he withheld that information. He was a doctor. He knew just how critical that information was. He acted recklessly, and it caused Ms. Eden’s death.”

  Steine thanked them for their service and their sacrifice of sequester. The opening lasted less than thirty minutes.

  Pierce was up next. She reminded the jury that the defendant was innocent until proven guilty beyond a reasonable doubt. “My client doesn’t have to prove anything. The burden is all on the state, and it won’t meet its obligation. You’re going to find Charles Garcia not guilty.”

  Next she explained the state’s burden of proof beyond a reasonable doubt. She compared that heavy burden to that of a civil case, which was by a preponderance of the evidence.

  The jury listened intently. Greg Jones, juror 8, the life insurance agent, kept his arms crossed during Pierce’s opening statement.

  Pierce thought, Did juror 8, Mr. Jones, have his arms crossed during Steine’s opening? She couldn’t remember. Danny Appleton, juror 6, the waiter at Outback, smiled, a good sign. Andrew Bremen, juror 13, the golf superintendent at the local country club, had kind of a frown on his face. Pierce understood just how important the jury’s body language was in her effort to read where the jury’s heads might be.

  “I promise you this will be an interesting case. It’s about sex, drugs, and country music. As you all know, sex is not illegal. It can be a beautiful thing between two loving adults. It can also be raunchy and beyond the pale. How it’s performed is up to the imagination of the two consenting adults. It can be very different from what you and your spouse or loved one may engage in. If it is, it’s still legal.

  “Drugs are another story. Robyn Eden was a drug addict of the worst kind. Her worst crime was what she did to herself and her unborn child.”

  Pierce stopped and watched the jury carefully. She wanted to assess their reaction to the pregnancy. There definitely were different degrees of surprise. Pierce concluded that the greater reaction came from the women. The trial changed. It now involved the death of an unborn child, and Pierce claimed that Robyn Eden was the murderer.

  “She killed herself and her baby slowly through her drug use. July 4th was the culmination of years of abuse. She was the proximate cause of her own death. The baby from inception didn’t have a chance. That was my client’s child. I want you to ask yourself what kind of person uses IV drugs when she knows she’s with child? The answer is someone without hope who cares nothing about herself or her unborn child. Robyn Eden’s death was inevitable and unpreventable.

  “I can’t argue that my client was just a bystander like you and me. He played a part in their relationship. Mr. Garcia and Robyn Eden used each other. There may have been feelings of love and talk of marriage, but bottom line, as consenting adults they had an arrangement. She was a beautiful woman who thought surgery would make her more beautiful. The defendant provided her with those surgeries that she desperately wanted. They both wanted unorthodox sex. It’s clear from the video that they got what they desired. You can’t hold those unorthodox sex acts against my client. Robyn Eden demanded them from my client. If he didn’t accommodate her, she would have gotten her sex elsewhere. The proof will show she got her drugs elsewhere.

  “The state is calling my client a murderer. It must prove that Mr. Garcia gave her the drugs that killed her. There will be no proof that he provided those drugs. The state has no proof on this critical point. Its plan is to prejudice you against Mr. Garcia because of his unusual sexual preferences. That’s a diversion. Don’t fall for it.

  “You’re probably going to hear the testimony of Senator Valerie Daniels, Robyn Eden’s sister. She’s a powerful woman in Washington, DC. Remember she’ll be sitting in the witness box as a sister, not a senator. I’m sure she loved her sister, but she knew Ms. Eden was an IV drug user, an addict. In fact it’s her fault that Charles Garcia is here on trial today. Senator Daniels begged him to fly down to Hewes City and try to convince Ms. Eden to enter rehab. He’d separated himself from Ms. Eden because she was an addict and self-destructive. His head told him that leaving her was the right thing to do and in his best interest. He should have listened to his head, but instead he listened to his heart and admittedly another part of his anatomy. He may overcome those urges, but during their conversation, the senator played her trump card, his unborn child. How could he refuse? But for the call from Senator Daniels, her plea for help and his desire to save Ms. Eden and their child, he wouldn’t be here.

  “We’re here today because a powerful politician brought pressure on the state to charge Charles Garcia with murder. The senator is trying to pass her guilt to my client, and that’s not right.

  “Thank you for your attention. The state gets to put its proof on first. It’s important that you withhold judgment until you hear all of the proof by both parties. I’m confident after you hear all the proof, you’ll bring back a verdict of not guilty.”

  Steine stood and looked squarely at the jurors. “I’m a man of few words. The defendant murdered Robyn Eden, and his lawyer just had the nerve to assert that her sister killed her. I’m outraged. You will be too. The state will prove that Charles Garcia is not only a liar but also a murderer, and you will convict him for his crime. Thank you.”

  Davis thought, Morty’s second opening was short, but he delivered it with such power that it jarred the jury. They’re ready to go.

  Judge Tanner called a recess. All of the lawyers decided they needed a comfort break.

  Pierce and Sammie availed themselves of the third-floor ladies’ room at the same time. Pierce didn’t care for her. She was smart and beautiful, but she was her competition, and Pierce didn’t like any competition.

  Sammie called as the state’s first witness the 911 dispatcher. She established her identity and then played the 911 call.

  “Did Mr. Garcia provide the correct address?”

  “No, there was about a four-minute delay while we found the correct building number.”

  “How do you know it was a four-minute delay?”

  “I was monitoring the call. I know the time they arrived and the time they entered the right unit.”

  The younger Davis handed the dispatcher over to Pierce.

  “How many 911 calls have you taken?”

  “I’ve been on the job twelve years. I work forty to fifty hours a week, and I take an average of two calls an hour.”

  Pierce picked up a calculator from the defense table and started doing some math. “That’s about at least eighty calls a week. Fifty weeks a year, that’s four thousand a year for twelve years. That’s forty-eight thousand calls, right?”

  “That’s a good guesstimate.”

  “In all those years and all those calls you’ve observed how people act under pressure and in an emergency situation. You’d consider yourself an expert in emergency situations. Right?”

  “It’s my job, and I’m good at it. Over the years I’ve saved lives.”

  “In your opinion, did Mr. Garcia seem upset and emotional?”

  “Yes.”

  “In your opinion, was he trying to get Ms. Eden help?”

  “Yes.”

  “Do you think he gave the wrong address because of the stress of the emergency?”

  “Yes.”

  Sammie stood and redirected. “In those forty-eight thousand calls, how many were from doctors?”

  “Less than fifty.”


  “How many of those doctors were as hysterical as Mr. Garcia?”

  Pierce objected, “There’s no testimony that Mr. Garcia was hysterical.”

  Sammie didn’t wait for Judge Tanner. “In your opinion, was he hysterical?”

  Pierce protested, “That calls for a medical conclusion.”

  The judge overruled.

  “I think so.”

  Sammie continued, “How many of the forty-eight thousand callers gave the wrong address?”

  “I’ve had only six or seven, maybe as high as ten wrong addresses.”

  The day ended on that note. The judge wished the jury a pleasant evening at the hotel and thanked them for their service. He warned them not to discuss the case among themselves or with anyone else for that matter.

  CHAPTER FIFTY-THREE

  AN HONORABLE DOCTOR

  Friday, February 9, 2001

  Judge Tanner started court an hour late because he had to deal with another matter that couldn’t wait till lunch or the end of the day. At ten, the jury entered the jury box, ready to resume the trial.

  Davis could see the anticipation on the jurors’ faces; they wanted to hear the juicy stuff. The first witness was Willie Whatley, the younger of the two paramedics who responded to the 911 call at the Eden apartment. He seemed a little nervous to Davis as he took the oath from the judge’s court officer. His right hand was shaking.

  “Mr. Whatley, I’m Benjamin Davis. I represent the state of Tennessee. Have you ever testified before?”

  “No, this is my first time.”

  “Are you nervous?”

  “Very.”

  Davis told him not to be nervous. He was providing a very valuable service by telling the jury what happened on July 4th. That seemed to calm him down a little, but his voice still squeaked when he spoke.

  The proof established that Whatley, by July 4th, 2000, had been on the job only three weeks. Using a diagram of the apartment, Whatley showed the jury where Robyn Eden was found naked on the bedroom floor. He also indicated on the diagram where the camera and tripod were set up.