Second Degree (Benjamin Davis Book Series 2)

by A. Turk

  Davis wanted to keep this witness short and limit the subject matters addressed. He established that Dr. Barnard would not have renewed the prescription of hydrocodone if he’d known Robyn was a drug seeker.

  He discussed her symptoms, especially her headaches. He was convinced they were real. Davis had no choice. He had to put the doctor on the stand, and he expected Pierce to make points on cross.

  Pierce started slowly and established that as her doctor, he wanted what was best for his patient.

  She then asked, “A patient has responsibility in her own care and treatment, right?”

  “Absolutely.”

  “As a doctor, you rely on what a patient tells you to help diagnose and treat her?”

  “Absolutely.”

  “You knew from her history that she was a former IV drug user, right?”

  “Yes.”

  “She was an addict?”

  “Yes.”

  “Addicts are liars?”

  “Yes.”

  “They engage in deceptive behavior?”

  “Yes.”

  “Robyn Eden lied to you and deceived you?”

  “Yes.”

  “It was her deceptive and self-destructive behavior that caused her death?”

  Davis objected, asserting that such an opinion usurped the duty of the jury. Tanner held that the jury could hear his opinion and place whatever weight it deemed appropriate.

  Dr. Barnard opined that Robyn Eden’s conduct contributed to her death. Davis could tell Pierce was proud of that one. It would play well in her closing argument.

  Davis thought Pierce’s timing was excellent since at that moment Tanner announced it was time for lunch and they’d resume court at two o’clock sharp.

  The state called as its next witness Dr. John Davenport, the county medical examiner. Davenport served in his position twenty years. He knew his stuff, but he couldn’t communicate with the average person. Unfortunately juries are made up of average persons. Davis and Morty learned about this problem from talking to the man during the months before the trial. He just didn’t know how to communicate. The jurors needed to understand the cause of death to find a guilty verdict. They had to tie Charlie Garcia’s conduct to her death. If they didn’t, he’d be acquitted on the murder charge. Davenport’s explanation of his autopsy report and what happened to Robyn Eden got bogged down in medical jargon.

  Davis and Morty decided that Davis would conduct the direct and, as the questioner, make contact with the jury.

  Davenport took his seat after taking the oath. He looked and was pretty pompous in the thick golden oak witness box. The American and Tennessee flags were draped from poles on either side of the witness box.

  Davis stood, opened the courtroom closet, and removed a six-foot skeleton complete with multicolored rubber organs. The heart was red, the lungs were blue, and the kidneys were yellow. He placed the prop between Davenport and the jurors but didn’t block their view of each other. Davis was armed with a laser pointer. There’d been an argument about whether to use the laser or a wooden pointer, and Davis won out. Sometimes Morty was too old school.

  By alternating leading questions, Davis got Dr. Davenport’s background presented. Watching the jurors, Davis concluded that they accepted his expertise, so they’d rely on his testimony in reaching their verdict.

  “Doctor, would you introduce our friend here to the jury and explain why he’s here today?”

  “This is my friend Irving, and I’ve asked him here to help me explain what happened to and caused the death of Robyn Eden on July 4th of last year.”

  Davis and Dr. Davenport reviewed with the jurors the different organs and their functions. They spent ten minutes reviewing the heart and lungs and how the heart pumps the oxygenated blood to the rest of the body. It was like a good version of freshman biology. In order to accurately point the laser Davis was standing right next to the jury. Davis believed that his close proximity to the jury created a bond between them. He smiled at them, and they smiled right back.

  He reviewed with the witness the diagram of Ms. Eden’s body, which noted all the surgical scars from the operations performed by Mr. Garcia or other doctors at his request. That bite of information didn’t seem important, but it would be used in closing argument. Morty and Davis always thought ahead. In order to argue a point in closing, there had to be a factual basis introduced into evidence through either testimony or a document.

  They introduced the autopsy report and reviewed portions of the document. Davis briefly discussed the dead child. Davenport kept referring to it as a fetus. Davis preferred child. He decided he’d better move on with this bad witness. He asked Davenport about the cause of death.

  “Acute combined multiple drug overdoses.”

  “Explain to the jury what that is, please.”

  Davis looked at the old man, and in response with his eyes, Morty said, That’s too open-ended a question for this egghead. Go back to using Irving.

  Davis caught himself and decided to break down the question. “Let me ask that a different way. What were the multiple drugs that killed Ms. Eden?”

  “Oxycodone, hydrocodone, and Alprazolam.”

  Keep his answers short and sweet, Davis thought.

  “What are those drugs, and how are they different?”

  “Before I explain how they’re different, let me tell the jury how they are all the same. Oxycodone and hydrocodone are opiates, narcotics. They’re painkillers. Oxycodone is the more serious of the drugs and is designated in Schedule II while the hydrocodone is Schedule III. They’re all highly addictive when taken orally. However when crushed and mixed with a liquid, such as water, their potency increases exponentially. Xanax is a benzodiazepine. It’s for anxiety, like Valium. It’s designated as a Schedule III.”

  Using the autopsy report, Davenport discussed the levels of each drug in Ms. Eden. They were incredibly high, indicating chronic use. He also testified that Robyn Eden on July 4th required a greater amount of these drugs to become high because of her built-up tolerance.

  “Each time she had to do a little more to achieve her desired high.”

  “Which drug actually killed her?”

  “Based upon the toxicology on July 5th, I am of the professional opinion with a reasonable degree of medical certainty that the oxycodone killed her. It was the cause of her death. She was injected with the oxycodone mixture in her femoral region, and it caused respiratory depression and her death.”

  Davis was glad to hear that important answer. He had drilled into Davenport that he had to testify that it was the oxycodone because it was a Schedule II, not a Schedule III drug. Davenport also had to hold his opinion as to cause of death with a reasonable degree of medical certainty. Those were two key elements to the state proving murder.

  The state wanted the jury to find that Robyn Eden died from oxycodone, not the other drugs. Robyn had three prescriptions for the hydrocodone and another three for the Xanax. Those six prescriptions were dispensed by different pharmacies and prescribed by Dr. Barnard and another doctor. Garcia didn’t prescribe either hydrocodone or Xanax! The state needed to prove beyond a reasonable doubt that she died from the oxycodone and that Mr. Garcia dispensed it.

  Dr. Davenport, again relying on his autopsy report, discussed the size of Ms. Eden’s lungs and the fact that at the time of the autopsy, he discovered pulmonary edemas. When he lost the jury in his explanation, Davis pulled him back on track.

  Using Irving as a guide, he explained why Ms. Eden’s excessive drug use resulted in hypertension, which also contributed to her death. Davis and Morty knew Pierce would bring that out on cross, so they decided to steal her thunder. They debated whether to bring up the filler and decided they’d better or Pierce could cause greater damage.

  Davis said, “Ms. Eden also abused pills, which contained both hydrocodone and Xanax. The police found three pill bottles at her apartment.”

  Pierce objected as leading, and Tanner sustained the objec
tion.

  Pierce was going to make Davis work to damage her cross of this witness.

  Dr. Davenport with difficulty explained why the hydrocodone and Xanax weren’t the causes of death. He touched on the fact that the pills contained filler but denied that an accumulation of the filler in small vessels was the cause of death.

  Through that testimony, Davis attacked Pierce’s best argument as to what caused Robyn Eden’s death. Davis knew that Pierce would be fierce on cross. He sat down.

  Pierce got up, put her arm around Irving, and made a sexy gesture as she told him she was single. The jury loved it. Davis had to admit it was a brilliant move. It made her vulnerable and funny at the same time. He had to admit despite his ill feelings toward her, she was a beautiful woman, and the jury knew that. She was also smart as hell, and he hated to admit that.

  “Ms. Eden was a drug addict?”

  “Yes.”

  “Drug addicts are liars. They lie to doctors to get prescriptions, don’t they?”

  Without answering her question, Davenport answered it.

  “Ms. Eden had prescriptions for hydrocodone and Xanax from Dr. Barnard, her treating physician, and Dr. Connor within two days of each other.”

  Pierce showed Davenport a picture of Robyn Eden’s medicine cabinet, which had three shelves with dozens of prescriptions. She handed Davenport a typed list of medications in the medicine cabinet.

  “The parties have stipulated that this list identifies the number of prescriptions Ms. Eden filled and were still at her apartment.

  “How many opiates are listed?”

  Davenport started counting out loud, “One, two, three … eleven.”

  “Do you see the column marked number of pills?”

  “Yes.”

  Pierce handed him a calculator.

  “How many pills?”

  Davenport started punching buttons. He stopped and obviously had to start again.

  “456.”

  “That’s a lot of opiates?”

  “Absolutely.”

  “Would you agree that if someone took that many opiates, she would inevitably die of a drug overdose?”

  Davis actually jumped to his feet and loudly stated, “Objection, speculation.”

  Tanner sustained, but it was too late. The jury had just been told by the state’s medical examiner that it was inevitable that Robyn Eden would die of a drug overdose. Davis and Morty knew he was a bad witness, They just didn’t know how bad.

  Pierce got Davenport to admit Robyn was using an IV, and that intensified the drugs.

  “She used an awful lot of hydrocodone. Based on that list, it was her drug of choice?”

  “Absolutely.”

  Davis cringed.

  “Hydrocodone pills are two-thirds filler and one-third active ingredient?”

  “Yes.”

  “That’s a tremendous amount of filler in a short period of time?”

  “Correct.”

  Using Irving, Pierce explained to the jury how the filler blocked the smaller vessels. “It’s like a cork blocking the blood from flowing, right?”

  Davenport explained how the pressure builds up, and the result is high blood pressure, which can under extreme circumstances cause death.

  Pierce asked if she could pass to the witness Exhibit 131, a cell phone picture of Ms. Eden. Davis didn’t have a clue where Pierce was going. It was a picture of Robyn inserting a very large vibrator into her vagina. It had been passed to the jury. Davenport looked very uncomfortable.

  “What is the time on that cell phone picture?”

  “Ten o one.”

  “The parties have stipulated that Mr. Garcia called 911 at ten ten and that after that call, he performed CPR and revived Ms. Eden. Those are stipulated facts.

  “Would you say that Ms. Eden is posing in that picture and that it took some dexterity for her to insert that sex toy into her vagina the way she did?”

  “Correct.”

  “Does she look like she’s in respiratory distress?”

  “She seems active and not in distress.”

  “I want you to assume that there are four cell phone photos after ten o one that reflect similar activity by Ms. Eden.

  “Does this photo impact your testimony that the mechanism of death was respiratory depression?”

  Davenport sat there for what seemed like a very long time. The jury noticed the delay in his response. He was obviously thinking.

  “This photo proves she didn’t die of respiratory depression. She was much too active right before her death. My autopsy report is wrong as to the mechanism of death.”

  “You’ve never seen this cell phone photo before?”

  “No.”

  “Do you know why Mr. Davis or the police didn’t show it to you?”

  “No.”

  “You were never told there were four missing photos taken later in time than this one, were you?”

  “No.”

  Pierce stopped on that damaging point.

  Davis got Davenport to restate that the cause of death was the oxycodone, but it wasn’t clear that the jury heard or understood the difference between cause of death and mechanism of death or the importance of that anymore.

  Davis thought by using Irving, he could make Davenport’s testimony more interesting to the jury. He couldn’t help that Dr. Davenport was hopeless as a witness. Sometimes a lawyer has no choice but to try to put on the proof and weather the cross.

  It was past six, and Tanner recessed for the day.

  CHAPTER FIFTY-SIX

  ABOVE REPROACH

  Wednesday, February 14, 2001

  Harrelson was tired of sitting on his backside on the hard oak pews of the Hewes County Courthouse. He wanted to sit with Pierce at the defense table, but he didn’t have the experience. He excused himself from the Garcias and walked out the courthouse front door into the cold February morning. He sat at a bench that faced a Civil War cannon, pulled his cell phone out, and faked making a call.

  He didn’t have to wait long. Alan Baxter sat down on a bench right behind Harrelson’s and mimicked making a call. The two men’s heads were inches apart facing in opposite directions. There was nothing suspicious about two men on two separate benches making two separate phone calls.

  Speaking into his phone, Baxter said, “It’s no dice. I can’t get to him. He’s above reproach.”

  Cold and tired of sleeping in a hotel bed, Harrelson snapped back, “Everybody’s got a price or a weakness we can exploit. You’ve disappointed me, Baxter, you know that. You just needed to dig deeper, but it’s too late now. He’s their next witness.”

  “I’m telling you I’ve tried. He’s the DA. You just can’t walk up to him and offer him a bribe. He’s a man of principles.”

  “I’m very disappointed in you, Baxter. We needed your help, and you didn’t deliver.”

  Harrelson rubbed in Baxter’s failure. He got up and walked back into the courthouse. He sat down and reported to Señor Garcia, “We’ve got a small problem. We couldn’t get to the DA.”

  “He’s going to try to crucify Charlie. We’ll put Baxter on as part of our case to try to nullify the DA’s testimony.”

  Judge Tanner took the bench and called his court to order.

  Davis called his first witness, District Attorney Peter Taylor of Jefferson County, Kentucky. The completely bald DA was immaculately dressed in a blue three-piece suit.

  Davis took him through his background and the fact he was an elected official. He was responsible for all criminal prosecutions in his county. Davis asked him whether he’d ever met Mr. Garcia.

  Taylor testified that the defendant in 1999 was indicted for “count one, unlawful prescribing and administering a narcotic; count two, wanton endangerment; and count three, unlawful possession of drug paraphernalia.”

  “What was the drug Mr. Garcia unlawfully prescribed?”

  “Hydrocodone.”

  “And who did he prescribe it for?”

  “Ro
byn Eden, the victim in this case.”

  “At the time Mr. Garcia was a doctor, wasn’t he?”

  “Yes, but Kentucky doesn’t let out-of-state physicians prescribe Schedule III narcotics.”

  Davis stopped to let the importance of that testimony sink in. Neither party disclosed the Derby incident in opening statements. The jury was about to learn that July 4th was not the only time Charlie Garcia was around when Robyn Eden overdosed.

  “Can you tell the jury what transpired to cause the indictment of Mr. Garcia?”

  Taylor was an experienced litigator. He went to court for a living and was very comfortable providing the narration of the 1999 Derby weekend.

  “Ms. Eden overdosed from a combination of injecting a hydrocodone mixture into her groin area and consuming the remainder of the bottle. She had to be hospitalized. I interviewed her in the hospital. She got in an argument with Mr. Garcia after she injected herself and then took the remainder of the bottle orally. She had to have her stomach pumped. He caused her overdose in May 1999.”

  Davis let that testimony just sit there. It was a gotcha moment.

  He waited so long, Judge Tanner asked, “Anything else, Mr. Davis?”

  “Yes, sir, Your Honor.”

  He asked the DA, “What happened to the charges against Mr. Garcia?”

  “I’m sorry to say I cut a deal. I accepted a plea bargain. Mr. Garcia accepted pretrial diversion and probation for eighteen months. We placed the charges in abeyance, and if he stayed clean, the charges got dismissed.”

  “Why did you do that?”

  “Two reasons. First, I believed Mr. Garcia when he said that he didn’t realize he couldn’t write a prescription for a Schedule III narcotic in Kentucky. Second, Robyn Eden became uncooperative.”

  “What do you mean?”

  “She recanted her testimony and refused to cooperate. He had absolute control over her.”

  “Mr. Garcia got eighteen months. He didn’t quite make it, did he?”

  “He was arrested for murder after fourteen months.”