Collier sat down, whispering in agitation to his paralegal. The deputy had already located the film.
Once more, the soundless film Officer Joyce had made was shown. Kurt’s cheek pressed against the window of the Pathfinder he had been driving. He was saying something.
"Again," Evans said. He had leaned forward toward the screen. The film appeared again.
"Okay," he said. "Those boys don’t take any chances. They got a good shot of his face. It’s nice and clear." The lights came up again.
Nina said, "What did the defendant say as he leaned against the car, Willie?"
"He said, ’Blood.’ Then he nodded, and he said, ’A shooting. I’ve been shot.’ "
Collier slammed his file down on the table. Nina had never seen him look so angry. "Objection!" he said. "The prosecution has been unfairly surprised—"
"To the sidebar, both counsel." Nina stood there and didn’t say a word, while Collier raised every argument he could to have the line of testimony stricken. Milne listened carefully, then said, "You should have had him do it yourself. He’s uncovered some shoddy police work you should have uncovered. Live with it."
"Anything further?" Milne said to Nina as Collier returned, shaking with anger, to his place.
"Nothing further, Your Honor."
"Mr. Hallowell? Rebuttal?"
Collier shook his head.
"The witness is excused. Thank you, sir."
"A pleasure." The bright-eyed retiree hopped nimbly from the stand.
"The court will recess until one-thirty," Milne said, and the jury filed down the center aisle.
The deputy was already approaching to take him away, when Kurt leaned toward Nina and Sandy and said, "I don’t know how you thought of that."
"Thank Sandy," Nina said. She smiled encouragingly. He clanked off.
37
"CALL FRANK FONTAINE."
The criminalist shuffled up and sat in the witness box. Still in his twenties, with sleek, straight black hair and tufted eyebrows, even in street clothes he had the disinfected air of one who wears a lab coat most of his life.
Collier asked a number of preliminary questions establishing that Fontaine was employed by the county sheriff’s office and was loaned out on a regular basis to help local police with homicide investigations.
"And it is correct that your services have been employed in collecting and examining physical evidence in connection with the deaths of both Theresa London and Tamara Sweet?"
"I’m going to interrupt right here," Judge Milne said, turning to the jury and putting his glasses down on his bench. "You have probably noticed that, although the defendant has been charged with only one homicide, that of Terry London, from time to time there is evidence coming in about another homicide, that of Tamara Sweet. I want to make it clear that the defendant is not charged with the murder of Tamara Sweet. The evidence concerning her death is to be considered by you only in regard to the question of motive for the murder of Terry London. I will instruct you further on this matter at a later time."
Nina watched Mrs. Bourgogne. As she had expected, it looked like the forewoman had not heard one word of Milne’s advisement. She was examining the short skirt of the juror next to her. The rest of the jurors looked lost too. She could only hope they would figure it out from the jury instructions, which they unfortunately wouldn’t hear until the close of evidence.
"Go ahead," Milne said, looking satisfied with himself
"Yes, sir. I was called out on both cases. The London case first."
"State the circumstances of your assignment to the London case."
"South Lake Tahoe police contacted the sheriff’s office in Placerville requesting a criminalist be sent out to a crime scene located at 8 Coyote Road at nine-fifteen A.M. on March thirty-first. I was already working at the sheriff’s substation at Tahoe, so I went directly to the crime scene."
"Does this report, marked as People’s Exhibit 12, summarize your activities at that date and time?" Nina thought about objecting to the report, which was hearsay, coming in, decided it might help, and said nothing.
"Yes. I remained there for several hours. I collected blood samples from the walls and floor and from the body of the decedent. I also collected fingerprints from a number of surfaces, including a Remington .30-06 rifle found at the scene, and took into custody two bullets and bullet casings."
"All right," Collier said. "Please summarize your findings with regard to each blood sample which has been marked as an exhibit and summarized in this chart."
Fontaine patiently and exhaustively detailed his findings. His lab methods were irreproachable. He used gloves for everything. He had kept orderly and legible notes. "Blood spatters here, and here," he said, pointing with his marker to the chart. "Found five feet one inch up on the wall near bullet one, are intermixed with tissue—"
"Human tissue?"
"Correct. Indicating that the tissue and blood spattered against the wall at the same time as the bullet."
"Did you compare the blood samples from the wall with the blood of the decedent?"
"The DNA tests indicate that all samples were from the decedent."
"You are aware of the coroner’s finding that the decedent was shot through the neck and that a large rear entry wound was present in the posterior portion of the neck?"
"Yes."
"What if anything can you conclude about the position of the decedent at the time the bullet was fired?"
Fontaine established that Terry London had been standing, close to and facing the rifle at the time she was shot, and that the rifle had been at an angle pointing upward.
"Indicating that the assailant was kneeling on the floor?"
"I’d have to defer to the coroner on that. Dr. Clauson."
"What about bullet two?"
"That bullet was taken from a different wall, facing the outer door. There was also blood and human tissue beside the bullet in the wall."
"Were you able to match the blood and tissue samples taken near bullet two with any other samples available to you?"
"The samples matched the defendant’s DNA sample provided to our office."
"Indicating what to you?"
"That bullet one struck Theresa London, and bullet two struck the defendant."
"Did you compare the striations and other evidence from firing the bullets with the Remington rifle you also took into custody?" The rifle was brought up.
Kurt wrote on his notepad, "If only I hadn’t left it with her."
"Yes. Both bullets were definitely fired from the Remington," Fontaine said, and proceeded to show the jury another chart with blowups of the bullets and test bullets he had fired for comparison. Even Nina could see the striations were almost exactly the same.
"Now, with regard to the fingerprints you took," Collier said, and almost three hours went by while Fontaine explained in mind-numbing detail how each fingerprint had been taken, labeled, and analyzed. Nina’s own fingerprint expert had spent hours going over the expected testimony with her. She checked off the testimony on her notes, point by point.
Finally Fontaine stated his conclusions. On the barrel of the rifle he had found complete prints from both Kurt and Terry, along with several unidentified partial prints, though the prints on the trigger had been smeared into unidentifiability. On the camera he had found only smeared and partial prints. The front doorknob was too smeared to make any identifications. All around the studio, Terry’s prints showed up as ghostly markers from the chemicals used to locate them. And there were other, unidentified prints. But no full prints on the rifle, except for Terry’s and Kurt’s.
"Okay, let’s talk now about the homicide investigation of remains found in a small cave near Fallen Leaf Lake."
"Right."
"Your Honor, at this time we intend to offer the evidence discussed last week," Collier said, cuing the judge.
"Very well," Milne said. He turned to the jury and read from his notes, "At this time I am going to ins
truct you regarding certain evidence to be introduced in this trial. The evidence is all statements and physical evidence that may be introduced regarding the death of another person, named Tamara Sweet. I am instructing you that the defendant is not charged with the death of Tamara Sweet. You will not be asked to decide whether he should be convicted of any crime in connection to her death. However, you may consider evidence that the defendant caused the death of Tamara Sweet in considering what if any motive the defendant may have had to murder Terry London."
Mrs. Bourgogne listened politely. She could have been following Milne perfectly, or she could have been thinking about buying a new car. There was no way to tell.
"You may proceed, counsel."
Collier said, "Were you called to assist in the investigation of bones found near Fallen Leaf Lake on June twenty-fourth?"
"Correct. Remains eventually identified as those of Tamara Sweet." Fontaine was pulling out a new set of notes. He detailed how he had been called to the scene, and listed the evidence he had found. Photographs were passed around. One human skeleton makes a large pile of bones. Nina would never forget the sight.
"There was still some rotted blue cloth, probably clothing, under the body. Her ... wrist"—he intentionally chose the common word over the scientific one—"still, ah, carried a watch on it." He drew out the watch carefully from the evidence bag. "A Timex," he said. "But it hadn’t kept on tickin’." He smiled at his little joke, but no one else did. "The mother, Mrs. Sweet, recognized the Timex," he added. "Dental records confirmed the tentative I.D."
"And did you assist in a search of the surrounding area to try to ascertain where the death actually occurred?"
"Yes, and I received and read supplemental reports filed by the deputies. But it had been too many years. The cave was close to the trail that leads down from the ranger station at Angora Ridge to Fallen Leaf Lake, so I would think she was perhaps killed on the path—"
"Objection. Speculation."
"Sustained. The jury will disregard the last sentence of the answer to the last question."
"Mr. Fontaine, were you able to ascertain the source of the bullet found in Tamara Sweet’s body?"
"Yes, we were. Your office suggested that we compare that bullet to the ones we recovered in the other homicide. Our tests showed it to be from the same Remington rifle that killed Theresa London. Registered, as I previously testified, to the defendant."
Collier kept Fontaine on the stand until the mid-afternoon break. When she finally had her chance, Nina said, "Just a few points, Mr. Fontaine." Keep it simple, she thought to herself. Hit hard and run.
"Regarding the two bullets found at the London studio ..."
"Uh-huh."
"You labeled them bullet one and bullet two. Do those labels indicate your opinion as to which bullet was fired first?"
"No, just the order in which they were discovered."
"So the defendant could have been shot first, and then the victim?"
"Well, I am sure the coroner will tell you the victim was not able to shoot after being shot in the neck. The wound was too grievous."
"Based on the evidence you have, could the victim have shot the defendant first, and then someone besides the defendant have shot the victim?" Nina said.
"No," Fontaine said. "There were only the two sets of prints on the gun."
"That’s not quite true, is it? Don’t you want to be precise here? Isn’t it true that there were several indistinct prints you could not identify on the gun?"
"Yes, but they were most likely made by the same people who left the full prints we did identify," Fontaine said.
"Isn’t that just a sloppy assumption, Mr. Fontaine? Isn’t it also possible that one or more of the partial prints was made by a third person? Or that the shooter wore gloves?"
"We’ll never know," Fontaine said.
"So you are guessing?"
"I’m stating my opinion."
"But your opinion is baseless, isn’t it? You’re clutching that microphone right now. Your prints are on it, along with many other people’s prints, right?"
"I suppose. I don’t know when they clean it."
"Suppose they haven’t cleaned it in twelve years," Nina said. "Or let me put it this way. Suppose they don’t clean it for twelve years—it gets put in a closet after today and not used again. Tell me, would your prints still be on the microphone?"
"If they weren’t overlaid by the janitor," Fontaine said.
"Okay. Now let’s suppose the defendant here touched that rifle twelve years ago, and didn’t touch it since, and no other prints were overlaid on it. Couldn’t his print still be there?"
Fontaine stroked his chin. He didn’t want to answer.
"Well?"
"With our current advanced methods, a print could show up that was that old," he said. "It would be very faint, but faintness also can occur when the grip of the fingers is very light."
"Do you have any way of dating exactly when the fingerprints you found on the gun barrel were made?"
"I suppose not. One could overlay the other, and that would give you the fact that the overlying print came second, but it wouldn’t tell you when the first print was made."
"So let’s be very clear about this. Based on all your observations, Mr. Fontaine, regarding the fingerprints as shown on your chart, could Mr. Scott’s prints have been made as long as twelve years ago?"
"Objection. Vague. Calls for speculation."
"Rephrase the question, counsel," Milne said.
"Mr. Fontaine," Nina said doggedly. "Based on all your observations at the crime scene and analyzing all the evidence you obtained, and based on your advanced training in forensic science and your experience in law enforcement and criminology, is it inconsistent with any of the evidence that the defendant’s fingerprints on the gun were placed there some months or years prior to the death of Ms. London?"
"Same objection."
"Overruled."
"Not inconsistent," Mr. Fontaine said.
"Did you, or anyone in your office, perform a fluorescein test—which would have indicated whether or not he had recently used a firearm—on the hands of the defendant, Kurt Scott?"
She already knew the answer, of course, just as she had known he would ask the question. As expected, he frowned, then squirmed, a perfectionist caught in a glaring oversight. He read through his notes, looking for a way out, and finally had to answer. "Unfortunately, my understanding is that the fluorescein test was not performed on the defendant."
"Wouldn’t it be standard operating procedure to perform such a test on a shooting suspect?"
"Yes. But we’re a small department up here. We do our best. Somehow it was overlooked."
"Isn’t it true that if the test was performed early enough after the arrest, the police department would have known if Kurt Scott had fired a weapon within the previous twenty-four hours?"
"Maybe even longer."
"So he could have been completely vindicated, if the fluorescein test had been negative?"
"I’d say it’s lucky for the defendant we didn’t perform the test. It would have nailed him, if it was positive."
"I see. We’re left with our doubts," Nina said, as if to herself.
"Objection!"
Nina said hastily, "Withdrawn, Your Honor. So ... you have no evidence that Kurt Scott handled or shot the rifle on the night of Terry London’s death?"
"No, but—"
"Thank you," Nina said. She sat down.
Jerry Kettrick stepped up to the stand, dressed in baggy jeans and a wide tie, his rubbery lips spread wide as if to say, "Let me entertain you."
Jerry was a very important witness. He was getting an uncalled-for extra fifteen minutes of fame. He understood that. Today he looked like Pete Townsend giving good interview, or Alice Cooper, dignified and polite in a black-eyeliner, ravaged-albino kind of way. His tufty beard had been trimmed for his legal debut and a rubber band held most of his scraggly white hair back, bu
t the burnt-out look in his eyes and the length of the white hair flowing down his back told on him. He was the quintessential aging hippie, Nina thought, the kind who doesn’t move on to politics or the Sierra Club or Buddhism, but just gets older, wondering where the revolution went.
Nina ran her eyes down the transcript of the interview with Jerry and glanced again at Paul’s background report.
Collier asked a few preliminary questions, then said, "Where is your house located in relationship to hers?" A diagram had been prepared, and Jerry pointed out his front porch, about a hundred fifty feet from Terry’s gate.
"Did she have any neighbors on the other side?"
"No, that was one of the lots the TRPA wouldn’t let anyone build on," Jerry said. "And behind her was still forest. She had fenced her property. We were her only real neighbors."
"Did you or your son ever go onto her premises?"
"I went over there to sweep the roof, fix the plumbing, whatever. That was a long time ago, when her parents were still alive. She went away for a few years after her parents died and rented the place. When she came back, she didn’t want me around."
"Why was that?"
"We had a falling out, you might say. Neighbor problems. I liked to play my guitar cranked up high. I’m a night person. She was a good-looking woman and I was lonesome, but she wasn’t interested. One time, she got mad at me for no reason and told me to get off her property. But then she started calling on my boy, and he done the same kind of chores for her."
"Did you remain on a social basis with her?"
"Not hardly. At one time I thought we were gonna, you know, get together. But she wasn’t ready for a real man. She had a shrine thing set up in her bedroom for some dude she used to know. Anyway, she got hostile with me a few times. She locked up the gate and you had to ring a buzzer, and then her intercom would come on. She wouldn’t let me in. I can take a hint. Her loss." Kettrick swept his hand over his white hair.
"All right. I direct your attention to the night of March thirtieth."
An expression that said grandly, I am at your service.
"During that evening, did you hear anything unusual?"
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