“Ms. Bergstrom will tell you,” Meredith continued, “that she certainly did not and would never have sent something so amateurish to Olivia Lathom. Ms. Bergstrom will testify that when confronted by the defendant, she tried to explain all of this, but Ms. Higgins was adamant that it was her book that was published under Olivia’s name. And it was at that point that Esther Higgins threatened to kill Olivia Lathom.
“Dr. Melissa Cooper, the director of this judicial circuit’s crime lab, will testify that Olivia was killed by a single shot from a twenty-two-caliber pistol and that a similar gun was found in a closet of the home of the defendant sitting at counsel table with her lawyer. An expert in ballistics will testify that the bullet that killed Olivia Lathom was fired from that gun. The gun was owned by the defendant, and she had shown it to a group of friends from her book club shortly before the murder. The fingerprint expert from the crime lab will tell you that the only fingerprints found on the murder weapon belonged to the defendant. The defendant, Esther Higgins, sitting right there next to her lawyer.” She pointed to our table.
“You’ll see,” Meredith said, “that the defendant had a motive, even if it was sheer delusion; the opportunity, since Olivia was in The Villages for a book signing; and the means, a pistol that she’d owned for many years and had been taught how to shoot it by a career police officer. I think you’ll find it very interesting that the method of killing this fine writer was the same as she wrote about in her best-selling book. A shot in the back from a twenty-two-caliber pistol. Thank you.” She took her seat.
“Mr. Royal?” the judge said.
I stood. “I’ll postpone my opening until my case, Your Honor.”
“Okay.” He turned to the jury and gave the instruction that explained that it was my right to delay my opening statement until the beginning of my case. That’s not always a good ploy, but in this case I knew things that I didn’t think Meredith was aware of. If I mentioned them in an opening statement at the beginning of the trial, she’d have time to readjust her case to take some of the sting out of the evidence I would present.
I wanted to talk in my opening about all the evidence that pointed to someone else as the murderer. I wanted the jury to anticipate my witnesses and I wanted them to be thinking about who else might have killed Olivia Lathom. I thought I had some pretty strong evidence that pointed to someone else. If the jurors were looking for that person, thinking about who that someone might be, they might be more inclined to accept one of my theories as the truth. In fact, I didn’t need truth. I just needed reasonable doubt. The jury would be charged that the law requires a finding of guilt beyond a reasonable doubt, and if I could establish in the jury’s mind enough doubt of Esther’s guilt, I would get an acquittal.
It is said that truth is the goal of any trial, but I have always been a little skeptical of that notion. What is truth? It is really just the opinion that one reaches after hearing all the facts. Some of the facts might not even be true, and the decider, in this case the jury, has to factor that in when reaching an opinion as to what is the truth. An expert’s opinion of facts within his field of expertise may carry more weight with the decider, but every trial lawyer knows that somewhere there is another expert in the same field who will disagree with the first expert.
The job of the criminal defense lawyer is not to ferret out the truth, but rather to make the prosecutor prove the truth. Or at least prove the state’s version of the truth. The defense lawyer just has to chip away at the prosecution’s case until reasonable doubt springs up in the minds of the jurors. Then the acquittal comes and the defendant leaves the courtroom a free man or woman and the lawyers go home. The lawyers always go home, but the defendants don’t. Some of them go straight to jail. And that’s what kept me up at night.
Meredith called her first witness, Kevin Cook, the young fire department paramedic who had found the body in Paddock Square. She took him through his training as a paramedic, his service in the Army, his part-time job of picking up trash, his discovery of the body, and his call to the emergency operator.
“How did you know she was dead?”
“I checked for a pulse in her neck.”
“Was there any indication at the scene of what caused her death?”
“No, other than the small hole in her back. Probably from a small-caliber pistol.”
An objectionable answer that I let go. A paramedic isn’t qualified under the rules of evidence to give an opinion on the cause of death. On the other hand, it was a fact that would be borne out by the crime scene photographs, and I didn’t want the jury to think I was trying to hide anything from them. And in any case, the medical examiner would later testify that Esther’s pistol was the instrument of death.
“Where was the bullet hole? Low back, middle, high, where?”
“Right in the middle between her shoulder blades.”
“Any other marks or bruises that you could see on the body?”
“Not that I saw.”
“How was Ms. Lathom dressed when you found her?”
“Slacks, long-sleeve blouse, and flat-heeled shoes.”
“So, about the only parts of her body you could see were her ankles, hands, neck, and head?”
“Yes, ma’am.”
“Did you see any blood on the pavement around the body?”
“No, ma’am. It was obvious to me that she’d bled out somewhere else.” Another objectionable answer because it gave an opinion, but one that the prosecutor knew I wouldn’t object to. Or maybe she hoped I would. She was crowding the line, but I’d do the same thing. If you can trap your opponent into objecting to innocuous questions just because the evidence code said she could, she’d end up looking like a fool, or like she was trying to hide something. The lawyer never wants the jury to think badly of him because it may very well reflect poorly on his client.
“Did you draw any conclusions from that?”
Meredith had stepped over the line with that one. “Objection, Your Honor,” I said, rising. “Mr. Cook is a very bright young man, but he hasn’t been qualified as an expert. I’m sure Ms. Evans can get this evidence in through the medical examiner, whom I understand will be testifying today or tomorrow.”
“Sustained,” Judge Gallagher said. “You only have to state the grounds of your objection, Mr. Royal. We don’t need a speech.” He was a bit peeved at me, but he’d get over it. I wanted the jury to know that I wasn’t trying to keep any evidence away from them, but I thought it might be time to rein Meredith in a little.
“Thank you, Your Honor,” I said, and sat down.
“What time did you find the body?” Meredith asked.
“It was early. Just after sunrise.”
“Was it light enough for you to see clearly?”
“Yes, ma’am.”
“Did you see anybody else in Paddock Square at that time of the morning?”
“No, ma’am.”
“Any vehicles moving about the area?”
“No, ma’am.”
“So, it was just you and the body?”
“Yes. Until the police got there.”
“Who arrived first? The ambulance or the police officer?”
“They got there about the same time.”
“Which department was the officer with?”
“Wildwood PD.”
“And the ambulance?”
“The Villages Fire Department. It came from my firehouse. The one across the street from the Eisenhower Center.”
“So it didn’t have far to come.”
“No, ma’am.”
“Did you disturb the body, move it in any way when you found it?”
“I turned her slightly to see if there was any blood on her torso and I left her in the exact same position she was in when I first saw her. She was obviously dead, so I used my cell to call 911.”
“Did anybody on the ambulance crew disturb the body?”
“No, ma’am. They never touched it.”
“So, when t
he police officer arrived, the body was exactly the way you found it.”
“Correct.”
“Let me show you some pictures that we’ll have marked as state’s Exhibits A through C and ask if you can identify them.” She brought them first to my table and showed them to me.
“No objection, Your Honor,” I said. “Ms. Evans previously provided those to me.”
She put them on the rail of the witness stand. “Can you identify these three photographs?”
“Yes, ma’am. They’re pictures of the body I found in Paddock Square in Brownwood.”
“And these pictures correctly represent the scene as you found it on that morning?”
“Yes, ma’am.”
She turned to the judge. “I’d like to offer Exhibits A through C for identification into evidence as Exhibits one, two, and three.” Because all exhibits used in a trial have to be identified for the court reporter, the practice is to offer exhibits identified by letters of the alphabet. Once the court accepts the exhibits as evidence, the clerk marks them sequentially with numbers.
“Any objection, Mr. Royal?” the judge asked.
I rose from my chair. “No, sir. I’ll stipulate that these pictures were taken by the Sumter County Sheriff’s photographer,” I said, and sat down. I was playing to the jury a bit with my stipulation, but it would add nothing to my case or to the prosecution’s to require her to bring in the photographer to authenticate the pictures. Besides, it never hurt to let the jury know what an agreeable fellow I really was.
Judge Gallagher looked at the pictures and handed them to the clerk. “Please mark these into evidence as the state’s Exhibits one, two, and three.”
“I have nothing further, Your Honor,” Meredith said.
“Your witness, Mr. Royal,” the judge said.
I rose. “No questions, Your Honor.” There is a lot of standing and sitting back down in a courtroom. I think lawyers should be on their feet when speaking, and most judges in Florida require it. Some don’t. Courtrooms have gotten more and more informal, and that’s a shame. These are formal proceedings, governed by an evidence code and procedural rules that have evolved over eight hundred years of Anglo-American jurisprudence. The formality of the lawyers and judges add dignity to the proceedings and give the whole process a verisimilitude that is appropriate for the dramas that unfold in any courtroom.
“May the witness be excused?” Judge Gallagher asked.
Meredith and I both stood and agreed.
“It’s nearing midmorning,” the judge said. “We’ll take a fifteen-minute break.” He stood and left the bench.
CHAPTER 43
FIFTEEN MINUTES LATER. Everybody was in their place in the courtroom and stood as the judge entered and called the court to order. The judge took his seat and looked toward Meredith. “Call your next witness, Ms. Evans.”
Meredith called the Wildwood policeman who had been the first law enforcement officer on the scene.
“State your name for the record,” she said.
“Matt Burns.”
She took him through the scene of the crime, what he found when he arrived, what he did, and when he did it. He explained that he first called his dispatcher and told him he had a dead body in Paddock Square and to notify the Sumter County Sheriff’s Office. “Why did you want the sheriff’s office notified?” Meredith asked.
“It’s protocol. Our department often gets the sheriff involved if we have something big on our hands, like a murder. They have more investigators trained to handle homicides. Particularly in The Villages.”
“Do you have a lot of murders in The Villages?”
“No, ma’am. I can only think of one several years ago.”
“Did you examine the body when you arrived?”
“Only cursorily.”
“Describe to the jury what you saw.”
“The body was lying facedown and there was a small bullet hole in the middle of her back.”
“What did you do then?”
“I put up crime scene tape to keep everybody out until the sheriff’s detective showed up.”
“How long after you called did the detective arrive?”
“Not long. Less than half an hour.”
“Who was the detective?”
“Deputy Ben Appelgate.”
Meredith studied her notes for a moment and said, “I’ll tender the witness, Your Honor.”
“Mr. Royal?” the judge said.
“No questions, Your Honor.”
“Call your next witness, Ms. Evans,” the judge said.
The sheriff’s detective who had investigated the murder took the stand. “State your name, please,” Meredith said.
“Deputy Ben Appelgate.”
“Occupation?”
“I’m a detective with the Sumter County Sheriff’s Department.”
“For how long?”
“I’ve been a deputy for fifteen years and a detective for five of those years.”
“Did you investigate the death of Olivia Lathom?”
“I did.”
“How did that come about?”
“I was the detective on duty when the Wildwood PD dispatcher called to tell me there was a body in Paddock Square in Brownwood. I responded immediately. Went to Brownwood. It took me about twenty minutes to get there, I think.”
“What did you find when you got there?”
The detective walked her through the scene. It was identical to what the first two witnesses had described, except that by the time he got there, more people were milling about. Citizens had seen the commotion and drifted toward the knot of cops and the body lying in the square. He testified that the Wildwood police officer had strung yellow police tape around the whole square, so the crime scene would not be disturbed. The forensic techs arrived shortly after he did and went to work. When they released the body, The Villages fire department ambulance crew took the remains to the morgue.
“Did you talk to the witnesses?”
“Yes. Several.”
“Did you talk to Esther Higgins?”
“No. She invoked her right to counsel.”
“Who were the witnesses you talked to?”
“The first one was the Wildwood police officer Matt Burns who was the first law enforcement officer on the scene. I talked to Kevin Cook, the fire department paramedic who found the body, and I took a statement from Peggy Keefe who was the victim’s traveling companion. Later in the day, I talked to the medical examiner and the chief of the crime lab. Finally, I took a statement from Ruth Bergstrom on Thursday afternoon.”
“When did you talk to all these folks?”
“I talked to all of them on Thursday, the day we found the body, except for Ms. Higgins. I tried to talk to her on Friday.”
“Tried?”
“Yes, as I said, she invoked her right to counsel and to silence.”
“Nothing further, Your Honor,” Meredith said and sat down. “Your witness, Mr. Royal,” the judge said.
The courtroom clock inched toward noon. I stood. “May we approach the bench, Your Honor?” I asked.
He waved us forward. “Your Honor,” I said, “it’s getting close to the noon hour and my cross is going to take a while. Could we recess for lunch a little early so there’ll be no breaks in my cross?”
“I don’t see why not,” the judge said. He turned to the jury and told them we were breaking a little early and gave them a time to return to the courtroom. Meredith and I and the other court personnel stood as the jury filed out. It was another of the customs I found so appropriate for the serious business of a court of law.
Meredith and I stood in the well of the courtroom, trying to work out some time sequence for the afternoon. “Do you think your cross is going to take long?”
“It depends on what the deputy says, but it could take up a large part of the afternoon.”
“I’ll put my technical people on standby. They can get here quickly.”
We separated for lunc
h. It wouldn’t do for jurors to see us breaking bread together. Laymen never seem to understand that lawyers who compete in the courtroom are often friends outside the courtroom.
We were back in court and Deputy Appelgate was on the stand. The judge reminded him that he was still under oath and turned to me. “You may proceed, Mr. Royal.”
I stood. “Detective, where did you arrest Ms. Higgins?”
“In her house.”
“Where in her house?”
“The living room.”
“Did you tell her what you were arresting her for?”
“Yes, sir.”
“What exactly did you tell her was the reason for her arrest?”
“I don’t remember the exact words, but I would have conveyed to her that she was under arrest for the murder of Olivia Lathom, the woman whose body was found in Paddock Square the morning before.”
“Did you put handcuffs on her when you arrested her?”
“Yes, sir. Standard procedure.”
“And did you read her your Miranda rights card?”
“Yes, sir.”
“So you told her she was under arrest for murder, that she had a right to counsel, and that she had a right to remain silent.”
“Yes, sir.”
“And she took you up on your offer to keep her mouth shut until she talked to a lawyer.”
“I guess. She refused to talk to me.”
“You mean she refused to talk to you about the charges.”
“Yes, sir.”
“And you asked Ms. Higgins about the murder for the first time when she was handcuffed in the back of a patrol car on her way to jail.”
“That’s correct.”
“She talked to you about other things, though, didn’t she? Like the state of the weather, or how you were doing, or something like that, right? Pleasantries.”
“Yes, sir.”
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