by Burl Barer
“Is it your testimony,” asked a surprised Ron Doersch, “that you didn’t ask him where the stain came from?”
“No. That’s what he told me. That’s what he said. I didn’t say anything.”
“Why did you tell the cops on April eighteenth that [you] had a conversation with Richard, if it wasn’t so?”
“I don’t know.”
“Is it because you did have that conversation?”
“No, I don’t remember the conversation.”
“You don’t remember the conversation. Do you know if you had such a conversation and just don’t remember it now?”
“I was being put through a lot of misery then,” Carol said.
“That’s not what I asked you.”
“And I was going through—”
“Excuse me, ma’am,” Doersch interrupted, “I’m asking you to respond only to the questions I ask you. Why would you tell the police that you had such a conversation with Richard, if it didn’t happen?”
“Probably because I was so upset.”
“Why were you upset on April eighteenth, ma’am?”
“Because of all the people that was always hounding me, trying to find out things,” she said. “People following us everywhere we would go; Herndon coming in and accusing me of knowing everything, knowing something about what was going on.”
“And so it’s your testimony that because of that, you told the police about a conversation with Richard that did not ever take place?”
Doersch turned to Judge Thorpe and asked permission to treat Carol Clark as a hostile witness. Defense attorney Errol Scott objected.
“I don’t think there is any showing that she is hostile with the prosecutor,” said Scott. “She’s been cooperative.”
“Objection, Your Honor,” said Ron Doersch, and Thorpe sent the jury out of the courtroom.
“The state’s position,” Doersch explained, “is that we have been subjected to unfair surprise by the testimony of the witness. The witness has not testified as she said she would downstairs in speaking to me. The witness obviously favors the defense, and should be treated in a manner to cross-examine her as to statements she has previously made and testimony she has previously given.”
“Has she testified,” asked Thorpe, “the same way she told you she would?”
“She has not,” Doersch explained. “She has previously indicated that this was indeed the shirt and now we are hearing something entirely different. She previously told us that she asked Clark where the blood on his shirt had come from, or words to that effect. When she testified here, she indicates that she asked no questions; she only looked at the stain on the shirt and that the defendant volunteers this information.
“When she spoke to me in my office downstairs, we discussed the issue of whether or not there had been drugs involved. In her recorded statement, she said, He looked like he’d been drinking. I don’t know if he was on any drugs, ’cause I never took drugs myself. See, I never knew what anybody looked like when they’re on drugs. On the stand, she said that he appeared to be on drugs. These are just two examples of what we are dealing with here,” said Doersch.
“I object,” said Scott. “First of all, the motion should have been made out of the presence of the jury. Second of all, I don’t believe Ms. Clark was ever told or asked or confronted with her statement about whether she asked Richard about what was on his shirt and what his response was. I don’t ever recall that exchange between the prosecutor and Ms. Clark. She said we didn’t have a conversation; he volunteered it. The prosecution asked her several questions about whether it came out of the air, and she said yes. But he never asked her, ‘Isn’t it true you asked Mr. Clark what was on his shirt?’ and whether it was a bloodstain, or whatever?
“And I also object,” Scott said, “to the tone of voice that the prosecution uses toward Ms. Clark. I think it is oppressive and is certainly having some effect on the witness and we are certainly noticing it here. It’s a tone of great authority and demanding an answer, and I think he should modulate his tone more equitably.”
Judge Thorpe put a quick end to the debate. He told Doersch that he’d noticed “a wee bit of edge” in his questioning of Carol Clark, but he also granted the prosecutor’s motion to grill his own witness.
“You told detectives that Richard said he got blood on his shirt from a poached deer, isn’t that what Richard said?”
“That’s what I said on here,” she replied, referring to the transcript of her statement to detectives, “but he didn’t say that.”
“Is there any reason you would have told the detectives that, if it wasn’t so?”
“I assumed he was with Elza and his friends when they poached it, and I thought it was that night.”
Doersch, somewhat exasperated, held up his copy of the transcript. “You don’t mention Elza and his friends anywhere in this statement, do you, of nine pages plus the signature, and that would be the entire statement of ten pages?”
“No, I don’t.”
“Now, you were asked again by Detective Herndon, were you not, with regard to that conversation you had with Richard. You were asked again by Detective Herndon about that, weren’t you?”
“What are you talking about now?” Carol asked. “I don’t remember saying that.”
“Well, actually, ma’am, weren’t you being taped at the time you made these statements to the detectives?”
“I may have been being taped,” she replied, “but that doesn’t mean [I] know what to say every time they ask me a question. I am not a smart person to know what to say to people.”
“So why is it, ma’am, that you didn’t mention anything about Elza and his friends to the police?”
“Because I probably forgot about that part.”
Doersch paused, sighed, and collected his thoughts. “When you called the police on April 18, 1995, you were aware that there had been blood found in the van, right?” Carol Clark agreed and he continued.
“Okay. You had already thought about the fact that it might be Roxanne’s blood on that shirt?”
“Yeah.”
“And yet you did not mention, knowing all this stuff, knowing there was blood in the van, knowing that there was blood on the shirt, knowing that Roxanne was gone, and in fact had been found by this point, and was dead?”
Clark answered again in the affirmative.
“Knowing that in your heart you thought that might be Roxanne’s blood on that shirt, when the police come and interview you, you don’t mention anything about Elza and his friends, do you?”
“I didn’t think about it then, probably.”
Doersch, as calmly as possible, took Carol Clark back to April 18 when she tearfully invited the detectives to her home.
“Okay, you are there, you are being taped, right? You are just being asked questions, right?”
“Yeah,” Clark answered.
“There is nothing threatening in there, in that situation, except you are talking to these guys, right?”
“Right.”
“And no one is harassing you, right?”
“Right.”
“And no one is mad at you, right?”
“No,” said Carol Clark, “because I called them up.”
“Exactly,” said Doersch. “So, there you are, you are in your living room, at that point, you aren’t under any of those pressures, are you?”
“Well,” she said, “there was a lot going through my mind. I may not have been under any pressures then, and you don’t know how I felt at the time.”
“No, I don’t,” Doersch agreed, “but when you are being asked these questions by these officers, there is nothing in the way they are asking those questions of you, or the situation that you are in, that would cause you to say things that weren’t true, is there?”
“No, there is not,” she said firmly.
“Okay. So perhaps you can explain to me then,” said Ron Doersch, “or explain to the jury, why it is that today you don
’t remember, or you say certain things didn’t happen?”
“Because I was under a lot of stress then,” she answered.
“There is the temptation, is there not, to want to say everything that comes into your mind at the current time, right?”
“That’s true,” Carol Clark acknowledged, “yeah, that is true.”
“You don’t know whether any part of that Elza deer story is true, do you?”
“No,” she admitted. “No, I don’t.”
Doersch, further eroding the credibility of his own witness, asked her about the visit she and Richard Clark made to Elza, the visit during which both she and Richard requested Elza tell detectives that there was deer blood in Richard Clark’s van.
In response, Carol Clark testified that the only reason Richard Clark went out to where Elza lived with his parents was to repay a loan to his grandfather.
“So, it’s your testimony,” asked Doersch, “that the only reason you folks went out there was to talk to Grandpa Smith?”
“He was there to pay him some money that he had borrowed,” answered Carol.
“Is it your testimony,” he again asked, “that that’s the only reason you folks were there?”
“Yeah,” Carol confirmed, “he went to pay him what he owed his grandpa.”
Jurors, of course, heard otherwise from Elza Clark, consistently insisting that Richard and Carol asked him to confirm the poached-deer story to detectives.
Carol Clark had one more big contradiction for the prosecution. When they showed her the shirt she gave detectives on April 18, the shirt from which Roxanne Doll’s DNA was recovered, she insisted that it was not the same shirt she laundered for Richard Clark. “That isn’t the same shirt,” said Carol. “The shirt had stains on it, and that one doesn’t.
“I wouldn’t cover up for someone if they murdered a little girl,” said Carol Clark, knowing that it appeared as if she were attempting to do exactly that.
“Have you lied here today?” asked Errol Scott.
Carol Clark gave careful consideration to her phrasing, then replied, “I try not to lie.”
The unsavory Eugene Hillius, a man whose criminal credentials included convictions for child molestation and rape, shared details of his prison conversations with Richard Clark. He described Clark barking, “Fuck her before you kill her,” at a television villain stalking a young female, complaining of Elza’s refusal to lie about the deer blood, and bemoaning the recovery of his DNA from the body of Roxanne Doll.
Hillius was not allowed, however, to share with jurors the fact that other prisoners didn’t want Clark as a cellmate due to his “personal habits”—habits obviously unpleasant to the jail’s more cultured and refined residents.
One witness Doersch desperately wanted to take the stand was Feather Rahier, the thirteen-year-old girl who ran away rather than again confront Richard M. Clark.
Significant legal wrangling took place in Judge Thorpe’s courtroom on allowing so-called “child hearsay” evidence—letting police officers and others testify, in her absence, as to what Feather told them following her 1988 imprisonment at the hands of Richard Clark.
The defense argued that there was absolutely no legal rationale for bringing up a resolved case from 1988, a case for which Clark had already paid his debt to society, during this trial concerning the alleged kidnapping, rape, and murder of Roxanne Doll. The prosecution argued that the two cases were part of a “common scheme or plan.”
Following intensive argumentation by both sides, Judge Thorpe made the following commentary. “The similarities between the two incidents are remarkable,” he said. “A young child in one case, age four, in the other case, age seven, was removed from their family home and concealed. Knotted-up socks were used to gag the child, the socks in the mouth knotted up. There were other knotted-up socks in both areas. The one child was seen with the knotted socks used as bindings to hold her hands behind her back. There had been grooming of both children by the defendant by giving gifts. Each was, as I indicated, young children, one four and one even, known to the defendant and to whom he had access. In the one case, by reason of being friends of the family, and the other in being next-door neighbors, or at least neighbors across the alley from one another.
“The charges before us are kidnapping, rape, and murder,” Thorpe continued. “Clearly, the prior incident was a kidnapping. And the state suggests that the evidence is relevant and admissible for two reasons. Number one, on the issue of identity and the other on the issue of common plan, scheme, or design. With respect to identity, this is the area in which we discuss whether or not it is a signature crime. When Roxanne’s body was found, it was not bound in any way with socks. We just know that there were socks in the defendant’s van. And it seems to me that when weighing the evidence that the state has presented and is able to present on the issue of identity, as to whether or not it was Mr. Clark that committed these crimes, that evidence is so great and persuasive. The fact that Roxanne’s body was not found with socks and that sort of thing militates against the idea that the prior incident would be admissible as probative of the identity of the person who abducted, raped, and murdered Roxanne, except for the fact that there is the outside possibility that Jimmy Miller was in the van when it happened. From some of the testimony, I think it’ s very clear that, from the scientific evidence, that he didn’t have anything to do with this, and therefore the prior incident is not necessary and is not particularly probative on the issue of identity. On the issue of common scheme or plan, it’s my understanding that that rule requires that the two acts be in furtherance of the same common scheme, plan, or design. When we consider the passage of seven years . . . I am not persuaded that the prior evidence is so indicative of a common scheme or plan, or of the same plan, common scheme, to render it admissible.
“If it had occurred a few weeks before or a few months before,” Thorpe said, “it possibly could have been admissible, except for the fact that this sort of evidence is to be used very sparingly in sex cases, because if the evidence is too good, the jury might reason that if the person is of such low character as to commit the previous crime, he surely is of low-enough character to commit the current charged crime and therefore convict him on the basis of that, rather than on the evidence.
“So,” concluded Judge Thorpe, “the evidence will not be allowed.”
Ron Doersch wasn’t giving up. He made one more plea. “Your Honor, may I remind the court,” he said, citing case law, “that when an individual devises a plan and [it is] used repeatedly to perpetrate separate but very similar crimes, that’s not quite the same as common scheme, plan, or design, and the passage of time is relatively irrelevant.”
Thorpe was unmoved. “Had there been another similar event between the two . . . I just don’t think that the two events, seven years apart, that there is sufficient similarity to warrant its admissibility in the trial phase. We may have to argue about it again later. So that means we have no more witnesses for today?”
“That is correct,” said Doersch.
“Bring in the jury,” said the judge, “we will work them harder tomorrow. My understanding is that the defense has perhaps one witness tomorrow, if indeed the state rests.”
The jury returned to the courtroom, and Judge Thorpe assured them that neither he nor the attorneys had been idle in their absence. “We have honest-to-God been working ever since you went out, just ask my reporter, who is complaining about it. I have good news and bad news. The bad news is we won’t work you anymore today. The good news is you may leave. We will be in recess until nine-thirty tomorrow morning.”
The following morning, and for reasons that William Jaquette firmly believed were more than sufficient, the defense moved for the complete dismissal of all charges against Richard M. Clark.
Chapter 15
“My understanding,” began Jaquette, “is that the state has rested, and we would be moving at this time to dismiss every one of the charges in this case. I do
n’t have extensive argument to present to the court. I think the court has to, in making this decision, determine if the state has provided sufficient evidence to conclude that the crimes were committed beyond a reasonable doubt. It would be our position that they have not done so.”
The defense then focused on the most significant issue: premeditation. “In order to convict Mr. Clark of aggravated first-degree murder they would have to prove, as the court is aware, that the killing was premeditated. There was really no evidence in this case, as to what occurred after the child went to bed until the body was found. There is evidence as to what occurred in that interim period, but no evidence to indicate who did what, when, and why, or what happened in what order, or what exactly occurred. And therefore it would be our position that the state has not established its obligation to prove premeditation.”
Ronald Doersch anticipated Jaquette’s motion, and his response was both immediate and fluent. “The mere obtaining of a weapon to kill someone presumes premeditation,” he insisted. “The moving of a victim from one location to another to commit rape upon her, in this case, proves premeditation. Again, we have evidence that the defendant was at the residence prior in the day, at least snooping or hanging around, that indicates premeditation. The fact that she is secreted and hidden indicates premeditation. The method of obtaining her without essentially leaving any trace, by his fingerprint on a window, indicates premeditation. The state submits that premeditation has eminently been established in [this] case.”
Judge Thorpe, carefully considering each point from both attorneys, turned again to Bill Jaquette. “Your Honor,” said the defense, “all of those things that Mr. Doersch points out establish only an intent to commit the other crimes of kidnap and rape. Sufficient evidence of deliberation prior to the decision to execute the killing—sufficient to constitute premeditation—is not established by the fact that the rest of the crime appears to have been a part of a series of events.”