Dance of Death

by Dale Hudson

  “I did not know anything about that.”

  “You didn’t tell her that, did you?”

  “No, I didn’t.”

  Hembree shifted his question slightly. “Sir, I believe you’re a male; is that true?”

  “I hope so.” Jack smiled.

  “And you’re older than your daughter.”

  “Right.”

  “And you’re an authority figure to her, are you not?”

  “I hope so.”

  “She’s going to trust your advice, isn’t that fair to say?”

  “I should hope so.”

  “You even told Mr. Diggs a moment ago that subconsciously you were squeezing her hand to the point that it hurt your own hand. For what purpose?”

  “I wanted to know if she knew who did it or she didn’t know who did it.”

  “You wanted her to tell the truth?” Hembree continued to play the heavy.

  “Right.”

  “And you conveyed that to her?”

  “Yes, either she knew or she didn’t know.”

  “Did you put pressure on her to tell the truth?”

  “Yes.”

  “And she did tell the truth, didn’t she?”

  “That I don’t know.”

  Marie Summey followed her husband to the stand, telling the jury that Renee was shopping and buying clothing for Brent shortly before his death. Brent needed new clothes for church and she was buying him new jeans, shirts, socks and underwear. She would bring it by her house and ask what she thought about the clothes she had picked out. Three days before their trip, Renee had bought him a new pair of tennis shoes, stuff from Kinney and Dillard’s, two pairs of Tommy jeans, two pairs of Levi’s jeans, socks, underwear and belts. Marie had saved and produced receipts of all those purchases for the court.

  Diggs questioned Marie about each receipt and then introduced all of them as defense exhibits. He wanted the jury to consider that if Renee knew her husband was going to be murdered, why would she have gone to all the trouble to buy him such expensive clothes?

  On cross-examination, Humphries asked her if she knew Renee had been shopping with Courtney and Bruce Wolford at any time? And did she know that on at least one of these trips, she had met John Frazier at the mall?

  She said she did not know anything about those trips, nor did she know Renee had been seeing John after her return home.

  Humphries then asked Marie about her statement made to the fugitive task force the night her daughter had been arrested. “Mrs. Summey, do you recall having told Butch that in the case of Renee, sometimes you have to be hard on her to get her to tell the truth?”

  “I told him that I was hard on Renee and my hardness—for me to be hard on Renee, I would give her two chances to tell me the truth and that was it.”

  “Yes, ma’am, and I didn’t mean to imply anything else,” Humphries added.

  But what other implication could the jury perceive than her own mother had to come down hard on her before she told the truth?

  As the defense tried to build their case, it became increasingly clear what was happening. The fact was no matter how hard Diggs attacked the police, no matter how fervently he argued Renee’s confession was false and had been coerced, there was no other way to get around the fact that she had confessed to conspiring with John Frazier to murder her husband. Of course, he believed there was no direct evidence other than her confession to support that. The police and prosecutors were able to question and to speculate as to Frazier, but as it turned out, all they had against her was circumstantial evidence. So, why wouldn’t the jury find it so implausible to believe Bruce Wolford—another of Renee’s lovers who had as much motive to kill Brent as John—had killed her husband?

  “Your Honor, the defense calls C. E. Martin to the stand.” Hembree was up and on his feet before the called witness took a step from his chair. A bench conference was held and then the judge dismissed the jury.

  Hembree fired the first shot. “Your Honor, I submit that Mr. Diggs is proposed to call C. E. Martin, who is his paid investigator that’s been working on this case with him since December or January. He proposes to qualify in what field, some sort of investigatory expert, to essentially challenge the police.”

  “Well, I haven’t heard what Mr. Diggs . . .” The judge stared down at the defense table with a pensive expression. “Why are you calling him, Mr. Diggs?”

  “I’m gonna call him because he’s an investigative expert. He has twenty-one years’ experience with the Army Criminal Investigative Division. He is an expert in criminal investigative technique. He has worked on this case. I’m going to ask him what he would have done to investigate this case, what he would have done. We’re not going to go into anything the Myrtle Beach police did. We’re not going to be critical of them in any way. We’re gonna ask him what he would have done and how he would have handled this case, if there are any leads he’s aware of that in his opinion are still available to—”

  The judge’s expression turned solemn. “Oh, no. You’re talking about third-party guilt. We’re not going into any leads that he’s talking about.” Cottingham didn’t need any time to think about his decision and wasn’t afraid of being overturned by a higher court. His mind was made up. “I’m not going into any third-party guilt,” he admonished in specific tones. “I’m talking about leads that are . . . No. You want to do what you saw done in [the] O. J. Simpson [trial] and I’m not gonna let you try the investigating officers in this courtroom. Now, I’m not gonna do that.”

  “Judge, I’m not gonna do that,” Diggs pleaded.

  “Well, I’ll let you get him on the stand and see where you’re going,” the judge quickly ruled. “The jury is outside. Go ahead. We’re not going into that sort of stuff in South Carolina, [particularly] in Judge Cottingham’s court.”

  There was a huge issue at stake for the defense, so Diggs appealed, “Let me say this, if you’re not gonna let him testify—”

  “Well, no, I’m not saying that,” the judge reminded him. “I’m hearing where you think you’re going and I’ll see where you’re going and then I’ll rule on it.”

  Diggs acknowledged with a nod. “Well, for the purpose of this examination, let’s go with the qualifications of an expert.”

  Rebuffed, Cottingham went on to state, “Well, you can tell me again now for the record and maybe we can save some time. Where is it you want to go with this witness? Perhaps I can save you some time.”

  “I’m going to ask him how [does] one go about investigating [in] a case of this type.”

  The judge wasn’t exactly sure as to what issue. Diggs told him it was to solve the identity of the perpetrator of the murder, to which he asked, “As to what issue, that it was somebody else?”

  “As to the issue, Your Honor, of creating a reliable, probative inquiry as to who the identity or as to the identity of the assailant in any kind of murder case. Not necessarily this one, but after we establish that, then we’ll go into what he’s done and what he’s discovered in this case and go into other leads that still may not be fully developed in this case that maybe point somewhere other than to John Frazier.”

  The judge returned looking solemn. “All right, now, let me tell you something. Evidence offered by an accused as to the commission of a crime by another person must be limited to such facts as are inconsistent with his own guilt and to such facts as raise a reasonable inference or presumption as to his own innocence. Evidence which can have no other effect than to cast a bare suspicion under another or to raise conjectural inferences is not admissible.”

  “And I . . . Let me tell you what,” Diggs postured, “I’m following that to the letter and let me tell you why, because John Frazier’s photograph, and, of course, they tied their case—lock, stock and barrel—to John Frazier.” He grabbed two sheets of paper up with his large hands. “Here’s a photograph of John Frazier. Now, look, we have a composite drawing that’s in evidence that was generated by one of the state’s own witne
sses, okay, and look at that composite.” He pointed to the composite. “Look at the hairdo on that.”

  “What will this witness testify as to that issue?” Cottingham asked, trying to reconsider all the arguments and evidence of counsel.

  “He’s gonna testify about this being one factor in this case that hasn’t been fully investigated,” Diggs related.

  “Your Honor,” Hembree interrupted his argument, “he can argue that all day to the jury, but to have him get up and say, ‘Well, this is the way it ought to be done.’ ”

  The judge had read arguments on this issue for weeks and was ready to side with the prosecution. “No, sir. No, sir. I’m not going to permit that. We’re not going to get into third-party guilt unless you specifically follow the rule as enunciated in Gregory, in Beckham, in Williams, and I can name ten others. And you can, too.”

  “Well, I’m not gonna try to violate any of the rules in those cases, Your Honor,” Diggs responded firmly. “I’m just not doing it.”

  “Well, you want to say, as I understand it, you want your paid investigator to get up and indicate any specificity that ex-culapates (sic) Mr. Frazier.”

  “Your Honor, it’s right there,” Diggs snapped back. “Defense exhibit two”

  “No, sir. No, sir. That witness who furnished that information specifically said something . . .”

  “No, no, this is from Mr. Hensley,” Diggs reminded him.

  “No, sir, the eyewitness, the information from Donna, did not meet what she saw.”

  Diggs shook his head. “No, sir. No, sir. No, sir.”

  The judge leaned forward over his desk. “Yes, sir. Wait a minute now.”

  “That’s the other composite,” Diggs protested. “This is the composite that was generated by Mr. Hensley.”

  “Well, we are not going down that road to let you indicate, to cast suspicions on a third party, on that picture. If you’ve got some evidence, [then] go ahead.”

  Diggs was nearly beaten back. “I mean, [the] only additional evidence I could have would be a name tag under it, but what we have obviously is a person who does not fit the description of John Frazier, okay. He has hair and he has a mustache. . . .”

  As much as Diggs tried to get the judge to accept Martin’s testimony, the prosecution argued against it. “I certainly don’t have any objection to him being called as a witness,” Hembree said to the judge, “but to have him come in and be qualified as an expert? I don’t know of a case held by our supreme court that says you can call your own private investigator, qualify him as an expert and then put him up there to critique the efforts by the police department. And how he would do it different back where he came from, so that’s something brand-new for South Carolina.”

  “No, it’s not,” Cottingham assured him. “It’s not gonna happen in South Carolina in my court.” After a fifteen-minute discussion on the matter, the judge offered his final words. “The thrust of your discussion is to put the guilt on somebody else. Well, sir, you’re not entitled to it under the rule for your hired investigators to say that somebody else may have committed it instead of John Boyd Frazier. You simply can’t do that. I specifically reject that and I decline to let him testify: one, as an expert; two, I’m not gonna let him get into any third-party guilt in his investigation. Clearly, that’s what you want to show. I think as an officer of the court, you’ve got to admit that . . . If I’m wrong, the supreme court can tell me so. I’m not going to permit that, don’t think our rules provide for it, and I’m certainly not going into a situation where the investigating officers are put on trial rather than the alleged defendant.”

  Shortly before 10:00 P.M., the court foreman was asked to bring the jury back in. They stayed long enough to hear defense counsel say there would be no more witnesses, that at this time they were gonna rest.

  With the jury dismissed and most of the galleries nearly emptied, the judge asked to hear any motions. Since it had been a long day, Diggs asked to postpone any motions until the morning, and the prosecution agreed with one minor exception. The prosecution wanted to know if the state was going to be required to open on the law in regard to the general charges of murder. Cottingham informed that he intended to give the charge on murder, the definition of murder, the definition of malice and to charge the law as to conspiracy. He would also address the jury as to expert witnesses, the hand of one is the hand of all, mere presence and the voluntariness of the statement, identification charge with the testimony of John Boyd Frazier and charge with reference to failure to take the stand.

  The judge then asked Renee to come forward as he questioned her about her absolute right to testify. “I do not wish to testify,” she said softly after acknowledging she understood all her rights to testify. Given the evidence of Renee’s many sexual affairs, her promiscuous lifestyle, her confessions to the police and her fragile state of mind, it was a wise decision. The prosecutors could have easily disemboweled her like a wounded deer in front of the jury.

  The court finally recessed at 10:15 P.M. On the way out, those who had sat through the entire day’s affairs pondered tomorrow’s outcome. With the case now resting on the final arguments, the odds were in neither counsel’s favor at this point. Even though the prosecution had presented a powerful case against Renee, its case could easily fail with the jurors. No matter what the jurors had seen and heard, it was still hard for some people to believe they would ever convict this young mother of conspiracy to commit murder. The jury had to have had doubts about her guilt, so how could they vote to send her to prison for the rest of her life without being absolutely positive she was guilty?

  Although Renee looked worried, even she wholeheartedly believed the jury would have many reasonable doubts in mind.

  CHAPTER 37

  Throughout the trial, only a handful of seats were occupied on either side of the courtroom, and that changed only slightly the last day of court. Renee looked confident and was dressed in a dark blue business suit with a plain white button-down blouse. For good luck, she wore on the front of her dress a gold angel with a halo made of pearls. Her mother had given it to her the first day of court as a reminder of her support. Both she and her mother had prayed this would be her final day to think about wearing a prison jumpsuit again.

  After the panel of jurors was escorted in and seated in the jury box, the morning began as promised with the normal motions for dismissal and charges to the jury. The state would have the honor of first and last final arguments and the defense would have just the one offered between.

  Fran Humphries began summation in praise of the jurors, then explained the legal terms of murder, conspiracy to commit murder, responsibility of the police and Renee’s voluntary confession, withdrawal from conspiracy, and the principle of the hand of one is the hand of all.

  He reminded the jurors, “If Renee Poole had said, ‘I’m not going through with it. You better not, either,’ if and only if both of those predicate situations exist, then and only then does Kimberly Renee Poole escape responsibility in this matter.

  “Even an intent to withdraw, and it is not suggested by this evidence, but even an intent to withdraw, if not communicated or if not done entirely, is insufficient and she is responsible, equally responsible for the murder of William Brent Poole. That is the law.

  “Now, that is to say this: how do you communicate your entire and complete withdrawal from a conspiracy such as this? We can do it any number of ways: not just by word, but by action. Was there a withdrawal communicated entirely by this defendant, Kimberly Renee Poole, to John Boyd Frazier by her conduct? No, ma’am. No, sir. It is not enough to get the train off the tracks and then say, ‘shouldn’t have done that.’ The law requires a derailing of that train, and in this case, there is absolutely no evidence to suggest that.”

  Humphries then turned the jurors’ attention to logic. “Common sense, folks, is in the details, and there is one central, inescapable truth that is situated within the facts of this case: the conduct of Kimberly Re
nee Poole was intentional. It was goal oriented. It was purposeful, and it was knowing, and as a result, William Brent Poole lost his life by virtue of two gunshots to his head on an Horry County beach.”

  The prosecutor’s words had been chosen carefully and were well-rehearsed. His delivery as smooth as any of the trial lawyers from television’s Law & Order. He never broke eye contact with the jury.

  “Her conduct was not by chance,” Humphries concluded in a low voice. “It was not bad luck and it was not miscalculation. If there are two agreeing with one gun, each is as guilty as the other. Kimberly Renee Poole is as guilty as the other slayer, and in this case, almost entirely responsible.”

  Bill Diggs took his place in front of the jury and began the defense’s position by presenting a scathing attack against the police. Going straight for the jugular, he accused them all of lying. “We have major problems about the reliability and the believability of Renee’s statement.... There are major problems considering the lies and the deceit that went into the production of that statement. You’re gonna have to have a doubt about her guilt simply because of that process.”

  Diggs’s voice became louder as he then attacked the evidence presented by the prosecution. “The state doesn’t have any evidence available to them that’s certainly been introduced into this trial, any physical evidence to show you that John Frazier was at the beach that night. In a year and a half, they should have been able to find something, a piece of beach sand, a bug on the windshield, other than an eyewitness identification at twelve o’clock at night with somebody fifty to eighty feet away.”

  So, as to let them know he had not been grabbing at straws, Diggs talked again about the composite and missing ponytail.

  “That guy has got a lot of hair, okay?” Diggs stressed as he held the composite up before the jury. “This man has got a mustache. Where did that detail come from? . . . They (the police) generated that, and I would submit that’s the kind of lead [they received] from Mr. Hensley who said he was only five feet away from the fellow, as opposed to eighty feet, and he got a good look.... Why wasn’t this followed up on, and why didn’t you hear any testimony from the prosecution about why this wasn’t? Well, obviously, they got a confession out of Renee early on in the case and they had their blinders on, and when they had this stuff like this out there, they didn’t pursue it. You know, they didn’t pursue it.”