“Was the defendant at home?”
“No. No one answered the door, so we used a pick gun to open it, and we went in and searched the apartment.”
I was beginning to think that between pick guns and bump keys there wasn’t much reason to bother with door locks.
“What did you find?” Miller asked.
“An orange T-shirt with blood on it down among the dirty clothes in a plastic laundry basket.”
“Was this the T-shirt?” Miller went to his table to get a clear plastic bag, inside it a wadded up T-shirt that was a muted orange in color. He took it to the witness.
“This was the T-shirt.”
“How can you tell?”
“The bag itself is tagged, showing the chain of custody. I also signed my initials with an indelible marker on the inside front collar of the shirt.”
“Move for admission as State’s Exhibit A.”
“Any objection?” the judge asked me.
“May I see the exhibit?”
Miller brought me the T-shirt, still in its plastic bag. Inside the back collar were stenciled the words Dolce Vita, not a brand I had heard of. There was no indication of size. A metallic rectangle on the left breast also had the brand name etched on it. When I turned the bag over, I could see the dark stain along the bottom hem of the T-shirt and going up. “May I open the bag?” I asked the judge.
“Sure,” Miller said.
I pulled open the zip lock, and put my hand in. It was a soft fabric, combed cotton or possibly something more exotic. I zipped the bag shut again, returned it to Miller. “No objection to admission,” I said.
The bag was marked and the shirt admitted into evidence.
“Is this Brian Marshall’s blood on the shirt?” Miller asked Jordan. “Or do you know?”
“It couldn’t be Brian Marshall’s. When we arrested him a few hours later, he didn’t have any cuts or wounds on him serious enough to have produced that much blood—this blood had dried at the edges, but most of it was still wet. More significantly, the defendant’s blood type is A-positive, and this blood is O-positive.”
“What was the blood type of the decedent Macy Buck?”
“O-positive.”
I stood. “Does Mr. Jordan have personal knowledge of these blood types, or are we relying on hearsay here?”
Jordan said, “The preliminary tests of both the defendant’s and the decedent’s blood were done with EldonCards, a dry-format card for blood grouping. I was present when it was done and observed the results.”
I sat back down.
“Did you confirm the match with a DNA test?”
“We asked the medical examiner’s office for such a test, yes.”
“We will get those results from the deputy coroner. Thank you.” Miller flapped over another page of his legal pad. “Back to the night of the murder, what did you do immediately after finding this bloody T-shirt?”
“Put out an APB on Brian Marshall’s car and filed a complaint along with an application for an arrest warrant.”
“The APB was for the defendant’s Corvette, license number KKX 6300?”
“Yes. A Chevrolet Corvette, model year 2006, color black. It was the only car registered to Brian Marshall.”
“Did the police find the car?”
“Yes, we did. It was parked in the lot behind St. Joseph’s Catholic Church in Petersburg, Virginia. I got the call about ninety minutes after I put out the APB.”
“How did the police come to look for the car at St. Joseph’s?”
“It’s a block or so away from the Greyhound Bus Station.”
“I see.”
“By the time the call came in, I had the arrest warrant, so my partner and I drove down to Petersburg. Brian Marshall had just boarded a bus to Raleigh.”
“Did he make any statement when you arrested him?”
“No. He refused to answer questions and said he wanted to see his attorney, Robin Starling.”
“He had already retained a defense lawyer?” Miller said, glancing over at me.
“I’m just telling you what he said.”
Miller turned another page. “You subsequently arrested the defendant Whitney Foster, did you not?” He got a confirmation and said, “What ties her to the crime?”
“Her fingerprints inside the victim’s house, the murder weapon at her place of business, the false statements she made to police.”
“Let’s take those one at a time. You say the defendant Whitney Foster’s fingerprints were found in the house of the murder victim. Can you tell us where?”
I stood. Jordan glanced at me as he started to speak, and I interrupted him.
“Officer Jordan has testified that he was in his car pursuing various leads that led him to Brian Marshall. Was he present when these fingerprints were found?”
“Officer?” Miller said.
“I was not.”
“Objection, hearsay,” I said. I wanted to cross-examine the witnesses who would be testifying at trial, not listen to Jordan summarize their testimony.
“Sustained.”
Miller looked at his notes. “Officer Jordan, what can you tell us of your own knowledge about the murder weapon?”
“We found an ice pick under the counter at Carytown Joe, a coffee shop owned and run by Whitney Foster.”
“How do you establish the ice pick as the murder weapon?”
“There was blood on the blade of the ice pick. We transferred the ice pick to the Office of the Chief Medical Examiner for DNA profiling of the blood, but an EldonCard test established that the blood was human blood, type O-positive.”
“Remind us. The blood type of the victim in this case…”
“Was O-positive.”
“And the blood types of the defendants?”
“Brian Marshall is A-positive. Whitney Foster is O-negative.”
Miller was nodding. “You said Whitney Foster made false statements to the police. Can you tell us about those?” While Whitney’s words were an out-of-court statement, because she was a defendant in the case they weren’t excludable as hearsay.
“She said she’d gone with the defendant Brian Marshall to the house of Macy Buck early in the afternoon on Friday, that Macy Buck was still alive when they left together, and that they’d been together the rest of the day right up until Brian left to take a bus to Raleigh to visit friends.”
“This is Raleigh, North Carolina?”
“That’s right.”
“Did he say why he was taking a bus from Petersburg rather than leaving from Richmond?”
“No. All he said was that he wanted his lawyer.”
“So he was on a bus bound for Raleigh when you picked him up?”
“Yes, he was.”
“So that much of Whitney Foster’s statement was true.”
“Maybe. Neither of them ever identified any particular friends in Raleigh he was going to visit. As for the rest of it, we have an eyewitness who puts Brian Marshall at the scene much later than early afternoon and who puts him there alone.”
“Oh, yes. Ms. O’Neal.” Miller picked up his pen and legal pad. “Your witness,” he said, and left the podium.
I stood. “You said you found this orange T-shirt in Brian Marshall’s laundry basket, is that correct?”
It was correct.
“Are you familiar with the brand name, Dolce Vita?”
“I am not.”
“Were there any other T-shirts in Brian Marshall’s apartment with the same brand name?”
“Not that I’m aware of.”
“Any T-shirts of the same quality?”
“I wouldn’t know. I don’t have any expertise in fashion design.” He held up the end of his tie. “This is a polyester clip-on.” There was a titter of laughter from the gallery.
“Did you look at his other T-shirts?” I asked.
“I have a list.”
We examined his inventory of items found in Brian’s apartment. Among his items of clothing Brian h
ad 34 T-shirts, 8 of them plain pocket T’s, the rest unspecified. There were no brand names listed. “Were all the T-shirts in the apartment the same size as the one with the blood on it, or do you know?”
“They all seemed to be roughly the same size.”
“Did you examine the orange T-shirt for traces of DNA other than blood? Flakes of skin, loose hairs?”
“The blood was all we found.”
“O-positive blood, did you say?”
“Yes.”
“There seems to be a lot of O-positive blood washing around this case—blood at the crime scene, blood on a T-shirt at Brian’s apartment, blood on an ice pick at Whitney Foster’s place of business. Were traces of blood found in the car of either defendant?”
“No. We checked them both very carefully.”
“Was there O-positive blood anywhere else in Brian’s apartment, or was it just on the T-shirt?”
“Just on the T-shirt.”
“Was there O-positive blood anywhere else at Carytown Joe, or was it just on the ice pick?”
“Just on the ice pick.”
“Both defendants work at Carytown Joe, don’t they? Who else works there?
He had to consult his notes. “A Jennifer Humphreys.”
“Was her blood O-positive?”
“We didn’t check. As I said, the ice pick went to the Medical Examiner for a DNA profile. That told us pretty definitely the source of the blood, but I understand someone from that office will be testifying about that.”
“You were looking into the death of Whitney’s uncle not long ago. Was his blood O-positive?” The blood type of Robert Walsh wasn’t relevant to the current prosecution as far as I knew, and I expected an objection from Miller, but none came.
“There was an autopsy report,” Jordan said, “but if it mentioned his blood type I don’t recall.”
“Then Jack Packard, a close friend of Robert’s, disappeared under mysterious circumstances, and blood was found at his house.”
Jordan’s mouth twisted, and I thought he looked suddenly sad, but he said, “Yes, it was.”
“Did you ever locate Jack Packard?”
“It’s not my case, but I don’t believe he’s been found, no.” It was a statement clearly based on out-of-court statements made by others, and again I expected an objection from Miller. Again, none came.
“Do you know what efforts have been made to find him?
Judge Cochran interrupted. “I don’t see the relevance of this.”
“Nor do I,” Miller said.
“Is that an objection?”
“No, your honor. If Ms. Starling thinks it relevant, we’re willing to give her the opportunity to establish that.”
The judge’s mouth tightened, but he didn’t say anything.
“Detective?” I said.
“The question also seems to call for hearsay,” the judge said.
Miller said, “If Ms. Starling wants to bring it out, this seems to be an efficient way to do it. The state has no objection.”
The judge drew a long breath.
“Detective?” I said again.
“My understanding is that since February 11, the day of Macy Buck’s death, Jack Packard has not used his cellphone, he has not made a withdrawal from his bank, and he has not used his credit card.”
“He hasn’t rented a car, at least in his own name?”
“No.”
“Do you suspect foul play, or do you think he has resorted to flight for some reason?”
Judge Cochran said, “I think this has gone far enough.”
I said, “Your honor, if Jack Packard resorted to flight immediately after the murder of Macy Buck, it could be evidence of a guilty conscience—and if he’s guilty, my clients are not.”
“Unless they conspired with Mr. Packard to commit the murder,” Cochran said.
“Unless they conspired together,” I acknowledged. “Though at the moment that seems inconsistent with the prosecution’s theory of the case.”
Cochran looked at Miller, then shook his head. “Proceed, counselor.”
“Detective Jordan, where was blood found at Jack Packard’s house?”
“There were spots of it on the kitchen floor and going down the steps to the basement.”
“You sound like you’re speaking from your own knowledge.”
“I am. I went and looked at it.”
“Do you know what blood type that blood was?”
“It was O-positive.”
“So O-positive blood was found in Macy Buck’s house, on a T-shirt in Brian Marshall’s apartment, on an ice pick at Whitney Foster’s coffee shop, and on the floor in Jack Packard’s house?”
“Yes, it was.”
“Were DNA tests performed on the blood found in all of those locations?”
“We turned samples over to the Office of Chief Medical Examiner for that purpose, yes.”
Miller stood, “We intend to call Dr. Harold Pavlicek to testify about the results of the DNA tests. What this witness has to say about the subject is based on hearsay.”
“Is that an objection?” Cochran asked.
“Yes, your honor.”
“Well it’s about time. Sustained.”
I said, “Let’s turn for a moment to the statements Whitney Foster made to you. She said that she accompanied Brian Marshall to the victim’s house early on Friday afternoon. You do believe she was in the house, do you not?”
Miller stood. “Ms. Starling herself has objected to using this witness to introduce evidence of the fingerprints found at the house.”
“I’m not asking about fingerprint evidence,” I said. “Officer Jordan could have multiple reasons for believing Whitney Foster was in the house at some point. If he does, we can then explore those reasons, some of which may be stronger than hearsay.”
Judge Cochran rolled his eyes, which I didn’t appreciate, but he said, “I’m going to allow the question.”
“Yes,” Jordan said. “We believe she was in the house.”
“And based in part on the testimony of Victoria O’Neal, you believe Brian Marshall was in the house.”
“We do.”
“Did a witness come forward claiming to have seen Whitney Marshall going in or out?”
“No.”
“So when she went to the house, she might well have been in the company of Brian Marshall. No one has said she went in alone.”
“No.”
“And you can’t tell from a fingerprint when it was made, can you?” Conscious of Miller coming to his feet, I added, “I’m just speaking in general terms, not asking about what prints may or may not have been found in this particular house.”
Miller didn’t object, and Jordan said, “That’s right.”
“Any fingerprints found in the house could have been made early in the afternoon as easily as later in the day.”
“Objection.”
“Sustained.”
There had been as yet no testimony as to whose fingerprints had been found in the house, so it was hard to argue that when they were made had any relevance to the case. I didn’t pursue it. Instead I went on to make the point I’d been driving toward: “So Ms. Foster’s statement that she and Brian Marshall went to the house together earlier in the afternoon might well have been true, as far as you know.”
Jordan took a moment to think it over. “I suppose it might have been.”
“Ms. O’Neal has testified that the defendant Brian Marshall ran down the sidewalk to his car shortly after dark, then he sat in his car for some minutes. Did she tell the police that the car was empty when he got in, that he was sitting in the car alone?”
Jordan shifted in his seat. “No, she didn’t. As I understood her, given the light and the angle, she couldn’t see into the car.”
“So Whitney Foster could have ridden with Brian to Macy Buck’s house and waited in the car for him when he went in. That wouldn’t be inconsistent with her statement that she had spent the rest of the day wit
h Brian, would it?”
“No. Not if that’s what happened.”
“So far then, we have no evidence that Ms. Foster made false statements to the police, do we? We know she made statements, but as far as you know, they may have been true. Isn’t that right?”
He didn’t answer, and I didn’t wait for him.
“You also base your belief on her complicity in this crime on fingerprints found at the scene, but those could have been made earlier in the day, well before Macy Buck met her death. That leaves only the bloody ice pick to connect her to the crime.”
Jordan said, “It’s true that this piece of evidence or that piece of evidence might have an innocent explanation. It’s when you look at all of it in combination…”
“As to her supposed false statements, you’re relying only on supposition, and you’ve admitted as much. The fingerprints could have been made earlier in the day, or earlier in the week, or possibly as long as a month ago.”
“Ms. Foster said the first time she’d been to the house was that day.”
“I thought you were discounting her testimony.”
Jordan was silent.
“So what we’re left with is an ice pick with blood on it. Can you tell us exactly where in Ms. Foster’s place of business that was found?”
“Between the counter and the wall.”
“Is this the counter where various pastries are displayed for sale?”
“Yes.”
“So the ice pick could have rolled off the top of the counter, or it could have been dropped to the floor and kicked into position from either side of the counter, couldn’t it?”
“A customer might have difficulty doing either of those things unseen.”
“But physically, a customer could have done it. He might just have had to wait for an opportunity.”
Judge Cochran cleared his throat. “Ms. Starling,” he said. “This line of questioning goes to the weight of the evidence, which is a matter for the jury. It’s not anything I can consider in a preliminary hearing. If the decedent’s blood was found in the defendant’s place of business and the defendant’s fingerprints were found at the decedent’s house, then there’s probable cause to find that a crime has been committed and that the defendant had some connection to that crime.”
I inclined my head. “I’m sorry for wasting your time, your honor.” I walked back to the defense table and sat down.
Laughing Heirs (A Robin Starling Courtroom Mystery) Page 19