Love Me or I'll Kill You

by Lee Butcher

  “Nestor DeJesus grabbed his gun and fires, hitting Officer Marrero twice,” Athan said. “She stumbled toward Paula Gutierrez. For Paula, everything is in slow motion, like a movie. Officer Marrero and she lock eyes. It appears to her that Officer Marrero is asking ‘Why?’ Officer Marrero falls to the pavement. Paula Gutierrez is in shock. She has seen Nestor DeJesus commit the ultimate act of violence. He has killed a police officer.

  “She hears him yell at her, ‘Get the gun.’ Officer Marrero’s gun has fallen out of her hand onto the pavement. There’s a large pool of blood already formed. Paula, in a daze, reaches for the gun and picks it up.”

  Athan’s delivery was rapid-fire as she related the events and she spoke in the present tense to give it a sense of urgency, trying to draw the jurors in.

  “Nestor DeJesus is screaming at her to follow,” Athan said. “Other officers are arriving. They’re shooting at DeJesus. He fires back. They all run into the complex. Nestor DeJesus runs up a flight of stairs and Paula Gutierrez follows him. She is unaware of the gun battle that has taken place and continues.

  “As police fire at DeJesus, he fires back; then he takes Paula by the neck, in a choke hold, and uses her as a human shield against the police officers’ bullets,” Athan continued. “She is hysterically screaming. This is according to Officer Shepler. To this day, Paula Gutierrez does not remember this horrifying experience.”

  Athan told the jury how Chino kicked the door to another apartment until it broke off its hinges; then, still holding Paula in a choke hold, “throws” her into that apartment. When Isaac Davis, the occupant, was terrified, Athan said, it was Paula who assured him that he wouldn’t be hurt.

  Athan related Detective Batista’s attempts to talk Chino into coming out, and that Chino told him they were going to commit suicide. “He has convinced Paula Gutierrez to kill herself with him,” Athan said. “She calls home to say good-bye to her family. She asks them to take care of Ashley. She tells her mother how much she loves her. Her mother begged her not to do it.... Eventually she agrees not to kill herself. Her maternal instinct comes through.”

  Athan said that Paula tried to convince Chino to surrender, but he refused, and he insisted that they kill themselves. “He shows them how they will do it,” Athan said. “Put the gun under your chin: one, two, pow.”

  When Detective Batista, who tried to talk Chino into surrendering, realized what was happening, he became frantic and pleaded with them not to do it. “DeJesus counts—one, two—drops the gun,” Athan said. “He curses. He doesn’t kill himself. He puts down the phone, leans back against the wall, and says, ‘Ready, Paula? One, two,’ and puts a bullet into his brain.

  “Paula could not kill herself. She is in shock. Batista calls, ‘Paula, pick up the phone. Paula, pick up the phone.’ She finally does. She surrenders and is taken into custody.” Athan paused for a moment, then said, “Nestor DeJesus’ reign of terror is over, but a new nightmare is about to begin for Paula Gutierrez.”

  Athan insisted that Paula was not guilty of felony murder. “The robbery simply was over,” she told the jury. “They had effectively escaped from the immediate area of the robbery. Although the police started to look for them, they were never pursued.... They had reached a place of safety in their home.”

  Paula acted out of duress, Athan said. A medical expert would help them understand how this happened. Athan criticized the way Paula’s interview was conducted by the police, who, she said, steered Paula away from having a lawyer present. The jury would find Paula not guilty of all charges if it listened closely, Athan said, because Paula was compelled to act out of duress.

  “She was not a willing participant,” Athan said. “Her fear was real. It was imminent. It was impending. Her life was lived in real and imminent and impending fear. Never knowing when he was going to snap.”

  Athan concluded her remarks by reminding the jury that the trial was about justice, not vengeance, and “the law says Paula Gutierrez is not guilty.”

  The state began to build its case, brick by brick. Eyewitnesses testified about seeing the robbery in progress, the robbers’ descriptions, the type of vehicle they used, dye-stained money thrown from a yellow Xterra SUV, the suspects’ arrival at the Regency Apartments, and about their arrival at the Crossings, with Ashley and Chino’s mother.

  Most of the testimony was tedious as Ober and Pruner built a body of evidence they believed would convince the jury of Paula’s guilt. Athan had few questions, for the most part. The first day of the trial ended with no surprises and little excitement outside of the opening arguments.

  Chapter 18

  The courtroom was jammed on May 9, 2003, the second day of testimony in Paula’s trial. Paula wore a skirt, white blouse, and black sweater. She looked small and ethereal at the defense table beside Athan and Deborah Goins, another assistant public defender. On the state’s side were Ober, Pruner, and Turpin.

  The first witness to give testimony was Dr. Bernard Adams, chief medical examiner for Hillsborough County. As a police officer, Mickie Mashburn knew that the details of Lois’s death would be described in horrifying detail. She was pale and tense as Adams took the stand for direct examination by Ober.

  Ober handed Adams four photographs of Lois’s body in the morgue. In murder cases autopsy photos are frequently blown up to almost life size so that the jury—and the gallery—can see the horror in startling detail. Only the jury would see the four photographs that Adams examined.

  Ober established Adams’s expert credentials, and had him explain in detail how he had conducted the autopsy. Then Ober asked him the question that would bring graphic testimony to the pain and trauma that Lois had suffered in the moments before she died.

  “Would you describe . . . what wounds you saw on her and those wound paths?” Ober asked.

  “She had two perforating gunshot wounds,” Adams said. “Each of the wounds had an entrance and an exit. One of the wounds began with a scrape across the chin and then entered the throat, perforated the windpipe, the trachea, continued down . . . and tore across the subclavian artery and the vein right next to it, both major vessels, and then continued down and perforated the upper part of the lung and then exited on the right side after fracturing a couple of ribs.”

  Ober received permission for Adams to leave the witness stand so that he could demonstrate how the bullets had entered Lois’s body. Ober questioned Adams in detail about the wounds while showing the autopsy photographs to the jury. Then, using Ober as a teaching aid, he pointed out how the bullet would have traveled through the state attorney’s body.

  The wound to the subclavian artery was particularly horrifying to hear about.

  “In this case the blood would flow into the airway, fill the windpipe, the mouth, and leak out through the entrance wound . . . ,” Adams said. “Then the blood filling the chest cavity could also leak out through the hole in the side of her chest. . . .”

  Adams said that this single wound was fatal. Then he described the damage caused by the second bullet. Once again, Adams used Ober’s body to describe how the bullet had torn through Lois. This bullet punctured a lung, diaphragm, spleen, kidney, liver, shattered the spinal column, and grazed the spinal cord. This would have caused almost immediate paralysis of Lois’s legs, Adams said. The medical examiner said this was the first bullet to strike Lois. The second bullet was the one that killed Lois, Adams said.

  Mashburn and Brenda Marrero, Lois’s sister, looked visibly shaken during the medical examiner’s testimony. Paula appeared dazed.

  Patrolman Gary Metzgar testified about being on patrol and hearing the first radio reports of the robbery at Bank of America, and of a foot pursuit by a female police officer. At first, Metzgar didn’t know who the police officer was, or where the pursuit was occurring.

  “I kept talking to the radio, like ‘Give me a location, give me a location,’ because I couldn’t help,” Metzgar testified. “I thought like, ‘Where the hell are you at?’ Sorry, ‘Where
the heck are you at? I need a location. He’s running, he’s got a gun, help me, help me.’”

  Metzgar described how he arrived at the Crossings apartment complex when he figured out where the chase was occurring. Metzgar arrived just after Officer David Shepler arrived to help. At that point, Metzgar testified, he jumped out of his car so he could help.

  “I didn’t make it far,” Metzgar testified. “I got out of my car, and as soon as I opened my car door, I saw out of the peripheral side of my eyes, I saw a black object in the parking lot.”

  Metzgar said he had a quick glance at a man standing over a body in the parking lot. Later he learned that it was Lois’s body.

  “The instant I saw him, he opened up on me,” Metzgar testified. “It was all open area. So he had a straight shot at my location.” Metzgar said he found out later that ten shots had been fired at him and Shepler.

  “My first instinct was to get cover,” he testified. “I probably shouldn’t be here because they just missed the top of my head. I could feel them and hear them, so I dove behind [a utility trailer] for cover.”

  Metzgar said he heard other shots fired as he rolled to a car for better cover, but when he lifted his head to return fire, the gunman was disappearing into the breezeway. The police officer testified that he didn’t see anyone else in the breezeway. Ober asked Metzgar what he did next.

  “It’s almost like a tunnel vision,” Metzgar said. “When you hone in on something like that, you don’t believe it, you can’t believe it, or then it could get downhill from there.

  “I took off running. I wasn’t sure what the object was. I still wasn’t sure what it was laying on the ground. So I ran toward it and as I got closer, that’s when I saw the bottom of her boot and recognized it as a police boot.”

  Metzgar told the court how he jumped over Lois’s body and ran to the breezeway to make certain it was clear. He ran back to check on Lois.

  “Was there any pulse?” Ober asked.

  “It was obvious it was a massive wound, so I don’t know why I was doing it,” Metzgar testified. “I guess just doing it. There was no pulse.”

  Metzgar realized whoever shot at him had far more firepower than he, so he ran to the cruiser to get a shotgun. He saw spectators watching from an automobile shop next door. Metzgar warned them to get down, and asked them to throw him a blanket. They threw him a fender cover, he said, which he used to cover Lois’s body.

  The police officer used a pointer to indicate various locations in an aerial photograph of the apartment complex. Reliving that day caused Metzgar to tremble, and he had difficulty holding the pointer steady. Metzgar testified that he advised Shepler he was going to a different location to try and box in the gunman. That’s when he heard a woman screaming, but he didn’t see anyone at first.

  “It was Officer Hill,” he said. “She was standing, running around Lois’s body, screaming. She just kind of lost it.”

  Metzgar said he was worried that Hill would be shot. “I knew there was nothing we could do for Lois, it was too late,” Metzgar testified. “She needed to get cover. I didn’t want a second one to get shot.” Metzgar said he continued screaming at Hill to take cover, and she did.

  Metzgar testified that he tried to evacuate a woman from an apartment he feared might be shot up. The woman inside was afraid to come out. Even after he ran to the living-room window, beat on the glass, and she saw his uniform, Metzgar said she was still afraid. He finally had to pull her out.

  Athan stood for cross-examination. She established where Metzgar was before he heard any traffic on his radio regarding an officer chasing a suspected bank robber. Athan also established that Metzgar didn’t hear any helicopters then, but that he did a few minutes later.

  “He’s already shooting before you even see he has a gun?”

  “Yes.”

  “I think you described him as standing in the Rambo style?”

  “It was like shooting from the waist, hip, stomach area. The rounds start walking up,” Metzgar said. “That’s why I think they missed me.”

  “‘Walking up’ means the muzzle of the gun faces upward or the bullets go upward?”

  “The kick of the gun, the recoil of the gun, causes it to start,” Metzgar said. “If you don’t hold it down when you start shooting, it will start walking up on you if you’re shooting rapidly.”

  “He was shooting very rapidly?”

  “Yes. I was surprised how fast he got them off at me. I thought he had a fully automatic weapon.”

  “Clear to you that this guy knew how to handle this gun?”

  “No . . . he would have hit me if he had known how to. He was shooting wildly . . . with no accuracy.”

  “But he was shooting at you, there’s no doubt about that?”

  “Toward us. Because I knew Dave Shepler was behind me somewhere, I could hear him. I could feel it almost touching my hair.”

  “And, as a matter of fact, you heard Officer Shepler say, ‘He’s up there, he’s up there,’ and you also heard him say—”

  Jay Pruner jumped to his feet. “Objection, Judge.”

  “He said that on direct, Judge. It’s an excited utterance.”

  “Yeah, we covered that,” Padgett said.

  Athan asked if they could approach the bench.

  “Counsel, I’ll sustain the objection,” Padgett said.

  “I don’t understand. I’m sure what the pretrial order is on this.... It’s all an excited utterance, Your Honor.”

  “Yeah . . . I’ll buy that,” Padgett said. “Overruled.”

  Athan knew there would be conflicting testimony between Shepler and Metzgar on what occurred on the balcony. She needed to bring this out for the jury to consider.

  “You also heard Officer Shepler, ‘He’s got a hostage,’ didn’t you?”

  Metzgar agreed.

  “And that’s the reason that when that blind kept peeking open, you didn’t take your shot, correct?”

  “Probably. It wasn’t a clean shot, as much as I wanted to shoot.”

  Athan had no more questions. Pruner had only one or two points to clarify in his redirect.

  Daniel M. Tatum, an employee at Lindell Honda, was the next witness for the state. Tatum told the jury that he had seen “the guy with the gun” shoot at Metzgar from the Crossings parking lot. He described the shooter as being Hispanic, with short hair, and a woman at the left front of the car, where the shooter stood.

  As other police officers pulled up, the shooter turned his gun on them, Tatum said. “He was shooting in both directions.” Tatum said the woman worked her way back to the breezeway, where the shooter had fled. Fifteen or twenty seconds later, Tatum said, the shooter unleashed another volley.

  Tatum testified that a black police officer arrived by a fallen police officer and screamed for blankets.

  During cross-examination Athan continued to work on the timeline. Tatum said he and a friend were at a convenience store getting something for lunch.

  “While you were at the convenience store, or while you were driving to and from the convenience store, you didn’t hear any helicopters, did you?” Athan asked. Tatum said no. “And before you got to the intersection of Cleveland and Church, you hadn’t seen any police cars, either, had you?”

  “No.”

  Athan asked if the young woman he saw shot at any of the police officers.

  “No.”

  Athan had no more questions for Tatum, and Pruner had only a few on redirect. He asked Tatum if he could identify the woman.

  “She’s sitting right over there . . . ,” he said. “She’s wearing a black sweater with a white shirt.”

  Neither side had further questions for Tatum, so he was excused.

  Next to take the stand for the state was Corporal James Hill. Hill testified about racing to the Crossings with his siren on and lights flashing, after he received a radio call about an officer in distress. When Hill pulled up to the Crossings, he saw a woman in a red pickup truck, whom he later
discovered as Chino’s mother.

  “I motioned for her to leave the complex because I understand there is a gentleman with a gun,” Hill testified. “She refused, like she was yelling at me, screaming at me. She had a bunch of kids in the truck. After several minutes of arguing with her, she finally drove away.”

  Hill said he heard gunfire and Shepler yelling. Hill said he lay Lois down and ran to a breezeway, where he thought he might intercept the shooter. “I’m thinking that the bad guy, the guy that just killed Lois, is inside the courtyard,” Hill said. “They’re probably chasing him southbound and I’m going to cut him off here.”

  Hill testified that Officer Cole Scudder yelled to warn him someone was above him. Hill scrambled for better cover. Although he didn’t see anyone, Hill said he heard other police officers yelling that the gunman had taken a person hostage.

  Neither the prosecution nor the defense had further questions for him. Hill was excused and Scudder was called to the witness stand.

  Pruner started to establish a timeline that was crucial to both sides. Scudder told the court it took him only three or four minutes to get to the Crossings after he heard Lois’s radio call. He described how he entered the glass doors to the Crossings and saw no one on the second-story landing. Scudder said he entered with his gun at “low ready,” meaning he held it in a two-handed grip, pointed slightly downward. Almost immediately after he entered the Crossings, Scudder said he came under fire.

  “As the gunshots first went off, because of the foyer, the echo, flashes, and muzzle flashes, I couldn’t tell where the gunfire was coming from,” Scudder said. “I looked up. I could see a tall, slender silhouette. The rapid muzzle flashes from the gun, there’s gun smoke surrounding the person. I immediately crouched down and returned fire.”