Love Me or I'll Kill You

by Lee Butcher

  Scudder moved for cover, but not before a bullet hit him in the right leg. It was a minor wound, he said, so he kept moving. After he found cover, Scudder said, he saw the gunman standing at the railing shooting straight down at him. He testified that he had a full, clear view and was certain there wasn’t a woman on the landing with the shooter.

  Athan had only a few questions on cross-examination.

  The state called several witnesses to testify about the physical evidence found at the scene. One point of conflict between the state and the defense concerned a disposable camera that had been taken from Chino and Paula’s apartment. The camera contained the film with Paula posing with the MAC-11 right after she bought it. There were exposures of Chino with the gun alone and with Ashley. Other photographs were simply family-type snapshots. Athan didn’t want the photograph with Paula holding the gun entered into evidence.

  Sergeant James Simpson, a homicide detective, found the camera inside a Polo bag just outside Paula’s apartment. Simpson verified that he had, at the state attorney’s request, hand-carried the film from the camera to the photo lab for development. After Simpson identified the camera, the state entered it into evidence.

  Then Pruner showed Simpson a larger-than-life photograph of Paula wearing a camouflage shirt and holding the MAC-11. Paula was turned three-quarters away from the camera and had turned to look into the lens. She wore heavy makeup, her hair was pulled back, and she smiled. Paula didn’t look like an innocent little girl in the photograph; she looked seductive and dangerous. Simpson identified the photograph as having been from the camera he had found.

  Pruner moved to have the photograph entered as evidence. Athan, who realized that the photograph severely damaged her defense, objected and asked if she could voir dire the witness. Padgett denied Athan’s request and overruled her objection. Athan sat down, devastated.

  The lawyers gathered at the bench after a break for lunch. Athan wanted to explain to the judge why she had asked to approach the bench during Metzgar’s testimony.

  “It was to ask Your Honor to take a break because it was very clear that Officer Metzgar was very emotional,” Athan said, “and to put on record that he was quite emotional and remained quite emotional throughout his testimony.”

  “The carpet over here, under the witness chair, is stained with tears,” Padgett said. “It just happens. The best way to handle it is to . . . just keep it going.”

  Ober said that the defendant also had been emotional, but the state was trying to remain calm about it.

  “I know,” Padgett said. “We used two boxes of Kleenex in this courtroom.”

  “I know there is going to be a lot of boo-hooing in this trial,” Athan said. “I feel bad. I don’t have a problem with that. I felt bad for Officer Metzgar.”

  “I know, but that happens. You guys ready to roll?”

  The lawyers were ready and Padgett had the bailiff call the jury.

  Pruner questioned James S. Noblitt, who was retired from the TPD. He was a detective in the robbery division, on July 6, 2001, when the Bank of America was robbed. He testified that he found stained bills and baggy clothing in Paula’s apartment.

  The ASA turned his attention toward building a detailed timeline from the time the bank robbery was reported until Lois was shot and killed. He questioned Teresa Mellor, a communications technician, who was in charge of the care and custody of communications made over the police radio band.

  Mellor had a record of the time various calls were made on July 6: robbery reported at 10:42 A.M.; description of suspects and their vehicle at 10:43 A.M.; Scudder at Church and Neptune, responding, 10:44 A.M.; report of money being thrown from a yellow Xterra, 10:45 A.M.; Officer Martin en route to a call about a yellow Xterra, 10:55 A.M.; police officers arrived at the Regency to investigate yellow Xterra, 11:12 A.M.; Bingle radios for officers to go to the Crossings regarding a white male named Chino, 11:22 A.M.; request for officer to go to Cleveland and Church, 11:23 A.M.; Officer Marrero radios that she’s in pursuit, 11:24 A.M.; Lois radioed that Chino had doubled back from the cemetery, 11:25:19 A.M.; Lois radioed “that gun,” 11:25.44 A.M.; “Officer down” broadcast, 11:25.52 A.M.

  Only forty-three minutes elapsed from the first police alert broadcast until Lois was shot and killed. Pruner wanted the jury to know that the pursuit of the two suspects, from the time of the robbery until Lois was killed, was continuous. There was nothing helpful Athan could get from Mellor and she did not cross-examine the witness.

  Detective Roberto Batista, who was the chief negotiator during the hostage standoff, was the next witness for the state. Batista had been transferred to internal affairs, but he still was a hostage negotiator with the TRT. Batista identified a recording of his negotiations with Paula and Chino on July 6, which was played for the jury. The transcripts included sixty-four pages of the conversations.

  “Did you have a complete understanding of what Paula Gutierrez’s involvement may have been during that robbery?” Pruner asked.

  “No, I did not.”

  Batista told the jury that a negotiator tries to build rapport with the other person and keeps them on the line. “As long as you keep it positive, there’s always hope,” he said. “And as long as you keep him talking, there’s always hope that everyone will come out alive.”

  Batista said the reason he started talking about Ashley with Paula was to make everything personal. “To bring someone into the picture, the daughter, the future, our daughter growing up,” he said. “Them maybe not being there with her, maybe in prison . . . but they have something to look forward to.”

  The witness acknowledged sending in a telephone with the hidden video camera and transmitter. Pruner asked him to explain why this was done. “So we know what’s going on inside the apartment, should we have to make an entry,” Batista testified. “It will make it safer for (officers) to make that entry.”

  Athan had several questions on cross-examination. Batista told the jury that he was home when he heard about the situation, and that he was the first hostage negotiator to arrive. He told the jury that Officer Terry Mims was speaking to Chino on Lissette Santiago’s cell phone.

  “So Officer Mims is very happy to see you, a hostage negotiator,” Athan said, “and hands the phone over to you?”

  “Yes, ma’am, very quickly.”

  “And so now you begin to speak to this stranger on the other end, who you understand is a suspect in a bank robbery, correct?”

  Batista said it was, and that he had never met Chino or Paula.

  “So . . . you’re talking to strangers . . . and it’s a very dangerous situation because there’s been a police shoot-out, right?”

  “Yes, ma’am.”

  “An officer is dead?”

  “I didn’t know that at the time.”

  “Or was at least critically wounded?”

  “I knew that an officer had been shot,” Batista replied.

  Batista testified that he didn’t know immediately that there was a hostage in the apartment. But since it was the middle of the morning, he knew there was a chance someone had been home when the apartment was invaded.

  The detective told the jury he was allowed to lie when he negotiated because he needed to say things that would bring everyone out unharmed.

  “When you first started talking to Mr. DeJesus, he seemed kind of calm, right?” Athan asked.

  Batista said that was true. He testified further that he wanted to keep Chino calm.

  “So the first thing that you do is try to develop a rapport, correct?” Athan asked.

  “That’s correct.”

  Athan noted that Batista was Hispanic and Chino was Puerto Rican, and when he mentioned that to Chino, it was a way to make a connection. Again, Batista agreed. He testified that he was doing what he could to develop a personal relationship with Chino and Paula. Ashley, Batista said, was the most important thing he talked about with both of the suspects.

  “Every time you brought up Ash
ley, Miss Gutierrez softened up and her voice cracked—”

  “Yes, ma’am.”

  “You realized that that was an important thing to talk to Miss Gutierrez about,” Athan asked, “that was something that was going to get to her?”

  “That’s an important thing to everybody.”

  “That maternal instinct?”

  “Yes,” Batista said.

  “So you are talking to her about different things, ‘Give yourself up,’ on and on, some of them lies, some of them truths, but in any event, she eventually says . . . ‘I want to turn myself in,’ correct?”

  “Yes.”

  Athan asked if he was optimistic that Paula would give up and surrender. He said he was always optimistic during negotiations, and at that point he thought both Paula and Chino would turn themselves in.

  Athan asked if Batista ever thought that he had lost them, that they would never give up. The negotiator said he had remained optimistic. He testified that he thought Paula was ready to surrender and he wanted to keep her thinking in that vein.

  “When you’re talking to Paula, you can hear Nestor DeJesus talking in the background, right?”

  Batista said yes and agreed that Chino seemed to be talking with someone on a cell phone. Sometimes he said he could hear Chino talking to Paula. Athan zeroed in on Chino’s domination of Paula, which was a critical part of the defense strategy.

  “When you’re asking her certain things about Isaac Davis, he’s telling her what to tell you, right?” Athan asked.

  “In one case I remember hearing, yes.”

  “You heard him talking to her . . . just to be clear?” Athan asked. “You were talking to Paula Gutierrez, and you say, ‘Okay, who else is in there besides you and Isaac and Chino?’ And in the background, he (Chino) says, ‘Is everything okay?’ When you’re talking to her, he’s in the background?”

  “Yes.”

  “She says, ‘They want to know how many people are in here,’” Athan said. “Now, that implies that she’s not talking to you . . . that she’s talking to someone else, right?”

  Batista agreed that was correct and that Paula’s comments were to Chino. He agreed that he heard Chino say in the background, “We don’t want him to know that.”

  “Then she says, ‘We can’t let you know that’?”

  “Yes.”

  “At times during the conversation you’re having between yourself and Paula Gutierrez, Nestor DeJesus is telling her what to tell you, right?”

  “Yes.”

  Athan asked Batista why Paula picked up the telephone when he was talking with DeJesus. Was it that Chino started to cry? she asked. The detective answered yes.

  Athan asked, “Not just Hispanic men, but men in general, I suppose, feel like women cry, but men are a little more concerned about crying, don’t you think? When he starts to cry, he hangs up, right?”

  “Yes.”

  Athan questioned Batista about his actions from the time he first arrived at the scene, trying to find cover, then moving into the house to establish a command center. He said that Detective Gene Black was with him as the secondary negotiator, and that Black wrote things down for the record. Athan established that Black, who later questioned Paula about the robbery and shooting, had heard much of his conversations with Chino and Paula.

  Athan reviewed Batista’s testimony and reminded him that Chino had appeared calm at the beginning of the interview. She added that Batista had “softened him up” further by talking about Ashley.

  “So he’s kind of calm and rational, right . . . at the beginning?”

  “Yes.”

  “Then, all of a sudden, he starts screaming. Remember that?”

  “Yes, ma’am.”

  “So you must have been feeling that, okay, I need to calm this guy down, right?”

  Batista agreed.

  “So anytime he starts screaming or sounds really stressed, you need to calm him down, correct? And so you guys are talking and he’s just kind of ranting, right?”

  “At that point, yes.”

  “You say, ‘What about Ashley?’ He comes right back down, and that’s when he starts crying, when you start talking about Ashley and Paula, correct? And he hangs up. And now you talk to Paula for a little while and it’s obvious there at some point you want to talk to Isaac, right?”

  “Once I found out there was somebody else in there, yes, I wanted to talk to him.”

  Athan’s next few questions tried to establish that even though Batista was talking to Paula, it was clearly Chino who was in charge and telling her what to say.

  “Part of the time, Miss Gutierrez is crying, correct?” Batista answered yes. “Part of the reason they’re not wanting to come out,” Athan said, “is this thing about not wanting to go to jail, right? . . . Nestor DeJesus is very clear about that, he is not going to go back?”

  “He doesn’t want to go back.”

  “And Paula says, ‘I don’t want to go to jail’?” Athan asked.

  Batista agreed.

  “So when you say to them, ‘We’re not going to destroy your entire family, you know, you got the father already going to prison, for sure he’s going to prison because of the shooting and the robbery. . . . And then you say, ‘And the mother may have to do some jail time, but not much’?”

  “That’s what I said, yes.”

  “You don’t know how much time she’s looking at because you don’t even know what she’s going to be charged with, do you?” Athan asked.

  “No. First, I wasn’t even sure she was involved in any type of crime.”

  “When you say to her, ‘You weren’t in there, were you,’ she’s kind of going along with that,” Athan said. “You really didn’t know what her involvement was?”

  “That’s correct.”

  “Eventually she fesses up and says, ‘I was in there,’ right?”

  Batista said that was true. Athan continued to press the point, noting that Paula had said she was not only in the bank, but that she had the gun. Batista agreed that Paula volunteered the information, and that he wasn’t trying to elicit it. Batista answered yes when Athan asked if Chino took the phone back when he told Paula that Chino could have a face-to-face conversation with his mother at the jail.

  “He’s a little upset with you, right?” Athan asked. “He’s angry. You’re trying to calm him down . . . and he’s responding to you kind of in a hostile way, right? And you say, ‘You know, if you want to talk to your mom, I can have you talk to your mom,’ and he said, ‘Yeah, I do, but you just interrupted.’ So he goes from screaming to angry, and next you’re talking to him about a lot of people in there, SWAT guys in the hot sun, and we hear Detective Black telling you in the background, ‘Tell him we’ll wait it out for as long as we need to,’ right?”

  “Yes.”

  “Then he goes from angry to ‘they have itchy fingers,’ and he kind of chuckles. So his mood just swung back to kind of calm, right?”

  “Yes, it did.”

  Athan said that when he started to tell Paula to think about Ashley, “because he jumps right in and he says, ‘She is an accessory,’ and now he’s all rational again, right? Then he launches right into the point system, and you must have been thinking, ‘What is this guy talking about?’”

  “Well, I have some knowledge of the point system.”

  “Then he goes on to educate you because you said, ‘I’m just a burglary detective, I don’t know about the point system.’ Then he goes on to educate you about the point system in a very rational way?”

  “Yes.”

  “He’s concerned because he thinks his points are really high?” Athan asked. “He stays calm and he chuckles a little bit. Then he talks about going to jail and that kind of thing. And he remains very rational until he says to you in a very rational tone, ‘What I did is a capital crime,’ correct? And what did you understand that to mean?”

  “Capital crime was death penalty crime.”

  “And he presses you. �
�It’s a capital crime.’ And you say, ‘It’s a serious crime; yes, it’s a serious crime.’ And then he goes from ‘Mr. Rational’ to yelling at you, ‘A cop died.’”

  “How did he have this information?” Athan asked.

  “I assume that he got it from television because I didn’t find out that Lois had died until I heard it from him,” Athan replied.

  “So he’s now yelling, ‘A cop died.’ And you finally calm him down. ‘Yeah, it is, it is a capital crime.’ But he continues to scream at you and you try to calm him down. You start talking more. And then, all of a sudden, he goes rational again,” Athan said. “Because you said, ‘I’m sure you didn’t wake up this morning thinking you were going to kill a cop; it’s not premeditated. ’ And totally rational, he says, ‘When’s the last time you saw a premeditated cop killer?’ You said, ‘It’s never premeditated.’ Then he goes on to screaming and being irrational. Would you agree with that?”

  Batista did.

  “At some point you learn that he and Miss Gutierrez are going to kill themselves. Then he must hear some footsteps on the roof and he’s asking you about the SWAT team and you’re telling him, ‘Don’t worry about that, man; there’s nobody up there,’ right?”

  “Yes, ma’am.”

  “Then you have this conversation with him about the SWAT team and TV and media people are everywhere. . . and he says, ‘What happened?’ You say, ‘Is Paula okay?’ And he says, ‘I think so.’ So now he’s distracted or coming way down, right?”

  “Yes.”

  “So you talk to him about cigarettes. He wants an unopened pack, because he believes you guys are going to put something in the cigarettes to make him sick, sleepy, or kill him?”

  “I did tell him that we don’t do that,” Batista said.

  “Because you want him to trust you. He clearly is letting you know that he hasn’t decided what’s going to happen. At what point did you realize that he’s going to commit suicide or there might be a suicide pact?”

  “That’s always on the back of my mind,” Batista said. “From the very get-go, you always think that’s a possibility.”

  “When the video camera goes in,” Athan said, “you’re not watching video, right? Because if you’re watching the video, you might let something slip that lets him know that you can see him?”