Love Me or I'll Kill You

by Lee Butcher

  The sharp and devastating cross-examination continued until 5:30 P.M. Padgett adjourned the court until the next morning.

  Chapter 23

  A nightmare for the defense unfolded at a bench conference when court reconvened. One of Athan’s greatest fears was materializing in spite of her best efforts.

  Patricia Turpin put it into words: “The defendant, through her testimony, both on direct and cross-examination, has opened the door to the evidence of the flower shop robbery that occurred three days before.”

  This was what Athan had foreseen when she asked for a bench conference the day before. She knew where the state was heading. Introducing a previous armed robbery into the testimony, committed just days before the bank robbery, would leave Paula’s defense in rubble.

  At the beginning of the trial, Padgett reserved a ruling on whether or not that evidence intertwined. Turpin gave the judge twenty-one examples of how Paula’s testimony paved the way for inclusion of the armed robbery at Flowers By Patricia. She said Paula should not have been unaware that she and Chino were going to rob the bank, because they had done it before.

  Turpin maintained that Paula and Chino’s bags were packed and that they intended to leave town after the July 3 robbery, but didn’t get enough cash at the flower shop. The Bank of America was closed July 4 and 5, Turpin said, so Paula and Chino had to wait until July 6 to strike again. The state should be allowed to make that argument, she said.

  Turpin noted that Paula was afraid of what Chino would do to her if she didn’t help rob the bank. On the other hand, Turpin argued, nothing had happened to Paula when Chino blamed her for failing to get enough cash at the flower shop.

  “She’s creating a false impression that, in her twenty-two years of life, she had never committed a violent act that resulted in this dazed and confused state,” Turpin said, “rather than the fact that she was actually dazed and confused because this time they had been caught and they were running from the police.”

  Turpin was just getting warmed up. “The jury has been deluded into believing that she is a person who had absolutely no knowledge that the gun was going to be used for any criminal purpose,” she said, “that she was a person who could not even contemplate that a violent robbery would ever occur by herself or by Nestor DeJesus.”

  Turpin argued that the duress defense Paula used required that the jury know all the circumstances that contributed to Paula’s psychological state. “This clearly goes to the lack of duress,” Turpin said. “It goes to the lack of imminent threat. She wants them to believe she didn’t have time to react because she had never before found herself in this situation. A jury might be able to believe that someone can be paralyzed by fear once, but twice?” Turpin continued. “So it goes to the heart of the duress defense.”

  Arguing against the motion, Athan cited the same case law the state used, but interpreted it to favor the defense. Athan argued that if she had made a mistake in her direct examination of Paula, “let’s call it a mistrial right now and I’ll confess that I’ve been ineffective. Everything that she said was consistent with being afraid, knowing they were going to get money. That’s her defense, Judge. If we can’t present that, we can’t present a defense.”

  Athan accused the state of trying to “cripple” the defense at every point of the trial. “They don’t want us to present a defense,” she said. “Now they’re going to take every little thing she said and say, ‘Oh, guess what, she opened the door.’” The defense attorney pointed out that Paula had every reason to believe no one would be hurt at the bank because no one was injured during the flower shop robbery.

  Athan was emotional and argued with passion. She pointed out that Paula and Chino had pulled the flower shop robbery without being caught. They weren’t pursued by the police. Paula had every reason to believe they wouldn’t be pursued after the bank robbery, Athan said.

  “If that’s what she was thinking, then that kind of flies in the face of your duress defense,” Padgett said.

  “She wasn’t thinking that,” Athan replied.

  “You just suggested she was.”

  Athan said the state believed that, not her. She argued that the two robberies weren’t intertwined. “We didn’t talk about it in voir dire,” Athan said. “We didn’t talk about it in opening. All of a sudden, surprise, there’s another robbery. I might as well pack up and go home, because this jury is going to go, ‘Wow, what is this about?’”

  “The point Mrs. Turpin makes about the jury being kind of deluded or fooled is big,” Padgett said. “We’re telling the jury just part of the story because, if they knew she had done this before, your argument would be that both were done under duress.”

  “Absolutely. To spring it on this jury can only prejudice us.”

  “It’s bombshell evidence, no question about that.”

  “She didn’t know there was a plan to rob the bank. She was afraid from the minute she got in the car. She was afraid when he told her to get up and get dressed.”

  Padgett said that it wasn’t likely Paula didn’t know she and Chino were going to rob a bank. “The jury is being fooled in thinking that’s the truth when it more than likely is not the truth,” he said.

  “You know what the problem is with this case, Judge?” Athan asked. “The connection Miss Gutierrez has to felony murder is slim at best. That’s why the state now wants to throw as much mud against the wall as they can to see what sticks. That’s not what our judicial system is all about. Our judicial system is about fairness to everybody, including and utmost to the defendant.”

  Athan expressed displeasure that the picture of Paula with the MAC-11 was introduced into evidence, but that the jury didn’t see the other photos on the roll of film. She said the gun was a toy.

  “I’m tired of you talking about it,” Padgett said. “Just receive that in evidence, mark that as one of your exhibits.”

  Turpin interjected that the trial was about truth, not fairness. “When witnesses come in here, they swear to tell the truth, not to tell what is fair.”

  “We’re having a heated discussion about this,” Athan said. “But you know what? I’m offended that the implication is that I’m trying to delude this jury. I’m seeking the truth, too, because I think that the more facts the jury has, the better it is for them to make a decision.”

  Goins added her opinion to the defense. “What the state wants to do is deny this woman a fair trial,” she said.

  “I don’t know how the defense can say they were utterly unprepared for the introduction of the flower shop robbery when you reserved ruling on that,” Turpin said. “You said you would address that at the time that it became relevant.” For Paula to say she committed the bank robbery because she was afraid of being beaten or killed, Turpin said, was not the truth.

  Athan, known to be an aggressive defense attorney, drew herself up to her full height of five feet. “To throw in the flower shop robbery for the reasons that they say is ludicrous at this point.”

  Padgett had heard enough. He denied the state’s motion and the jury was called back in. Athan sat down. The defense attorney had won a victory, but was not sure it would do her client much good. The only defense Athan had was duress and it was unsuccessful 90 percent of the time.

  The break in Paula’s testimony did not throw Pruner off stride. His cross-examination continued to pick at the defense’s underpinnings. Pruner hammered away at Paula’s weakening defenses. Did she tell Detective Black that she went inside after Chino kicked Isaac Davis’s door in? Yes. Did she previously testify that she was on the landing when there was a shoot-out? Yes. Did she later testify that she was inside the apartment during the shoot-out? Yes.

  The inconsistencies in Paula’s testimony were important. If Paula had been inside the apartment during the shoot-out, Chino could not have used her as a human shield. Davis had testified, too, that Paula was inside and that he was Chino’s human shield.

  Mr. DeJesus wanted to marry you when you got p
regnant, didn’t he? Yes. Did he ask you more than once? Yes. You weren’t too afraid to tell him no, were you? Well, we didn’t have money. You didn’t agree to marry him, did you? No. You didn’t want to marry him, period? Yes. It wasn’t because of fear, was it? Not too much.

  Pruner brought the hammer down and severely damaged the defense case of duress. Padgett gave Pruner permission to play Paula’s confession to the robbery at Flowers By Patricia. The judge told the jury they could only consider the previous robbery as it related to Paula’s duress when she robbed the Bank of America two days later. It was a hard loss, but Athan’s expression didn’t show how much it hurt.

  The jury listened to Paula’s confession. Several gave her disapproving glances. Paula’s defenses crumbled all around her.

  When Pruner finished his cross-examination, Athan had no questions on redirect.

  Athan called Paula’s mother, father, two sisters, and two other witnesses. They all testified about Chino’s temper, incidents of road rage, and times they had seen him attack Paula, physically and verbally.

  Athan called Dr. Michael Maher, the forensic and clinical psychologist who had interviewed Paula in jail, as her next witness. Maher noted that he had interviewed Paula on nine different occasions, read medical records and depositions from her friends and family.

  “Having reviewed the material and interviews, have you formed an opinion as to whether Paula Gutierrez suffers from any mental disorders?” Athan asked.

  “Yes, I have,” Maher said. “Post-traumatic stress disorder is the first diagnosis; the second disorder is major depressive disorder.”

  Maher testified that he believed Paula suffered from PTSD as far back as December 2000. Paula, he testified, was disabled by mood disorder and PTSD. He said she had thoughts of hopelessness, suicide, difficulty sleeping, trouble with memory, and difficulty in making rational decisions. At times, the psychiatrist said, Paula was “barely able to drag herself through her life.”

  Maher said that Paula’s condition was worsened by the abuse she experienced at the hands of Nestor DeJesus. Under such duress, he testified, Paula could not make reasonable decisions because fear caused a disassociation from reality.

  The defense rested following Maher’s testimony. Dr. Donald R. Taylor, the psychiatrist who testified for the state, had also concluded that Paula suffered from PTSD. The critical difference was the time frame each gave. If the jury accepted Maher’s diagnosis, Paula would have been impaired at the time of the robbery and murder. Taylor believed that the murder and Chino’s suicide were the stressors that pushed Paula over the edge. If so, Paula would not have been impaired by PTSD when she and Chino robbed the bank.

  Mark Ober and Jay Pruner pondered over the points they wanted to stress in the prosecution’s closing argument:

  • None of the defense witnesses, except for Paula, testified that Chino made her keep her eyes downcast in public.

  • Paula claimed that Chino didn’t want her to be close to friends and family, yet Chino or his mother paid for all of her trips to New York.

  • Defendant claimed to feel safe at home, but took a shower to wash red dye off herself, didn’t hear helicopters everyone else heard (because she was listening for them), and left the apartment carrying the gun.

  • Paula put on sweatpants in July before the bank robbery. She claimed they were more comfortable, but they were to disguise her figure. She did this before she left the house.

  • Inside the bank, only Paula said, “Do not look up” and “We will be out of here in a few minutes.” Chino never said this, so either they talked about what she would say before or she thought of it on her own and was not simply following mindlessly.

  • Duress requires that the crime avoided be greater than the crime committed. The witnesses were terrified of being shot. Someone being killed during an armed bank robbery was a very real threat. Defendant could articulate no broken bones, no loss of consciousness, no hospital visits. Was the harm avoided greater than that committed, or did the defendant simply choose she would rather put others at significant risk than herself?

  • Money was being thrown out of the driver’s side. This was because the defendant was holding tight to the money she had, and she intended to clean it with peroxide and use it.

  • Defense tried to show they were at the Crossings a substantial period of time. Lissette Santiago testified it took her between ten and fifteen minutes to pick them up and take them to the Crossings because she had a two-year-old and had finished a plumbing job before getting them.

  • Lissette was angry when she saw the MAC-11 and Paula laughed at her.

  • Motive: Paula and Chino were getting ready to move to New York, and Paula asked Lissette for a loan because her parents were being evicted. Paula’s parents made an offer on a house that didn’t close until October. They would be happy to have Paula, Chino, and Ashley move in with them.

  • Daniel Tatum saw Paula pacing in the breezeway after Officer Marrero was shot. She looked from side to side. When Chino ran through the breezeway, she ran after him. She was watching his back. This clearly showed more than anything else her degree of cooperation, her desire to succeed in this robbery, and her willingness to protect Nestor DeJesus.

  • Detective Batista said “Ashley” was the key word that snapped Chino back. Paula didn’t mention Ashley to dissuade Chino from robbing the bank.

  • Defendant denied involvement in bank robbery until it occurred to her that security tapes were going to show that she was there.

  • Videotape inside apartment. This was actual evidence of their relationship under stress. How did Chino treat her? Deferentially, kind, inquisitive. How did she treat him? She initiated a long sexual kiss and called him sweetie twice before he was dead, and caressed his shoulder on the way out of the apartment.

  • Alerting Chino to Isaac Davis: “He’s in here.” She was alert and fully cooperating. Defendant kept comparing her level of culpability to Nestor DeJesus, in front of him. She rejected his suggestion of suicide. She spoke freely. Paula did not deny that Chino said, “You never said this was going to happen.”

  • Chino went through mood swings during hostage standoff, but was never physically or emotionally abusive to Paula.

  • Maher testified that Paula wasn’t forced to enter the bank.

  • Inconsistencies in Officer Shepler’s testimony. He said, “I am totally focused on him.” (So he had no idea what defendant is doing.) “I wanted to get the bastard for what he did to Lois.” Showed he was emotionally affected. “I didn’t have a chance to be affected by it, I had to stay alive.”

  • Paula wasn’t controlled. Defendant went to the gym and worked out, had her hair done, went into the pool, went to the park. Defendant wrecked the new car they couldn’t afford and Nestor DeJesus never got mad at her.

  • Defendant had spent her whole life trying to punish her parents for sending her to Colombia and for forcing her to have an abortion. Nestor DeJesus was the ultimate act of rebellion. Her parents didn’t like him and they couldn’t stop her from seeing him.

  • Each time authorities were called, when Chino was in a rage, he had a predictable reaction. He calmed down and complied, until the one time his confrontation with authorities threatened Paula. Then he shot an officer dead to try and get his true love to safety.

  • Defendant refused Chino’s demands to move to New York, refused his proposals of marriage, refused his requests that she socialize with his sister during Thanksgiving. Went to New York against his wishes and stayed for prolonged visits with her family. Refused his request that they live together during her pregnancy. Took him to task for looking at other women. Apparently had convinced him finally, after just eighteen months in Florida, to return to New York because she wanted to be close to her family. How does agreeing to move back to New York and into the basement of her parents’ home coexist with an intent and pattern of isolation?

  • Because defendant was depressed and missed her family
, Chino bought her a brand-new, very expensive car so she could go out. Got her a gym membership. Encouraged and paid for her trips to New York.

  • When Chino did abuse her, she didn’t hesitate to let him know she was angry, giving him the silent treatment.

  • Defendant felt comfortable calling police/ security when she didn’t want Chino around. Said she stopped getting out of bed about June 6, 2001. Isaac Davis moved into his apartment in May and saw them in the pool after that date.

  • Defendant said it never occurred to her that cops were chasing her, but unlike the flower shop robbery, they ditched the car, changed clothes, showered, kept the gun, and were quickly on the move again. And she grabbed her wallet from the car.

  Ober said, “There’s just no way she wasn’t a willing participant in both robberies. She wasn’t a battered, abused woman. I don’t doubt that they had their fights, but she gave as good as she got. Nestor DeJesus’s first thoughts were to take care of her and Ashley.”

  Now the jury had heard all the testimony. The state and defense had one more chance to influence the jurors, with their closing arguments. Those would come the next day. Paula changed from her pretty white blouse and skirt into a baggy orange jumpsuit and waited in her eight-foot-by-eight-foot cell.

  Chapter 24

  Almost two years after the bank robbery and the murder of Officer Lois Marrero, Paula’s trial was winding down. It was May 21, 2003, and court convened for final arguments by both sides. The jury would receive instructions after the final arguments and would begin deliberations to decide whether Paula was guilty or not guilty of the charges.

  This was crunch time for Paula. If convicted of first-degree felony murder, she would spend the rest of her life in prison with no chance of parole. The judge had no discretion in the sentence. There was absolutely no doubt about it. She faced the possibility of a lifetime behind bars.