by Burl Barer
Judge Stone saw where this was heading, and offered sage advice to Carl Hultman. “If the prosecutor is concerned about a mistrial, I think that during the recess the prosecutor should have a long talk with the witness, and make sure that nothing occurs that requires a recess.”
Murdach wanted more than Hultman having a long talk with Perez; he wanted Stone to declare a mistrial. “He made the statement about the second case,” insisted Murdach. “We move for a motion for mistrial based on that statement.” Ladenburg joined Murdach, but Stone denied the motion, the jury returned, and Mark Perez continued his testimony.
Hultman asked Perez to repeat Chris St. Pierre’s threats. “I object to any statement Mr. Chris St. Pierre supposedly made to this witness over the phone,” asserted Ladenburg. “I join that objection,” added Murdach. “The court will overrule,” said the judge, and Stone told Perez to answer Hultman’s question.
“What did Christopher St. Pierre say to you,” asked Hultman, “about Donald Marshall going to the police?”
“He said that he thought Donald Marshall had a big mouth,” replied Perez, “and if he went to the police that him and his family would be dead.”
Ladenburg had a few important questions for Perez, but requested they be asked outside the jury’s presence. “Probably time for the jurors to stand and stretch, anyway,” offered Stone. “I will stand up and stretch with you.”
Mark Perez was handed a copy of the last page of his signed statement to the Tacoma Police. “You said that Christopher St. Pierre said, and I quote from your statement, ‘Here’s the scoop,’ ” Ladenburg read aloud, “ ‘the police were just inquiring about the shooting and didn’t want me for anything.’ He said he thought Donald Marshall had a big mouth and if Don said anything to the police, Don would be dead and so would his family.” Perez agreed that this was the gist of his statement. Ladenburg had only one question: “What shooting was being referred to?”
“The one where Andrew Webb was shot,” replied Perez, and Ladenburg immediately moved for a mistrial. “On the basis of this,” he stated firmly, “I move for a mistrial because the statement has to do with a different crime and a different case, altogether. The prosecutor knew it when he introduced it, and now he’s attempting to say Chris St. Pierre was threatening a witness in this case. That is not a fact, and the prosecutor knows it’s not a fact.”
“The fact of the matter,” responded Hultman, “is that Mr. Ladenburg knows that the statement to the police covers everything that happened, including the murder of Damon Wells.”
“Just a few basics,” interjected Judge Stone. “Number one: When people who are involved in one incident and one incident only, the court and the attorneys don’t have a whole lot of difficulty sorting things out. Number two: When there are multiple incidents, it gets more difficult. Participants frequently make statements that we lawyers and judges can later say, ‘Oops, that was not very wise to say that.’ But we don’t have the luxury of editing out what people said or didn’t say. I don’t think the court has to sprain its brain. The court denies the motion for mistrial, and I think it is entirely proper.”
Back in session, Carl Hultman wanted to bring Donald Marshall to the witness stand for additional testimony. “I object,” said Murdach. “He’s had his shot.” Judge Stone ignored the objection. “Would you get the jury, please, and bring Mr. Marshall back in?”
“Did Andrew Webb, Christopher St. Pierre, and Paul St. Pierre do anything unusual,” asked Hultman, “when they returned to the house on the night in question?”
“Yes, it was very unusual. They came in and Chris started making a fire in the fireplace, and they all started taking their shoes off, and all their clothing, and disbursed it in the fire and let them burn. It was all the clothing they had on. Their coats, their shoes, socks, pants, shirts, and even Andrew spotted some blood on one of my coats that was hanging on the hall tree, and he grabbed my coat—a thin windbreaker—and he looked at me and I turned the other way, and he burned my coat, too. At this time, I questioned them. I said, ‘Is anything you guys done? Tell me, is there something you got going or you are not letting me in on?’ That was when Webb and Chris and Paul looked at each other and Webb stood up and said, ‘You Marshalls used to be something and you are nothing now,’ and all this, ‘you just live here.’ ”
Murdach only wanted to know if Marshall was drunk that night, which he wasn’t, and Ladenburg had no questions at all. Hultman then called Patricia Wells to the witness stand. She was only there a few emotional minutes, presenting photographs of Damon with his puppy, and snapshots of Damon and his girlfriend at a high school Tolo dance. The state offered the various photographs as plaintiff’s exhibits, but Stone deferred ruling until the end of the day.
Officer Meeks, Hultman’s next witness, merely stated basic facts of the Missing Persons report taken February 27, 1984. Ladenburg had neither questions nor comments. “I move the testimony be stricken,” said David Murdach. “It adds nothing to the case.” Stone denied the motion, then addressed the jury. “The court has some details it needs to take care of. This is probably the only time in the whole trial we break early. We will cherish it.”
Stone excused the jury, reminding them again not to discuss the case or listen to media reports on it.
With the jury gone, Stone asked to see the photos of Damon Wells. “I think the jury should have the opportunity,” said Hultman, “to see him as they do see the defendants seated here.” The court intended to admit one, and only one, of the submitted photographs.
“The idea of evidence,” commented Murdach, “is to give some assistance to the jury to assist them on some point in the case. It has been testified to and repeatedly stated and stipulated that he is five feet tall, or short, or whatever. I don’t see why these pictures for anyone would add or aid the jury or help on a particular point in the case.”
“I think the victim in this case is entitled to some consideration,” Hultman countered, “and justice demands that the jury have an opportunity to see him.” The court agreed; one photo of Damon Wells was admitted as evidence. “The jury is entitled to realize that the individual was a human being,” said Judge Stone. “It’s admitted for that purpose.”
Patricia Wells, Damon’s mother, wanted to attend the entire trial, but didn’t know if it was permissible for a witness to remain in the courtroom after giving testimony. “It’s a public courtroom,” answered Stone. “She is welcome to stay.” Ms. Wells returned the following day.
Thirteen
April 19, 1985
Court reconvened at 9:30 A.M.
“With total predictability, there was media coverage in the newspapers, radio, and television,” began Judge Stone in his welcome address to the jury. “Anybody here have any trouble following the court instructions? I assume that whatever you know about this case, you got right here in the courtroom. Anybody disagree? Let’s proceed. Call your next witness, Mr. Hultman.”
Detective Price took the stand, and essentially provided continuation of Officer Meeks’s testimony regarding the investigation of Damon Wells’s disappearance. Hultman had Price testify that both Chris St. Pierre and Paul St. Pierre provided voluntary statements to the police.
Murdach, on cross-examination, pursued the circumstances surrounding Paul St. Pierre’s statement. “Are you aware,” he asked Price, “that he requested that interview with you even though there had been a court order—”
“I will object to this!” Hultman was on his feet.
“—for him to not speak to anyone without counsel present?”
“I will sustain the objection,” said the judge, “and I admonish the jurors to disregard the last question.”
Detective Price was thanked and excused. Roy Kissler took the stand and told of his adventures with Paul St. Pierre at the cabin. David Murdach questioned why—despite Andrew Webbs’s recent recantation and acceptance of full responsibility for slashing Damon Wells’s throat—Kissler continued attributing confession
al statements to Paul St. Pierre?
“What they didn’t seem to understand,” Kissler later commented, “was that I could only tell them what I remember hearing directly from Paul St. Pierre. It doesn’t matter what Andrew Webb may have said, or what he confessed to or didn’t confess to. That doesn’t matter as far as what I actually heard from Paul St. Pierre. Paul told me that he, Paul St. Pierre, chased down Damon Wells, cut his throat, and all that. Now, maybe Paul was bragging. Maybe he wished he had done something like that. That wouldn’t be out of the question at all, but I had to testify as to what I remember Paul saying to me that day, not something that made his lawyer feel better, or the prosecution, either.”
“Have you ever,” Murdach asked Kissler, “made a statement to anyone that you would like to get back at Paul St. Pierre?”
“I haven’t any reason to get back at him,” Kissler said. “What I was thinking at that point was for protection for myself and my family.” This response, however, did not answer Murdach’s question. Paul St. Pierre’s attorney asked it again. “The question is: have you ever made a statement that you wanted to get back at Paul St. Pierre?”
“The first few days after this incident happened, because I had nothing but his word to go on, and by the other things he said to me—”
“You are asked,” interrupted Murdach forcefully, “have you ever made a statement that you wanted to get back at Paul St. Pierre?”
“Yes,” came Kissler’s honest reply, “I have.”
Carl Hultman returned for further direct examination, requesting clarification from Kissler. “Mr. Murdach asked you if you made the statement about you wanting to get back at Paul St. Pierre. What was that statement you made?”
“OK,” said Kissler, “I talked to my minister about it.”
Neither Hultman nor Murdach pursued the issue. The prosecutor was happy the jury knew Kissler made this comment to his minister; Murdach was pleased that the jury knew Kissler admitted expressing a desire “to get back at Paul St. Pierre.”
“What that was all about,” Roy Kissler explained several years later, “is that two months after Paul St. Pierre told me about killing people, I went back up to the church and talked to the pastor. This was a different pastor than was there the first night I went into the church, so we didn’t have the same relationship. I told him everything, and I told him that I was thinking of solving this problem—the problem of Paul being a killer who obviously attempted doing to my brother what he did to Damon Wells, and who wanted to do the same thing to me. I had it all figured out how I was going to get rid of Paul St. Pierre.”
Kissler knew the neighborhood, and his plan was remarkably simple. Dressed in black, he would go behind Ericson’s with a 12-gauge shotgun, throw a rock through the back window of one of their cars, and when Paul came out, a fusillade of double-barrel firepower would spell curtains to the killing spree of Paul St. Pierre. “Then I would just disappear down the alley in the middle of the night. They’re up all night, anyway. It wouldn’t have been too tough, I don’t think, to pull off. The pastor said, ‘You can’t do that; you’re a Christian.’ I said, ‘Yeah, I can, too.’ ” The pastor insisted they pray about it, and that’s exactly what they did. Prayers concluded, Roy Kissler decided that killing Paul St. Pierre was not appropriate behavior for a man who had given his life to the Lord. “Later, after the arrests,” he recalled, “that same pastor went down and talked to Paul St. Pierre at the jail. Honest. It’s in the records.”
His testimony concluded, Roy Kissler stepped around the rail and signed the witness sheet. Carl Hultman asked the court to instruct the jury on how they should regard the out-of-court statements of Paul and Christopher St. Pierre. Stone agreed.
“Ladies and gentlemen, this instruction that I’m going to give you may apply to several witnesses throughout the case. The jury is instructed that out-of-court statements by one of the St. Pierres are not to be considered by you as evidence against the other one. We will now take the morning recess. You have heard only a portion of the case. You don’t start to deliberate or discuss or in any way make up your mind.”
From the jury box came an unexpected interruption. “I do not understand your instruction,” said the woman.
“The jury is instructed,” repeated Stone, “that out-of-court statements by one of the St. Pierres are not to be considered by you as evidence against the other St. Pierre. Now, take the morning recess.”
When court reconvened, Detective Yerbury y began his testimony. Early in the prosecution questioning, Hultman asked Yerbury to read aloud from the signed statement given by Christopher St. Pierre on the day of his arrest.
“I would ask you then,” said Hultman, “beginning about the third paragraph of that statement, to tell us what Christopher St. Pierre told you about what had occurred with Damon Wells at the house.”
“I object,” Murdach proposed. “I would like to be outside the presence of the jury.” The jurors were again shuffled off to their anteroom while Hultman and Murdach wrestled over law and application. The essence of the disagreement was as follows: The prosecution wanted Yerbury to read selected portions of Christopher St. Pierre’s statement. Paul St. Pierre’s defense attorney did not want Yerbury to read any portion of the statement because it would contain remarks “out of the mouth of Christopher St. Pierre” concerning alleged illegal conduct by Paul St. Pierre.
“There is no way I can cross-examine Mr. St. Pierre, and no way I can call him to the stand for the purpose of cross-examination,” objected Murdach. “The court should not use any portion of Chris St. Pierre’s statement that refers to anything of which Paul St. Pierre is accused. We will have the same problem with Paul St. Pierre’s statements if he made statements about Christopher St. Pierre.”
“I agree,” said John Ladenburg, “we will have the same problem with the confession of Paul St. Pierre.” The lawyers had previously tossed around the idea of editing the various statements—a troublesome and complex task—and Stone agreed to at least consider the idea. “The court indicated we would have some period of talking about edits and excisions,” Ladenburg reminded the court, “and we might as well do it now. We might as well settle it all at once.”
Hultman had already marked where he wanted Yerbury to start reading, and where he wanted him to stop. Murdach and Ladenburg did not want Yerbury to read anything at all; the prosecution completely disagreed. “The state’s position is that Christopher St. Pierre doesn’t say anything about Paul that Paul doesn’t admit by himself, and Paul says very little about Chris, and certainly Chris does not admit about himself. It’s the intention of the state that both statements will be testified to by Detective Yerbury, so there is no unbalance created by only one statement coming in.”
“The fact here,” Murdach said in opposition, “is that Mr. Paul St. Pierre’s statement is of questionable ground. I realize that in a previous hearing, the court allowed the statement to be introduced as evidence. However, when I say the statement is of questionable ground, I’m referring to Paul St. Pierre’s statement to the police being given in defiance of an order by Judge Healy. If the appellate court holds Mr. Paul St. Pierre’s statement in error, we would then have a statement that is improperly introduced. I think to proceed cautiously in this matter would be better than to leap into possible theory issues on appeal.”
“The suggestion was made by Mr. Murdach,” Stone later commented, “that this judge should make rulings in anticipation of what the appellate court might do. I think that is the wrong approach. The appellate court regularly says that they won’t rule until the trial court rules—‘You do your thinking in the trial court, conduct the trial, and then we will make a ruling and see if the trial judge did it right’—this judge has to go first.”
“The court,” Murdach argued, “instructed the jury that a statement by one St. Pierre cannot be taken as evidence against the other St. Pierre. One juror asked the court to repeat that remark, and I observed her writing that down. If the jury f
ollows that court instruction, they’re not even going to consider Christopher St. Pierre’s statement against Paul St. Pierre, so why admit it, and why not delete it, and why not void any reference to it?”
When Carl Hultman insisted that there was no possibility of prejudice against the defendants if the statements, even judiciously edited, were admitted as evidence, Murdach instantly disagreed. “What greater prejudice could there be,” asked the defense counsel, “than not to be able to cross-examine the person who makes a statement against you? For the judge to allow the statement in, and at the same time tell the jury that it has a duty to disregard it, what’s the point? Why put it in?”
“For the record,” said Judge Stone, “the court has previously ruled and made comments on the taking of the statement by Paul St. Pierre which was, at least on the surface, in direct violation of a judge’s order. I see no reason to rehash that. I already made a ruling on it. Certainly counsel has hit a subject close to the judge’s heart when he said we should be cautious. We should be cautious in each of our rulings. The judge is reminded that there are not risk-free rulings. In this case, every ruling I make has risk. There is a great likelihood of appeal in this case.”
Mutual agreement and cooperative like-mindedness were not characteristics attributed to the trio of trial attorneys gathered in Judge Stone’s courtroom. For this reason alone, although other justifications were available, Judge Stone declined any editing process.
“I find that the hazard of editing a statement where anyone can second-guess the judge—‘You should take this out and should take that out’—and the hazard of editing is just as great, or perhaps greater today, than the specter of appellate review. The court will decline to edit other than the starting and stopping point. We start and stop, but the ruling the court has to make now,” concluded Judge Stone. “I decline to edit the statement of Christopher Leo St. Pierre.”