Motion to Suppress

by Perri O'shaughnessy

26

  "AS YOU HAVE heard, I’m Collier Hallowell. I’ve been with the office of the District Attorney of the County of El Dorado for more years than you want to know. Before we start, I just want to thank you myself for the important work you are about to undertake.

  "It won’t be easy. At times you will feel very frustrated with having to sit and listen, and not ask questions yourselves. At times I or perhaps Ms. Reilly will neglect to cover some point with a witness that you feel you need to hear. It’s also hard to take several weeks out of your life for this trial. Believe me, I appreciate how difficult it can be. But with all the difficulties, I know you will carry out your responsibility conscientiously.’’

  Hallowell paused, while several of the jurors nodded encouragingly.

  "Sometimes people feel confused in a criminal case about who the prosecution represents. We like to think we represent the victim."

  "Objection," Nina said. "Improper argument." Hallowell was supposed to be telling the jury about the evidence he intended to present.

  "Overruled."

  Ignoring the interruption, Hallowell went on, "Technically, we represent the People of the State of California. It is the People who are bringing this case to you for trial—"

  A jet roared overhead, drowning him out. He smiled slightly, not missing a beat, and continued.

  "And it is my duty to present evidence that will prove to you, beyond a reasonable doubt, that Michelle Tengstedt Patterson murdered her husband, Anthony Patterson, on the night of April twenty-sixth and the morning of April twenty-seventh of this year.

  "We will show you why and how she committed that crime. We will take you every step of the way through the investigation carried out by the authorities. And we will, I believe, convince you beyond a reasonable doubt that this is a case of premeditated murder, not a crime of passion, not self-defense, not a crime with any mitigating circumstance.

  "You will hear how Michelle Patterson, a cocktail waitress at Prize’s, known in this town as Misty, struck her husband with a large, heavy object during an argument. He was wounded, he was bleeding. She laid him down on a couch in their living room.

  "You will hear testimony that Misty Patterson then dragged her husband to their neighbor’s boat and drove out into the night. At some time, she struck him again. But he still did not die. So she threw him overboard, into Lake Tahoe, still alive, and she finally accomplished her purpose.

  "But in her haste to kill her husband and hide his body forever, she made a mistake. We will show you that the boat ran out of gas about half a mile from shore, where the depth was only thirty-five feet. And we will show you that she was forced to abandon the boat and swim ashore, leaving it to mark the spot where she had dumped the body of her husband. A cold night, ladies and gentlemen, and a cold-blooded act of murder."

  "Objection!" Nina said, standing. "Beyond the scope of an opening statement."

  "Approach the bench, Counsel," Milne said.

  The lawyers walked up to the sidebar, where Milne could lean down and whisper off the record.

  "Sorry, Judge. I got a little carried away," Hallowell said.

  "You never get carried away. Cool it," Milne said.

  As Nina returned to her seat, she saw some of the jurors looking curiously at Michelle in her big white blouse with the soft bow. She knew they were registering the cold fact of a dead husband. Although they knew Hallowell’s statement was not part of the evidence, they were taking it in along with the flood of facts that would come next, as the lawyer for the prosecution knew they would.

  "At this point my job is to try to give you an overview of the evidence that we are about to produce, a kind of road map. That way you’ll be able to see where I’m going even if the questioning gets confusing." The jury’s little helper, Nina thought.

  Hallowell began to summarize the expected testimony of each prosecution witness. He used plain, direct language, staying in his role of helper, never lecturer.

  Hallowell did not refer to the tape. He could not anticipate the defense, and would be able to bring it in during rebuttal only if the defense put in evidence that Michelle’s mental state on April 26 had direct bearing on the case.

  "I trust you will do the right thing," he said. "Thank you very much."

  Smiles of approval. Good, honest man, that lawyer. Works for the County, doesn’t make much money. Looks like he’s worn out with too many cases, better make allowances if he makes any mistakes. Now here comes the defense lawyer, youngish woman, hair kind of shaggy, no wedding ring, nice suit, private attorney—so big bucks, wants to be called Ms., her client has a lot to lose, defense is going to be looser in the ethics department, the Misty girl probably got pregnant for sympathy. Well, don’t expect any favors from here....

  "Anthony Patterson," Nina began. The jurors waited, polite but skeptical. "A man who made enemies. A man who cheated his employer, took revenge when he felt slighted, abused his wife physically and emotionally. An ex-cop with grudges so deep they poisoned his entire life. And, on an early Friday morning in April, his life was taken, but not by the young woman who sits here today, knowing her life is in your hands."

  "Counsel," Milne warned, letting her off easy because she hadn’t added the tempting but implied: "and her baby’s."

  "Let me tell you what you won’t hear in this case. You won’t hear any evidence placing Mrs. Patterson on that boat. You won’t be shown evidence that she went outside at all after she returned home. You won’t see any witness testifying that she dragged her husband, who weighed about two hundred and twenty pounds, several hundred feet through the snow, loaded him into a boat, struck him a second time, dumped him overboard, and swam back half a mile in freezing-cold water at night."

  A few glances at Michelle. Good. She looked small, frightened, and handicapped today, nothing like the requisite amazon.

  "Apparently somebody did those things, somebody who came to the house after Mrs. Patterson had gone to sleep, to find Anthony Patterson on his couch in the living room. An hour earlier he had argued with his wife. He had been drinking. He had left bruises on her. And at last, to keep him away, you will indeed hear that she struck him one time, which she freely admits—one time, ladies and gentlemen, at least an hour before his death. Dr. Clauson will tell you that the first strike did no serious harm.

  "During this trial you will get to know the defendant, Michelle Patterson. You will learn that Michelle is a well-liked employee who came to Tahoe with all the hopes and dreams of any young new bride, some three years ago. You will learn that she has never before been accused of any criminal or violent act.

  "You will also hear from Dr. Greenspan and Dr. Cervenka that Michelle had entered therapy because she wanted to understand why she couldn’t remember her childhood. She suffers from a type of amnesia. You will hear that while she was seeing Dr. Greenspan, her husband died. And this will help you understand why she told the police that she could not remember what occurred after she struck her husband that one time, except that she woke up in bed. I know you will pay careful attention to Dr. Cervenka’s testimony in this regard."

  A juror in the back row—Bill Whittaker—stopped just short of rolling his eyes. Nina forged on.

  "You will also meet some of the other people in Anthony Patterson’s life. You will discover that the police haven’t asked any of them what they were doing that night. The police are as eager as the prosecution to accept pat answers. The police are busy and, like the prosecution, would like to wrap up this case."

  "Your Honor, I hate to interrupt Counsel’s statement with an objection, but—"

  "Approach," Milne said.

  When they stood at the sidebar, Milne said in a low voice to Nina, "That’s improper argument, and you know it’s improper. Cut the crap. I mean it."

  She turned back to the jury, who responded to Milne’s tone with some glances at each other, some small smiles.

  "You will hear of several reasons other people had for wanting Mr. Patterson to go away. A
nd, as the judge will tell you in his closing instructions to you, it is not the burden of the defense to prove to you another person killed Mr. Patterson. All that is required for you to acquit Mrs. Patterson of this charge is for us to raise in your minds a reasonable doubt as to whether someone else was involved." Hallowell started to stand up, but to her relief sat down again. She had misstated the law slightly to suit her purposes.

  "I believe that upon hearing all the evidence you will find that the prosecution has failed to carry its burden. You’ve all heard it, and I know you’ll remember it: Michelle Patterson is innocent until proven guilty."

  Nina gave the jurors a friendly nod and returned to her seat. Paul drew a happy face on the legal pad, and Michelle smiled at her. Milne announced a break for lunch.

  Then she eyed the jury for a reaction, but none of them returned her look.

  They stood up, collecting their jackets, eager to get out and make calls, hit the bathroom, and gulp down a Coke and hamburger.

  "Call your first witness," Milne said at one-thirty.

  "Officer Robert Tomlinson," Hallowell said.

  Officer Tomlinson was sworn, spelled his name, and adjusted himself comfortably in the witness chair.

  "You are a police officer for the South Lake Tahoe Police Department?"

  "Yes, sir."

  "On April thirtieth, a Monday morning, were you on duty at the main office, located right across the street from this courthouse?"

  "That’s right, on desk duty."

  "Did you at some point that morning take a missing property report from a man named Rick Eich?"

  "Yes, about eight A.M."

  "And is this the report?" Tomlinson looked over People’s Exhibit 1.

  "That’s it."

  "Mr. Eich signed it?"

  "Then and there."

  "Request the report be admitted into evidence."

  "No objection," Nina said.

  "What did Mr. Eich say had been stolen?"

  "Objection. Hearsay."

  "Sustained."

  "Did you note in your report the object that was supposed to have been stolen?"

  "Objection. Lack of foundation. Best-evidence rule."

  "Sustained on both grounds."

  Hallowell looked a little surprised. "Your witness," he said, marching back to his side of the room.

  Without getting up from her table, Nina asked her first question. "Officer, didn’t you go out to Mr. Eich’s home to take the report?"

  "No."

  "Directing your attention to People’s 1, do you see on line thirty a statement regarding where you took the report?"

  "It says I was dispatched and prepared the report."

  "Does that change your testimony?"

  "Guess that’s right, then. I do seem to remember being there."

  "Do you remember going out on the dock behind Mr. Eich’s house?"

  "Now you say it, I do."

  "You might recall snow on the ground?"

  "Yes, there was some. It was slippery out there."

  "When you checked the area for footprints, what did you find?"

  "I didn’t."

  "You didn’t? Why not?"

  "Well, Mr. Eich said he’d been gone a week. I didn’t expect to see any footprints. Besides, they’re of very limited value in an investigation, what with snow melt and all. You don’t get a definite impression like, say, with mud."

  Nina gave the court a moment to digest the weak excuse.

  "You did check the mooring lines?"

  "Yes, they were thrown down at the edge like you’d expect." He looked relieved.

  "Did you notice if any were cut?"

  Officer Tomlinson propped his fingers against his forehead and closed his eyes. "I don’t recollect."

  "Did you in fact perform any investigation?"

  "Listen, I was just there to take the report," Tomlinson said. "I got the numbers on the boat and I got the right people looking, and they found it quick enough."

  "The right people?" she asked, with another pause. "And who were the right people?"

  "The Coast Guard’s in charge of Lake Tahoe. Interstate passageway."

  "Call Rick Eich." Hallowell examined a paper on the table and moved back toward center court.

  Rick Eich strolled up, natty in a light brown sport jacket.

  "Where did you reside in April, Mr. Eich?"

  "Two twenty-four Tahoe Vista Lane. In the Tahoe Keys."

  "And did you know your neighbors at number 226 Tahoe Vista Lane?"

  "Uh-huh. Anthony and Misty."

  "Patterson?"

  "Correct."

  "For the benefit of any jurors who are not familiar with the Keys area, will you describe it?"

  "Most of the houses down there back onto little canals. Like Venice, maybe, minus the filthy water. They’ve got small docks. Almost everyone living there has a boat of some kind."

  "Did you own a boat at that time?"

  "Oh, a beauty. Had her for a couple of years. A Catalina, sailboat, twenty-two-footer."

  "Is a boat that size tough for a single man to handle?"

  "For sailing, it’s better to have two on the boat. But I can rig the sails alone. Just got to know how."

  "In April did your boat have any other source of power?"

  "A small motor."

  "So you could go out on the lake without using the sails?"

  "If you wanted. I mainly use motor power to control the boat in and out of the Keys area, where you got to go slow to avoid the traffic. Of course, you get out on the lake on some days, the wind’s unholy. Then the motor comes in handy."

  "The week you were in Hawaii, was the boat to your knowledge equipped with a dinghy or other type of life-boat?"

  Eich laughed. "That would take up half the space on board. I used to have an inflatable. Now I just go with jackets. You capsize, you hang on or swim for it. Take your pick."

  "Prior to April, had either Mr. or Mrs. Patterson gone out in the boat?"

  "Several times with me, and a couple times without me."

  "Both of them?"

  "Correct."

  "And how did they come to go out on the boat without you?"

  "Well, Anthony would ask to borrow it. I had insurance, and he knew how to work the motor."

  "What about Mrs. Patterson? Did she know how to take the boat out?"

  "I guess. I never saw her at the rudder without Anthony standing there, telling her where to go and so on."

  "But you did observe her steering the boat?"

  "Yes."

  "More than once?"

  "Yes."

  "Now, sometime in April, Mr. Eich, did you go out of town?"

  "Yes. The last week of April, I went to Hawaii to do some windsurfing. Oahu."

  "Where was your boat at the time?"

  "Well, I covered it good, and the forecast said calm weather ahead, so I left it out on the dock behind my house." He added, "Anthony had asked to borrow it."

  "And how did that come about?"

  "Well, actually, Misty came over and asked me while I was packing."

  "Mrs. Patterson asked to borrow the boat? Why did you say Anthony wanted to borrow it?"

  "He sent her to ask."

  "How do you know that?"

  "It was the way they were together. You know. Anthony made the decisions. She wouldn’t borrow that boat on her own."

  "But you didn’t really know, did you?"

  "Objection. Argumentative."

  "Overruled."

  "She didn’t specifically say one way or the other, if that’s what you mean." Eich put his hands together in a small clap.

  "Can you say from your own personal knowledge that Anthony even knew his wife had come over and asked to borrow the boat?"

  "Of course he knew!" Michelle whispered to Nina at the counsel table. Nina nodded.

  "I guess not," Eich said. "But—"

  "How did you arrange for Mrs. Patterson to get the keys?"

  "I gave her
the key. There’s only the one."

  "Did you get it back?"

  "The Coast Guard gave it back when they found the boat."

  "And they found it where? On the boat or at the house next door?"

  "Objection. Calls for speculation," Nina said quickly.

  "Do you know where they found it? Don’t make any assumptions," Milne said.

  "No." Eich said.

  "Objection sustained."

  "So, when you returned from your trip on Sunday, April twenty-ninth, your boat was not tied to the dock in the usual way?"

  "No."

  "When did you notice?"

  "Oh, right away. I went straight down to the dock. I love her, you know? Wanted to see how she fared."

  "What did you do when you couldn’t find your boat?"

  "First I went next door—"

  "To the Patterson residence?

  "I figured Anthony and Misty must know something, but the place was deserted. Nobody home. Now, one thing is, when they went out in the boat, they always took the life jackets stored on the dock. When I went back again, I found the jackets. That freaked me. So when I still hadn’t seen them by early the next morning, I called the cops."

  "Officer Tomlinson came and took a report?"

  "Yes. I never said the boat was stolen, only that it was missing. He just nodded his head and said somebody would be out looking and I said, hey, man, call the Coast Guard, you know?"

  "Did you at some point ask the Coast Guard to search for your boat out on the lake?"

  "Yeah, sometime later. Somebody needed me to say it again. I could just picture somebody lying out there injured on my boat. That would mean flak for me, you know?"

  "Did you then, or do you now, have any objection to the search made of your boat by the Coast Guard on April thirtieth?"

  "No, that was fine. They found her for me; I owed them. Wasn’t even too excited when they found blood."

  "Objection, Request that the last line be stricken. Hearsay."

  "Sustained."

  "Thank you, Mr. Eich. Nothing further," said Hallowell pleasantly.

  Nina had watched Hallowell’s show with one eye on the jury. The prosecution went first. In effect, the prosecution attempted to give the jury a road map with just one road, the road to a guilty verdict. Hallowell had surprised her in his opening statement with that hackneyed metaphor, but Nina appreciated its simple virtue. For Hallowell’s true purposes, a railroad track would have said it even better.