“No. She was with…” Hamish’s voice cracked and he paused for a moment before he said, “I assumed she was with her friends.”
“I see. What did you do next?”
“I went to the back lot, got in my truck, and drove home.”
“How far of a drive is that?”
“Thirty, forty minutes depending on traffic.”
“Hamish, did you receive any phone calls on the way home?”
Hamish nodded.
“You need to answer out loud, Hamish,” said T. Marvin Stritch.
Hamish’s voice cracked again. “Yes, I did.”
“When was the first call?”
“Right after I left. I was just”—he stopped and cleared his throat—“I was just pulling out of the parking lot.”
“And who was that call from?”
“Abby.”
“And did you talk to Abby?”
Hamish shook his head.
“Hamish.”
“I didn't.”
“Why?”
“I was still mad. So I declined the call.”
“I see. So how do you know it was Abby who called you?”
“She left me a voicemail.”
“Was it this voicemail?”
T. Marvin Stritch went to his computer, clicked the button, and Abby's voice came out of the speaker loud enough for all of us to hear:
“Baby, you're right, let's not let this wreck the concert tonight. We can talk about it tomorrow. I’m meeting Bonnie and the girls at HopHeads, but call me anyway. I love you. I’m right and you’re a horse’s ass. But I love you. Bye.”
Hamish looked at the floor while it played.
“Is that a true and accurate copy of the voicemail message you received from Abby Ackerman the night of the concert?”
Hamish nodded, then raised his hand and said, “Yes.”
“Did you call her back?”
“No.”
“Why not?”
Hamish looked at the gallery and then said, “Because I was still mad.”
“You said you received two calls on the way home. When was the second one?”
“Just a few minutes later.”
“And who was that call from?”
“From my brother, the defendant, Archie Mack.”
“And did you take that call?”
“Yes.”
“Why?”
“Because it was unusual for Archie to call me, especially that late at night. I was worried that something might be wrong with Mom and Dad.”
“And what did Archie want?”
“He wanted to yell at me too.”
“About what?”
“About the concert.”
“What about the concert?”
“Turns out Archie had gone to the concert too.”
“How is that a problem?”
“Going to the concert wasn’t the problem. Who I went with was.”
“Will Wellington?”
“Yes.”
“Why was that a problem?”
“Because Wellington had made us an offer to put an oil well on our land a few years back and we'd turned him down.”
“So how is that a problem?”
“Archie assumed I was trying to get things going again on my own.”
“What happened next?”
“We exchanged words.”
“Do you remember what those words were?”
“Not exactly.”
“What do you remember?”
“I remember telling him to get off my a”—he looked at the judge—“off my butt and that I had talked about it enough with Abby as it was.”
“And what was his reaction to that?”
Hamish glared at Archie before he looked at T. Marvin Stritch and said, “My brother said, ‘You mean that Abby was in on this too?’”
Stritch looked at the jury before he said, “Were those his exact words?”
“Yes. That I remember completely.”
“Why?”
“Because then he hung up on me and that had to have been right about the time—”
I stood. “Objection. The witness’s answer is not responsive and speculative.”
“Sustained,” said Judge Wesley. “The witness will answer the question asked without giving additional opinions.”
Hamish nodded.
“Did you hear from Archie or Abby anymore that evening?” said Stritch.
“I did not.”
“Weren’t you worried that you didn't hear from Abby?”
“No, I thought…I thought that she was with her friends. And I figured she was waiting for me to call first.”
“When did you learn that wasn't the case?”
“When I received a call from Mission Hospital the next morning.”
“How did they know to notify you?”
“We had both made each other our emergency contacts a year ago, so that we wouldn't worry our parents.”
“I see. How was Abby’s condition?”
“It was touch and go for a few days.”
“What do you mean?”
“She had pretty serious injuries to her hip, her face. She had a few operations. She was in and out of consciousness.”
“Did you talk to Abby about what had happened?”
“All the time.”
“What was she able to tell you about what happened?”
I stood. “Objection, Your Honor. Hearsay.”
“Sustained.”
“Hamish, does your brother have a temper?”
I stood. “Objection.”
“Sustained.”
“Hamish, have you and your brother ever gotten into a fist fight?”
I stayed standing. “Objection. Relevance.”
“Sustained.”
“Have you ever seen your brother act violently?”
“Objection. Your Honor?”
Judge Wesley stared at T. Marvin Stritch. “Mr. Stritch, we've had this discussion. Questions regarding general disposition and past incidents are not admissible in this proceeding.”
Stritch made a show of looking at the ceiling and pretending to think. We both knew exactly what he was going to ask.
“Hamish, did you fight with Archie in the hospital outside of Abby’s room?”
I sat.
“I did,” said Hamish.
“Who started it?”
“I did.”
“Why?”
“Because he attacked Abby.”
I stood. “Objection, move to strike, Your Honor. The witness can’t testify that is true.”
“Sustained.”
Stritch raised his hand. “Hamish, would it be more accurate to say you started a fight in the hospital outside Abby’s room because you believed he had attacked Abby?”
“Yes.”
Stritch nodded. “Hamish, you said that in some ways it was not difficult to testify today. Do you remember that?”
Hamish scowled at Archie. “I do.”
“Is it hard to testify against your brother?”
“No.”
“Why? He’s your brother.”
“Because he was so angry, so angry at me. All I did was go to a concert, but he was furious and then when I mentioned Abby, well, you just had to have heard him.”
“But he’s your brother.”
Hamish stared. “I’m sure he thinks he loves me. But he loves that farm more.”
Stritch nodded and walked toward his table. When he got there, he turned and said, “Hamish, did you plant corn this season?”
Hamish cocked his head. “No. It was my turn to rotate that off my land. My parents and Archie planted it this year.”
Stritch nodded. “I have no further questions at this time, Your Honor.”
I stood. “So you were the guest of Will Wellington at the concert?”
“I was.”
“The jury might not understand what Mr. Wellington does. Mr. Wellington is a representative for Hillside Oil & Gas, isn’t he?�
��
Hamish nodded. “He is.”
“And some years ago, he made an offer to your family to put an oil well on your farm, didn't he?”
“He did.”
“Your family turned it down, didn't they?”
“We did.”
“To be more accurate, your mother and father turned it down, right?”
“We all did.”
“I know you say that, but your mom and dad make the final decisions about farming operations on your land, don’t they?”
“We work together.”
“I’m sure you do. But if you disagree, what they say goes, right?”
“That doesn’t happen.”
“But if it does, they win, don’t they?”
Hamish stared. “They have the final say. But it’s always unanimous.”
“So the jury understands, your mom and dad split pieces of the farm for you and your brother so you could start farming your own land before they died, right?”
“That’s right.”
“They essentially gave you the land but kept control of the farming operations, true?”
“That's true.”
“So about five years ago, your parents decided that they wanted to switch to organic farming, right?”
“We all did.”
“That can be a lengthy transition process?”
“It takes about three years.”
“And it was during that process that Will Wellington and Hillside Oil offered your parents the oil lease, right?”
“That's true. We turned them down though.”
“Again, it was your parents who turned them down, right?”
Hamish nodded. “They thought it didn't fit with their image of an organic farm.”
“You say ‘they’ thought that. Did you disagree?”
“No. It made sense.”
“So when you went to the Big Luke concert with Will Wellington, what did you have to talk about?
Hamish tilted his head. “What do you mean?”
“I mean you had already decided that there wasn’t going to be an oil well on your family's land. That's what the family decided, right?”
“Right.”
“So why would you talk to Wellington about it?”
Hamish shrugged. “Listening isn’t talking.”
“And did you listen the night of the Big Luke concert?”
“Of course.” Hamish smiled. “Big Luke is great.”
I decided to leave that for the moment. “You testified that you fought with Abby the night of her attack, right?”
He scowled. “We argued.”
“You argued enough that you left her there at the Quarry, right?”
“I didn't leave her there. She didn't come with me.”
“You were angry, weren’t you?”
“I sure was. I didn't think I deserved to be yelled at.”
“You fought with her right by the stairs, didn't you?”
“We were not by the stairs.”
“You were in the back section of the Quarry, weren't you?”
“We were. On the way to the back lot.”
“Outside the view of the cameras, right?”
“I don't know what the cameras saw.”
“But there’s no question that you fought with her in the back of the Quarry outside the view of the cameras.”
“I already told you that I argued with her and that I don't know what the cameras saw.”
“But you say she called you after you left, right?”
“I don't say that, the voice message does.”
“And you said it was sometime after that that Archie called you?”
“That's what my phone says.”
“And Archie was mad at you?”
“He was.”
“Because you were going behind your family’s back to try to make a deal with Wellington for an oil lease?”
Hamish glared. “Because he thought I was talking to Wellington about an oil lease. Which I was not.”
“Right, right, I remember, you were listening about an oil lease. Very different.” I paused. “So what’s the point of even listening to Wellington about an oil lease if your parents have control of the farming operations?”
Hamish smiled. “That's exactly the point I was making to Archie on the phone. There was no harm in it at all because our parents control the farming.”
I paused for a moment. I didn’t even have to look at the jury to know I was losing them with this Wellington business. I could feel it. It was time to hit them with some basics.
“Hamish, you never saw Abby with your brother that night at the Big Luke concert, did you?”
“I did not.”
“When Abby left you the phone message, you didn't hear Archie in the background, did you?”
“I did not.”
“Abby didn't say anything to indicate that she saw Archie, did she?”
“No.”
“When you talked on the phone with Archie, he didn't say anything to indicate to you that he saw Abby that night, did he?”
“He did not.”
“You didn't hear Abby in the background in Archie's phone, did you?”
“No. But it doesn't matter.”
“What do you mean it doesn't matter?”
“I’m sure you can do one of those track my phone things and show that they were in the same place at the same time.”
Alarm bells. “Have you done that?”
“I haven't but I think Mr.—I haven't, no.”
Stritch continued to write notes on his legal pad as if he had no idea what Hamish was talking about.
“Who has told you they have?”
“Do I have to answer that?” Hamish said to the Judge.
“You do now,” said Judge Wesley.
“I think Mr. Stritch has. I think it shows…”
I raised a hand. “I didn’t ask you what it shows, Hamish. I asked who told you they’d done it and you answered Mr. Stritch. You, personally, you didn't see or hear anything to indicate Archie and Abby were ever in the same place at the same time that night, did you?”
Hamish thought.
“With your own eyes or ears?”
“No, I didn’t.”
“From your perspective Hamish, Archie and Abby got along, didn’t they?”
“I used to think so.”
“There was no indication of any friction between them, was there?”
“Not until that evening, no.”
“Hamish, would you defer to Abby if she says there’s no friction between her and Archie?”
“No.”
“Why not?”
“Because she doesn’t know who attacked her.”
“No, she doesn’t, does she?”
“No.”
“She doesn’t say it was Archie, does she?”
Stritch stood. “Objection. Hearsay.”
“Sustained.”
“Abby doesn't own any part of Mack Farms, does she, Hamish?”
“No, she doesn't.”
“So any dispute Archie had about the management of Mack farm wouldn’t be with Abby, would it?”
“I don't know who he would feel his dispute was with.”
“Well, a dispute about Mack Farms would have to be with the people who own Mack Farms, wouldn't it?”
Hamish shrugged. “You would think.”
“When you talked to Archie on the phone, he was mad at you, wasn't he?”
“It sure seemed like it.”
“Because he felt that you were going behind the family's back to make a deal with Will Wellington, right?”
“I don't know that.”
“Well, that's what he said, wasn't it?”
“It was. But Archie says a lot of things.”
Sometimes examinations go right and other times you can feel them spin off into a place where you're doing more harm than good. I had made the points I was going to make with Hamish and now I was just arguing with him and, worse, I wa
s boring the jury. What I had on him with Wellington, he’d just deny; I’d have to establish it with the oilman. I decided to lay a little more groundwork and get out.
“Hamish, your brother was helping you fix drainage tiles on the farm earlier on the day of the concert, wasn't he?”
“He was.”
“Archie cut his hand that day removing some of the old tile with you, didn’t he?”
“He did.”
“We’re going to hear more evidence on this, Hamish. Is it your testimony to this jury that you weren't entering into a deal behind your parents back for an oil well on your part of the farm?”
Hamish shook his head. “I was just going to the concert, Mr. Shepherd.”
“Thank you, Mr. Mack.”
I was pretty sure that didn’t go well.
Then T. Marvin Stritch stood up and said, “No further questions, Your Honor.”
Judge Wesley nodded. “You may step down, Mr. Mack.” As he walked by our table, Hamish Mack glared at Archie, smirked at me, and left. Then Judge Wesley dismissed us for lunch.
I told Danny to take Archie to find some lunch. I grabbed my paper bag and my trial book and went to find a quiet corner.
I had to do a lot better with Sheriff Dushane this afternoon or we were in big trouble.
37
When we returned to the courtroom after lunch, Judge Wesley seated the jury and T. Marvin Stritch called Sheriff Warren Dushane to the stand. Sheriff Dushane ambled up from the gallery in an easy way that made it clear he was comfortable with the courtroom and himself. He set his brown, wide-brimmed hat on the rail of the witness stand and casually shifted his holster so that it wasn’t pushing down on to the seat of his chair, then gave T. Marvin Stritch a slight nod to show that he was ready.
“Could you state your name please, sir?”
“I’m Sheriff Warren Dushane.”
“You are the sheriff of Ash County?”
“I am.”
“And have you been doing that long?”
Sheriff Dushane gave a slight smile. “Decades.”
“Sheriff Dushane, in that capacity, do you have experience investigating murders?”
“I do.”
“Assaults?”
“Yes.”
“Have you investigated cases in which someone tried to kill someone and failed?”
“I have.”
“And so do you have experience in determining whether someone has attempted to commit murder?”
I stood. “Objection, Your Honor. Extrinsic evidence, facts not in evidence, other acts, unfairly prejudicial.”
Judge Wesley looked at me, let things percolate for a moment, then said, “Sustained. Counsel will limit himself to the facts of this case.”
Blind Conviction (Nate Shepherd Legal Thriller Series Book 3) Page 21