“Yes.”
“Including the question of whether he said any words containing the letter ‘M’?”
“Yes. It’s also possible that Mr. Tho was a professional ventriloquist, in which case he would have had special training to say many words without moving his lips or mouth. In such circumstances, I wouldn’t have been able to read his lips.”
Erickson had the good judgment to leave it there. “No further questions, Your Honor.”
Judge McDaniel looked at her watch. “I think we have time for one more witness this afternoon, Ms. Fernandez.”
“The defense calls Brian Holton.”
The Lion of the Loin was going to get his moment in the sun.
55
“HE WANTED TO SEND A MESSAGE”
The Lion of the Loin unbuttoned the jacket of the double-breasted suit that he had chosen from the donated clothing closet at the P.D.’s Office. I had lobbied for something more subdued, but he had insisted on a flashier look with pinstripes and wide lapels. He spoke in a measured tone. “My name is Brian Holton.”
Rolanda stood in front of the witness box. “What is your occupation?”
“I’m retired.”
Don’t get cute.
Cleanly shaved with a fresh haircut, Holton looked more like a mid-level government bureaucrat than a homeless guy. He was also reasonably well rested. We had rented him a room at the Holiday Inn on Tenth Street near City Hall, where we had assigned one of Pete’s operatives to babysit him. Holton had tried to escape only once. The shopping cart with his belongings was parked safely inside Pete’s garage in Marin. We had also provided him with ten crisp twenty-dollar bills. He would receive an additional installment at the end of his testimony if he followed Rolanda’s lead.
Rolanda was all business. “Were you standing outside Alcatraz Liquors at ten-forty-seven p.m. on the evening of December fourteenth of last year?”
“Yes.”
“Did you see a man named Duc Tho enter the store?”
“Yes.”
“Had you ever seen him before?”
“A couple of times.”
“Had you ever seen him carry a weapon?”
“No.”
“Was he carrying a weapon that night?”
“I didn’t see a gun.”
Rolanda nodded with satisfaction. “Mr. Holton, what happened when he went inside?”
“He turned to face the counter. Then he was shot.”
“Did you see who shot him?”
“No.”
“Did Mr. Tho draw a gun?”
“Not that I saw.”
“Did he say anything when he went inside the store?”
“Not that I heard.”
So far, so good.
“Mr. Holton, are you acquainted with Mr. Ortega Cruz?”
“Yes. He’s the owner of Alcatraz Liquors.”
“Do you know him well?”
“Pretty well. He used to pay me a little cash to keep the troublemakers away from his store.”
“Does he still pay you to watch his store?”
“No.”
“Do you know that he keeps a gun under the counter by the cash register?”
“Yes. He’s shown it to me.”
“How many times?”
“Several.”
“Once? Twice? Three times?”
“I’d say at least a dozen times.”
“Why did he show it to you so many times?”
“Objection,” Erickson said. “Speculation.”
“Sustained.”
Rolanda smiled. “I’ll rephrase. Mr. Holton, did Mr. Cruz ever tell you why he showed you his weapon?”
“Objection. Hearsay.”
“Overruled.”
Holton sat up taller. “He said he wanted to send a message to the people in the neighborhood that he had a gun and he wasn’t afraid to use it.”
“Did you ever see him pull out the gun and threaten other people?”
“Several times.”
“Anyone in particular?”
“He had a lot of trouble with the Vietnamese gangs.”
“Did you ever see lose his temper?”
“Many times.”
“What did he do when he lost his temper?”
“He yelled.”
“No further questions.”
Erickson walked to the front of the witness box. “Mr. Holton, you said that Mr. Cruz showed you his weapon on several occasions, right?”
“Right.”
“Did he ever threaten to shoot you?”
“No.”
“Did you ever see him shoot anybody else?”
“No.”
“So, it’s possible that he may have been joking, right?”
“Objection,” Rolanda said. “Calls for speculation.”
“Sustained.”
“And it’s also possible that Mr. Cruz may have been showing off or simply blowing off steam, right?”
“Objection. Speculation.”
“Sustained.”
“Mr. Holton, where do you live?”
“In the Tenderloin.”
“Where?”
“Here and there.”
“You live on the street, don’t you?”
“Yes.”
“Who provided you with the suit that you’re wearing today?”
“Mr. Daley.”
“Who paid for your haircut?”
“Mr. Daley.”
“Did Mr. Daley pay for you to stay in a hotel last night?”
“Yes.”
“I’ll bet that you’re very appreciative.”
“I am.”
“Are you so appreciative that you’d say anything that Mr. Daley asked you to say?”
“Objection. Relevance.”
“Overruled.”
The Lion folded his arms. “No, Mr. Erickson. When you live on the street, you get by on your wits and your reputation. If you’re an idiot or a liar, you’ll be dead within weeks. I won’t lie for anybody—even if they give me a suit or pay for a haircut or put me up at the Holiday Inn. At the end of the day, it just isn’t worth it.”
Erickson stood there for a moment, flustered. “No further questions, Your Honor.”
“Redirect, Ms. Fernandez?”
“No, Your Honor.”
Sometimes you get a little help from unexpected sources.
“Please call your next witness, Ms. Fernandez.”
“The defense calls Ortega Cruz.”
56
“I SHOT HIM IN SELF-DEFENSE”
“I trust that I don’t need to remind you that you’re still under oath?” I said.
A confident Ortega Cruz sat ramrod straight in the witness box. “No, Mr. Daley.”
Rolanda and I had agreed that I would handle Cruz’s direct exam. She was building a nice rapport with the jury, and I wanted her to do our closing argument. This was likely to get chippy, so I was taking the role of the bad cop.
The gallery had a few more spectators than earlier in the day. Edwards was parked in his usual spot behind the prosecution. Rosie was sitting in the back on the defense side. Melinda was behind the defense table. Nick “the Dick” Hanson was making an unexpected cameo. He was sitting next to Big John.
Maria Cruz was sitting by herself in the back row on the prosecution’s side. It was her first appearance at the trial. Since she was on our witness list, we had to approve her appearance in court, which we did. It would have made no sense to antagonize her. We hadn’t seen Tony since he finished his testimony the previous day. We hadn’t seen Isabel at all.
The door opened and Pete came inside. He nodded at me and took a seat next to Rosie.
I turned back to Cruz. “I’m going to show you the security video when Duc Tho entered your store.”
“Fine.”
The courtroom was silent as I rolled the video twice: first at normal speed, then in super slow-motion. Each time, I stopped it right before Tho was shot.
“Mr. Cr
uz, would you please confirm that this is, in fact, the security video taken at your store on the night of December fourteenth of last year at ten-forty-seven p.m.?”
“Yes.”
“That’s Mr. Tho in the video?”
“Correct.”
Erickson got to his feet and sounded bored. “Your Honor, we’ve covered this territory. We would appreciate it if you would ask Mr. Daley to get to the point.”
“Please, Mr. Daley.”
“Yes, Your Honor.” My eyes were still on Cruz. “You testified earlier that Mr. Tho came into your store.”
“Right.”
“He demanded money.”
“Yes.”
“And threatened you with a gun.”
“Correct.”
“I’m going to run the video once more in slow motion. I want you to tell me to stop the tape at the point where you saw Mr. Tho threaten you with the gun.”
I ran the video again in super slow motion. Cruz remained silent.
“Mr. Cruz?”
“Yes?”
“You didn’t stop me.”
“We’ve been through this, Mr. Daley. The gun was inside Mr. Tho’s pocket.”
“Then how did he threaten you?”
“I could see it.”
“But you just admitted that it was inside his pocket.”
“I could see an object in his pocket in the shape of a gun.”
I ran the video again. This time I stopped it just after Tho had turned. “Is this when you claim you saw a gun?” I emphasized the word “claim.”
“Yes.”
“I don’t see anything that looks like a gun.”
“It was in his hand inside his pocket. I knew it was there.”
It’s your story and you’re sticking to it. “Mr. Cruz, you testified that Mr. Tho demanded money.”
“He did.”
“You’re absolutely sure he said the word ‘money.’”
“Yes.”
“When?”
“When he came inside the store.”
“But exactly when did he demand money? On his way inside?”
“No.”
“After he turned to face the register?”
“Maybe.”
“While he reached inside his pocket?”
“I don’t recall exactly.”
I cued the video again. “I want you to tell me to stop the video where Mr. Tho demanded money.”
I ran it in super slow-motion. Cruz stopped me immediately after Tho turned to face the register. “There,” he said.
“You’re absolutely sure?”
“Yes.”
“And he said the word ‘money’?”
“Objection,” Erickson said. “Asked and answered.
“Sustained.”
I darted a glance at the jury. No reaction. “Mr. Cruz, I want you to watch my mouth when I say the word, ‘money.’” I said the word slowly while exaggerating each syllable. “Did you notice anything?”
“No.”
“Did you notice that I pressed my lips together?”
“Yes.”
“I’m going to roll the video again. Could you please tell me to stop it when you see Mr. Tho press his lips together?”
“Okay.”
I ran the video again. Cruz remained silent. “Mr. Cruz?”
“Yes?”
“You didn’t stop me.”
“It happened too fast.”
“Mr. Tho never said the word ‘money,’ did he?”
“Yes, he did.”
“But he never put his lips together.”
“I know what I heard. My son heard the same thing. So did my nephew.”
“A deliveryman who was inside the store at the time didn’t hear Mr. Tho say anything.”
“He was in the back of the store.”
“Neither did your daughter.”
Cruz glared at me. “She was doing her homework. She wasn’t paying attention.”
“She heard you tell her to duck.”
“I shouted to get her attention.”
“Do you know a man named Brian Holton?”
“Yes. He’s a homeless man who used to spend time in front of my store.”
“You used to pay him to keep troublemakers away, didn’t you?”
“I gave him a few dollars.”
“And free beer?”
“Sometimes.”
“He testified earlier that he was in front of your store on the night that Mr. Tho was killed. He also said that he didn’t see Mr. Tho pull a gun or hear him ask for money.”
“Objection,” Erickson said. “There wasn’t a question there.”
No, there wasn’t. “I’ll rephrase. Mr. Cruz, would it surprise you to hear that Mr. Holton testified that he didn’t see a gun in Mr. Tho’s pocket?”
“No.”
“Would it also surprise you that he didn’t hear Mr. Tho ask for money?”
“No.”
“Can you explain the discrepancies between your account and his?”
“Mr. Holton was outside. He was also frequently drunk or high. The fact that he didn’t notice that Mr. Tho had a gun should come as no surprise. The fact that he didn’t hear anything isn’t a surprise either since Mr. Holton was outside and Mr. Tho was inside.”
“You’re saying that he was lying?”
“Maybe he was mistaken.”
“Did you ever show him the weapon that you kept behind the counter?”
“I might have.”
“Would it surprise you to hear that he testified that you showed it to him on several occasions?”
“Not really.”
“Are you in the habit of flashing your weapon?”
“It’s a deterrent.”
“And from time to time, you have, in fact, used it, right?”
“Only when necessary. And only in self-defense.”
“And it’s your story that after you heard Tho ask for money, you shot him?”
“I did hear him. I shot him in self-defense.”
“Just like you shot another man a couple of years ago in self-defense?”
“He tried to rob me.”
“You said the same thing about Duc Tho.”
“It’s the truth.”
“And this time, Duc was the only witness other than your children and your nephew, right?”
“Right.”
“And they’ll say whatever you tell them to say, won’t they?”
“Objection. Argumentative.”
“Sustained.”
I pointed an accusatory finger at Cruz. “You’re lying to protect your children or your nephew, aren’t you?”
“No.”
“You’re under oath, Mr. Cruz.”
“I’m telling the truth.”
I turned off the TV and walked back to the defense table. Before I took my seat, I turned around to face Cruz. “You have a lot of Vietnamese customers, don’t you?”
“A lot of Vietnamese live in the neighborhood.”
“Mr. Holton testified that you don’t like them.”
“Not true.”
“In fact, he testified that you told him on several occasions that the Vietnamese gangs were always trying to rob your store.”
“I don’t recall.”
“Duc Tho came into your store frequently, didn’t he?”
“No.”
“And he gave you trouble, didn’t he?”
“No.”
“And you didn’t like him because he was Vietnamese, right?”
“No.”
“And you made up this whole story about killing him in self-defense, didn’t you?”
“No.”
“You wanted to send another message to the people in the neighborhood that the Vietnamese gangs should find somebody else to rob, didn’t you?”
“No.”
“Mr. Tho never asked for money.”
“Yes, he did.”
“And he never threatened you or your children or your nephe
w.”
“Yes, he did.”
“You shot and killed him because he was Vietnamese, didn’t you?”
“No.”
“Do you think anybody in this courtroom believes you?”
“Objection. Argumentative.”
“Sustained.”
“No further questions, Your Honor.”
Judge McDaniel looked over at Erickson. “Cross exam?”
“No, Your Honor.”
The judge flicked off her computer. “We’ll resume at ten o’clock tomorrow morning.”
57
“IT ISN’T ENOUGH”
“How is Thomas holding up?” Rosie asked me.
“He’s discouraged. So is his mother.”
The mood was subdued in Rolanda’s office at ten-thirty on Thursday night. The aroma of Thai food filled the room. Rosie was working with Rolanda on her closing.
Rosie’s eyes twinkled. “Remember when you told me that we still have plenty of juice to try cases on short notice?”
“Yes.”
“You were wrong.”
Beautiful Rosie.
Rolanda tried to lift my spirits. “You did a good job on Cruz’s direct.”
“It isn’t enough.”
“You didn’t have much to work with.”
“Then we should have found more.”
“We got this case a week ago, Mike.”
I willed myself not to snap at her out of frustration. “I told Thomas that we want him to testify tomorrow. He’s willing.”
“Do you think it will help?”
“I don’t see how it can hurt. It will give the jury a human face to take into deliberations. He’ll confirm that he was outside in the car. He’ll say that Tho wasn’t going to rob the store. And he’ll say that Tho didn’t have a gun.”
“Erickson might go after him on cross.”
“It will make Thomas look more sympathetic.”
Rosie stroked her chin. “I think it’s probably worth putting him on the stand.”
I trusted her instincts. “Then it’s agreed.” I looked over at my niece. “I think it would probably be good if you handle his direct exam.”
“Sure.”
“Heard anything from Pete?”
“He’s on his way.”
“Does he have anything that we can use tomorrow?”
“We’ll find out when he gets here.”
I was hoping for more. “Rolanda?”
“Yes?”
“You’ve done a terrific job.”
“This case isn’t over.”
“I wanted to mention it before we get into the chaos tomorrow.”
Felony Murder Rule Page 23