And Never See Her Again (19 page)

"Yes, sir. It was higher in the front," Trey said.

"And you told them it was a dark purplish color; is that correct?" Jones asked.

"Yes, sir."

"And that it had dark-tinted windows so that you couldn't see the driver inside," Jones stated.

"Yes, sir."

"And you got a good look at this car, didn't you?" Jones asked.

"Not really."

Trey's response seemed to surprise the defense attorney.

"You didn't really get a good look at the car?"Jones asked.

"No.

"Were you throwing the ball across the street?" Jones inquired.

"Yes, sir."

"Okay. And every time that you threw the ball across the street, you had to wait for the vehicle to go by, right?"Jones questioned.

"Yes, sir."

"So you would wait for it to go by, you looked at it enough that you knew that it had very, very shiny chrome wheels, right?" Jones asked.

"Yes."

Trey reported to the jury that one of the boys he had been playing ball with was Mike Logan. Although Mike had told police that the car that had driven by them on March 26 had antennas on the back, Trey didn't recall seeing them.

Jones handed Trey the photo of his client's car, which the state had introduced into evidence, and asked if the wheels were shiny or not. Trey answered they were not. He also confirmed that there were no antennas attached to the back of the automobile and noted that there was one antenna on the front, with a jack in the Box ball attached. He agreed that the vehicle in the photo was not higher in the front than it was in the back.

Ed Jones walked back to sit with Ricky Franks and Leon Haley. He gave Franks a slight smile, obviously pleased with the way questioning was going.

The teen was excused and Spencer Williams was called. The two crossed in the aisle, Spencer nearly half the size of the tall teenager.

Smiles crossed the faces of jurors and spectators alike as the small boy walked briskly to the front of the courtroom. His blond hair was neatly parted and his clothes freshly pressed. Because of Lisa Callahan's experience in the Crimes Against Children Unit of the DA's office, she had been selected to question fiveyear-old Spencer.

Not much more than the top of the boy's head could be seen as he sat in the witness chair, trying to peer over the stand in front of him. Spencer leaned toward the microphone to answer each question asked by Callahan.

Spencer told the court that he was five years old and that he was in school. Callahan ran through a series of questions to show that Spencer knew his colors, the alphabet, and the names of his pets. He told Callahan the types of games he and Opal played, along with his little friend Austin.

When Callahan began questioning Spencer about the events of March 26, the boy suddenly began responding, "I forgot." The boy could no longer respond as he had when he first spoke with authorities.

"When y'all were looking at the ant piles, what happened?" Callahan asked.

"I forgot," Spencer said, glancing toward Franks, then quickly looking away.

Realizing that Spencer frequently looked at the stern-faced defendant before responding to her questions, Callahan walked to the witness stand and positioned herself between the boy and Franks, successfully blocking the direct line of sight.

"Did you see a person come up?" Callahan rephrased her question.

"Yes. A man," Spencer replied.

"Did you see what he looked like?" Callahan continued.

"Yes."

"What did his hair look like?" Callahan asked.

"I forgot," Spencer said, looking to the rear of the courtroom where his mother stood.

Leon Haley rose to address the court.

"Your Honor, at this time, I would move that the witness is incompetent to continue testifying based upon his age and tender years. I know that the state is doing this in good faith; they can get out anything they want from him, but he's incompetent to testify. I would ask that the court reject his testimony at this time. I'm not arguing about what he's said so far, but I'm saying that he not continue anymore," Haley argued.

Judge Gill responded immediately. "I find that he has sufficient intellect to accurately relate transaction. Just because he doesn't remember one or two things doesn't mean he's not a competent witness."

Haley sat down, his face void of any expression that would indicate if he was frustrated by the court's decision.

Callahan smiled as she redirected her attention to the boy. With much prodding, and a smile from his mother, Spencer told the attentive jurors that the man wore a red hat, his hair was long, and he wore it in a ponytail. The man said hi; then he took Opal and put her in his car. The five-year-old was relating the events of the day much easier than earlier in his testimony. He told of the man hitting Opal in the chest and hearing her scream before the man drove away.

Spencer's mother's stomach knotted as Lisa Callahan passed her son on to the defense for questioning. Callahan had been patient with Spencer, but his mother feared the defense would be far more aggressive.

Deciding there would be no positive result from questioning Spencer, Leon Haley declined to crossexamine the boy.

Spencer's mother breathed a sigh of relief as she smiled at her young son walking toward her.

The state's case against Richard Franks was proceeding as Greg Miller had expected. Each of their witnesses had provided the information they intended for the jury to hear concerning the day Opal was taken. It was now time to call investigators to introduce Ricky Franks and connect him to the crime.

Mike Adair, assistant chief investigator for the district attorney's office, was first to be called. Adair had been assistant chief for five years and with the DA's office for twenty years. Prior to joining the DA's investigative unit, Adair had served ten years with the Arlington Police Department (APD).

Adair took his seat in the witness chair, adjusted the lapel of his dark suit, and pulled the thin microphone toward him. Adair explained to the jury how he had assisted the task force by taking some of the possible leads in the Opal Jennings case to check out. One of those leads had been Richard Lee Franks. He was not asked, however, to explain that the lead had come from Jesse Herrera, Franks's probation officer, prior to contacting Franks. It was from that conversation, however, that Adair knew that Franks drove a black Cougar and had cut his long hair, shortly after Opal Jennings's disappearance.

Adair spoke matter-of-factly about driving to Franks's residence for the original interview. He told of seeing two vehicles parked in Franks's driveway, a black Mercury Cougar and a white Chevrolet, which appeared to be a Chevrolet Lumina.

"As a result of your initial conversation with Ricky Franks, were you left with the impression that he didn't know the Saginaw area?" Foran asked.

"Yes. I came away with the impression that he wasn't that familiar with Saginaw," Adair stated.

When Foran asked Adair if he knew whether Franks had ever worn his hair in a ponytail, the investigator testified that Franks said he had worn his hair long enough to have a ponytail and had, at times, pulled his hair back. Adair later stated that at the time of his interview with Franks, on August 4, 1999, the defendant was wearing his hair short.

Adair explained that he had met with his team of investigators, decided to begin a surveillance of Franks, and, finally finding him alone, took him into custody for an outstanding seat belt warrant. He told the jury that Franks was taken to the Special Crimes office on West Belknap and informed that he was under arrest for the traffic ticket. He also was informed they were investigating another matter.

Mike Adair was an excellent witness. His voice was strong, yet not overwhelming, as he explained the procedures he and his unit had followed in apprehending Franks.

Under cross-examination by Leon Haley, Adair acknowledged that when he first attempted to make contact with Franks, he hadn't been at home. Adair had left a business card with Franks's wife and it had been Franks himself who had called to make an appointment with Adair the next day.

Haley turned his attention to his client's arrest.

"Y'all didn't arrest him for your safety; you wanted to be able to get access to him. It was pretty much like a pretext arrest so that you could talk to him about this. Is that fair to say?" Haley asked.

"There was no pretext," Adair said. "We had a reason for talking to him and we knew there was a warrant for him."

"And y'all surrounded his vehicle, you tell him politely that he has a warrant for his arrest, and y' all are taking him into custody. Is that fair?" Haley said mockingly.

"Yes," Adair answered simply.

Adair acknowledged that there were no uniformed officers present at Franks's arrest. He also admitted that the investigators had blocked Franks's ability to leave and that he offered no resistance when he was told he was under arrest.

"All he had to rely on was that y'all were telling him the truth as to who y'all were. Am I correct?" Haley questioned.

"Yes," Adair replied.

"I mean, you could have been some terrorist organization pulling over and snatching him off the street, for all he knew. Is that fair?" Haley asked.

Suppressed snickers spread through the gallery.

"Well, we identified ourselves as police officers," Adair explained.

'Was anybody there to help him to go get assistance from his family, anybody else, to say, `Oh, by the way, he's been arrested; he's with that group over there,' nobody, like that?" Haley asked.

"There was a clerk at the grocery store that knew Ricky and said he was going to call Judy and tell her that he'd been arrested and was being taken downtown," Adair explained.

Before the court Haley described the room at the Special Crimes Unit office as "little bitty," but Adair called it small.

The supervisor of the special investigative force acknowledged that Franks had been arrested at about 8:30 P.M. and had been left in the room at his office for about two hours without being interviewed. He confirmed their offices were downtown across the street from a magistrate and the county jail, where Franks could have been booked in.

"Did you allow him to make a phone call?" Haley asked.

"No, we didn't," Adair answered honestly.

Continuing his questioning, Haley asked about Eric Holden and when he had arrived in Fort Worth to talk with Franks. Adair testified that Holden arrived about 10:30 P.M., that he had talked with Danny McCormick, and then began his interview of Franks. That interview ended with Franks giving a statement about 8:00 A.M. By that time Franks had been in custody almost twelve hours.

"He didn't get any sleep. You're aware of that, right?" Haley inquired.

"Yes."

"Would you say he smoked about, what, three packs of cigarettes?" Haley asked.

"A lot."

"How many Dr Peppers did he drink?" Haley asked.

"I don't know."

"Did you give him any candy bars?" Haley asked.

"They may have. I don't know," Adair said.

When asked if they provided a sandwich or meal for Franks while in their custody, Adair stated they asked if he wanted a hamburger or something, but he said he was satisfied with the Dr Peppers and cigarettes.

Moving on to the black Mercury Cougar owned by Franks, Adair admitted it was Judy who most often drove the vehicle.

Adair acknowledged that at no time while Franks was in custody did they allow him to attempt to make the $125 bond.

Haley believed he had made his point with the jury. DA investigators had taken his client off the street, kept him in seclusion for more than seventeen hours, from the time of his arrest until his release, and denied him the opportunity to make bond. He passed the witness back to Robert Foran for follow-up questions.

Foran stood, not only to cross-examine Adair but also to defend the actions of the supervisor and his investigators at the time of Franks's arrest.

Through questioning, Foran established that Franks, having talked to Adair earlier, was aware he was a DA investigator at the time of the arrest. In addition, other investigators at the scene identified themselves before placing Franks in handcuffs. Lastly Adair restated that Franks had agreed to talk with Eric Holden and to wait until he drove from Dallas to Fort Worth, accounting for the time delay in taking the defendant before a magistrate.

Leon Haley adamantly disagreed.

"Your Honor, I object," Haley said loudly as he stood before the court. "The delay had nothing to do with waiting for Mr. Holden. The delay had to do with him not being taken to a magistrate or a judge. I object, that's an improper manner in which he's misleading the jury."

Ricky Franks watched his attorney intently. He may not have understood the argument Haley was making, but he appeared pleased with the way in which he delivered it.

Judge Robert Gill looked down from his elevated bench and announced, "Overruled."

Foran continued with fervor, asking rapid-fire questions.

"Did you see if he needed to go to the bathroom?"

"Yes, sir."

`Just sitting in a room smoking cigarettes and drinking Dr Peppers?"

`Basically, yes."

"Anybody yelling at him?"

"No, sir."

"Threatening him?"

"No. "

"Telling him what to say?"

"No."

"Telling him what to do?"

"No."

"Did y'all attempt to get a statement first?" Foran asked.

"No, we didn't."

"When you originally spoke to Richard Franks on August fourth, he wasn't in custody, was he?" Foran pressed.

"No, he wasn't."

After making his points to the jury, Foran asked to approach the bench. Judge Gill nodded. Foran, Haley, and Jones moved to stand by the wooden ledge at the front of the judge's bench.

`judge, I have an issue of law to take up outside the presence of the jury," Foran announced.

Once the jury was secured in the jury room adjacent to the courtroom, Foran continued. "I believe the defense has implied to this jury that there was undue delay in booking Franks in, when, in fact, this defendant voluntarily took them around, pointing out possible locations for the body-" Foran stated.