Collision Course (A Josh Williams Novel) (35 page)

"Your Honor, Sergeant Williams is testifying to what he was thinking, his perception of what the suspect was doing, not what Machado was thinking. He can certainly testify to that. Intent is the whole basis of the government's fantasy of racial motivation here. And he's putting words in Sergeant Williams’s mouth."

"They are his words," Collucci replied, "I am just refreshing the jury's mind about them."

"They are out of context and you know it." Hawk responded angrily. "You're trying to twist this testimony because it clearly contradicts the government's whole case."

Rodericks held up his hand to stop the argument, "All argument and discussion will be to the bench, not a shouting match between counsel. The objection is sustained, in part, and overruled, in part. Mr. Bennett, ask the question so it is clear you are eliciting Sergeant Williams perception and thoughts. Mr. Collucci, the jury will have the record available to them. They do not need your assistance in recapping it. Is that clear?"

"Yes sir," Collucci replied, sitting down quickly.

"Go on Mr. Bennett." Rodericks motioned with his hand.

"Thank you, your Honor. Now Sergeant, getting back to the moment leading up to the shooting. You testified Machado kept moving. He did not follow your command to stop. Is that correct?"

"Yes."

"And he was looking back at you and then toward the Sacristy, is that correct?"

"Yes."

"How far away from you is he at this point?"

Josh paused a moment to visualize the scene, "I would say fifteen to twenty feet."

"And could you see both his hands at this point?"

"No, I could only see his left hand. His right hand was under his body. I believed he was holding something in that hand," Josh's head dropped slightly and he looked toward the floor, then back up at the jury, "I thought it was a weapon."

Hawk studied the looks from the jurors. Some were clearly taken with Josh's words, but two seemed doubtful. One of them kept glancing at Collucci for his reaction. Collucci, apparently aware of this, kept shaking his head and writing notes.

Hawk thought, if people only knew how big a part theatrics play in trials they would be disheartened by the Justice system. Now, this was his stage and he intended to command it.

"Okay, Sergeant. What happened next?"

Josh inhaled deeply, "Machado kept looking toward the Sacristy. I became concerned that someone might be in there. Perhaps, someone saw Machado rush in and was trying to hide. I was worried Machado was trying to get to the Sacristy and take a hostage."

Hawk said, "What did you do?"

"I told him again to stop, the exact words were," pausing a moment, "which part of don't move motherfucker aren't you getting, asshole. Stop moving now or you're a dead man." He could not help a glance at the jury for their reaction.

"Did he stop moving?"

"No, he slowed a bit. That is when I understood his words. He kept saying them over and over," Josh stared at his hands again, "he said 'I tried to get him to stop, I tried to get him to stop...' Josh's voice trailed off a bit.

Hawk quickly continued, "What happened next?"

Josh looked at Hawk, sat up a bit, and said, "His right arm started to move from underneath him. He was looking right at me. As the arm started to move, the hand came into view. I could see a black object in his hand. I couldn't make it out but his arm continued to move and he pointed his hand right at me," Josh took another deep breath to calm himself, "I saw a glint of light, a reflection off the object, then I heard a loud metallic noise, it sounded to me like a weapon misfire. Machado started to raise himself up, continued pointing what I now believed was a weapon at me."

Josh stopped again to compose himself. He looked directly at the jury. "I believed he was pointing a weapon at me, I believed he was firing at me but the weapon misfired. At this point, I made the decision to fire my weapon. I fired three times. I saw Machado fall on his back. Just before he stopped moving, he said, "I tried to get him to stop…" Josh stared up, away from the jury, quickly wiping his eyes, trying to hide the tears.

"Sergeant, I realize this is difficult for you, what did you do next?"

Josh sat a moment staring blankly ahead, then answered, "I went to Machado, tried to stop the bleeding, and performed CPR," turning to the jury, "I didn't want him to die."

Hawk could see tears in the eyes of some of the jury.

After a moment, Hawk asked, "Now Sergeant I want to turn your attention to another matter. The incident involving misplaced evidence in a sale of alcohol to a minor. Do you recall the case?"

"Yes, sir, I do." He could not help but notice the reaction by some of the jurors.

"Now much as been made about the exhibits used in that hearing, can you explain that?"

"I can. I made an error in judgment. When I could not locate the evidence, I brought a similar container with the same brand of beer. My intent was only to show the court the type of items seized. I never testified or intimated that it was the actual evidence. The defense lawyer never asked me if they were"

"Why didn't the prosecutor ask?"

"Because there is no prosecutor, so to speak, the police, in this case it was me, presents the case."

"I see, so you never testified that it was the actual evidence?"

"No, sir."

"How did you establish the charge then?"

"We introduced the toxicology report from the Rhode Island State Toxicology lab. In fact, the defense agreed to the validity of the toxicology report. It was never questioned."

"So, let me get this straight. You brought a similar item to the court because the actual evidence could not be located. You never testified that it was the actual evidence seized. Is that correct?"

"Yes sir. I realize I should not have taken that path. We introduced the toxicology report and that was unchallenged. I suppose I was embarrassed we could not locate the evidence. I made an error in judgment."

"Did you inform Lieutenant Hamlin about this?"

"Yes sir, I did. She made it clear I was to inform the court about the exhibit. It never came up in the testimony."

"So you didn't misrepresent the exhibit as evidence?"

"No sir."

"And you didn't lie under oath?"

"No, sir. I never would."

Hawk a moment, returning to the table, stood in front of the chair, "One more thing Sergeant, did you shoot Mr. Machado because he was a black man?"

"No," Josh replied, "I fired because I thought he was trying to kill me."

"But if the circumstances were the same and the suspect white, or a woman, would you have done the same thing?"

Josh looked at the jury, "I fired at Mr. Machado because I believed he was trying to fire at me. I perceived him as a threat. I waited until the absolute last moment. I never wanted to kill anyone. Mr. Machado forced me to take action because he would not comply with my telling him to stop. I believed he was a threat to others and me. I did what I needed to do. If he stopped he'd be alive today." Eyes brimming, "I wish he listened to me. I tried to get him to…" The last words directed at the friendly juror.

Hawk looked at each of the jurors, catching their eyes, nodding his head. "Thank you, Sergeant. I have nothing further your Honor."

Rodericks looked at his computer screen, "I see it is 1:50, let’s take a short break and reconvene at 2:30."

"All rise."

The jury left the courtroom. Hawk, Symonds, and Josh headed to the conference room.

"Well?" Josh asked.

"Bill, you watched the jury what do you think?" Hawk passed the question to Symonds.

"I think you did well. I did not get the sense the jury cared much about the other case. They were more interested in the shooting. I think saving the question about shooting him because he was black for last was perfect. If any of them cared about the creative testimony, it took their attention away from it. Collucci will try to leave that as the last thing they hear from you and he'll try to make you look like Richard Nixon covering up Watergate but overall I think it went well."

"I agree" Hawk said. "Our friend on the jury was acting like a cheerleader. They seem to like you Josh. Collucci will have to be careful not to attack you too much or it will backfire with them. However, we all know Collucci isn't subtle. It is going to be a long, painful cross for you. Just keep calm and don't let him rile that Irish temper of yours."

Josh smiled, "I will be the quintessential model witness."

"That's what scares me," Hawk replied, "your idea of quintessential."

The door opened and Chris Hamlin came in.

"Are you nuts?" Hawk said, "If Rodericks sees you he'll pop that vein in his neck."

"I'll be quick. Our insider friend called me." Registering the shock on their faces.

"Fleming? She called you?" Hawk asked.

"Yup, said she couldn't wait. Collucci found another case that Josh testified in and the Judge found him less than credible. She is trying to learn which case but Collucci will not tell her. He's starting to doubt her loyalty."

"With good reason I might add." Hawk answered. "Josh, any ideas?" Hawk asked.

"No, I don't recall any such thing. Unless," he paused for moment.

"Unless what?"

"Unless it was that informant case. You remember, Chris. Santiago shooting. The judge in the case ordered us to reveal the name of the informant we used on the search warrant. He ruled the informant was a witness and subject to cross-examination by the defense."

"Okay, so why did he find you less than credible?" Hawk asked.

"The Judge gave me twenty-four hours to produce the name of the informant. I told him I didn't need twenty-four hours and would reveal it right then. The prosecutor tried to object but was overruled. So I told him." Josh smiled.

"I can tell by that look I am not going to like this," Hawk added, "You told him what?"

"The name of the informant, Orlando Bueno."

"And?"

"And the Judge ordered us to bring him to court. I told him I'd be happy to, except he was dead."

"Oh, Christ." Symonds exclaimed.

"Nah, he is most likely not with him. Bueno was a real bad guy." Josh replied, laughing. "So the Judge ordered us to produce the death certificate. Which I did. Apparently, the Judge found that a little too convenient. If I recall correctly he said something about us mining the daily obituaries. I was very offended."

"Okay, well. Isn't this nice." Hawk said, "I'll try to argue as to relevance and such but I bet Rodericks lets it in. Are there any more war stories you'd care to share before I learn of them along with the jury?" Shaking his head.

"Nope, he was the only dead informant. But I did follow the Judge's advice and checked the obits anytime I testified about a search warrant after that.” Josh and Chris were both smiling now.

A moment later, there was a knock on the door. Chris slipped off to the side, out of sight. Hawk opened the door, Deputy Marshal Murray stood there, smiling.

"Mr. Bennett, the US Attorney asked me to deliver this package to you." Handing over the folder.

"Thanks, Steve." Hawk replied.

"You're welcome. Oh, and tell Lt. Hamlin she can come out of the closet now. The coast is clear."

"Thanks, smart-ass," Chris called out, "everybody is a comedian."

Chris headed toward the door, Hawk grabbed her arm. "The dead informant was your idea wasn't it?"

Smiling back, Chris said, "Now counselor how was I to know Bueno would check out a few days before the trial. I was shocked when DEA called me and asked if we knew anything about him."

Hawk looked at her for a moment, "Did you tell them he was a snitch?"

"We prefer the term, cooperating individual, but yeah I told them. I knew it would piss them off that we hadn't shared that info."

"And this was before the trial, correct?"

Chris caught on, "Why yes it was as a matter of fact."

"DEA told you he was dead, you didn't conveniently find this info yourself?" Hawk paused a moment, thinking, “Find that agent and get him here, I may be able to derail this little surprise attack."

"On the way." Leaving quickly, she was on her cell as soon as she hit the street.

Bill Symonds reviewed the package, "It's notice he intends to modify discovery due to newly discovered, previously unavailable, information. It contains the relevant trial transcripts of Josh's testimony and case precedent references."

"Okay then," Hawk clasped his hands together, "let's go ruin Mr. Collucci’s surprise party."

"
Your
Honor," Collucci said, "before I begin my cross-examination of Sergeant Williams, I'd like to make a motion to amend discovery."

Rodericks eyes narrowed, "At this point in the trial? I find it troubling that the government, with all its resources, is just now finding new information. Mr. Collucci, your record of accomplishment on discovery in this matter is a disgrace. But go on; let me hear the government's position on this matter."

"Thank you, your Honor. The government has recently uncovered trial transcript material that impeaches the credibility of Sergeant Williams. A Superior Court Judge, Judge Julio Martinelli, made a specific reference to finding Sergeant Williams, and I quote from the transcript, "less than credible." Since the transcript from the other trial that casts serious doubt on Sergeant Williams’s credibility is conveniently absent, the relevance and material applicability of this transcript is evidence of a pattern of deceptive behavior by this officer under oath. Thus critical to the government's case.

The material was not available until recently due to a failure of the computer system used by the State of Rhode Island to archive court transcripts. As soon as this system was available to the government, I ordered FBI agents to review all relevant cases involving testimony by this defendant.

I provided appropriate notice and copies of the material to defense counsel as soon as practical.

For these reasons, the government moves to introduce these transcripts and use them during cross-examination.

This case hinges on credibility. This transcript is clear and convincing corroboration of a pattern of behavior by this defendant of lying under oath."

Rodericks wrote some notes and then looked at Hawk, "Mr. Bennett, what do you say?"

Hawk rose. He looked over at Symonds covertly monitoring his cell. Symonds shook his head.

"Your Honor, I also find it hard to believe that the government is just now finding this. The system Mr. Collucci is referring to has been back in service for over two months. To insinuate that the government has not had adequate time is laughable. That's not to mention the fact of Judge Martinelli's rather abrupt retirement from the bench in light of the allegations of his accepting bribes."

Hawk glanced again at Symonds. He was writing a note and sliding it to Josh to hand to Hawk. Taking the note he continued, "However, in the interest of fair play, I would be willing to agree to the introduction of the material as long as the defense is given similar latitude in adding a witness to my list. Should the court rule to allow the government's motion, I have a rebuttal witness I would call."

Collucci was looking at Hawk, trying to guess what was in play here. Once again, he went with his instincts without any idea of the consequences.

"Your Honor, if it pleases the Court. The government has no objection to the additional witness sought by the defense." Once again, leaping off the ledge.

"No, Mr. Collucci, it doesn't please the court. These last minute tactics of yours very much displeases the court. In addition, Mr. Bennett, this is not let's make a deal, quid pro quo. I find these trial theatrics troubling."

Rodericks looked at the computer screen then back at counsel, "with that said I will allow the government to introduce the transcript and the defense's additional witness. But keep it relevant gentlemen, or it will be as quickly excluded."

"Thank you, you Honor. The government is now ready to proceed with the cross-examination."

"That is pleasing to the court," Rodericks replied, "bring in the jury."