They did not say to him that they didn’t feel ready to pick up the phone and call Hansen. There was nothing, after all, but Nicole’s story to go by. It could prove embarrassing if she misunderstood what Hansen had promised.
Once more they asked Gary about putting Nicole on the stand. “I don’t want her brought into it,” Gary said. They could sense his ob jection. She would have to say she had provoked him unendurably. Specify a few sordid details. He wouldn’t have anything to do with that. In fact, he was furious that Wootton was calling Nicole as a wit ness. He told Snyder and Esplin that he didn’t want them to exclude the prosecution’s witnesses from the courtroom because it meant that Nicole, having been listed by Wootton, would also be kept out. Gary’s
A PROSECUTION
415p>
lawyers said this had to give Wootton an advantage. His witnesses would be able to hear what the ones before them said. Every thing in Wootton’s presentation would come out smoother. Didn’t matter, Gary told them.
Snyder and Esplin tried to change his mind. When witnesses, they said, were not able t.o hear each other, they felt more nervous on the stand. Didn’t know what they were stepping into. That was a great deal for the defense to give away just so they could have Nicole in the courtroom. Gary shook his head. Nicole had to be there.
The first day was spent in selecting a Jury. On the second day, it was Esplin’s disagreeable task at the real commencement of the trial to ask the Judge to send the Jury out since there was a matter of law to discuss. He then told Judge Bullock that the defendant, against their advice, did not wish any of the prosecution witnesses to be excluded. It was a poor start. Many a Judge lost respect for a lawyer who could not show a client his best interest.
MR. ESPLIN Your Honor, Mr. Gilmore has expressed to me the reason for his decision and it’s based upon the fact that Nicole Bar rett, who is the defendant’s girl friend, is listed as a witness for the State, and he does not want her excluded from the courtroom. I think that’s the sole basis for his decision.
THE COURT IS that so, Mr. Gilmore?
MR. GILMORE Well, yes. I seen that she wasn’t on the list until just, you know, yesterday or so, and it appears to me that the reason was so that she would have to be excluded from the courtroom. And I don’t want her to have to sit out in that uncomfortable hall all day.
THE COURT Well, she may have to be in the hall, but certainly we’ll
have chairs and other comforts there.
MR. GILMORE Well, it’s my decision that she not be excluded, Your
Honor.
THE COURT IS that all there is?
MR. ESPLIN That’s all we have, Your Honor.
THE COURT
back in.
416
p>
THE EXECUTIONER’S SONG
That’s the law matter? All right, you may bring the Jury
Gary, as if to recoup what he had. given away, now spent time glowering at Wootton.
The irony of the whole thing, Esplin decided, was that Nicole, so far as he could see, wasn’t even in Court. All morning Gary kept turn ing around to look for her. She didn’t show up. She didn’t get them, in fact, until lunchtime, and then Gary couldn’t have been h.appier to see her.
Wootton began by explaining his witnesses to the Jury. “Each one,” he said, “will give you a small piece of the overall story. They will tell you about how the defendant, Gary Gilmore … walked down the street with the motel cash box in one hand and the pistol in the other hand.., abandoned the cash box at the end of the block.., and abandoned the gun. They will tell you how shortly thereafter he was seen at a service station on the corner of Third South and University Avenue where he picked up his truck, at that time bleeding rather profusely from an injury to his left hand. The witnesses will tell you how they traced the blood trail from the service station back up the sidewalk to where it stopped at a Pfitzer evergreen bush that was planted along the side of the sidewalk. They will tell you how they found a .22 automatic pistol that appeared to have been discharged in the Pfitzer bush, because it had weeds and leaves in the automatic portion of the gun. They will tell you that they found a shell casing there. You’ll also hear testimony that the investigators at the motel of fice where Mr. Bushnell was killed found another .22 shell casing: You’ll hear expert testimony to the effect that the slug in his head was in fact a .22-caliber slug fired from a gun with the same type of markings inside the barrel, as the .22 pistol that was found in the Pfitzer bush.”
As the exhibits and witnesses were presented during the length of that day, Wootton’s case came forth much as he had announced it,
A PROSECUTION
417p>
solid and well connected. Snyder and Esplin could only raise doubts on small points or try to reduce the credibility of the testimony. So Esplin got the first witness, Larry Johnson, a draftsman, to admit that his plan of the motel, drawn to order in this last week before trial, could provide “no idea as to what plants or vegetables were growing on the oth of July” around the motel windows. It was a detail, but it dissipated the authority of the first exhibit, and so kept the Jury from becoming impressed too quickly by the sheer quantity of exhibits. Wootton, after all, was going to produce eighteen.
The next witness, Detective Fraser, had taken a number of pho tographs of the motel office. Esplin got him to agree that the drapes might have been moved before the photographs were taken.
So it went. Small corrections and small adjustments on the case Wootton was making. When Glen Overton came to the stand and de scribed the appearance of Benny Bushnell dying in his own blood, and the demeanor of Debbie Bushnell as he drove her to the hospital, the defense was silent. Esplin was not going to intensify the vivid ness of those scenes by cross-examination.
The fourth witness, Dr. Morrison, was the Deputy Chief Medical Examiner of Utah, and had performed the autopsy on Benny Bush nell. Dr. Morrison testified that the absence of powder burns on the surface of Bushnelrs skin dictated that the murder weapon had been put in direct contact with his head.
Esplin had to make some attempt to discredit him.
MR. ESPLIN At the time that you examined the decedent did you examine the weapon that was allegedly used in the commission of this offense?
DR. MORRISON NO, sir ….
MR. ESPLIN And I take it at the time that you examined the dece dent, you did not know the type of ammunition that was used?
DR. MORRISON That’s correct.
MR. ESPLIN And yet you say these things were all things which do
make a difference in making your determination? DR. MORRISON They could make a difference …. In this particular
418
p>
THE EXECUTIONER’S SONG
case, in my opinion, it did not make a difference …. I did not feel that the type of ammunition or the specific type of weapon would enter into or present a problem as far as the determination went. However, I was informed at the time I did the autopsy the weapon was a handgun.
MR. ESPLIN But you didn’t examine it?
DR. MORRISON But I did not examine the weapon? No, sir.
The defense had to gamble. If nothing else, the vigor of Esplin’s cross-examination could confuse the Jury. So, even as Dr. Morrison was saying that he did not need to know the gun nor the ammunition since, in this case, neither affected the result, so Esplin gained the admission that Dr. Morrison had not examined the weapon. That might bother some of the panel.
Martin Ontiveros came next and established that Gary had left his truck at the service station two blocks from the motel and went away for half an hour. When he returned, Gary had blood on his left hand.
Ned Lee, a patrolman, had found the gun by retracing Gilmore’s trail of blood from the service station to the bushes. “Anything liquid has a tendency to flow in the direction you are traveling,” he said, so he had been able to determine that Gilmore’s movements had been from the place in the bush where the gun was hidden on eastward to Fulmer’s gas station. Again, there was little for the defense to do with his testimony.
Detective William Brown received the cartridge case and gun from Patrolman Lee and had them photographed in the position they were discovered. Wootton offered the photograph as Exhibit Three.
MR. ESPLIN Officer Brown, did you take that photograph?
OFFICER BROWN NO, sir.
MR. ESPLIN Do you know who took it?
OFFICER BROWN No, sir. I don’t.
MR. ESPLIN We object, Your Honor, Improper foundation,
MR. WOOTTON I’ve laid a foundation Your Honor, I don’t have
to establish when or under what circumstances it was taken. All I’ve
A PROSECUTION
419p>
got to establish is he was looking at the bush and he looked at the photo and it’s the same.
Still, it was a small gain. One more exhibit slightly tainted. You never knew when a few small gains could contribute to the final ef fect.
MR. ESPLIN You did dust the weapon for fingerprints, is that cor rect?
OFFICER BROWN Yes, sir.
MB. ESPLIN Did you find any prints?
OFFICER BROWN I found one.
MR. ESPLIN Did you transmit that to the FBI laboratory?
OFFICER BROWN I did …
MB. ESPLIN What were those results?
OFFICER BROWN They needed a better comparison.
MB. ESPLIN In other words they couldn’t make a determination?
OFFICER BROWN Right,
MR. ESPLIN No further questions.
When Gerald Nielsen came on, Wootton did not ask him about the confession. Neilsen merely testified to the existence of a fresh gunshot wound on Gilmore’s left hand at the time he was arrested.
Gerald F. Wilkes, a Special Agent with the FBI, was an expert on ballistics.
MR. WOOTTON Would you tell the Jury, please, what your conclu sions were?
MR. WILKES Based on my examination of these two cartridges, I was able to determine that both cartridge cases were fired with this weapon and no other weapon.
Esplin had no recourse but to ask questions that might bring back damaging answers.
MR. ESPLIN IS there a certain number of marks which must be on a particular item of evidence.., before you are able to say beyond a reasonable doubt that the cartridge was fired by the same gun?
420
THE EXECUTIONER’S SONGp>
MR. WILKES NO, sir. I fix no minimum number of microscopic marks to effect an identification.
MR. ESPLIN Do you have any idea of how many marks, similarities or points of similarity you found between Exhibit No. 12 and the test cartridge which you fired in the laboratory?
MR. WILKES The marks of similarity were contained around the entire circumference of the cartridge case. It’s so many microscopic marks in fact that it left no doubt in my mind as to the conclusion I reached.
Peter Arroyo testified to seeing Gary in the motel office.
MR. WOOTTON How far away from him were you at that time?
MR. ARROYO Oh, somewhere near ten feet.
MR. WOOTTON Was he inside the office?
MR. ARROYO Yes.
MR. WOOTTON And you were out in the driveway?
MR. ARROYO Yes.
MR. WOOTTON Did you observe anything in his possession at the time?
MR. ARROYO Yes.
MR. WOOTTON Tell us what you saw. MR. ARROYO In his right hand he had a pistol with a long barrel. In
his left hand he had a cash box from a cash register.
MR. WOOTTON Are you able to describe the pistol for us?
MR. ARROYO Yes.
MR. WOOTTON Tell us how you observed it.
MR. ARROYO He actually stopped when he saw us. I looked right at him, I looked at the gun, and I looked up at his face to see what he was going to do with the gun. I thought he worked in the office and he was fooling around with the gun. I was concerned about that. So I looked right at his eyes. And he just stopped and looked at me. And after a few seconds he turned around and walked back around the counter.
MR. WOOTTON What did you do?
MR. ARROYO We kept on walking right to the car ….
A PROSECUTION
42Ip>
MR. WOOTTON Mr. Arroyo, do you see the individual in the courtroom now that you observed with the gun and the cash box at that time?
MR. ARROYO Yes.
MR. WOOTTON Would you identify him for the Court and the Jury, please?
MR. ARROYO The man with the red jacket and the green shirt. (Indicating)
MR. WOOTTON Seated at the counsel table opposite me?
MR. ARROYO Yes.
MR. WOOTTON Your Honor, may the record reflect that the witness
is identifying the defendant? THE COURT It may so show.
MR, WOOTTON Your witness.
MR. ESPLIN Sir, could you describe the individual that you observed in the motel office that night?
MR. ARROYO Yes. He appeared to be a little taller than I am
MR. ESPLIN What other characteristics would you describe?
MR. ARROYO He had a Vandyke-type beard and long hair.
MR. ES’LIN What other distinguishing characteristics do you recall? MR. ARROYO His eyes.
MR. ESPLIN What do you recall about his eyes?
MR. ARROYO When I looked at his eyes, it’s kind of hard to describe. I’d never forget those eyes.
MR. ESPLIN Did you see the color of his eyes?
MR. ARROYO No. Just the look.
Not hard to comprehend what Arroyo meant. Gilmore had been glaring at Wootton throughout the testimony.
After Arroyo stepped down, the prosecution rested its case. Esplin stood up and said the defense would also rest.
THE COURT You do not intend to put on any evidence?