The Victim (48 page)

“
So…it’s fair to say that you really are a drug recognition expert, Officer Villarreal.”

He shook his head confidently. “Yeah, you can say that.”

“
Then tell us, drug recognition expert…was Bryan under the influence of drugs when you first encountered him in Ms. Avery’s apartment?”

The questions snapped the distant jurors out of their fatigue. Legal pads poised and ready, they were all awaiting the answer.

The officer’s mouth dropped. “Beg your pardon?”

He realized that he had walked his way into an ambush.

“
I’ll repeat it, drug recognition expert. Was Bryan, the defendant seated over here, under the influence of drugs when you encountered him?”

The officer’s eyes shifted toward the prosecution table and Sylvia stood.

“
Objection, Judge, this is beyond the scope of direct examination. It’s also dangerously hindering on expert testimony, in which case the court has not admitted the witness as an expert. If the court were to do so, I’d ask that the jury be excused so that the state can properly
voir dire
the witness on his credentials. And lastly, Judge, could you please instruct Mr. Mackey to stop addressing the witness as
drug recognition expert
? It’s smarmy and disrespectful.”

Anton stood quietly. The jury was watching Sylvia, likely wondering why she was objecting to this line of questioning. Jack’s first rule of trials was to limit your objections. Jurors will wonder what you’re trying to hide.

“
Ms. Kaplan, as far as beyond the scope of direct examination is concerned, whether the defendant may have been involuntarily impaired is central to the defense’s theory of the case so I am going to overrule on those grounds. Secondly, this is your witness you’ve called to testify so his credentials are fair game for cross. I don’t believe Mr. Mackey is trying to admit him as an expert. Objection overruled. But yes, Mr. Mackey, it is a bit sarcastic to keep calling the witness
drug recognition expert
.”

“
I meant no disrespect, Judge. I was just acknowledging the officer for being an expert.”

Morales smiled cordially. “It’s well established that the officer is a drug recognition expert. If we could just call him Officer or Officer Villarreal, I think that would be okay. Please continue with your cross, Mr. Mackey.”

“
Thank you, Judge. Now, Officer Villarreal…I’ve asked this question twice and you have yet to answer it. Was Bryan Avery, the defendant in this case, the man that you claim thrashed violently and kicked your leg after you threw him on the ground, under the influence of drugs?”

He thought for a moment. “No…I don’t believe so.”

Thank you,
Anton thought.

“
You don’t believe so?”

“
No, I don’t. He was aggressive and he was loud but I didn’t detect any signs of impairment. When Fire Rescue was checking him before we took him to jail, they took his pulse. They said—”

Sylvia rose. “Objection, hearsay.”

“
Sustained.”

Anton walked back to the defense table, opened his file, and withdrew the notarized toxicology report from the jail’s infirmary.

He placed it on the podium.

“
So it’s your testimony, Officer, as a drug recognition expert, that Bryan Avery was not under the influence of drugs.”

He opened his mouth to speak but hesitated. “Uh…yeah, I mean no. He was not on drugs.”

“
Your Honor, may I approach the witness?”

“
You may.”

Anton laid the single-page tox report down on the table before Officer Villarreal.

“
Now, Officer. Do you know what I’m showing you?”

Sylvia stood. “Objection, Your Honor. Can counsel please show the state what it’s using to impeach the witness?”

“
Sure,” Anton said, snatching the tox report up. He brought it over to Sylvia who pored over it along with Melissa.

“
Sidebar, Judge,” she said.

Judge Morales gritted her teeth in a passive aggressive smile. Sylvia was already starting to grate on her. The court reporter got up and carried her stenotype machine over to the steps beside the bench. Judge Morales, Sylvia, Melissa, and Anton awkwardly squeezed into the space while the court reporter set up her machine so that the sidebar conference could be transcribed.

“
What is it?” Judge Morales asked.

“
Your Honor,” Sylvia said in a heated whisper, “this report has not been provided to us. I know that counsel filed a demand for speedy trial but if he anticipated using this at trial, under the rules of discovery he needed to turn this over. If he decided to use this after he filed his demand, then he truly wasn’t ready for trial; thus, the demand is spurious and I’m asking that sanctions be imposed.”

Judge Morales turned to Anton. “Your response, Mr. Mackey?”

“
Judge, this is a document my investigator obtained as part of our case preparation. I haven’t turned it over because I didn’t anticipate using it. This is impeachment evidence. I’m only seeking to introduce it because the so-called
drug recognition expert
whom the state called to testify has affirmatively stated that my client wasn’t on drugs. I expected the witness to testify truthfully, otherwise I wouldn’t have the need to admit this.”

Judge Morales nodded decisively. The issue was cut-and-dried.

“
State, your objection is overruled.”

Sylvia shot Melissa a look, as if seeking some reassurance that the ruling was preposterous. Melissa nodded furiously, sharing the same shocked expression. If only to score some points with Sylvia, her boss.

“
But Your—”

“
Over. Ruled.”

Anton brought the tox report to the deputy clerk, asking her to premark the exhibit as Defense’s 1-A.

“
Officer Villarreal,” he said, approaching the witness with the tox report. A yellow evidence card was stapled to the back. He laid the report down in front of him. “Do you recognize this document.”

The witness skimmed it over. “It looks like a toxicology report…uh…it looks like it’s from the Miami-Dade Department of Corrections and Rehabilitation.”

“
Do you see an inmate’s name on it?”

“
Um…oh yeah, says Bryan Avery.”

“
Do you see a date that the blood sample was analyzed?”

“
January 14, 2014.”

“
That’s the date you arrested Bryan, right?”

“
Yes.”

“
Do you see a panel of substances listed on the report that Bryan’s blood was tested for by jail staff?”

The officer took his time, running his finger along the page, trying to buy a few minutes as if he could delay the damage.

He looked up. “Yes, it appears that the staff did a seven-panel screen.”

Anton quickly led him through some questions, asking the witness to explain which tests were included in a seven-panel screen. The witness explained, albeit reading off the page, that the drug screen conducted on Bryan’s blood tested for the presence of cocaine, oxycodone, benzodiazapine, opiates, methadone, amphetamines and THC.

“
Any of those substances present in Bryan’s blood?”

The officer bit his bottom lip, breathing through his defeat. “Um, says benzodiazapine was present in his blood.”

Anton could hear the squeaking of bodies shifting in their seats, the
scritch-scratch
of pens writing on notepads. A point that he had made in his opening had now been verified.

Anton retrieved the document from the witness and asked the judge to admit it into evidence as Defense’s 1. Sylvia objected on the dual basis of hearsay and authentication lacking. The notary stamp on the document, however, overcame both legal challenges. It was a document under seal, and over the State’s strenuous objection, it was admitted.

Anton took the document back from the deputy clerk and asked permission to publish the exhibit to the jury. He approached the jury box and handed over the tox report. Each juror took their time reading it over before passing it along.

When they were finished the last juror handed the document back to Anton. He returned it to the deputy clerk and told the judge that his cross-examination was through. He had ended on a high note and there was no need to beat a dead horse.

Sylvia and Melissa huddled in a hushed conference at the prosecution table, mulling over how to undo the damage on redirect.

Anton sat down, relaxed.

Bryan cupped his hand and whispered, “That was amazing. We got this thing.”

“
Don’t get ahead of yourself just yet,” Anton replied. “Vicki Brandt’s testifying tomorrow.”

CHAPTER 51

Anton declined the opportunity to recross after an unsuccessful attempt at rehabilitation by Melissa Rhodes. The point had been vehemently made. Bryan Avery was under the influence of benzodiazapine when he allegedly attacked Officer Villarreal. More importantly, it gave credence to the notion that Daniella really had slipped Bryan two roofies.

Judge Morales called it a day just after five, excusing the jurors for the evening, instructing them not to discuss the case with anybody. As had become the norm in the digital age she also reminded the jurors not to post, text, or tweet anything about the case.

Unwinding back at the office at the end of the day, Anton briefed Jack on how the trial was unfolding. On his second glass of Talisker, Jack was finally out of his funk. His nose burned red as he hunched over, laughing with tears in his eyes.

“
Fuck me, you lucky sonofabitch.” He wiped his eyes with his thumb knuckle. “You’ve got a tox report you have no idea how you’re going to work into your cross and Officer Dipshit’s a goddamn DRE. You gotta be kidding me.”

Anton sat in one of the two chairs facing Jack’s desk. His jacket was folded and laid across the back of the empty one, his collar loosened and his sleeves rolled up. He wanted a Scotch but he hadn’t eaten since breakfast and he was sure it would hit him instantly.

“
I’m telling you, it was pure opportunism. Stupid client wants a speedy. I haven’t deposed this guy; I don’t know anything about him. Then he shows up in his shiny little uniform with his shiny little DRE pin on his shirt and the bastard’s all mine.”

Jack reared back in laughter. “You young lawyers are a bunch of pussies, you know that? Depositions? Please. Give me a legal pad and a pen and I’ll try anything, anywhere. You gotta remember, kiddo, I’ve been doing this since ’68. Back when lawyers wore seersucker suits and called this place Miam-uh. A great trial lawyer is always an opportunist. Someone who thinks on the fly. You saw the DRE pin and you put two and two together. It wasn’t luck. It was strategy.”

Anton’s cheeks warmed with pride.

The door to Jack’s office shook as if someone were tapping it with their foot. Anton got up to open it. Mandy scurried in, a heavy box in his arms. He set it down and shook out his arms.

“
Oyeme,
Jack,
this
palestino
you repped back in ’04 sure has a heavy fucking file.” He wiped the sweat off his brow.

Jack huffed, set his drink down hard on his desk. “What the hell, Mandy? Are you poking around with the Garcia case, too?”

Anton stepped in, informing Jack that the arrest affidavit from the Flagstaff shoplifting incident showed that Lola Munson had the same wrist tattoo as Daniella, Kelsie, and Evan.