“Thank you, your honor.” Ben turned back to Abshire. “Was a paraffin test performed on Christina?”
“I believe so.”
“Can you explain what a paraffin test is to the jury?”
Reluctantly, Abshire did so.
“And did the paraffin test reveal any nitrous traces on Christina’s skin?”
“No, it did not.”
“Well, doesn’t that prove she didn’t kill Lombardi?”
Abshire made a snorting noise. “Obviously, she wore gloves.”
“Really.” Ben leaned forward against the podium. “Tell me, Mr. Abshire. If she wore gloves, why were her fingerprints on the gun?”
Abshire stuttered for a moment. “I…I suppose she must’ve taken the gloves off later.”
“I see,” Ben said. “Although she was smart enough to wear gloves when she fired the gun, she later removed the gloves and rubbed her prints all over it.”
“Something like that.”
“Mr. Abshire, does that make any sense to you?”
It was the classic one question too many. “Cards-on-the-table time? Murder often doesn’t make sense, Mr. Kincaid. Especially a crime of passion like this. Only in the movies do you find cold-blooded killers who do everything right. Ms. McCall was angry with Lombardi, emotionally distraught. She wasn’t thinking clearly. She could easily have absentmindedly taken some action that seems illogical in retrospect.”
Ben saw a slight nodding of several jurors’ heads. Made sense to them. Made sufficient sense to support their predisposition to convict, anyway.
“Did you in fact find any gloves on Christina’s person?”
“No. I found some in Lombardi’s clothes closet, though.”
“So your testimony is that, after shooting him, this emotionally distraught woman removed the gloves, put them neatly back in the clothes closet, and pawed the gun?”
“I don’t know that she used those gloves. I’m just saying it’s possible. She may have flushed the gloves she used down the toilet. It’s been done before.”
More nodding in the jury box. Ben knew it was time to move on.
“Mr. Abshire, you mentioned an alleged confessional statement made by Christina.”
“That’s correct.”
“Do you recall when we discussed this matter at the preliminary hearing?”
“Yes.”
“And at that time, you testified that you said something that provoked Christina’s statement.”
“I said I might have said something,” Abshire replied. “I was confused. Frankly, you caught me by surprise with that one; I didn’t really remember. But since that time, I’ve had a chance to think about it, and to talk to my superior, Mr. Stanford, who was also present. I’m certain now. I didn’t say a word to her. Her statement was completely voluntary.”
As it would have to be, Ben noted, to get around your enormous Miranda problem. “So you’re changing your testimony in the courtroom today.”
Abshire gave the jury a gosh-shucks grin. “I’m not changing anything, sir. Before, I didn’t remember clearly. Now I do. Her statement was unprovoked.”
And there’s nothing you can do to prove otherwise, Abshire said but did not say, unless you put the defendant on the stand, something no defense attorney ever wants to do. Having smoked out Ben’s Miranda argument during the preliminary hearing, Abshire and Moltke had put their heads together and figured out a clever way to salvage the evidence.
“No more questions, your honor,” Ben said regretfully. He returned to defendant’s table.
“Any redirect?”
“I don’t see the need,” Moltke said. Derek smiled back, obviously in agreement.
“Very well. Mr. Abshire, I thank you for your testimony.
You may step down. Mr. Prosecutor, call your next witness.”
35
“THE UNITED STATES CALLS Officer John Tompkins.”
Tompkins, the surprise witness from the preliminary hearing, took the stand in full uniform. If the jury had liked Abshire, Ben thought, they were going to love this guy. It would be difficult to imagine a straighter arrow.
Moltke introduced Tompkins and ran through his background, before and after he joined the police force. Eventually, they discussed the day Tompkins went to Christina’s apartment to assist the follow-up investigation of the breaking and entering. He described his initial conversation with Christina, the search of her apartment, and the discovery of cocaine in the Betty Boop doll.
“Was there any identification or marking on the drugs?”
“Yes. The top plastic Baggie contained a strip of paper with the word Lombardi written on it.”
“Officer Tompkins, based on your years of experience in matters of this sort, can you draw any conclusion from that strip of paper?”
“Well, the obvious conclusion is that these drugs were part of a shipment received by or intended for a man named Lombardi.”
“Do you have any idea how Ms. McCall might have obtained the drugs?”
“Objection,” Ben said. “Calls for speculation.”
“That’s all right,” Moltke said. “I’ll withdraw the question. I believe the jury is capable of putting two and two together.”
Yeah, Ben thought. Especially if you do the math for them.
“Now, how many days after Lombardi’s murder was this?”
“Just three, sir.”
“So three days after Lombardi was killed, Ms. McCall had the drugs that were probably delivered to him the night of the murder.” Good grief, Moltke, why don’t you just draw a diagram on the chalkboard for them. “Based upon your years of experience, Officer, would a person of average intelligence be able to dispose of these drugs?”
“Easily,” Tompkins replied. “I hate to admit it, but there are well-known drug drops all over Tulsa. We can’t possibly police them all. Anyone who wants to score some drugs could do so.”
“And would this cocaine be valuable?”
“Extremely so.”
“Now, you were in Ms. McCall’s apartment, Officer. Would you say she is a wealthy person?”
“Objection!” Ben said.
“Overruled.” Derek motioned to the witness. “Proceed.”
“No, I would not. All indications were of a relatively low income level.”
“Do you think a quantity of cocaine such as you discovered could significantly improve such a person’s lifestyle?”
“Again, your honor, I object!”
“I think you’ve made your point, Mr. Prosecutor,” Derek said.
“Very well, your honor. No more questions.”
Ben positioned himself for cross-examination. He knew he had to be careful. The jury didn’t want to see Tompkins taken apart; after all, he was just doing his job. Ben would have to impeach him without casting any aspersions on his character or competence.
“Officer Tompkins, you testified that the packet of drugs you allegedly found in Christina’s apartment bore a label with the word Lombardi written upon it, right?”
“That is correct.”
“Isn’t that rather unusual?”
“I don’t know what you mean.”
“Well, drug smuggling is a criminal activity, isn’t it?”
“Yes.”
“People don’t normally go around posting signs saying THIS IS MY STASH OF ILLEGAL DRUGS, do they?”
“The label was probably affixed by the supplier.”
“And why would the supplier want to create identifying labels? Isn’t he just as subject to criminal liability?”
“Probably more so.”
“And if Lombardi gets caught, the supplier is likely to go down next, isn’t he?”
“It does often happen that way. But the fact that an activity might not be prudent doesn’t mean it didn’t happen. You have to realize we’re not discussing rocket scientists here. These are drug smugglers.”