Double Tap

CHAPTER TWENTY-TWO

Templeton is shrewd. Timing is everything in a trial. He has knocked us off balance with the evidence of the frangible bullet.

The two clips from the murder weapon that were found inside Chapman’s house were both empty. If they were originally loaded with frangible rounds, whoever shot Chapman took the time to discard all of the ammunition, making it impossible for us to be on the lookout for the distinctive bullets.

Ruiz has admitted to Harry and me that at one time he did have frangible rounds, issued by the Army for use in a special indoor military range. But he doesn’t remember whether any of these remained in the clips that were packed away with the gun. According to Emiliano, he used spare clips when he and Chapman last used the Mark 23 pistol at the range, when he was showing Madelyn how to shoot. He left the bag with the two original clips at her house and never looked at them again.

Whoever set Ruiz up has done a masterful job, not only with the evidence, but anticipating the direction from which problems might come at trial. So far they have left us in the dark.

Templeton decides that, with the defense on its heels, this is the time to expose the weak underbelly of his case, to the extent that he has one, and get it behind him.

This morning they bring in the gun and its canvas case, along with the two empty clips and the silencer discovered on the rocks over the ocean.

Templeton has his principal evidence tech, Mitchell Perryman, up on the stand. Perryman is the man who headed up the team that marked, identified, and gathered all the physical evidence at the scene. He is a veteran, sixteen years with county law enforcement, and a student of endless courses in evidence gathering from the FBI as well as the state crime lab. But his department has had its problems in the last two years: first a scandal involving errors in the chains of custody in a string of felony cases in which one of Perryman’s colleagues was caught falsifying internal records; then four months ago another of Perryman’s associates was caught in misstatements under oath on the stand, which defense counsel called perjury and which is now on appeal in a major white-collar prosecution. All of this has left the people in Perryman’s office feeling tainted, demoralized, and gun-shy on the stand.

“Let’s start with the firearm,” says Templeton. “The HK Mark Twenty-three forty-five-caliber semiautomatic pistol.” This has already been removed from its paper evidence bag and identified as the weapon found in Chapman’s backyard the night of the murder.

“You supervised the photographing and collection of this weapon, did you not?”

“I did,” says Perryman. The witness has already identified an array of photographs, and they now appear up on the visualizer in order for the jury to see.

The gun itself is photographed lying on its side on top of a small mound of what appears to be dark potting soil heaped up like a soft mesa around the base of a rosebush. A ruler for scale appears just beyond the edge of the lawn along the bottom of the photo.

“Did you find the firearm yourself at the location photographed?”

“No. One of the first officers on the scene checked the yard to make sure that no one was there. He observed the firearm at that time but did not touch it or approach it. He kept it under visual observation until evidence technicians from our office arrived on the scene. That’s when I first observed it.”

“And was it still in the position and as we see it here in the photograph when you first observed it?”

“Yes, it was.”

“What about the silencer?” says Templeton. “Where was that found?”

The silencer, manufactured by a company in Vero Beach, Florida, that specializes in sound suppression for firearms, is a cylindrical tube about eight inches long. Its exterior is made of dull blued gunmetal with small round dimples lining the outside.

“That was discovered by one of the evidence technicians outside the rear seawall of the victim’s residence on the rocks overlooking the beach,” says Perryman.

“And you observed this before it was touched by any of the attending officers or your own staff?”

“I did.”

“And did you have it photographed?”

“Yes.” Perryman identifies the photograph, a picture of the silencer lying on its side on the rocks perhaps ten feet from the edge where they drop off into the surf. Both the firearm and the silencer are neatly laid out on a small table in front of the jury box where jurors can observe them without touching them.

“Did you or your staff find any loaded cartridges at the scene: unfired bullets either of the caliber of the subject weapon or any other firearm?”

“No, we did not.”

“No loaded cartridges either inside or outside the house?”

“None that we found. And we looked thoroughly, including the use of metal detectors and the use of dogs trained to detect the odor of accelerants, including gunpowder.”

“Were there any fired or spent cartridges either inside or outside of the victim’s house?”

“None that we found,” says Perryman. “Again, we checked using canines attached to the bomb-detection unit.”

This is a mystery: why, with only two rounds fired, the police found two empty pistol clips belonging to the handgun and no spent cartridge casings.

“And the police canine units came up with nothing?”

“Not exactly,” says Perryman. “They found no spent cartridges. They did detect traces of expended accelerants along the railing on the second-floor landing above the entry area of the house and on top of one of the glass display cabinets just beneath that area.”

“When you say expended accelerants, could you explain for the jury what you mean?” says Templeton.

“One of the dogs found traces of a substance including particulates of nitrate that were probably dislodged from the inside of a spent cartridge casing when it bounced on the top of the cabinet beneath the railing. Swabs were taken which later tested positive for concentrations of nitrates, both burned and unburned. These were found to be consistent with the discharge of smokeless gunpowder.”

“I see,” says Templeton. “Did you form any conclusions as to what had happened at those locations as a result of these findings?”

“I did.”

“And what were those conclusions?”

“That a firearm was most likely discharged in the area along the railing at the second-floor landing and that the nitrates discharged by this action settled along the railing and top of the display cabinet beneath it.”

“I see. Were you able to determine whether the shots that killed Madelyn Chapman were fired from that location?”

“It is my opinion that they were. We checked all other areas in the house that would have a clear and unimpeded line of fire to the location where the body was found in the entry hall. None of those locations came up positive for traces of nitrates.”

“So by process of elimination you concluded that the shots that killed Madelyn Chapman were fired from the area of the second-floor landing above the entry?”

“That’s correct.”

Templeton has the witness identify photographs of this area, several shots looking up from the vicinity around the front door as well, as three photos, one with the crosshairs of a sight superimposed on the lens, aimed down at the floor of the entry hall in the area where Chapman’s body was found. A chalk outline of her body drawn on the floor is still visible in the three pictures. These go up on the visualizer for the jury.

“Now let me ask you,” says Templeton, “did you measure the distance from the railing in the area where you detected traces of nitrates to the location where the victim’s body was found, on the floor of the entry?”

“I did.”

“And what did you determine that distance to be?”

Perryman doesn’t even bother to refer to his notes. He has memorized this, one of the key elements of their case along with the rapidity of the two shots, the distance to the target.

“Twenty-one feet four inches, if you take into account the height of the victim when she was standing and the fact that the gun would most likely have been held at arm’s length in a two-handed firing stance and slightly out over the railing.”

“Over twenty feet?” says Templeton.

“That’s correct.”

“Two shots, both of which according to evidence already introduced were tightly grouped within slightly more than half an inch, and both of which struck the victim in the head?”

“As I understand it,” says Perryman.

“That’s some shooting,” says Templeton.

“Objection.”

“Sustained. Mr. Templeton, let’s allow the witnesses to testify. Keep your comments to yourself. The jury will disregard the statement made by the prosecutor.”

“Sorry, Your Honor.” Templeton gives the judge one of his harmless smiles, open palms out and extended like a miniature Jolson.

He then moves on to defuse one of the problem areas of his case. Templeton covers the Orb at the Edge, which is still missing. “Did you find any remnants of this, the glass art object that we know the victim purchased the day that she was killed?”

“No. But we did find the cardboard box and pieces of tape and packing materials. It appears that she had just finished unpacking this in the kitchen, a short time before she was killed.”

An earlier witness has already identified these materials. The merchant who sold her the art glass told the jury that the materials were gathered from the storeroom at the back of his shop and used to pack the glass before it was loaded into the front seat of Chapman’s car.

“So the killer could have taken the item?” says Templeton.

“I don’t know. All I can say is that we didn’t find it at the scene.”

“And I assume that anyone who took it would probably want to dispose of it as quickly as possible.”

“Objection. Calls for speculation.”

“Mr. Templeton. Please,” says Gilcrest.

“Allow me to rephrase it, Your Honor.” Having made his point, Templeton proceeds to make it again. “Let me ask you, have you seen pictures of the art object in question, what are called catalog photos?”

“I have,” says Perryman.

“Was it your understanding, based solely on your investigation, that the glass art item known as the Orb at the Edge was unique, a one-of-a-kind item?”

“Objection. Calls for speculation. The witness is not an art expert.”

Gilcrest weighs this for a moment. “I’ll allow the witness to answer based solely on his understanding of what he discovered during the course of his investigation.”

“From everything I learned during the course of the investigation,” the witness says, treading carefully, “it was unique. A one-of-a-kind item, as you say, and expensive.”

“So, based on this, if this item-once owned by the victim Madelyn Chapman and in her possession on the day that she was murdered-were suddenly to be found in the possession of another person, as an expert witness in the field of criminalistics and forensic evidence, I assume you would consider this to be incriminating evidence?”

“You bet. Absolutely.”

“And let me ask you this, based solely on your expertise and your experience in the field of evidence: Have you ever seen situations in which an accused criminal perpetrator or a suspect was motivated to dispose of physical evidence when that evidence might link them to a crime?”

“Yes, I have seen such situations,” says Perryman.

With a crayon, Templeton draws a picture of the obvious for the jury.

“Even an item of evidence that might have substantial monetary value?” Templeton asks.

“Yes. I have seen and am familiar with cases in which expensive evidence has been disposed of because it might link a suspect to a crime.”

Obvious as it may be, it is nonetheless effective. In closing, he can now argue that theft of the Orb was never the motive for the murder: that Ruiz took it no doubt to throw the cops off his scent to make it look like Chapman’s murder was a killing during the course of robbery. The state will argue that after the murder Ruiz had to get rid of it, since the art glass would have linked him beyond question to the homicide.

“During the course of your investigation, you were inside the victim’s house for a considerable period of time, were you not?” says Templeton.

“That’s correct.”

“And during that time, did you have an opportunity to observe and to inventory all of the items of expensive artwork that were present there?”

“I did.”

During the course of your investigation, did you determine whether any other items of glass art were missing from the victim’s residence besides the item known as the Orb at the Edge?”

“We were able to determine that there were no other missing items. The victim maintained a very active and up-to-date schedule of insurance on the items displayed in her home. She had a separate schedule for the items at her office. All of the items listed were still present following her death.”

“Except for the Orb at the Edge,” says Templeton.

“Correct.”

“Was that insured?”

“No. We knew about that only because we found the bill of sale and the merchant who sold it to her.”

Templeton makes the point: if the purpose was burglary or robbery why didn’t the killer take any of the other objects of glass? Even in haste he would have grabbed one or two of the more expensive-looking items to go along with the Orb. But he didn’t.

Harry and I blow through lunch at Mac’s.

“Whoever did it was either awfully lucky or had some insights,” says Harry. He is talking with his mouth full of barbecue beef, one corner of a large paper napkin tucked over the knot of his tie. Harry is hunkered over his plate, allowing the excess to drip down onto the plate.

“If I had to guess”-I poke around at my salad as I’m thinking-“somebody who’s spent enough time in court or has enough knowledge of investigative techniques to make everything point in the wrong direction,” I tell him.

Harry stops chewing just long enough to look up at me. “You have a candidate in mind?”

“I don’t know. I’m thinking about it.”

In the afternoon I get my shot at Perryman on cross.

“You say you found no spent cartridges at the scene, is that correct?”

“That’s right.”

“That would mean that the killer must have taken the time to pick them up?”

“I don’t know,” says Perryman. “I can’t answer that question.”

“We are talking about a semiautomatic handgun here, are we not? The pistol you say police found in Madelyn Chapman’s backyard?”

“Yes. It’s semiautomatic.”

“That means each time it fires a separate shot, it ejects the empty cartridge from the gun, does it not?”

“Objection,” says Templeton. “The witness is not qualified as a firearms expert.”

“But he has found firearms at the scenes of numerous homicides, along with expended cartridge cases,” I say.

“I’ll allow the witness to answer the question if he knows the answer,” says Gilcrest.

“A semiautomatic handgun would normally eject an expended cartridge each time it’s fired,” says Perryman.

“Thank you. That means, assuming the state’s evidence is correct, you would expect to find at least two expended cartridges at the scene, is that right?”

“I suppose.”

“But you didn’t.”

“No.”

“So someone must have taken them.”

“I presume so.”

“Why would someone who had just murdered a woman-shot her twice with a handgun-stop to pick up expended cartridge cases?”

“Maybe they didn’t want us to be able to trace the cartridges back to the handgun,” says Perryman. “Tool marks,” he adds.

“But they left the handgun for you to find. Does that make sense?”

“That’s not true,” says Perryman. “From what we were able to deduce, the killer tried to throw the handgun over the wall in the backyard.”

“Ah. He tried to hit the ocean but he missed?”

This is their theory. Perryman doesn’t like the way I’ve put the question, so he doesn’t answer it. I ask it again.

“How could he-or she, for that matter-miss the ocean?”

“He didn’t throw it hard enough,” says the witness. “It probably hit the wall and bounced back into the yard.”

“Ah. I see. Your Honor, if I might. .” I want Gilcrest to allow me to examine the firearm.

The judge nods.

This allows me a little freedom to move away from the podium and around the courtroom. I move to the table in front of the jury box and pick up the pistol. I smile at several of the jurors. Only one of them smiles back.

The slide of the pistol has been wired back, the chamber held open by a nylon cable tie so that it cannot be loaded without removing this: the standard safety precaution in most courtrooms and many private gun shops.

I turn toward the witness. “It’s heavy.”

He nods.

“Do you have any idea what it weighs?”

“If I could look at my notes. .” he says.

“I have no objection.” I look at Templeton sitting on the box on his chair.

He shrugs a shoulder. “No objection,” he says.

Perryman rifles through a few pages until he finds the one he’s looking for. “According to the manufacturer, the handgun without a loaded clip weighs two point four two pounds.”

“So it would take a pretty good throw to make it to the ocean from the backyard of Ms. Chapman’s house.”

“My point exactly,” he says.

“Hmm. Can you show me where it hit?”

“Excuse me?” he says.

“Where this handgun hit the wall in the backyard. You say you believe that the killer threw the gun from the backyard but that it probably struck the wall and bounced back into the yard. That is what you just said. So, can you show me the marks on the gun where it hit the wall?”

Perryman is beginning to look a little uncomfortable in the witness box.

“That’s just one possible theory,” he says.

“Yes. Well. If I hand you the gun, can you show me what part of it struck the wall? May I approach the witness, Your Honor?”

Gilcrest waves me on.

I hand Perryman the gun.

He takes it like it’s some foreign object, not knowing which end is supposed to be up. He checks the handle first. It is pristine, as is the blued metal on the barrel, both sides, and the top of the slide.

“I can’t say,” he says.

“You don’t find any dents or scratches that might be consistent with the gun hitting the wall?”

He looks again. “There’s a little wear on the barrel near the crown. The bluing is off,” he says.

“But hitting the wall wouldn’t cause wear, would it?”

“No. Probably not.”

“Do you see any major nicks or dents?” I ask.

“No.”

“Do you remember what the wall behind Madelyn Chapman’s house is made of?” I ask.

He looks at me, not sure what to say or whether he should guess.

“What if I told you it was made of concrete cinder blocks covered with stucco? What would you say?”

“I don’t know. I don’t remember,” he says.

“Regardless of what it’s made of, we know it’s not made of goose feathers or foam rubber. So, wouldn’t you expect a heavy object like the firearm in your hand, when thrown from some distance, to at least get scratched or dented somewhere when it strikes a solid object like a fence or a wall?”

“Not necessarily,” he says. “It’s possible it didn’t hit the wall at all-that perhaps the perpetrator just didn’t throw it far enough. It could have just landed in the flower bed.”

“Ahh. Theory number two,” I say. “The feeble-armed killer.”

As I turn from the witness, a couple of jurors crack a smile.

I can tell by the look on Templeton’s face he knows he’s in trouble. He’d like to get the witness off the stand. If he had a hook, he’d use it now.

“How far would you say it is from the back edge of the patio at the victim’s house to the point at the edge of the grass where the gun was found by the officer? Did you measure it?”

Perryman shakes his head.

“You have to speak up.”

“No. I didn’t measure it.”

“I did. Would you be surprised if I told you it was thirty-two feet four inches?”

“I’ll take your word for it,” he says.

“Maybe we could have the photograph back up on the visualizer.” I turn toward Templeton.

He looks at me like I’m a man from Mars.

“The state’s photograph of the firearm in the rose bed,” I say.

“Ah.” He nods toward his computer assistant, and a second later the picture is back up on the visualizer.

“Can you see the picture?” I ask the witness.

“Yes.”

“Can you show me where this gun, the one in your hand, the one that weighs just a little under two and a half pounds, made an impression in the soil when it landed in the flower bed under the rosebush there?”

The look on Perryman’s face is that of a deer in the headlights. He doesn’t respond.

“You did say that no one touched the gun before it was photographed, is that correct?”

“Yeah. Yeah, that’s right.”

“Well, where is the impression in the soil where it landed?” There is a small puddle of water just at the bottom left corner of the photo. The ground is wet.

Herman checked it. The sprinkler system at Chapman’s house was on a rotating timer. It was set to water the entire yard, front and back, every day. The area around the bushes in the back had been soaked for over an hour just after three in the afternoon on the day of the murder. The killer dragged traces of soft peat from his shoes into the house near the window where he entered. The cops looked for shoe prints in the mud but found none. The killer was careful enough to stay mostly on the flat flagstones that formed a path through the garden to the back of the house.

I repeat the question: “Do you see an impression in the soil where the gun landed?”

“Maybe it bounced on the lawn,” he says.

“Well, then, where’s the skid mark in the mud? Wouldn’t you expect that if something weighing almost two and a half pounds and made of case-hardened steel were thrown, say, thirty feet, and bounced on the lawn and came to rest in the flower bed that it would disturb at least a little bit of the soil underneath the rosebush where it came to rest?”

“I don’t know,” he says.

I can tell by looking that Templeton would like to put his head in his hands at this point. But he resists the urge. At one time or another we have all been there.

“Let me ask you: Do you see any marks at all in the soil in that photograph?”

“I don’t know,” he says. “I can’t tell.”

“Well, you and your staff took the photographs, didn’t you?”

“Yeah.”

“I don’t see any marks in the soil, and the photograph looks pretty clear to me.”

“Objection.”

“Sustained. The jury will disregard the comment by counsel.”

They may disregard it, but unless they are blind, they can’t help but notice the undisturbed surface of the flower bed.

“Let me suggest another theory to you and ask you whether that theory is not in fact more plausible, given the physical evidence contained in your own photograph. Isn’t it more likely, given what you can see up there on that screen, that whoever shot Madelyn Chapman didn’t throw the gun at all but placed the gun-the one in your hand, the one weighing two and a half pounds-in the flower bed so that you could do exactly what you did do: find it there?”

If it were possible, Perryman would crawl out of the box at this moment on his belly, slither like a serpent out into the hall, and disappear. But he can’t. Instead he offers up the answer of all witnesses who have hit into a sand trap on the stand. “Anything is possible,” he says.

I take the pistol from his hand before he can run to a gun shop to buy a bullet. I head back toward the table.

“Can the witness be excused?” says Templeton.

“I’m not finished.”

I can almost hear Templeton groan as I say it. I put the gun down and pick up the silencer. The metal tube is only a fraction of the weight of the more solid handgun.

Perryman’s gaze settles on the silencer like a child looking at a hypodermic needle. It is the problem when you already know what is going to happen and all you can do is bend over.

“Do you have any idea how far it is from the back of Madelyn Chapman’s house-say, the edge of the back patio-to the rocks over the beach on the other side of the seawall where this silencer was found?”

“No,” he says, shaking his head, then tries to get cute: “But I’m sure you’re going to tell us.”

“Would you believe me if I told you sixty-two feet, give or take a couple of inches?”

“Objection. There’s no verification for this,” says Templeton.

“I can have our technician put the property plat map up on the visualizer if you like. It is drafted to scale, including the house. We’ve had each item of evidence marked on as to location where it was found.”

“That won’t be necessary,” says Templeton. “I withdraw the objection.”

I restate for the witness the distance of the supposed throw from the back of the house to the area where the silencer was found on the rocks: roughly sixty-two feet.

Perryman nods. “I’ll take your word for it.”

“Can we have the other photograph? The one showing the silencer on the rocks?” This time I’m looking directly at Templeton’s computer wizard. I spare Templeton the task of assisting in the burial of his own witness.

The photo flashes up on the screen showing the abrasive surface of the sandstone with a few jagged outcroppings of more solid rock where the silencer came to rest.

“Perhaps you can show me on the blued gunmetal here where the dents and scratches are located where this silencer hit the sandstone after it was thrown that distance.”

Perryman takes the silencer, turns it over in his hands. He would swallow it whole if he could. “Fine. So there’s no scratches.”

“How is that possible? How is it that an object like this could be thrown roughly sixty feet, land on a surface of hard sandstone, hit rocks, and yet the bluing on the metal shows no indication of this? No scratches, no dents, nothing.”

“I don’t know.”

“Could it be that somebody carefully laid it there?”

“As I said, anything’s possible.”

“But if they walked all the way out there with the silencer in their hand, why wouldn’t they just toss it into the surf? It can’t be, what, more than ten feet to the edge of the rocks?”

“I don’t know. I didn’t measure it. But I’m sure you did.”

“Mr. Perryman, nobody threw this silencer, did they?”

“I don’t know.”

“They laid it on the rocks, didn’t they? Just as they laid the gun under the rosebush, so that you and your staff could find both when you went looking for them. Didn’t they?”

“I don’t know.”

“The witness has answered the question,” says Templeton. Templeton wants it to end.

I head back toward the table with the silencer in my hand. “I’m not quite done.”

This time I return with the bag, canvas camo, desert colors with pockets inside for the two clips and the silencer, a larger space for the handgun, and one more square-shaped pocket underneath it.

“Have you looked at this gun bag?” I ask Perryman.

“I have.”

“Do you know where it came from?”

“It’s standard-issue military for that particular weapon. The HK Mark Twenty-three forty-five automatic,” he says.

“Ah, I see you’ve done your homework. Did you take the time to place all of the various components of this weapon in their proper pockets to see if they fit?”

“I did.”

“And what did you discover, if anything?”

“They all fit.”

“Yes, but was anything missing in this bag from the standard kit as it was issued by the military for the HK Mark Twenty-three?”

“Yes.”

“What?”

“A laser sight,” says the witness.

“Ah, yes. The missing laser sight. Did you find a laser sight anywhere at the victim’s house or in her yard or on the rocks beyond the seawall?”

“No.”

“So you never found the laser sight.”

“No, we didn’t.”

“And you never found any of the spent cartridges or additional loaded rounds for the gun, either, did you?”

“No.”

“Did you have divers check the water, the area of the surf beneath the rocks, looking for any of this evidence?”

“We did. The tidal action was too rough for anything to be found.”

“So if someone threw the laser sight into the water, it would have disappeared, unrecoverable, correct?”

“Apparently,” says Perryman.

“Same with the bullets and any empty cartridges, right?”

“I suppose.”

“And yet, the killer didn’t bother to toss the handgun itself into the water, or the silencer. Doesn’t that strike you as curious?”

“Perhaps,” he says.

He has gone from “I suppose” to “Perhaps.”

“A few hours ago Mr. Templeton asked you a question about your expertise in the collection of physical evidence at crime scenes. He asked you whether you had ever seen a situation in which the suspect or accused perpetrator in a crime would dispose of evidence that the suspect knew might link him to a crime, even evidence of substantial monetary value. Is that not what he asked you?”

“Yes.”

“And as I recall, you stated that you were aware of situations where suspects or accused perpetrators were in fact motivated to dispose of such evidence linking them to a crime, is that what you said?”

“Yes.”

“Then let me ask you a question: Assuming that this firearm belonged to or was at one time known to be in the possession of the defendant, Emiliano Ruiz”-I point to my own client at the counsel table-“and assuming that he committed the crime as the state charges, why would he lay the firearm that links him to that crime in the flower bed in the backyard of the victim’s house? Why would he leave the silencer on the rocks beyond the seawall behind that house? Why? Why, when he could have dumped them both into the surf and, as you yourself testified, they would have been swallowed up by the sea?”

The witness glances quickly at Templeton, then shakes his head. He seems about to be saying he doesn’t know, then catches himself. “Perhaps he tried and in the dark he didn’t realize,” he says.

“That’s the best you can do?”

“Objection.” Templeton is now standing on the lip of his chair that extends beyond the front edge of the box on top of it. “Move that counsel’s comment be stricken.”

“Sustained,” says the judge.

“I have no more questions of this witness.” As I turn to walk toward the counsel table, I see Ruiz looking at me, the slight glimmer of hope on his face, the first I have seen in more than two months.