The Wrong Gun

28

When court reconvened the next morning, Vaulding recalled Dr. Blessing, who introduced a series of photographs taken during his autopsy. The photographs were marked for identification and introduced into evidence. Then they were shown to thejury.

As the jurors passed the pictures along their faces became hard, a natural consequence of looking at a bloody dead body.

Seeing this, Timberlaine stirred restlessly, looked at Steve in exasperation. Twice he seemed on the verge of speaking, but under Steve’s stony gaze he held his tongue.

Vaulding sat quite placidly through all this. If anything, his attitude was bemused.

When the jurors were finally finished with the pictures, Vaulding turned to Steve Winslow and said with a bit of a smirk, “Your witness.”

Steve leafed through the photographs, frowned. He selected one, stood up and approached the witness.

“Dr. Blessing, I hand you a photograph marked for identification as People’s Exhibit Two-G and ask you to describe what it shows.”

Dr. Blessing took the photograph and looked at it. “That is a closeup of the back of the head of the decedent showing the concussion.”

“Can you describe the concussion?”

“It is a raised discoloration on the back of the skull.”

“Could you describe the hair in that area?”

“I beg your pardon?”

“Or lack of it?”

“Oh. Yes, I shaved the hair away from the head in that area so that I could photograph the bruise.”

“How large an area did you shave, doctor?”

“That appears to be approximately a three-inch square.”

“You did this so that you could photograph the bruise?”

“That’s right.”

“Well, doctor, if I understand your testimony, you found this blow to the back of the head to be important enough to shave away a three-inch-square section of the hair on the back of the head, considered it important enough to photograph that bruise, and you considered it important enough to blow those photographs up to eight-by-tens, but you did not consider it important enough to mention on the stand in your direct examination yesterday.”

Dr. Blessing smiled. “As I’ve already stated, I was asked to describe the cause of death. The blow to the head was not the cause of death.”

Steve took a breath. Things weren’t going as planned. He wanted to do something, anything, to rip the smug look off the doctor’s face. But with the doctor calmly conceding everything he wanted to prove, and Vaulding raising no objection, Steve had nothing to push against. The end result was, all Steve had accomplished was the introduction of a bunch of photos destined to prejudice the jury against his own client.

Steve stole a look at Vaulding, saw him watching the proceedings with a superior smirk. But there was nothing he could do about it.

Steve took another breath, blew it out again. “No further questions.”

When Dr. Blessing had been excused from the stand, Robert Vaulding stood up and said, “Your Honor, I now wish to call a witness for a limited purpose only. This is a gentleman who will be a main witness for us later on, but right now I am attempting to establish orderly proof, and at the moment I am concerned with the corpus delicti, specifically the identification of the body. I am now calling the witness for that limited purpose. I apologize in advance for this witness giving his testimony piecemeal.”

“So noted,” Judge Hendrick said. “Call your witness.”

“Call Melvin Burdett.”

Melvin Burdett gave every indication of being a hostile witness. He took the stand reluctantly, smiled encouragingly at Russ Timberlaine, then glared at the prosecutor.

“What is your name?” Vaulding asked.

“Melvin Burdett.”

“Are you familiar with the defendant, Russ Timberlaine?”

“Yes, I am.”

“Where you familiar with a man by the name of Jack Potter?”

“Yes, I was.”

“You had met Jack Potter?”

“I just said so, didn’t I?”

Judge Hendrick held up his hand before Vaulding could ask another question. “That will do,” he snapped. “Mr. Burdett?”

“Yes?”

“Call me Your Honor.”

Burdett glared at the judge a moment, then said, “Yes, Your Honor.”

“This is a court of law. You have been called as a witness and you are required to answer questions. Please do so in a civil manner or I will hold you in contempt of court. Is that clear?”

After a moment’s pause, Burdett said, “Yes, Your Honor.”

“Thank you. Proceed, Mr. Vaulding.”

Vaulding looked up at the judge. “I trust Your Honor recognizes this as a hostile witness and will allow leading questions?”

“Ask away. You have your ruling.”

“Thank you, Your Honor. Mr. Burdett, on how many occasions had you met Jack Potter?”

“I don’t know.”

“Was it more than once?”

“Yes, it was.”

“More than a dozen times?”

“I don’t think so.”

“More than six?”

Burdett hesitated a moment. “I don’t know.”

“I see. Mr. Burdett. Directing your attention to the night of the murder, were you asked by police officers to look at the body of a man?”

“Yes, I was.”

“Did you look at that body?”

“Yes, I did.”

“Did you recognize the man whose body you saw?”

“Yes, I did.”

“Could you tell us who that was, please?”

“Jack Potter.”

“Thank you. No further questions.”

As Burdett rose to leave the stand, Steve Winslow stood up. “One moment, Mr. Burdett. I have a few questions.”

“Objection, Your Honor,” Vaulding said. “This witness was called for a limited purpose only.”

Judge Hendrick raised his eyebrows. “Mr. Vaulding, you can’t object to a witness being cross-examined.”

“May I have a sidebar, Your Honor?”

Rather reluctantly Judge Hendrick said, “Very well.”

At the sidebar Vaulding said, “Your Honor, I think the situation is clear. This witness is hostile to the prosecution and favorable to the defense. As such, he can logically be expected to repeat any words the defense attorney wishes to put in his mouth. Given any latitude in my direct examination, that might be permissible. We could at least debate the points. But he was called for the limited purpose of identifying the body. And that should not allow counsel to go on a fishing expedition for the express purpose of getting me to put my case on out of order.”

“I understand your contention,” Judge Hendrick said. “Still, counsel has the right to cross-examine. If his questions go afield, you can object, and those objections will be sustained.”

“Giving the jury the impression that the prosecution is hamstringing the defense and that I have something to hide,” Vaulding said in exasperation.

Judge Hendrick’s eyes narrowed. “Mr. Vaulding,” he said with just an edge in his voice. “Give me some credit for being able to run my courtroom. If counsel’s questions are irregular, he will be told so and instructed by the court not to ask them. Now could we please get on with it? It is somewhat extraordinary to have an objection before a single question has been asked.”

When they had resumed their positions, Steve Winslow said, “Mr. Burdett, you stated you met Jack Potter several times?”

“That is correct.”

“Tell me, where did those meetings take place?”

“At Russ Timberlaine’s mansion.”

“And all the occasions when you met Jack Potter were at Russ Timberlaine’s mansion?”

“That is correct.”

“Tell me, on the weekend of the murder, did you meet Jack Potter at that time?”

“Absolutely.”

“And in the course of the weekend, did you have occasion to speak to him personally?”

“Yes, I did.”

“And on or before the day of the murder, did you have a conversation with Jack Potter, asking him to tell you what gun Russ Timberlaine intended to bid on in the auction?”

“Objection, Your Honor!”

“Absolutely not!” Burdett snapped angrily.

Judge Hendrick’s gavel smacked down. “That will do,” he growled. He turned to the witness. “Mr. Burdett, you have been warned before. You are now warned again. In the event of an objection, you will wait for the judge’s ruling before answering the question. Is that clear?”

“It’s clear, Your Honor. But I’m not going to sit here and let my reputation be smeared.”

“Your reputation is not on trial here, Mr. Burdett. And I’ll thank you to heed the court’s instructions.”

“Yes, Your Honor,” Burdett mumbled.

“Now then, the objection is sustained. That question and answer may go out. Mr. Winslow, please confine your questions to any specific meetings and not what was discussed in them.”

Steve Winslow smiled. “No further questions, Your Honor.”

When Burdett had been excused from the stand, Vaulding recalled Lieutenant Sanders.

“Lieutenant,” Vaulding said. “Directing your attention once again to the scene of the murder at Russ Timberlaine’s mansion, you arrived at the scene and discovered the body on the floor. The body that we have now identified as Jack Potter. Now then, was there any weapon in sight?”

Lieutenant Sanders hesitated, then smiled. “I think you’d better rephrase that, counselor,” he said. “You’ll recall this was Russ Timberlaine’s gun room.”

The remark produced a laugh in the courtroom.

Vaulding smiled good-naturedly. “Well-said, lieutenant. Then let me ask you this: was there any weapon in particular that you took notice of?”

“Yes, there was.”

“And what would that be?”

“A Colt.45 lying on the floor next to the body.”

“Was there anything in particular you noticed about this Colt.45?”

“Yes. There was the initial R carved in the handle.”

“That was readily apparent?”

“Yes. That side of the handle was facing up.”

“Did you notice anything else in particular about this gun?”

“Yes, I did.”

“What was that?”

“The serial number had been filed off.”

“The serial number?”

“That’s right.”

“How had that been done?”

“Someone had taken a file or other rough grinding implement and ground the number off the gun.”

“The serial number was metal then?”

“Yes. The serial number was stamped in metal on the underside of the gun, just back of the trigger guard, between the cylinder and the handle.”

“And the serial number had been ground off?”

“That is correct.”

“Is that the only serial number on the gun?”

“Yes, it is.”

“Lieutenant, would you know this gun if you saw it again?”

“Yes, I would.”

“How, if the serial number has been ground off?”

“I scratched my initials on the underside of the handle.”

Vaulding nodded. He took a gun, had it marked for identification, and handed it to Lieutenant Sanders. “Lieutenant, I hand you a gun marked for identification People’s Exhibit Number Three and ask you if you recognize it.”

“Yes, sir,” Lieutenant Sanders said. “This is the gun I described. The one I found on the floor of Russ Timberlaine’s gun room, next to the body of Jack Potter.”

“There is no question in your mind?”

“None whatsoever.”

“This is the gun you found that evening and scratched your initials on?”

“That’s right.”

“Did you take possession of that gun at that time?”

“Yes, I did.”

“Then let me ask you this: did you take possession of any other gun on that particular evening?”

“Yes, I did.”

“Can you tell us how that happened?”

“I showed this gun-the one we’ve just identified-to Russ Timberlaine and asked him if it was his gun, and, more specifically, if it was the gun he’d been seen wearing that day.”

“You asked this of the defendant, Russ Timberlaine?”

“Yes, I did.”

“Let me ask you this: was Mr. Timberlaine’s attorney present?”

“Yes, he was.”

“I am referring to Mr. Steve Winslow, the attorney for the defense-you say he was present at the time?”

“Yes, he was.”

“And was Russ Timberlaine advised that he did not have to answer your questions?”

“Yes, he was. I gave him that advice, and his attorney gave him that advice.”

“Despite that, he answered your questions?”

“Yes, he did.”

“And what did he say at the time?”

“He said-referring to this gun-People’s Exhibit Three, is it? — he kept saying it’s the wrong gun.”

“The wrong gun?”

“Yes.”

“Did he tell you what he meant by that?”

“Yes, he did. He stated that this was not the gun he was seen wearing at the time of the auction.”

“I see. And what did you do then?”

“I said if this was not the gun he’d been seen wearing at the auction, would he please produce that gun.”

“What did the defendant do then?

“He led me upstairs to his bedroom and proceeded to point out a gun.”

“Where was this gun?”

“In his holster on an end table next to his bed.”

“The defendant pointed this gun out to you?”

“Yes, he did.”

“And said it was the gun he had been wearing at the time of the auction?”

“That’s right.”

“Lieutenant, can you describe this second weapon?”

“Yes, I can. It was a Colt.45, apparently similar in every way to the one found next to the body.”

“You say in every way?”

“Yes, I do.”

“Does that include the R carved into the handle?”

“Yes, it does. The gun I took from Russ Timberlaine’s gun belt had an R carved in the handle as well.”

“What about the serial number?”

“It had also been ground off.”

“What was the condition of the gun-with regard to being loaded?”

“The gun was fully loaded, with one shot fired. That is, there was one empty shell under the hammer of the gun.”

“I see. And what was the condition of the other gun, the one found next to the body?”

“That gun was also fully loaded with one shot fired.”

Vaulding nodded. “So the guns were identical in this regard also?”

“Yes, they were.”

“And did Mr. Timberlaine make any statement at the time, explaining why there were two identical guns?”

“Yes, sir. He said the gun found next to the body was a valuable gun from his collection-a gun that had once been owned by a Wild West gunslinger named Pistol Pete Robbins. He claimed that the gun had been stolen from his collection, and a fake gun left in its place. He claimed the gun in his gun belt, the gun he had been wearing during the auction, the gun he pointed out on his bedside table, was that substitute gun.”

“I see. And did you take possession of this gun at this time?”

“Yes, I did.”

“What steps did you take to identify this gun?”

“I scratched my initials and the numeral two on the handle.”

“Two?”

“That is correct.”

“To indicate this was the second gun you had recovered?”

“That’s right.”

Vaulding nodded, marked another exhibit for identification and took it over to the witness. “Lieutenant, I hand you a gun marked for identification as People’s Exhibit Number Four and ask you if you’ve seen it before?”

“Yes, I have.”

“What do you recognize it to be?”

“It is the gun I recovered that evening from Russ Timberlaine’s holster.”

“Thank you, lieutenant. No further questions.”

Steve Winslow stood up. “People’s Exhibit Three was found next to the body?”

“That’s right.”

“People’s Exhibit Four was taken from the holster of the gun belt on Russ Timberlaine’s night stand?”

“That’s right.”

“You took possession of both guns on the evening of the murder?”

“Yes, I did.”

“Lieutenant, is there any chance whatsoever that you confused these two guns?” As Lieutenant Sanders started to answer, Steve Winslow held up his hand. “Let me finish. That is to say, that the gun, People’s Exhibit Three is actually the gun from Russ Timberlaine’s holster, and the gun People’s Exhibit Four is actually the gun that you found next to the body? Is there any chance, however slight, that that is the case?”

“Absolutely not,” Lieutenant Sanders said.

“How can you be certain?”

“I told you. Because of my initials, which I marked on the gun.”

Steve Winslow nodded. He walked over to the court reporter’s table, picked up the two guns and looked at them. He set them down, turned back to Lieutenant Sanders.

“Tell me, lieutenant. When did you mark your initials on the guns.”

“I beg your pardon?”

“When did you do it? Relative to the time you found the guns. When did you mark your initials?”

“I did it there at the scene of the crime.”

“The scene of the crime?”

“That’s right.”

Steve smiled. “But the gun, People’s Exhibit Four, wasn’t found at the scene of the crime. At least, according to your testimony.”

“By the scene of the crime I am referring to the Timberlaine mansion.”

“I see,” Steve said. “Well, that alters the time frame, lieutenant. You were at the Timberlaine mansion most of the night. I’m wondering when you marked your initials on the guns. By your testimony, it could have been as late as six A.M. the morning after the murder.”

“It was not,” Lieutenant Sanders said. “It was early in the evening, shortly after I arrived at the mansion.”

“Shortly after? And how short might that be?”

“Within a reasonable amount of time.”

“Our definitions of reasonable may differ, lieutenant. Let’s be specific. Referring to the gun, People’s Exhibit Three. How soon after you found that gun did you mark your initials on it?”

“I can’t give it to you in minutes.”

“I didn’t think you could, lieutenant. But let’s get at it another way. I notice you marked this gun, L.S. dash one. Is that right?”

“Yes, I did.”

“Well, obviously there would be no need to do that, lieutenant, unless there was an L.S. dash two. Am I correct in assuming you did not mark the gun, People’s Exhibit Three, until after you had found the gun, People’s Exhibit Four?”

Lieutenant Sanders took a breath. “That is correct.”

“Really? And why is that, lieutenant?”

“It was only after the second gun came into the picture that marking the first gun became particularly important. Also, it was not possible to mark the first gun, People’s Exhibit Three, until after the Crime Scene Unit had finished examining it for fingerprints.”

“I see,” Steve said. “So it was after you had taken possession of the second gun that you returned and marked your initials on the first gun. Is that right?”

“Yes, it is.”

“You marked the second gun first?”

“I beg your pardon?”

“Well, lieutenant. It was after you found the second gun that you decided to mark the first. I wonder if before you returned to mark the first gun that the Crime Scene Unit was processing for fingerprints, you first marked the initials L.S. dash two on the second gun that you had recovered?”

“No, I did not.”

“You did not?”

“No.”

“And why is that?”

“For one thing, the second gun had to be processed for fingerprints.”

“I see. So what did you do with it?”

“I placed it in an evidence bag, marked and labeled it and turned it over to the Crime Scene Unit.”

“The same Crime Scene Unit that processed the first gun?”

“That’s right.”

“It was this Crime Scene Unit that returned to you a gun that you subsequently marked L.S. dash one?”

“That is correct.”

Steve smiled. “Well, lieutenant. If I understand your testimony correctly, you turned two guns over to the Crime Scene Unit, they gave one of them back to you and you marked that L.S. dash one?”

“Objection.”

“Sustained.”

Steve smiled again. “Lieutenant, how many guns did you give to the Crime Scene Unit?”

“Two.”

“Did the Crime Scene Unit give one of those guns back to you?”

“They gave both of them back to me.”

“At the same time?”

“No.”

“They gave one gun back to you first?”

“That’s correct.”

“Was this after you had given them both guns?”

Lieutenant Sanders took a breath. “It was at approximately the same time. In other words, I delivered to the Crime Scene Unit the second weapon, which I had recovered from Russ Timberlaine’s bedroom. I gave it to them in a sealed evidence bag with my name on it. At the same time I got back from them the first weapon that I had given them-the gun that was found next to the body.”

“You say at the same time, but the fact is you gave them the second weapon first?”

“As I recall, I gave them the second weapon first. But it was within a matter of minutes.”

“Minutes, seconds or days, the fact is you gave it to them first?”

“Yes, I did.”

“Thank you, lieutenant. Now let me ask you this: when the Crime Scene Unit gave you this gun-the one that you have marked with the initials L.S. dash one-how did you know it was the same gun that you had given them earlier that evening, the gun that you had found next to the body of the deceased Jack Potter?”

Lieutenant Sanders took a breath. “If you insist that we reconstruct the chain of custody with regard to that gun, I am sure it can be done. I am testifying to the best of my ability and my testimony is based on allegation and belief. The gun appeared in every aspect to be the gun that I gave to the Crime Scene Unit, down to the filed off serial number and the R carved in the handle.”

“How do you distinguish it from the other gun, the one you found on Russ Timberlaine’s bedside table, the other gun you had given to the Crime Scene Unit?”

“I had just given them that gun. It was still in the bag. They had not even begun to process it for fingerprints yet.”

“I understand your contention, lieutenant. But if the Crime Scene Unit had made a mistake and given you back the wrong gun, you would have no way to tell the difference, would you?”

“Objection, Your Honor.”

“Overruled.”

“Would you, lieutenant?”

Lieutenant Sanders took a breath, blew it out again. “No, I would not.”

Steve smiled. “Thank you, lieutenant. That’s all.” There was no redirect, and Lieutenant Sanders left the stand. As he did, Steve smiled in satisfaction and under his breath he murmured, “Keep your eyes on the gun.”