The Wrong Gun

35

Judge Hendrick looked down from his bench. “Once again we have matters to take care of before we begin. Mr. Vaulding, I understand you served a subpoena yesterday.”

“That’s right, Your Honor.”

Judge Hendrick frowned. “Mr. Vaulding, yesterday we listened to the testimony of Mr. Henson, who was not on your original list of witnesses.”

“We just found him, Your Honor.”

“So I understand. Judging by the service of this subpoena, I gather we are about to be treated to the testimony of another witness not on your list.”

“Again, the information just became known to us, Your Honor.”

“I’m sure that it did. But I must say it’s quite a coincidence for it to happen with such amazing regularity.”

“I assure you it’s not by design, Your Honor.”

“I didn’t say it was. I just remarked on the coincidence. You may take the statement I am about to make as entirely coincidental, also. This is a courtroom, not a sideshow. I intend to see that evidence is presented in an orderly manner. And that it is presented for the benefit of the jury, not for the benefit of the press.”

“Oh, Your Honor,” Vaulding said.

Judge Hendrick held up his hand. “One moment, Mr. Vaulding. I’m not through.” He lifted a newspaper from the top of his bench, turned it around and held it up.

It was a copy of the Daily News with the headline, PISTOL PETE: SURPRISE WITNESS.

Judge Hendrick held up another newspaper.

It was the POST with the headline, PISTOL PETE: HE BOUGHT THE GUN.

“I do not intend to have this case tried in the newspapers,” Judge Hendrick said.

“Your Honor, I’m not responsible for the press.”

“Surprise witnesses make news.”

“I’ve already explained that was not my intention.”

“Maybe not, but this is deplorable. I would like to point out that the jury has not been sequestered.”

“They’ve been instructed not to read the papers.”

“Not to read them, yes. But these are front-page scare headlines. You can’t miss them.”

“They are not my work.”

“That’s not the point. The point is, surprise witnesses and surprise testimony are the type of theatrics that create front page news. And if I found this was being done deliberately, I would not like it. Is that clear?”

“Yes, Your Honor.”

“Good. Now, what with all the surprise witnesses and early adjournments it seems a long time ago, but I believe yesterday morning Mr. Manning was on the stand. His cross-examination was interrupted until he could bring some photos into court. May I ask if he has done so?”

“Yes, Your Honor.”

“He’s present and ready to proceed?”

“Yes, he is.”

“Very well. Let’s bring in the jury and return Mr. Manning to the stand.”

When that had been accomplished, Judge Hendrick turned to Steve Winslow and said, “You may proceed.”

Steve crossed in to the witness. “Mr. Manning, yesterday you were asked to bring into court photographs of the fatal bullet photographed in a comparison microscope with test bullets from the gun, People’s Exhibit Four. Have you done so?”

“Yes, I have.”

“You have those photographs with you?”

“Yes, I do.”

“How many are there?”

“Referring only to the photographs showing the comparison of the fatal bullet to bullets fired from the gun, People’s Exhibit Four?”

“Yes, that’s right.”

“There are five.”

“Five pictures showing that comparison?”

“That’s right.”

“I ask that they be marked for identification as Defendant’s Exhibits A-One-through-Five.”

“Your Honor,” Vaulding said. “I believe those are a prosecution exhibit.”

“Well, the defense is producing them. You chose not to,” Judge Hendrick said. “Mark them Defendant’s Exhibits A-One-through-Five.”

When the exhibits had been marked, Steve picked up the pictures, riffled through them. He selected one, approached the witness.

“Mr. Manning, I hand you the picture marked for identification Defendant’s Exhibit A-Three and ask you what it shows?”

“It shows the comparison of the fatal bullet and the test bullet on the comparison microscope.”

“Which is which?”

“The fatal bullet is the top half, the bullet from People’s Exhibit Four is the bottom half.”

“The bullets are in alignment?”

“Yes, they are.”

“Mr. Manning, I notice scratches on the bottom half not present on the top half.”

“Yes. As I said, those are the scratches made when someone used some sort of etching tool to deface the barrel of the gun.”

“Then these scratches represent marks that do not line up?”

“Naturally.”

“I count four scratches of that nature, is that right?”

“I’m not sure.”

“Then take a look.”

Manning studied the photograph. “Yes. There are four.”

“How many marks do you find that do line up?”

Again Manning studied the photograph. “I count three.”

“Four that don’t, three that do?”

Manning frowned. “That is an unfair way of presenting the evidence.”

“Oh? Why is that?”

Manning hesitated a moment, then blurted out, “You make it sound like a ball score, with my side losing.”

Laughter rocked the courtroom. Everyone broke up, spectators and jurors alike.

Judge Hendrick, sensing everyone needed relief from the tension of the case, gave it a few moments before banging the gavel. “That will do,” he said. “Proceed, Mr. Winslow.”

Steve smiled. “Well-said, Mr. Manning. I’m sorry if I gave that impression. But four to three, that’s what we just counted up, isn’t it?”

“You can’t go by that,” Manning said. “The two things are in no way equivalent. There are four scratches where someone marked the barrel of the gun that prevent us from seeing the scratches that would line up. Despite this, we’re still able to line up three. That does not yield a score of four to three. If the murderer had only scratched the gun barrel twice, would we then have a score of three to two and say the identification won? Not at all. The two things are unrelated. Except, if there were only two scratches made by the file, we could see even more scratches that matched. You see what I’m saying?”

Steve smiled, “Yes, I do, Mr. Manning, but the fact remains you have only three scratches in this photograph that line up.”

“I’ve explained that.”

“Yes, you have. What I want to know is, is that sufficient to make the identification?”

“Yes, it is.”

“Is it, Mr. Manning? Didn’t you testify yesterday that there were individual characteristics and class characteristics?”

“Yes, I did.”

“Well, couldn’t these be class characteristics, common to all Colt,45s?”

Manning hesitated a moment.

Steve’s eyes widened. “Is that right, Mr. Manning? Is that what they are?”

“No, it is not,” Manning said angrily. “And I resent the suggestion. If I hesitated for a moment, it is because I wanted to be absolutely fair. You mentioned class characteristics. There is one of the scratches in the photograph that is consistent with being a class characteristic. I would go so far as to say it is indeed a class characteristic. But there is only one of which I would say that.”

“One of the three?” Steve asked.

“Yes. One of the three.”

“You’re saying now you think that is a class characteristic?”

“Yes, I do.”

“Then that leaves two scratches that are not class characteristics?”

“That’s right.”

“You are now saying two scratches are sufficient for making the identification.”

“No, I’m not,” Manning said. “I’m merely saying the bullets match.”

“But you must have some basis for saying so.”

“I’m saying so on the basis of my examination. If you want to break that down and say I’m going on the basis of two scratches, I suppose you can do so, but that’s not an accurate assessment of the situation. Aside from the scratch we call the class characteristic, there are two scratches that are a definite match. And there is every indication there would be more matches if it weren’t for the defacing of the barrel of the gun.”

“Mr. Manning, isn’t that like saying, I didn’t find the defendant’s fingerprints, but if I had found them they’d be there?”

“Objection.”

“Sustained.”

“Mr. Manning, how can you testify that scratches that aren’t there probably exist?”

Manning smiled. “Because I have matched the bullet. So I know if the gun barrel hadn’t been defaced, those scratches on the test bullet would match those on the fatal bullet.”

“Isn’t that circular logic, Mr. Manning? You know those scratches exist because the bullets match, but you base your conclusion that the bullets match partly on those scratches that you assume must be there.”

“Objection.”

“Overruled.”

“No, I do not. And I think I’ve made a fair and accurate appraisal of the evidence, and given you my professional opinion.”

“All right,” Steve said. “Let’s move on to the other pictures. Did you bring in the photographs of the other test bullet, the one fired from the gun, People’s Exhibit Three?”

“Yes, I did.”

“Could you produce those pictures, please?”

“Your Honor, I object to the introduction of these pictures in evidence,” Vaulding said.

“We’re not introducing them in evidence now. We’re marking them for identification.”

“Nonetheless, I object to them.”

“Your objection is noted. The court reporter will mark the pictures. How many are there?”

“Four,” Manning said.

“Very well. Let’s have them marked Defendant’s Exhibits B-One-through-Four.”

When the pictures had been marked, Steve Winslow selected one and approached the witness. “Mr. Manning, I hand you a photograph marked Defendant’s Exhibit B-Two and ask you what it depicts?”

“That shows a test bullet fired from the gun, People’s Exhibit Three, on the comparison microscope with the fatal bullet.”

“The bullets are aligned?”

Manning frowned. “Once again, the bullets are not aligned. An attempt was made to align them, which I could not do. Let me put it this way. The bullets are aligned in as much as it was possible to do so. There was only one real point of similarity.”

“And what does that indicate to you?”

“That the bullets don’t match.”

“I know. I understand that’s your contention. I mean, what do you think that point of similarity represents?”

“That would be an example of class characteristic.”

“The class characteristic caused the match?”

“That’s right.”

“Tell me, would that be the same class characteristic that is shown in the test bullet fired from People’s Exhibit Four?”

“As to that, I’m not sure.”

“Well, take a look.”

Steve handed him back the other photo.

Manning studied the two photographs side by side. “It would appear to be the same mark.”

“The same class characteristic?”

“That is correct.”

“So these photos show the fatal bullet and the test bullets in basically the same position?”

“Yes, they do.”

“I see. Tell me, Mr. Manning. Did you by any chance compare a test bullet from the gun, People’s Exhibit Four, with a test bullet from the gun, People’s Exhibit Three, on the comparison microscope.”

Manning stared at him. “Of course not. What would be the point? We know they’re from different guns.”

“But they each lined up with the fatal bullet. At least in this one regard. It makes me wonder how well they would line up with each other.

“Your Honor, at this point I would like to ask that the witness be instructed to make that comparison.”

“Oh, Your Honor,” Vaulding said. “That’s totally irrelevant and immaterial. We’re talking about two separate guns.”

“And bullets that match, at least in one respect.”

“It’s not a case of these bullets possibly matching. We have the guns here in court. Each one fired a bullet. The test bullets we fired ourselves. We know they don’t match. There’s no reason we should have to prove that.”

“I’m obviously not trying to prove that, Your Honor,” Steve said. “Both bullets do match the fatal bullet, at least in one aspect. I think I have a right to know how well they match each other.”

“I think so, too,” Judge Hendrick said. “And it is so ordered. Mr. Winslow, will that conclude your cross-examination at this time?”

“Yes, Your Honor.”

“Mr. Vaulding, do you have any redirect on the evidence so far, or would you care to wait till the witness is recalled?”

“You’re bringing him back again, Your Honor?”

“I’ve already said so, Mr. Vaulding. You may question the witness then, now, or both. What is your intention?”

“I have no questions at this time.”

“Very well. The witness is excused, but you will return tomorrow morning, having made that comparison.”

“Yes, Your Honor.”

“Very well. Call your next witness.”

“Call Donald Walcott.”

As Donald Walcott took the stand, it occurred to Steve maybe he should have coached him a little. The young man exuded resentment. Steve realized Vaulding probably would have had no problem getting him declared a hostile witness. Still, there was no need to dump it in his lap.

When the witness had been sworn in, Vaulding stood up and said, “State your name.”

“Donald Walcott.”

“What is your relationship to the defendant, Russ Timberlaine?”

“I am engaged to his daughter.”

“And were you a guest at the Timberlaine mansion on the weekend of the murder?”

“Yes, I was.”

“When did you arrive?”

“Friday afternoon.”

“And when did you leave?”

“I haven’t left.”

“You’re still there?”

“Yes, I am.”

“And how long do you intend to stay?”

The witness glared at Vaulding. “Until this matter is resolved.”

“I see,” Vaulding said. “Tell me, Mr. Walcott, the weekend you were staying there-the weekend of the murder-did you have any conversations with your fiancee’s father, Russ Timberlaine?”

Donald Walcott set his mouth in a firm line.

“Please answer the question, Mr. Walcott,” Vaulding said.

When Walcott still hesitated, Vaulding said, “Your Honor?”

Judge Hendrick leaned down from the bench. “Young man?” he said.

Donald Walcott looked up at him defiantly. “Yes.”

“Call me Your Honor.”

Walcott took a breath. “Yes, Your Honor.”

“You have been called as a witness in a court of law. It is your duty to answer questions, unless they are objected to and I rule you need not answer them, or unless you should refuse to answer on the grounds that an answer might tend to incriminate you. Otherwise, you must answer or I will hold you in contempt of court. Is that clear?”

Walcott took a breath. “Yes, Your Honor.”

“Fine. Court reporter will read back the question.”

There was a pause while the court reporter shuffled through his tapes. Then he read, “‘Tell me, Mr. Walcott, the weekend you were staying there-the weekend of the murder-did you have any conversations with your fiancee’s father, Russ Timberlaine?’”

“Yes, I did.”

“Fine,” Vaulding said. “Tell me, in any of these conversations did Russ Timberlaine mention a gun?”

“Objection, leading and suggestive.”

“Overruled. The witness is clearly hostile. Answer the question.”

Walcott took a breath. “Yes, he did.”

“Would that be the Colt.45, the Pistol Pete gun?”

“Yes.”

“Mr. Walcott, we have two guns present in court. People’s Exhibit Three, which is the gun found next to the body of Jack Potter. And People’s Exhibit Four, the gun found in Russ Timberlaine’s holster on his bedside table. We have also heard testimony from Lieutenant Sanders that Russ Timberlaine identified the gun, People’s Exhibit Three, as the original Pistol Pete Robbins gun that he owned, and the gun, People’s Exhibit Four, as the gun he found substituted for it. Now I ask you, in any of those conversations you had with Russ Timberlaine, did he make any claim about a substituted gun?”

“Yes, he did.”

“And what did he say?”

“Just that. That his gun had been substituted.”

Vaulding frowned. “I’d like a little more than that. He claimed, did he not, that he owned the original, authentic Pistol Pete Robbins gun. Is that true?”

“Yes.”

“He claimed that that gun had been taken and a duplicate left in its place. Is that right?”

“Yes.”

“He claimed he no longer had the original gun, he now only had the copy, the fake gun?”

“Yes. That’s right.”

“The substitution had happened prior to the time you arrived at the mansion that Friday?”

“Yes.”

“How long before?”

“I’m not sure. I think the week before.”

“The week before you arrived?”

“I think so. As I say, I’m not sure.”

“But it was before you arrived?”

“Yes, it was.”

“Russ Timberlaine mentioned the substitution?”

“Yes, he did.”

“Did he show you the gun?”

“Yes, he did.”

“The gun he claimed had been substituted?”

“That’s right.”

“The gun was a Colt.45?”

“Yes, it was.”

“With the initial R carved in the handle?”

“Yes.”

“Timberlaine showed you the initial R?”

“Yes, he did.”

“Pointed it out to you?”

“Yes.”

“Did the gun have the serial number ground off?”

“Yes, it did.”

“He showed you that too?”

“Yes.”

“Pointed out where it had been ground off?”

“Yes.”

“He showed you this gun and said it was a fake gun, that his gun had been stolen and this gun had been left substituted for it?”

“Yes.”

“He didn’t tell you he had purchased this gun?”

Walcott stuck out his chin. “He most certainly did not.”

“He didn’t mention that he had bought the gun himself at a gun shop on July 16th?”

“No, he did not. And I don’t believe he did.”

“But he did show you the gun and tell you he had found it substituted for the real Pistol Pete gun?”

“Yes.”

“And,” Vaulding said casually, “did he tell you any steps he had taken to identify that gun?”

Walcott had relaxed during the latter part of his testimony as he realized the questions he was being asked were simple, the answers to them were already known and didn’t hurt Russ Timberlaine.

Which is why he tripped on this one. He opened his mouth to answer, hesitated, blinked twice, frowned and said, “What do you mean?”

Vaulding smiled. “Exactly what I said. When Timberlaine told you about the substitution of guns, did he mention if he had taken any steps to prove that there had been a substitution of guns? Did he do anything that would help to identify one gun from the other?”

“Oh.”

“Well, Mr. Walcott?”

“He had not marked the guns in any way.”

Vaulding smiled. “I didn’t say he had, Mr. Walcott. I merely asked you if he had taken any steps to keep them straight.”

“Yes, but-well, the question makes no sense. He only had one gun. The gun that had been substituted. The other one was no longer there.”

“I understand, Mr. Walcott.” Vaulding smiled, but his eyes were hard. “Referring to that gun-the one that was there-did Russ Timberlaine state that tests had been performed on that gun for the purpose of identifying it and keeping it straight and separate from the other gun, should it turn up again?”

Donald Walcott took a breath. He looked at the defense table, as if hoping for an objection.

“Witness will answer the question,” Judge Hendrick said.

Walcott looked around helplessly. “Yes, he did,” he blurted.

Vaulding smiled. “Thank you, Mr. Walcott. Russ Timberlaine told you that he had performed a test on the gun?”

“Yes.”

“What kind of a test?”

Walcott took another breath. “He had had test bullets fired through it for the purpose of identification.”

Vaulding smiled again. “He had fired test bullets through this gun?”

“Yes.”

“The substituted gun?”

“Yes.”

“The gun he claims he was wearing at the time of the auction? The gun that was found in his gun belt on his bedside table? The gun, People’s Exhibit Four, that is in evidence here in court and has been identified as the murder weapon?”

“Objection, Your Honor,” Steve said. “Leading and suggestive and assuming facts not in evidence.”

“Overruled,” Judge Hendrick said. “I’ve allowed leading questions, and those facts are in evidence. Witness may answer.”

“Is that the gun you are referring to?” Vaulding asked.

“Yes, it is.”

“Russ Timberlaine stated that he had fired test bullets through this gun?”

“Yes.”

“And had he had those bullets compared to any other bullets?”

“Yes.”

“What bullets?”

“Bullets from the original Pistol Pete Robbins gun.”

“The original gun?”

“That’s right.”

“And where did he get those bullets if the gun had been stolen?”

“He said he’d been target shooting with the gun before it was stolen. He’d dug the bullets out of the target.”

“And he said he’d had those bullets compared and identified?”

“Yes, he had.”

Vaulding smiled. “And who did he have compare and identify them for him?”

Walcott hesitated, then blurted, “Steve Winslow.”

There was a shocked gasp, then murmurs in the courtroom. Judge Hendrick banged the gavel.

Vaulding’s smile grew broader. “Did you say Steve Winslow?”

Judge Hendrick banged the gavel again. “Already asked and answered, Mr. Vaulding. Ask another question.”

“Yes, Your Honor. Mr. Walcott, Mr. Timberlaine told you that he had given the substituted gun and the bullets to Steve Winslow and asked him to fire test bullets through it and to compare and identify the bullets?”

“That’s right.”

“And did Russ Timberlaine say that Steve Winslow had given him back the gun?”

Walcott frowned. “I don’t remember.”

“Well, he must have if he showed it to you.”

“Objection.”

“Sustained.”

“All right. Never mind the gun. Did he say anything about the bullets? Did he say whether Steve Winslow had given him back the test bullets.”

Walcott hesitated, then said, “Yes, he did.”

“He said he had been given back the test bullets?”

“Yes.”

“Where are those bullets now?”

“I don’t know.”

“Did Russ Timberlaine tell you what he did with those bullets?”

“No, he did not.”

“He didn’t tell you where he put them?”

“No.”

“But to the best of your knowledge, those bullets are still in Russ Timberlaine’s possession?”

“Objection.”

“Sustained.”

“Did Russ Timberlaine tell you he had given the bullets to anyone?”

“No.”

“Or disposed of them in any way?”

“No.”

“But he told you he had received them from Steve Winslow?”

“Yes.”

Vaulding turned to Judge Hendrick. “Your Honor. At this time I ask the court to take judicial cognizance of the importance of this evidence and order the defense to produce those bullets.”

“So ordered,” Judge Hendrick said. “Mr. Winslow, you are hereby ordered to bring into court any and all bullets testified to in court, that is, the bullets tested by you and delivered to the defendant Russ Timberlaine. I realize of course you will need to confer with your client. I am therefore adjourning court for the day, and we will take these matters up tomorrow morning at ten o’clock.”