Dying Declaration (24 page)

38

IT WAS WEDNESDAY MORNING
, and Nikki was running late. The alarm had worked fine, but so had the snooze button. Five times. By the time she and Stinky finally rolled out of her bed and nudged Tiger in his sleeping bag on the floor, it was already 7:15. She had to have the kids at day care by 8:00 so she could stop by the office and make it to court by 9:00. And she would require a minimum thirty minutes of primping before she could walk out the door.

At least Tiger no longer contracted deadly diseases every morning. He seemed to like the day care a lot better than he did school. It was run by a community church of some type or another. Nikki figured that as long as the kids had to be in day care, their parents would want them in a religious one. The people taking care of the kids seemed nice enough, and the kids were making plenty of friends.

They stopped on their way for Chick-fil-A biscuits, coffee for Nikki, and chocolate milk for the kids. Nikki had no idea how the supermoms did it—work, children, household chores, and husbands to boot. It was wearing her out, putting a hurtin’ on her efforts to stay in shape and burn a tan. She could do it for one more month if she had to, all the way through trial. But she really only planned to do it for one more day. After today’s preliminary hearing, after Charles tore into Dr. Armistead on cross-examination, Thomas and Theresa Hammond should be free to go home with their children.

Sure, it was unusual for any judge, particularly one as careful as Silverman, to kick a case out at the preliminary hearing stage based on lack of probable cause. But it was not unheard of. And with everything they had against Armistead, the prosecution’s main witness . . . well, today just might be the day.

The prosecution would have to establish probable cause on two elements of the crime. First, the Barracuda would have to prove that Thomas and Theresa knew or should have known that their delay in seeking medical care created an unreasonable risk to the life of Joshua. Second, the Barracuda would have to establish that the failure to get Joshua to the hospital earlier was the cause in fact of his death. Since the Hammonds could not be forced to testify against themselves, the Barracuda would have to prove her case by the testimony of others.

The Barracuda had not subpoenaed the children to testify at this hearing. She probably didn’t want to take an unnecessary risk on what they might say. Nikki and Charles had debated whether they should call the children as witnesses themselves,
but ultimately they decided that their testimony would hurt more than help. The children would sit this one out, playing at day care while their fate hung in the balance.

“Oops,” Tiger said from the backseat of the Sebring.

“Oh, man,” an exasperated Nikki muttered. “What do you mean ‘oops’?”

“I dus’ spilt my chocolate milk, dat’s all.”

“Did it get on the car?” Nikki fought back visions of her fine leather interior stained and smelling like sour milk. Tiger was a walking, talking disaster area.

“A little,” Tiger admitted. “But most of it spilt on me.”

“Thank goodness,” Nikki muttered.

“Here’s some extra napkins,” Stinky said cheerily as she handed them over the back of the front seat. “No sense crying over spilt milk.”

“I ain’t crying,” Tiger said. “But it looks like I tinkled in my pants.”

Ten minutes later Miss Nikki dropped Tiger off, milk stain and all, at the Green Run Community Church day care center. She kissed him and Stinky on the cheek, something she had just started doing in the last few days, and told them to have a great day. She even reminded them to say their prayers for their mommy and daddy.

Tiger untucked his shirt as soon as Miss Nikki turned her back to leave. It hung down almost far enough to cover the wet spot on his pants, but not quite. This could be a very, very long day.

Tiger liked day care pretty well. It wasn’t like school—all work and no play. Here, you would have prayer time in the morning,
then do what you wanted until lunch. After lunch there would be nap time, then story time—Bible stories with worksheets—and sometimes arts and crafts. Then more free time until Miss Nikki would show up to take them home.

Tiger liked the teachers at day care, and he liked the other kids. All except Joey. Joey was Tiger’s age, but you’d never know it from looking at him. He outweighed Tiger by thirty pounds, and he had a mean streak. He had beady little eyes that seemed out of place on his moon-shaped face. And Tiger was sure that if Joey ever took off his shirt, he would already be growing hair under his arms.

Tiger made fun of Joey when Tiger was alone with Stinky at Miss Nikki’s house—“Doughy Joey” he would call him. But at day care Tiger avoided Joey like the plague. He had already seen Joey get into two or three fights with other kids half Joey’s size, and Tiger was sure it was just a matter of time before the dough boy would turn on him. If it ever happened, Tiger’s plan was to kick Joey hard with his cowboy boots, then run like mad. It was a plan he was hoping he would never have to test.

Today Tiger and Stinky had arrived a little late, so Miss Parsons was already fielding prayer requests from the boys and girls who sat around her in a circle. Tiger scooted into a spot on the floor a few feet away from Joey, out of reach and out of harm’s way. Tiger spread his shirttail out over his stained pants and settled in to listen to the usual emergency prayer needs.

They had just started, so the kids were still raising their hands to voice prayer requests for their pets, who all seemed to be struck with some type of disease or another. Tiger desperately wanted a pet too—preferably a dog, but he would settle for a hamster—so that he could keep the class informed about his dog’s health and request prayer for real or imagined illnesses. Tiger was sure that all these pets couldn’t possibly have all the sicknesses they prayed about on a daily basis, but it was a surefire way to get attention and let the rest of the kids know that you were lucky enough to have a pet in the first place.

“Yes, Heather,” Miss Parsons said, calling on a sad-looking red-haired girl about Stinky’s age.

“Pray for Rascal, please,” Heather requested. She seemed about to cry.

“How’s Rascal doing?” Miss Parsons seemed very concerned too.

“Not too good. He can’t see very well anymore, and he won’t eat hardly anything. My dad says we might have to take him to the vet. I don’t want them to put him to sleep . . .” Heather’s voice trailed off melodramatically. Her bottom lip quivered. Tiger thought it was a bit much to put on such a show about the sleep habits of an old dog.

But Miss Parsons was reassuring. “Okay, we will.” She turned to a normally quiet little girl sitting to her right, hand raised straight up. “Jenny?”

“My cat, Slinky, is almost ready to have kittens.”

Several of the little girls oohed and aahed at this news. Tiger did not join them. He didn’t like cats—in fact, he would always secretly open his eyes when Miss Parsons lifted up the cats in prayer. He didn’t want any part of that. Cats were fat and lazy and basically good for nothing. And he certainly wasn’t going to pray that old fat and lazy Slinky would be able to bring about a dozen more of her kind into this world. As far as Tiger was concerned, the world already had enough cats.

Hands continued to shoot up, and eventually the requests turned from pets to grandparents. Seemed like everybody’s granny or papaw was at death’s door or at least in the hopsicle for something. Tiger was tempted to pop their balloons and remind them of what little good the hopsicle had done for Joshie, but he decided against it. The sooner prayer time ended, the sooner they could get outside and play. There was no sense complicating matters.

“Hannah?” Miss Parsons said, calling on Tiger’s sister and snapping Tiger out of his daydream. “How can we pray for you?”

Uh-oh,
Tiger thought. He never liked it when Stinky would share private details about their troubled lives.

“My mommy and daddy are going to court today—” this was news to Tiger; where did Stinky get this information?—“and if everything goes good, my daddy might get out of jail.”

For a moment, a fleeting moment, this pronouncement made Tiger’s heart flutter with excitement.

“Why’s your daddy in jail?” a concerned voice asked from behind Tiger. It was one of the kids but not a voice that Tiger recognized.

Stinky’s face went red. Tiger felt his own cheeks burning.

“It’s not important to know the reason why he’s in jail,” Miss Parsons explained. “Let’s just pray that court goes well for him today. Okay?”

Heads nodded, and more hands went up. But out of the corner of his eye, Tiger saw Joey slide over a few feet until he was sitting right next to him.

“What did your dad do?” Joey whispered when Miss Parsons wasn’t looking.

Tiger shrugged. “I can’t say,” he whispered back while looking straight ahead.

“Is he really in jail?” Joey pried.

Tiger nodded his head. His cheeks were still burning, and now his eyes were starting to water.
This is no time to cry,
he told himself.

Joey slid back away. It was almost time to pray, and it looked like Tiger had dodged this bullet—the dough boy had lost interest. They moved on to other requests, and Tiger breathed a sigh of relief.

The relief was short-lived, shattered by a remark that Joey made just loud enough for Tiger and the others sitting around him to hear.

“Tiger’s dad is a jailbird,” Joey mocked. “Tweet-tweet. Tweet-tweet.”

“Tweet-tweet,” another voice echoed, softly but within earshot of Tiger.

“Tweet-tweet.”

“Tweet-tweet.”

“Let’s bow our heads and pray,” Miss Parsons said.

39

“NEXT CASE IS
Commonwealth versus Jackson, possession with intent to distribute,” the court clerk said, stifling a yawn. “The matter is before the court on defendant’s motion to suppress.”

Charles Arnold took his place at one counsel table; the Barracuda moved to the other. They had not said a word to each other in the ninety minutes they had been waiting for the case to be called. Judge Silverman had concluded two other hearings and had not yet returned from a ten-minute break.

“Bring in the defendant,” the clerk said.

The deputies disappeared out a side door and came back with Buster Jackson in tow. He was wearing an orange jumpsuit, leg irons, and handcuffs. He was the perfect foil for Charles, who was all decked out in his favorite suit: a light beige job,
custom athletic cut, with five buttons down the front.

Buster settled in at the defense counsel table without acknowledging Charles. His sunken eyes stared straight ahead, his goateed jaw jutting out.

“I heard you accepted Christ,” Charles whispered, leaning toward the big man.

“True.” The big man didn’t look too happy about it.

“Congratulations,” Charles said.

“Who told you?”

“Thomas.”

“When’d you talk to him?”

“Yesterday.”

The big man shifted in his seat but still looked straight ahead. “Why you callin’ him and dissin’ me?” Buster asked through clenched teeth. “You don’t come by. You don’t call. You don’t do squat.”

Charles bristled at this unexpected attack. Buster wasn’t acting like a man who’d just turned to Christ. Charles had worked too hard for this guy and was putting his own reputation on the line. This was the thanks he got? Right now, he didn’t really care how big Buster was. He’d had it up to here with his attitude.

“The brothers say the Moreno woman’s hot,” Buster continued. “Is ’at why you’re crawlin’ all over that case and treating me like a ho?”

Charles turned and faced Buster, placing one palm on the table and the other on the back of Buster’s chair. He spoke in low tones, so only Buster could hear. “You want me in or out?”

Buster looked straight ahead, tightened his face, and breathed hard through his flared nostrils. No answer.

“In or out?” Charles insisted.

“In.”

“Then here’s some advice: shut your face and let me do the talking.” Charles paused, daring Buster to spout off again. “And put on a happy little smile. The judge has enough reason to put you away as it is.”

Charles hovered there for a moment, inches from Buster’s face, then leaned back in his chair. He felt the tension creeping up his spine and sensed the anger seeping over from his client. This was no way to start a major hearing.

A few moments later Silverman entered through the back door, and the clerk called the court to order.

“I believe this is your motion, Mr. Arnold. Why don’t you call your first witness?”

“The defense calls Rodney Gage.”

Officer Rodney Gage, who had been sitting immediately behind the Barracuda, stood ramrod straight and took the oath. He climbed into the witness box, sat erect, and stared straight through Charles. Gage was the arresting officer; the man Charles Arnold was accusing of racial profiling. His demeanor made it clear that he did not take these allegations lightly.

He’s so young,
Charles thought. Gage had a boyish face, a full head of blond hair, smooth white skin—
very white skin,
Charles thought—and the build of a young athlete whose muscles had not yet succumbed to the erosions of gravity and time. Charles was hoping for an older man, a harsher-looking man, someone who didn’t look quite so, well, quite so honest.

Charles breezed through some preliminary questions, making sure to station himself directly between the witness and the Barracuda. No sense letting the witness get some free coaching.

“Are you the officer who arrested Buster Jackson on June 3 for possession of cocaine with intent to distribute?”

“Yes, sir, I am.”

“Now you didn’t see any drugs on Mr. Jackson or in his vehicle
before
you pulled him over, correct?”

“Not before, that’s right. After we pulled him over, there were two bags of cocaine in plain sight, sticking out from under the front seat.”

“But I didn’t ask you about
after
, did I, Officer?”

Gage frowned. The Barracuda jumped to her feet, anxious to pick a fight. “Objection, argumentative.”

Silverman, who had been watching the proceedings with the slightest hint of a bemused smile, lifted his chin from his hand.
“Sustained,” he said pleasantly.

Charles started walking in an arc now, as if circling his prey. The questions came faster, staccato style.

“You understand, sir, that you’ve got to have a reasonable suspicion that my client was committing or had committed a crime in order to stop him, correct?”

“Yes.”

“You can’t just stop a law-abiding citizen for no reason.”

“Correct.”

“And one of the reasons for stopping a person cannot be the color of his skin. You understand that, don’t you?”

“Sure.”

“Then please tell the court, sir, your reason for pulling over my client on June 3. What caused you to be suspicious?”

Officer Gage drew a long breath and leaned back slightly. This answer would be well-rehearsed. “First and foremost, the actions of Mr. Jackson. He was cruising the oceanfront, Atlantic Avenue to be exact, and appeared to be looking for somebody. I saw him, with my own eyes, pick up two young males, take them for a ride around the block, then drop them off at the same spot. In my opinion, the length of time they were in the car was sufficiently long for a drug deal to have occurred.

“Second, the conduct of the men that Mr. Jackson picked up and dropped off. After they got out of the car, I noticed that they looked around suspiciously, saw our police vehicle, then hustled off and disappeared into the crowd.”

Charles kept a poker face but felt the sting of that second factor. He had not anticipated that part of the answer. It would tend to distinguish the stop of Buster Jackson from the stops of the guinea pig motorists that Charles had recruited from his class.

“Third,” Gage continued, “was the type of vehicle. It was a brand-new Cadillac Escalade SUV with tinted windows. The owner certainly had some bucks, and the windows could help conceal any illegal activities.

“And fourth, the location of the transaction. We have a lot of drug activity at the oceanfront in the summer, particularly on Atlantic Avenue.” Gage paused for a moment, pretending to search the ceiling for other information. “I think that about covers it.”

“Thank you, Officer Gage.” Charles walked back to his counsel table and, just before sitting, turned to the witness for one final question. “By the way, have you been on duty the last few weeks, and if so, what was your schedule?”

Gage looked perplexed. “I work the swing shift—3:00 to 11:00 p.m.—Tuesday through Saturday. That’s been my schedule for the last two weeks.”

Charles took his seat. “Your witness,” he said to the Barracuda.

She rose immediately to the challenge and walked out from behind her counsel table. She stood next to where Charles was seated,
so the witness could eye them both at the same time.

“Let me ask you the one question that Mr. Charles here—”

“Arnold,” Charles corrected her without rising. “The name is Charles
Arnold
.”

“Okay. Let me ask you the one question that Mr. Arnold here was apparently afraid to ask—”

“Objection.”

“Sustained,” Silverman said immediately. “Ms. Crawford, let’s keep it from getting personal, shall we?”

“Sure, Your Honor.” The Barracuda walked to the front of her own counsel table and stared at the floor for a moment, apparently thinking about a way to ask the question without drawing another objection. Charles found himself hanging on her every word,
then realized what she had done. She had the entire courtroom—Charles, the law students who had come to see their professor in action, the newspaper reporter who had deemed this hearing worthy of coverage, and most important, the judge—anxiously listening and waiting for her next few words. She was
good
.

“Officer Gage, was the race of the defendant a factor in deciding whether or not there was reasonable suspicion to stop him?”

“Absolutely not.”

“Did the fact that his skin color happened to be black, as opposed to white, even enter into your analysis as to whether it was likely he had committed a crime?”

“No, ma’am. No way.”

“Would you have pulled over and investigated a white man who did the same things that you have described?”

“Yes.”

“And have you, in the past, pulled over whites for the same type of conduct?”

Sure. All the time.”

“Now, Officer Gage, if the court rules against you, how would that hamstring your attempts to combat drug trafficking at the beach?”

Charles bolted from his seat. “Objection, Your Honor, that question is totally improper.”

“Sustained.”

Charles sat back down, knowing he had procured a hollow victory. The question was improper, but it had planted a seed of the thought in the judge’s mind. The Barracuda really knew her stuff.

“Do you make decisions about who to pull over and who not to pull over alone?”

“No, ma’am. My partner and I will usually make those decisions together. I would certainly never pull over someone if my partner objected. I will usually say something like, ‘Let’s pull this guy and take a look.’ Then I’ll wait for him to concur or, if he doesn’t think it’s a good idea, to say so.”

“Is that the type of thing that happened with Mr. Jackson?”

“I don’t remember specifically, so I can’t say for sure. But I’m reasonably certain we would have said something like that.”

The testimony seemed innocuous on the surface, this talk about a partner, but it hit Charles hard. His stomach tightened and churned.
Could it be? Why hadn’t I asked Buster? Why hadn’t Buster said anything?
Charles took a quick sideways glance at his tightly wound client. The man was still seething from their earlier confrontation. But Charles needed to know. He leaned over and asked something he should have asked that first night in the cell.

“Is this guy’s partner black or white?” Charles whispered.

“No further questions,” the Barracuda said to the witness. “I’d like to recall this witness later if necessary. But for now, Your Honor, I’m through.”

“Why does
that
matter?” Buster whispered back to Charles.

The lawyer’s stomach, already in knots, now dropped to his feet.

“You may step down,” Silverman said to an erect and unbowed Officer Gage.