FIFTEEN MINUTES LATER. Everybody was in their place in the courtroom and stood as the judge entered and called the court to order. The judge took his seat and looked toward Meredith. “Call your next witness, Ms. Evans.”
Meredith called the Wildwood policeman who had been the first law enforcement officer on the scene.
“State your name for the record,” she said.
“Matt Burns.”
She took him through the scene of the crime, what he found when he arrived, what he did, and when he did it. He explained that he first called his dispatcher and told him he had a dead body in Paddock Square and to notify the Sumter County Sheriff’s Office. “Why did you want the sheriff’s office notified?” Meredith asked.
“It’s protocol. Our department often gets the sheriff involved if we have something big on our hands, like a murder. They have more investigators trained to handle homicides. Particularly in The Villages.”
“Do you have a lot of murders in The Villages?”
“No, ma’am. I can only think of one several years ago.”
“Did you examine the body when you arrived?”
“Describe to the jury what you saw.”
“The body was lying facedown and there was a small bullet hole in the middle of her back.”
“What did you do then?”
“I put up crime scene tape to keep everybody out until the sheriff’s detective showed up.”
“How long after you called did the detective arrive?”
“Not long. Less than half an hour.”
“Who was the detective?”
“Deputy Ben Appelgate.”
Meredith studied her notes for a moment and said, “I’ll tender the witness, Your Honor.”
“Mr. Royal?” the judge said.
“No questions, Your Honor.”
“Call your next witness, Ms. Evans,” the judge said.
The sheriff’s detective who had investigated the murder took the stand. “State your name, please,” Meredith said.
“Deputy Ben Appelgate.”
“Occupation?”
“I’m a detective with the Sumter County Sheriff’s Department.”
“For how long?”
“I’ve been a deputy for fifteen years and a detective for five of those years.”
“Did you investigate the death of Olivia Lathom?”
“I did.”
“How did that come about?”
“I was the detective on duty when the Wildwood PD dispatcher called to tell me there was a body in Paddock Square in Brownwood. I responded immediately. Went to Brownwood. It took me about twenty minutes to get there, I think.”
“What did you find when you got there?”
The detective walked her through the scene. It was identical to what the first two witnesses had described, except that by the time he got there, more people were milling about. Citizens had seen the commotion and drifted toward the knot of cops and the body lying in the square. He testified that the Wildwood police officer had strung yellow police tape around the whole square, so the crime scene would not be disturbed. The forensic techs arrived shortly after he did and went to work. When they released the body, The Villages fire department ambulance crew took the remains to the morgue.
“Did you talk to the witnesses?”
“Yes. Several.”
“Did you talk to Esther Higgins?”
“No. She invoked her right to counsel.”
“Who were the witnesses you talked to?”
“The first one was the Wildwood police officer Matt Burns who was the first law enforcement officer on the scene. I talked to Kevin Cook, the fire department paramedic who found the body, and I took a statement from Peggy Keefe who was the victim’s traveling companion. Later in the day, I talked to the medical examiner and the chief of the crime lab. Finally, I took a statement from Ruth Bergstrom on Thursday afternoon.”
“When did you talk to all these folks?”
“I talked to all of them on Thursday, the day we found the body, except for Ms. Higgins. I tried to talk to her on Friday.”
“Tried?”
“Yes, as I said, she invoked her right to counsel and to silence.”
“Nothing further, Your Honor,” Meredith said and sat down. “Your witness, Mr. Royal,” the judge said.
The courtroom clock inched toward noon. I stood. “May we approach the bench, Your Honor?” I asked.
He waved us forward. “Your Honor,” I said, “it’s getting close to the noon hour and my cross is going to take a while. Could we recess for lunch a little early so there’ll be no breaks in my cross?”
“I don’t see why not,” the judge said. He turned to the jury and told them we were breaking a little early and gave them a time to return to the courtroom. Meredith and I and the other court personnel stood as the jury filed out. It was another of the customs I found so appropriate for the serious business of a court of law.
Meredith and I stood in the well of the courtroom, trying to work out some time sequence for the afternoon. “Do you think your cross is going to take long?”
“It depends on what the deputy says, but it could take up a large part of the afternoon.”
“I’ll put my technical people on standby. They can get here quickly.”
We separated for lunch. It wouldn’t do for jurors to see us breaking bread together. Laymen never seem to understand that lawyers who compete in the courtroom are often friends outside the courtroom.
We were back in court and Deputy Appelgate was on the stand. The judge reminded him that he was still under oath and turned to me. “You may proceed, Mr. Royal.”
I stood. “Detective, where did you arrest Ms. Higgins?”
“In her house.”
“Where in her house?”
“The living room.”
“Did you tell her what you were arresting her for?”
“Yes, sir.”
“What exactly did you tell her was the reason for her arrest?”
“I don’t remember the exact words, but I would have conveyed to her that she was under arrest for the murder of Olivia Lathom, the woman whose body was found in Paddock Square the morning before.”
“Did you put handcuffs on her when you arrested her?”
“Yes, sir. Standard procedure.”
“And did you read her your Miranda rights card?”
“Yes, sir.”
“So you told her she was under arrest for murder, that she had a right to counsel, and that she had a right to remain silent.”
“Yes, sir.”
“And she took you up on your offer to keep her mouth shut until she talked to a lawyer.”
“I guess. She refused to talk to me.”
“You mean she refused to talk to you about the charges.”
“Yes, sir.”
“And you asked Ms. Higgins about the murder for the first time when she was handcuffed in the back of a patrol car on her way to jail.”
“That’s correct.”
“She talked to you about other things, though, didn’t she? Like the state of the weather, or how you were doing, or something like that, right? Pleasantries.”
“Yes, sir.”
“But she did take you up on your offer to remain silent on the charges until she talked to a lawyer.”
“Yes, sir.” His voice was getting a little tight. He didn’t like the questions. He’d tried to slip into his testimony the idea that Esther wasn’t cooperating, as if invoking her constitutional right not to speak was proof of guilt. I wanted to make him own up to the fact that she was only exercising her rights. None of this was really appropriate testimony, but everybody who’d ever watched a mystery or a police procedural on TV knew about the accused’s rights, and I was certain that included every one of my jurors.
Then I went a question too far. A common mistake among trial lawyers. We get on a roll and our egos take over and we just can’t stop ourselves. “Then you weren’t surprised by her reticence, were you? Most people accused of murder do invoke their rights, don’t they?”
“Not the innocent ones.”
Damn. I should have quit while I was ahead. What now? My mind was whirling. If I just sat down, I’d leave that last answer hanging out there. The jury would be drawing the wrong inference. I could object, but I might not prevail. After all, I’d asked the question. I decided to attack, but I’d sneak up on him first. By the time he left the stand, I wanted the jury to think he was a prick. “What did Ms. Keefe have to say?” I asked calmly.
“She told me that the victim was going to dinner with a friend and took the rental car they were using.” He looked down at his notes. “She didn’t know the name of the friend the victim was having dinner with or where they were planning to eat. Ms. Keefe went out to eat and then to bed. She was getting ready to meet the victim when I arrived at her door Thursday morning.”
“You keep referring to the victim. Wouldn’t it be a little more respectful to call her by her Christian name? Olivia Lathom?”
“Okay.”
“That was her name, wasn’t it?”
“Yes, sir.”
“How did you verify that?”
“What do you mean?”
“Did you do anything to make sure Olivia Lathom was, in fact, her real name?”
“We had her driver’s license.”
“Were you aware that the medical examiner could find no record of her fingerprints?”
“I was.”
“That didn’t pique your curiosity as to why there was no fingerprint record of Ms. Lathom?”
“No, sir. There are all kinds of reasons that somebody’s prints might not be in the system.”
“But you didn’t do anything further to determine if the body in Paddock Square actually belonged to a woman named Olivia Lathom?”
“No, sir.” The tightness was back in his voice.
I switched gears. “What did Ruth Bergstrom tell you?”
This finally got Meredith to her feet. “Hearsay, Your Honor. I let it go the first time, but I’m afraid it’s getting a little out of hand.”
I jumped in with a response before the judge had a chance to rule. “Ms. Evans is correct, Your Honor, but both Ms. Keefe and Ms. Bergstrom will testify here later this week, and if there is any discrepancy in what they say and the deputy’s memory, we can clear it up. I’m getting to the probable cause for the arrest. I would like for the detective to explain to the jury why he arrested my client. Perhaps if I dropped back and laid a predicate.”
“Lay your predicate, Mr. Royal. I’ll withhold ruling on Ms. Evans’ objection.”
“Thank you, Your Honor. Detective, may I see your notes?”
“Which notes?”
“The ones in your lap that you keep referring to.”
The detective looked toward Meredith who remained in her seat. He turned to Judge Gallagher who said, “He has a right to the notes, Detective. Give them to him.”
“May I approach the witness, Your Honor?”
I walked to the witness box and held out my hand. The detective handed me his notebook. I spent a minute or two looking at it and handed it back. “Were these notes made contemporaneously with your interviews of the witnesses?”
“Yes, sir.”
“And you’re using the notes to refresh your recollection today?”
“Yes, sir.”
“And you wouldn’t stray from your notes, would you?”
“No, sir.”
“So what you would testify to now is exactly what the witness said to you back in March?”
“Yes, sir.”
“How did you come to interview Ms. Bergstrom?”
“She called me.”
“On Thursday?”
“Yes. In the early afternoon.”
“Did you take the statement over the phone?”
“No, sir. She volunteered to come down to my office.”
“In Bushnell?”
“Yes.”
“I’ve got another question for you, Detective, but I’d ask you to give Ms. Evans a chance to object if she wants to.” I am indeed an agreeable fellow.
He nodded.
“What did Ms. Bergstrom have to say to you?” I didn’t think Meredith would object this time. She knew the testimony would come in through Ruth Bergstrom, and since the detective would be testifying from his notes, she’d look like a bit of a fool if she tried to stop me again. I was right. She held her seat.
He paused, stared at the prosecutor with a pleading look on his face. He got no response. He looked back at me. “She said that Ms. Higgins had told her she was going to kill Ms. Lathom because Ms. Lathom had stolen her book and made a lot of money from it.” He stopped talking.
“Look at your notes, Detective. That’s not all she said, is it?”
“Um, no, sir. She told me that Ms. Higgins had given her a manuscript to read and she read the first couple of chapters and told Ms. Higgins she didn’t think it was publishable. She gave the manuscript back to Ms. Higgins and didn’t hear anything else about it until Ms. Lathom published her book. Ms. Higgins read it and went to Ms. Bergstrom’s house and said she would kill Ms. Lathom.”
“So, she did tell you that she had read Ms. Higgins’ manuscript?”
“No, sir, just a couple of chapters.”
“Did she tell you when the conversation with Ms. Higgins took place?”
He looked down at his notes. “A few days before Ms. Lathom came to The Villages for her book signing.”
“Did this conversation take place before Ms. Lathom’s schedule had been released?”
“I don’t know.”
“So, it’d be fair to say that you don’t know if Ms. Higgins would have been aware that Ms. Lathom was planning to be in The Villages?”
The detective looked perplexed. “I guess that’s right. I don’t know.”
“What did you find out from the medical examiner?”
He checked his notes. “That Ms. Lathom died from a gunshot wound. The bullet perforated her heart and killed her instantly.”
“Do your notes reflect when you talked to the medical examiner?”
“Yes. On Friday.”
“The day after the body was found?”
“Yes.”
“What time of day did you talk to the medical examiner?”
“I don’t have the exact time, but it was in the afternoon.”
“And did the crime scene techs tell you they’d found any evidence in Ms. Higgins’ home that would appear relevant to a murder?”
“Yes, sir.”
“What did they tell you?”
“They found the murder weapon.”
“And did you talk to the crime scene techs?”
“I talked to Dr. Cooper, the director of the division.”
“And when did that conversation take place?”
“On Friday afternoon.”
“Did you talk to the fingerprint expert?”
“I did.”
“That was Madison Seyler?”
“Yes, sir. We call her Maddi.”
“Was this also on Friday afternoon?”
“Yes.”
“Did you talk to the ballistics expert, Mr. Peralta?”
“Yes, on Friday afternoon.”
“Did you or anyone else to your knowledge find a laptop computer that belonged to Esther Higgins?”
“No, sir.”
“Did you or the techs find any blood on Ms. Higgins’ clothes or on her body?”
“No, sir. When we got to the county detention center, a female deputy did a full body search of Ms. Higgins and took her clothes for the crime lab people.”
“There was no blood or other evidence on Ms. Higgins’ clothes that would indicate she had been involved in a murder. Blood, gunshot residue, that sort of thing. Right?”
“Right. But remember this was the day after we found the body. She probably wasn’t wearing the same clothes.”
“Did you check out all the clothes in her closet?”
“We did. It appeared that some of the clothes had been freshly washed.”
“You would expect to find freshly washed clothes in most closets, wouldn’t you?”
“I guess so.”
“So the fact that Ms. Higgins had washed some clothes didn’t mean anything to you.”
“Not really. It was just an observation.”
“I think you arrested Ms. Higgins about twenty-four hours after the body was found. Correct?”
“Yes, sir. I arrested her on Friday morning.”
“Now, I want to get clear in my mind the evidence you had found by the time you arrested my client on Friday morning. You knew that a murder had been committed. You knew that Ms. Lathom had died from a gunshot to her back. At the time you arrested Ms. Higgins, you hadn’t found anything in her house that would have led you to believe that she was in any way involved in the murder. You found no evidence in her house that a murder had occurred there, and you found no blood or gunshot residue on her clothes, either the ones she was wearing or the ones in her closet. And, you didn’t follow up on the identity of the body when the medical examiner could find no record of her fingerprints.”
“Right.”
“And, at the time of the arrest, you did not know that Ms. Higgins owned a gun, or that the gun matched the one used in the murder or that her fingerprints were on the gun.”
“That’s correct,” he said quietly.
“Detective Appelgate, would you speak up, please? The jury needs to hear your responses.” It never hurts to point out to the jury that the witness is showing signs of unease at the questions.
“That’s correct,” he said, a little louder this time.
“And there was no evidence that Ms. Higgins had been in Paddock Square the night of the murder?”
“That’s right.”
“No evidence that she’d used her car to transport a body?”
“No, sir. We checked that.”
“You never found the site of the murder, did you?”
“No, sir.”
“Would it be fair to say that the murder could have occurred in any one of the seventy thousand or so houses in The Villages?”
“Yes, sir.”
“Or, for that matter, at some place outside The Villages?”
“Yes, sir.”
“Then I have to ask you, Deputy Appelgate, why in the world would you decide to arrest a retired schoolteacher with no previous criminal record and no physical evidence that she was involved in the crime, just on the word of Ruth Bergstrom?”
“Well, Counselor, her fingerprints were on the murder weapon, and it was found in her house.”
My little trap had sprung. I knew the fingerprints would get into evidence when the lab techs testified, but by getting the deputy to blurt it out, I had a chance to make him look a bit disingenuous and further emphasize his overzealousness in making an arrest.
“At the time you arrested Esther Higgins, you didn’t know anything about the fingerprints, did you?” I had dropped my voice into what I hoped was a menacing timbre.
“They were on the gun.”
“Look at your notes, Detective. When did you learn about the fingerprints?”
He looked down at the notes, looked back at me, and said in a low tone, “Friday afternoon.”
“I didn’t hear you, Detective. You have to speak up.” My questions were now coming rapid fire, pushing the witness.
“Friday afternoon,” he said in a louder voice.
“And that’s the same time that you learned about the gun found in the search of Esther’s house?”
“Yes.”
“So you couldn’t have known about the gun or the fingerprints when you arrested Esther.”
“That’s right.”
“Then let’s get back to my earlier question. You arrested Esther Higgins on Friday morning based simply on the statement given you by Ruth Bergstrom. Right?”
“That was all we had to go on.”
“Did you do any follow-up investigation after the arrest? For example, did you try to figure why Esther’s fingerprints were the only ones on the gun?”
“No, sir.”
“Did Esther threaten to kill Olivia Lathom to anyone other than Ruth Bergstrom?”
“Not that I’m aware of.”
“And you didn’t follow up to find out, did you?”
“No, sir.”
“And you had to arrest somebody, didn’t you? Lots of pressure coming down on your shoulders?”
“Not really. We had a lady, your client, threatening to kill Ms. Lathom and then Ms. Lathom turns up dead. That’s pretty strong evidence.”
“And if Ruth Bergstrom’s statements turn out to be lies, what then?”
Meredith Evans was on her feet. “Objection, Your Honor.”
“Overruled,” the judge said. “Answer the question, Detective.”
That was a close win. It was essentially a hypothetical question that only can be posed to a duly qualified expert witness. I was ready to argue that the detective was an expert in his field or he wouldn’t be a detective, and if he wasn’t an expert, he probably shouldn’t be a detective. I didn’t expect to win that argument, but I wanted at least to leave the idea with the jury that if I gave them plausible reasons why Esther’s fingerprints were on the weapon and how somebody else had killed Olivia with Esther’s gun, the state’s whole case rode on the testimony of Ruth Bergstrom. If what she said proved to be untrue, an acquittal was in order. In the end, I planned to absolutely destroy Ruth Bergstrom.
The detective sat silently as if confused by the question. “You may answer,” I said.
“Would you repeat the question?”
“Since the only evidence you had at the time you arrested my client for the murder of Olivia Lathom was the statement of Ruth Bergstrom, if her statements prove to be untrue, you would have had no cause to arrest my client.”
“Correct.”
“Nothing further,” I said and resumed my seat.
Meredith rose and stood for a moment at counsel table looking over her notes. “Detective Appelgate, do you have any reason to believe that Ruth Bergstrom lied to you about the statements made by the defendant?”
“No, ma’am.”
“Have you seen any evidence that contradicted what Ms. Bergstrom said?”
“No, ma’am.”
“Have you talked to anyone who contradicted Ms. Bergstrom?”
“No, ma’am.”
“Nothing further, Your Honor.”
I rose. “Just a couple of questions, Your Honor.”
“Restrict your question to any area brought out on redirect by Ms. Evans.”
“Of course, Your Honor. Detective Appelgate, did you find any evidence that would corroborate the statements Ms. Bergstrom gave you, that is that Ms. Higgins either said she would kill Ms. Lathom or that she in fact did kill Ms. Lathom?”
“No, sir. Other than the fingerprints on the murder weapon.”
“Which you weren’t aware of when you decided this retired schoolteacher was a cold-blooded murderer. Right?”
“Yes.”
“Did anybody else ever tell you they heard the statements Ms. Bergstrom reported or something similar from Ms. Higgins?”
“No, sir.”
“Then, would it be fair to say that your whole case is based on the statement given you by Ms. Bergstrom?”
“Objection.” Meredith had jumped to her feet, her voice resounding through the courtroom. “This isn’t the detective’s case. It’s the state’s case.”
“Fair enough,” I said. “I’ll withdraw the question. I have nothing further of this witness.” I had made my point and it was time for the afternoon break.