I just broke the cardinal rule of cross-examination. Questions posed during cross should never be open-ended, should always call for yes or no answers. But that rule doesn’t apply here. Not in this case. Adverse witness or not, Chief Tommy Fitzpatrick can talk all day as far as I’m concerned. As long as he’s talking about Billy Hammond.
Stanley clears his throat and stands, then heads for the bench. “Your Honor, this isn’t about the Hammond boy.”
“It most certainly is.” I respond to the jurors, not to Stanley. A few of them look startled. It’s the first time they’ve heard me raise my voice.
I turn to the judge. “It is about the Hammond boy, Your Honor. That’s all it’s about.”
Judge Long puts his hands in the air to silence both of us. “I’ll allow the testimony,” he says, “but I’m going to give them a limiting instruction.”
I return to my seat. A limiting instruction is fine with me as long as the facts come in. By the time the Chief of Police tells the story of Billy Hammond’s death, the limiting instruction should be a distant memory. And the jurors, I hope, will use the evidence the way it should be used: to conclude that justice, albeit a rough justice, has already been served.
Stanley pauses at our table on the way back to his seat. “This judge,” he whispers, glaring at me as if I had personally appointed Judge Long to the bench, “is despicable.”
I wonder what Stanley whispers about me.
“Ladies and gentlemen,” the judge says, “the defendant has raised a temporary insanity defense. The testimony you are about to hear is relevant to the defendant’s state of mind and should be considered by you when you evaluate that defense. It should not be considered for any other purpose.”
Buck lowers his head to his arms on the table and Harry rests a hand on his shoulder. I’d all but lost sight of the fact that Buck and Patty will have to listen to this testimony too. The Chief’s words-essential for Buck’s defense-will bring him and Patty to their knees. Again.
I turn to check on Patty in the first row. She’s already weeping.
The judge concludes his instruction and the jurors nod their acquiescence at him. Their intentions are good; they plan to comply with the judge’s admonition, to limit their use of this evidence. They’ll compartmentalize the information they are about to hear, use it only for its proper purpose.
I sure as hell hope not.
“Let’s begin on June nineteenth, Chief. What happened to Billy Hammond?”
Stanley clears his throat again. “Your Honor, I’m sorry, but I have to object once more. This witness isn’t competent to testify about what happened to another person-especially a dead person.”
Judge Long leans back in his chair and takes a deep breath. He taps his fingertips on the bench and shakes his head, peering over the rims of his half glasses at Stanley. He’s annoyed by the repeated interruptions. But I’m not.
This is the kind of objection I hoped Stanley would raise. I’ll have to rephrase my question, and the Chief’s cross-examination will take longer than it should, but eventually the jury will hear the facts. They’ll hear them from the Commonwealth’s witness, not ours. And my gut tells me these jurors won’t appreciate Stanley’s attempts to muzzle his own witness.
Judge Long removes his half glasses and shifts his gaze to me, rubbing the bridge of his nose. I look back at him and raise both hands toward the bench. No need for a ruling. I know what to do.
“Chief Fitzpatrick, you led the investigation into the disappearance of Billy Hammond, did you not?”
Stanley drops into his chair before the Chief answers.
“I did.”
“Tell us, sir, what prompted that investigation.”
Stanley shifts in his seat but doesn’t get up. Judge Long sighs and shakes his head.
“The 911 dispatcher got a call from a woman at about eleven o’clock that morning. It was a Saturday-June nineteenth. The caller could barely speak; she was hysterical. Turned out to be a summer neighbor of the Hammonds. She’d been weeding her garden, she said, and had spoken with Billy as he passed her house on his way to the beach.”
Stanley stands and clears his throat again, apparently anticipating my next question. “Your Honor, we’re headed for unadulterated hearsay.”
There are twenty-three exceptions to the hearsay rule, and this testimony arguably falls within three of them. One, though, is a perfect fit.
“Excited utterance, Your Honor. The statement is admissible if it relates to a startling event made while the speaker was still under the stress of the moment. If that exception doesn’t apply here”-I turn to face the judge-“then it doesn’t apply anywhere.”
Judge Long looks down at me but I turn away from him, face the panel again. If he’s going to allow the testimony, I don’t want him to say so yet. I want to get one more argument in front of the jurors-and in front of Stanley-before the judge rules.
“But if the Court prefers, Your Honor, we’ll call the neighbor during our case in chief. She’s spending the Christmas holidays in her South Chatham cottage. I spoke with her this morning.”
Hearsay is only hearsay if the person being quoted is unavailable to testify. If the neighbor is available for trial, then the Chief’s testimony isn’t hearsay in the first place; it doesn’t have to qualify as an exception.
I face Judge Long again. He arches his eyebrows, then looks at Stanley for a response.
Stanley sinks to his chair without a word.
I steal a glance at the defense table. Harry winks. It worked.
The last person Stanley wants in front of this panel is the Hammonds’ hysterical neighbor. If Stanley persists with his objections-even the valid ones-I’ll call the neighbor to the stand to fill in the blanks. If Stanley keeps quiet and lets the Chief tell the whole story, then the neighbor’s testimony won’t come in. It will be excluded as cumulative.
Judge Long looks at the jurors, then at Stanley, and finally at me. “I’ll allow it.”
I face the witness box again. “Chief, you were telling us about a conversation between Billy Hammond and his neighbor.”
The Chief looks comfortable in the witness chair. He always does. He enjoys the ease of a man who plans to tell the truth-nothing more, nothing less.
“Yes,” he says. “The neighbor told Billy he looked like he’d grown three inches since she’d seen him last. Billy laughed and said he probably had. She turned back to her weeding but stood up a few moments later to stretch.”
The Chief pauses for a sip of water.
“She was facing the beach at the time. She saw Billy approach a van idling at the far end of the parking lot. He was reaching out to pat a dog in the front seat. Then Billy vanished. She ran to the road and started for the beach, but the van peeled off before she got there. She found a fishing pole where the van had been.”
“Billy Hammond’s fishing pole?”
“Yes.” The Chief turns from the panel and looks-apologetically, it seems-at Patty. “His mother identified it.”
The members of the panel turn toward Patty too. Her eyes are wide, tear-filled, and she’s biting her lower lip, all the horror of that moment written on her face.
It takes a while for the jurors to return their attention to the Chief. I remain silent until they do.
“What happened next?”
“Well, as I said, it was a Saturday. One of my men called me at home and I joined the officers at the scene right away. The neighbor had gotten a good look at the van. She’d also had the presence of mind to memorize its license plate. We traced the plate immediately. Then I alerted the state barracks and they set up checkpoints at both bridges. We didn’t want that van leaving Cape Cod.”
“Did it?”
The Chief looks at the hat in his lap and shakes his head. “No.”
“Where did it go?”
He looks up at the panel again and takes a deep breath. “A state trooper found it the next day-Sunday-at about five in the afternoon. It was backed into a thicket of bushes at the Cape Cod Canal.” The Chief looks down at his hat again, then up at the panel. “Empty.”