“Connect it, Mr. Haller. Soon.”
“Right away, Your Honor.”
I looked back at my notes, got my bearings again, and pressed on. Forsythe’s objection was nothing more than an attempt to break my rhythm. He knew it didn’t stand a chance on its merits.
“So Detective Whitten, this call went out at six forty-seven on the evening of November fifth, just seven days before Ms. Dayton’s murder, correct?”
“Yes.”
“How long did the call last?”
Whitten checked the document.
“It says two minutes, fifty-seven seconds.”
“Thank you. Did you check that number out when you got this list? Did you call it?”
“I don’t recall if I did or not.”
“Do you have a cell phone, Detective?”
“Yes, but I don’t have it on me.”
I reached into my pocket and pulled my own phone. I asked the judge to allow me to give it to Whitten.
Forsythe objected, calling what I was about to do a stunt and accusing me of grandstanding.
I argued that what Forsythe called a stunt was merely a demonstration, not unlike the demonstration a week earlier when he asked the deputy medical examiner to demonstrate on Lankford how the victim’s hyoid bone was crushed during her strangulation. I added that having the detective make the call to the number in question was the easiest and quickest way to ascertain who Gloria Dayton had called at 6:47 p.m. on November 5.
The judge allowed me to proceed. I walked up and handed my phone to Whitten after turning on its speaker. I asked him to call 213-621-6700. He did so and placed the phone down on the flat railing that ran in front of the witness stand.
The call was answered by a woman’s voice after one ring.
“DEA, Los Angeles Division, how can I help you?”
I nodded and stepped forward, picking up the phone.
“Sorry, wrong number,” I said before disconnecting.
I stepped back to the lectern, savoring the pure silence that had followed the voice of the woman who had said DEA. I stole a quick glance at Mallory Gladwell, my alpha juror, and saw an expression that soothed my soul. Her mouth was slightly opened in what I took to be an Oh My God moment.
I looked back at Whitten as I pulled a photograph I’d had ready from beneath my legal pad. I asked permission to approach the witness with the defense’s first exhibit.
The judge allowed it, and I gave Whitten the eight-by-ten shot that Fernando Valenzuela had taken of Gloria Dayton when he served her with the subpoena in the Moya case.
“Detective, you have in your hand a photo that has been marked as defense exhibit one. It is a photo of the victim in this case in the moment she was served with a subpoena in a civil matter styled as Moya versus Rollins. Can I draw your attention to the time and date stamp on the photograph, and will you read that out to the jury?”
“It says six oh-six p.m., November fifth, twenty twelve.”
“Thank you, Detective. And so, is it correct to conclude from that photo and the victim’s phone records that exactly forty-one minutes after Gloria Dayton was served with the subpoena in the Moya case, she called the DEA’s Los Angeles Division on her personal cell phone?”
Whitten hesitated as he looked for a way out of his predicament.
“It is impossible for me to know if she made the call,” he finally said. “She could have loaned her phone to someone else.”
I loved it when cops dissembled on the stand. When they tried not to give the obvious answer and made themselves look bad in the process.
“So then it would be your opinion that forty-one minutes after being served as a witness in a case involving an incarcerated drug dealer, someone other than Ms. Dayton used her phone to call the DEA?”
“No, I’m not saying that. I don’t have an opinion on it. I said that we don’t know who was in possession of her phone at that moment. Therefore, I can’t sit here and say with certainty that it was she who made the call.”
I shook my head in a feigned show of frustration. The truth was I was elated by Whitten’s response.
“Okay, Detective, then let’s move on. Did you ever investigate this call or Gloria Dayton’s connection to the DEA?”
“No, I did not.”
“Did you ever inquire as to whether she had been an informant for the DEA?”
“No, I did not.”
I could tell Whitten was about to blow his cool. He wasn’t getting any protection from Forsythe, who, without valid objection in hand, was hunkering down in his seat, waiting for the damage to end.
“Why not, Detective? Doesn’t this strike you as one of those ‘valid avenues of investigation’ you spoke of earlier?”
“First of all, I knew nothing about the subpoena at that time. And second, informants don’t call the main number of the DEA. That would be like walking through the front door with a sign on your back. I had no reason to be suspicious about one quick call to the DEA.”
“I’m confused now, Detective. So are you now saying you were aware of the call and just not suspicious of it? Or, as I think you just said a few minutes ago, you didn’t even recall checking out that number or the call. Which is it?”
“You’re twisting what I say around.”
“I don’t think so, but let me rephrase. Before testifying here today, did you or did you not know that a call from the victim’s personal cell phone had been placed to the DEA one week before her death? Yes or no, Detective?”
“No.”
“Okay. So then it is safe to say you missed it?”
“I wouldn’t say that. But you can say whatever you want.”
I turned and looked back at the clock. It was eleven forty-five. I wanted to take Whitten in another direction but I wanted to leave the jurors with Gloria’s phone call to mull over at lunch. I knew if I suggested to the judge that we take the lunch break now I would end up in lockup with my client for the next hour.
I turned back to Whitten, needing to string things out at least another fifteen minutes. I looked down at my notes.
“Mr. Haller,” the judge prompted. “Do you have any more questions for the witness?”
“Uh, yes, Your Honor. Quite a few, in fact.”
“Then I suggest you get on with them.”
“Yes, Your Honor,” I said. “Uh, Detective Whitten, you just testified that you did not know that Gloria Dayton had been subpoenaed in a case involving Hector Moya. Do you recall when you found out?”
“It was earlier this year,” Whitten answered. “It came to light through the exchange of discovery materials.”
“So, in other words, you learned of the subpoena she received because the defense told you, correct?”
“Yes.”
“What did you do with the information once the defense furnished you with it?”
“I checked it out as I check out all leads that come in.”
“And what did you conclude after checking it out?”
“That it had no bearing on the case. It was coincidental.”
“Coincidental. Do you still feel that it was coincidental now that you know that Gloria Dayton’s personal cell phone was used to call the DEA in Los Angeles less than an hour after she was served with the subpoena in a case that accused her of planting a gun on a DEA target?”
Forsythe objected to the question on multiple grounds, and Leggoe had her pick. She sustained the objection and told me to rephrase the question if I wanted to get it in. I simplified and asked again.
“Detective, if you knew back then on the day of Gloria Dayton’s murder that a week earlier she had called the DEA, would you have been interested enough to find out why?”
Forsythe was on his feet again before I finished the question and jumped in right away with his objection.