Authors: Stephen Solomita
Carlo turned the witness over to me at that point. His examination had taken less than fifteen minutes.
The first twenty questions I asked were meant purely as a smoke screen. They revolved around Priscilla’s consent to the officers’ original entry and were edged with sarcasm. Finally, after repeated objections by Carlo, Delaney asked me to move along. I shook my head, returned to the defense table, and pretended to study my notes for a moment.
“All right, officer, let’s go through the rest of this quickly. The first thing you did inside the apartment was examine the deceased. Is that right?”
“I checked for a carotid pulse, yes.”
“And you found none?”
“I found no sign of life.”
“Then you went through the apartment in search of …” I picked up my notes, stared at them for a moment. “In search of a perpetrator or another victim.”
“Correct.”
“You were standing in the living room when this search began?”
“Yes.”
“And where did you go from there?”
“I drew my weapon and went into the kitchen.”
“What did you do in the kitchen?”
“I searched it.”
“Exactly where did you look, Officer Rodriguez?”
“I looked in the pantry and underneath the sink.”
“And where did you go next?”
From the kitchen, he’d gone to the bathroom where he’d pulled the shower curtain aside. Then he’d gone into the bedroom, checked the closet, and glanced under the bed. Finally, almost as an afterthought, he’d opened the door to the hallway closet by the front door.
“I guess I should have done that first.” He was very young, barely finished with his rookie year. When he grinned sheepishly and lowered his head I could sense the gallery’s sympathetic response. That was fine with me, as was anything else that made Officer Rodriguez feel safe.
“Now, officer,” I said after a moment, “when you searched the bedroom, did you have to cross it to get to the closet?”
“Yes, I did.”
“And then you walked to the side of the bed, knelt down, and looked underneath. Is that right?”
“That’s right.”
“Finally, you rose and left the room?”
“Yes.”
“Did you, at any time while you were in the bedroom, happen to notice a clear plastic bag the size of a small book on the nightstand right next to the bed?” I held up the papers in my hand by way of reminding him that he’d already answered that question in the negative while testifying before the Grand Jury.
“No,” he said. “I didn’t.” He should have stopped at that point, but, as I’d hoped, he felt it necessary to justify the oversight. “Only I wasn’t in there very long.”
“Really?”
“Remember, I wasn’t actually searching the apartment. I was looking for a perpetrator or another victim.”
I could see Carlo out of the corner of my eye. He was glaring at his witness. I wondered, briefly, as I launched into the next question, how many times he’d instructed Rodriguez not to volunteer information.
“Tell us, Officer Rodriguez, just how long would you estimate this search took?”
“Maybe five minutes. There weren’t that many places a human being could hide.”
“Five minutes to search the whole apartment?”
“If that.”
I turned him back to Carlo for redirect, an opportunity Carlo quickly declined. Then, as Delaney began to dismiss Rodriguez, I requested that he remain available as I expected to recall him. That brought a sharp look from Carlo, but there was nothing he could do except proceed with his case. He called Detective Shawn McLearry.
Detective McLearry’s testimony, up until the moment when he described his discovery of the cocaine, was strikingly similar to that of Rodriguez. After conferring with the responding officers in the hallway, he’d rechecked Byron, then rechecked the apartment in search of a second victim or a perpetrator, proceeding from the kitchen to the bathroom to the bedroom, finally discovering the cocaine in a large Ziploc bag on the nightstand. His direct testimony, like that of Rodriguez, took less than fifteen minutes.
When my turn came, I walked McLearry through the apartment, room by room, just as I’d done with Rodriguez. Only this time I produced a large graphic created by Janet Boroda that clearly demonstrated just how small the Sweet apartment actually was. McLearry had walked eighteen feet from Byron’s body to the kitchen, twenty feet to the bathroom, ten feet to the only bedroom, thirty feet to the front door.
“While you were in the kitchen, Detective, did you look in the cabinets over the sink?”
“No.”
“Why not?”
“Because the cabinets were too small to conceal a human being.”
I’m giving the impression that McLearry’s answers were delivered rapidly, which is the way they look in the Q&A format on the trial transcript. In fact, McLearry was hesitating for a few seconds before responding, as he’d undoubtedly been trained to do, and Carlo was objecting at every turn, despite being routinely overruled.
“And when you went into the bathroom, did you look in the medicine chest?”
“No.”
“For the same reason?”
“That’s right.”
“And, in the bedroom, did you look in the dresser drawers?”
“No, I didn’t.”
“For the same reason?”
“Correct.”
“So, you only searched six areas: in the pantry, under the sink, in the bathtub, in the bedroom closet, beneath the bed, and in the hall closet. Is that right?”
“Yes.”
“And how long did that take you?”
“I don’t know. I wasn’t keeping track of the time.” He crossed his legs and leaned back in the chair, confident that he’d anticipated the thrust of my attack.
“Give us your best estimate, Detective. An approximation will do.”
Before he could answer, Carlo objected. “Asked and answered,” he declared. “And defense counsel is badgering the witness.”
I raised my hands in amazement. “I haven’t raised my voice, your Honor.”
“Overruled.” Delaney was leaning forward, one elbow on the desk, cradling his chin in his palm. “Mr. Buscetta, is it absolutely necessary to object to every question?”
Buscetta sat without responding.
“You may answer, Detective,” Delaney said.
“I don’t recall how long I was inside the apartment.”
“So, you’re saying it might have taken you as long as, for instance, thirty minutes to look in six places? Five minutes for each place? Five minutes to look under the sink? Five minutes to look under the bed?”
Carlo was on his feet again, but McLearry answered before he could object. “Not that long,” he admitted.
“Then how long, Detective, how long do you think it took you to search that apartment?”
“I didn’t keep track,” he insisted. “I didn’t see any reason to keep track.” He hesitated, his mouth tightening down, then said, “Maybe eight or ten minutes.”
“No more questions,” I said to Delaney, “but I’d like this witness to remain in the building and I ask that he be instructed not to discuss his testimony, or any further testimony from Officer Rodriguez, with anybody.”
C
ARLO RESTED AT THAT
point and I quickly recalled Alfonso Rodriguez. He seemed reluctant as he approached the witness box, and I suspected that someone from the prosecutor’s office had dressed him down while McLearry was on the stand. In any event, I left him to stew for a moment while I instructed my paralegal.
“I want you to go out in the hallway, Janet, see if McLearry’s standing there. If he is, keep an eye on him, make sure he doesn’t get wind of what’s happening with Rodriguez.”
She nodded, then left me and Rebecca to handle the single exhibit we’d be using, Officer Rodriguez’s log.
“How long have you been a member of the force, Officer Rodriguez?” I began.
“Fourteen months,” he answered.
“So, you were a rookie when you responded to the Sweet apartment?”
Carlo shot to his feet. “Objection, your Honor. Relevance.”
“I’m laying a foundation, your Honor. If I may be permitted.”
Delaney scratched his ear. “I’ll allow it for the moment. Just try to make it brief.”
“Yes, I was a rookie,” Rodriguez said after exchanging a glance with Carlo.
“Then you must remember your Police Academy training pretty well. It’s not a distant memory?”
“I don’t remember every minute.” Rodriguez laid a little foundation of his own.
I walked to the defense table, picked up a thick book, turned back to face the witness. “Did you take a written examination at the end of your Academy training based in part on an instruction manual called
The New York Police Department Patrol Guide
?” I held the book up.
“That’s right.”
“And did you apply the instructions in the Patrol Guide for handling crime scenes on the night you responded to the Sweet apartment?”
“You do the best you can.”
I dropped the book on the table. “Well, let’s see exactly
how
well you did. Would you describe for us the instructions detailed in the Patrol Guide for officers responding to the scene of a homicide. As you remember them.”
He took a second to think it over, then began to tick off the items on his fingers. “First, to give aid to any living victims. Second, to secure the scene. Third, to preserve the evidence.”
“And that’s it?”
“You’re also required to keep a log,” he finally admitted.
“A log of what, Officer?”
“Of anybody entering the crime scene.”
“That’s it? Just the names of individuals entering the scene?”
“No, you have to include their ranks, badge numbers, time of entry, and time of exit.”
I took a deep breath. It was out there now. “And on the night in question, did you maintain a log as you’d been instructed to do as a student at the Police Academy?”
“Yes.”
“And you logged the names, ranks, badge numbers, time of entry, and time of exit for each individual entering or leaving the Sweet apartment?”
“That’s right.”
“And you performed these tasks carefully?”
He raised his head to look at me. “Yes, I did.”
“Were you wearing a watch on that night?”
“Yes.”
“And, to the best of your knowledge, was it working accurately?”
“Yes.”
“Officer Rodriguez, is that log with you today?”
Carlo shot to his feet, fairly shouted, “Your Honor, may we approach?” He was off before I could respond, speeding across the well of the court in answer to Delaney’s weary, “All right. Approach.”
“If your Honor recalls,” Carlo began, “you gave the prosecution three days to compile, copy, and deliver all paperwork relating to the police investigation. Somehow, in that process, the log maintained by Officer Rodriguez was misplaced. I have effected due diligence in a search of the prosecution’s files and am prepared to say that it cannot be located.”
“That’s funny,” I said, “because I’ve got a copy in my hot little hand.”
Carlo, his mouth locked into a tight line, his jaw barely moving, again blamed Delaney for the loss of the log, then demanded a copy of my copy and the rest of the day to study it and prepare his witnesses. Later, after the trial was over, I learned that Carlo’s wife had left him a week before the trial began, taking their six children with her. The story, at least the way it came to me, had her running off to northern Montana with another prosecutor.
“Look, Judge,” I said, “the witness ought to be able to identify his own handwriting. Why not let him take a look? If he says it’s his, then we can run off a copy for the prosecution and proceed immediately. Otherwise, I feel we’re looking at an indefinite delay while the prosecution searches for the original. You might also consider that the witness, when asked about his activities at the crime scene, told the court that he, in fact, kept a log.”
Carlo argued for a few minutes, until Delaney ordered him back to the prosecution table. Then Delaney personally handed Rodriguez my copy of the log and asked him if he recognized the handwriting.
“Yes,” Rodriguez said, “it’s mine. It’s the log I kept on the night of the murder.” He was smiling now, pleased, perhaps, that everybody could see he’d been a good boy and done his job.
Delaney had a copy run off for Carlo, then motioned me to proceed.
“Officer Rodriguez, is the document you hold in your hand an accurate copy of the log you kept on January 16 of last year?”
“Yes, sir.”
“Now, I want to draw your attention to the first entry. Would you read it to yourself, please?” I looked toward the gallery as I waited, noted the rapt attention, and, despite everything that had gone before, I felt a visceral pleasure that bordered on joy. “Now, would you read that entry to the court?”
“McLearry. Detective. 4573. 18:31.”
“Would
4573
refer to Detective McLearry’s badge number?”
“Yes.”
“And
18:31
refers to time of entry?”
“Correct.”
“And
18:31
is military time for 6:31 in the evening?”
“Yes.”
“All right. Now, please read the fifth entry.”
“To myself?”
“Yes, to make sure it’s accurate.” I paused again, then asked him to read the entry aloud.
“McLearry. Detective. 4573. 18:53.”
“Does
18:53
refer to the time of exit?”
“That’s right.”
“Could it refer to anything else? Anything at all?”
“No. That’s the time Detective McLearry left the scene.”
I took a second before asking the next question, brought my tone from crisp and peremptory to gentle and encouraging. “Officer Rodriguez, do you take pride in the performance of your duties as a police officer?”
Rodriguez let his eyes swing over to Carlo before answering. The smile on his face grew slightly, making it apparent that whatever passed between them before the hearing had been less than pleasant.
“Yes,” he said, “I certainly do.”
“And do you have an independent memory of creating this log?”
“I do.”
“And do you remember taking care to keep it as accurate as possible?”
“Yes.”
“And when you personally went through that apartment, before the detectives arrived, you didn’t see any cocaine, did you?”