CHAPTER TWENTY-FIVE
THE MURDER TRIAL of Howie Patino began on a Monday morning in the Hinton County Superior Court, Judge Adele Wegland presiding.
It was the biggest show in town.
Judge Wegland’s courtroom was stuffed. I’d made sure there were seats for Janet and Fred Patino and Lindsay, and all three were there. Behind them were two rows reserved for the press. Judge Wegland apparently was not taking any chances. She was going to make sure that any member of the media who wanted to report on the drama in her courtroom would be sure to have a spot. This was her big moment.
Small-town judges do not normally get such moments. When they come, however, they can be career makers—or breakers. Judge Wegland was going to turn this moment into a maker, and that was bad news for me and my client.
At fifty-two, Judge Wegland was ready for a move up the legal ladder. She was a former prosecutor, naturally, with black hair pulled back so tight it looked like she had an ongoing face-lift. Her small, thin-lipped mouth seemed incapable of the physiological strain of a smile.
She was, I’d heard, looking for an appointment to the court of appeal. And with the tenor of the times the way it was, that meant showing she was tough on defendants, giving them no quarter and tolerating no “nonsense.” Nonsense in this case meant a defendant pressing his legal rights under the Constitution of the United States.
That is exactly what I was doing this morning—running a motion to suppress evidence.
Howie was seated at my counsel table. There was also a chair for Triple C. He was running late, but I didn’t need him for my pre-trial motion. Benton Tolletson and Sylvia Plotzske sat at the prosecution table.
After Judge Wegland called the proceedings to order, she said, “Mr. Denney, I understand from your papers that you take issue with two items of evidence. The first is the defendant’s confession. Is that right?”
I stood up. “It’s not a confession, Your Honor. It’s a statement uttered under the protection of privilege.”
The judge waved her hand. “It doesn’t matter.”
“But it does,” I insisted. “A confession is a full and unequivocal acknowledgment of all the facts necessary to establish guilt. That’s not what we’re talking about, and it matters very much that Your Honor sees the distinction.”
The heat from Judge Wegland’s glare was no doubt palpable to everyone in the courtroom. I had determined I wasn’t going to roll over in front of this or any other judge in Hinton. While this was a minor point, I was right about it. But it meant that from the very start the judge and I were not dancing in unison. I was stepping all over her feet.
“If you want to play legal games,” Judge Wegland said icily, “I suggest you do it elsewhere. We all know what we’re talking about, and we don’t need to spend twenty minutes figuring it out. We have a statement by your client, and you want me to rule on its admissibility at trial. You indicate in your motion that you want to call a witness.”
My witness was going to be the police officer who had stood guard at Howie’s hospital room and heard Howie cry out, “I did it, Jake! I did it! I killed her, man! I killed my wife!” I’d subpoenaed him but hadn’t seen him in the courtroom. Before I could even say his name, which was Cheadle, Benton Tolletson was on his feet.
“Your Honor,” he said, “in order to expedite matters here, we’ll stipulate to the facts as laid out in Mr. Denney’s moving papers. This is a purely legal argument.”
“I don’t agree, Your Honor,” I said quickly. I wanted this officer on the stand. I wanted the judge to see him testify, to look into his beady eyes. It might not be enough to move her, but it would surely be better than a cold legal dispute. I also hoped the officer wasn’t around, so I could look with anguish at the judge and say that the other side was obviously not cooperating.
But Judge Wegland said, “Well, I do agree, Mr. Denney. There is no dispute about the facts if Mr. Tolletson stipulates to them. It’s a legal matter only. So, let’s go over the arguments.”
I looked at Tolletson. He had what appeared to be a slight smile on one side of his face. I also glanced at the Patinos, all three of whom were leaning forward as they listened to this first legal scuffle. The prosecution had landed the first blow, and everyone seemed to know it.
“Fine,” I said to the judge, trying to sound like I hadn’t lost any breath. “The issue is one of attorney-client privilege, pure and simple. A defendant in custody has the absolute right to privacy in consulting with his attorney. Denial of this right is a violation of the Sixth Amendment to the Constitution. I cite
Barber v. Municipal Court
for that proposition.”
“Yes, yes,” Judge Wegland said, “I’ve read it.”
“Mr. Patino was in custody, Your Honor—in the hospital. I was consulting him as his attorney. The officer knew that, but he purposely opened the door during the consultation and heard the statement my client made. He violated the privilege, Your Honor, and the People cannot benefit from that violation.”
The judge nodded slightly, which to me was a major victory. It was impossible to tell what she was thinking, of course, but the fact that she made a slight gesture of affirmation was heartening. She turned to Tolletson and said, “Your response?”
Tolletson stood up confidently and looked like a marine holding fully-loaded twin carbines aimed at some cowering enemy lying weaponless in a swamp.
“Mr. Denney has stated the legal basis quite adequately, Your Honor, both in his papers and in his statement. However, he is seeking to assert a privilege where there is no privilege.”
I almost didn’t believe what I was hearing. No privilege? How could any sane lawyer make that statement? I had cases in my motion papers stating unequivocally that defendants in hospital rooms enjoyed the privilege. I had expected Tolletson to try a flank attack by distinguishing the facts of these cases from ours, and I was sure he wouldn’t succeed. But this was an all-out frontal assault.
Judge Wegland seemed almost as surprised as I was. “Your argument is that there is no privilege here, Mr. Tolletson?”
“That’s right, Your Honor. The privilege was waived.”
“It certainly was not,” I objected.
Shuffling papers in front of her, Judge Wegland said, “I don’t see that here, Mr. Tolletson. When was it waived?”
“At the very moment the consultation commenced.”
“That’s just not true, Your Honor,” I said with as much moral indignation as I could muster. Tolletson was making a big mistake, I was sure, and I was determined to play it for all it was worth.
“I still don’t see it,” Judge Wegland said in a tone that suggested she wished she
could
see it.
Tolletson paused and picked up a paper that had been lying on his table. “It’s not in our opposition papers, Your Honor, because I just learned more about the facts this morning. As we all know, for the privilege to apply, the consultation has to be confidential.”
“Which it was,” I interjected.
Tolletson went on as if he didn’t hear me. “That means, if the participants knew that another person was able to hear what they were saying, they cannot claim privilege because they knew there was no privacy.”
“But Your Honor,” I said quickly, “I did address that point in my papers. Officer Cheadle was seated outside the room. There was absolutely no indication that he would be listening to us.”
“That’s not who I’m talking about, Your Honor,” said Tolletson. He glanced at the paper in his hand. “Officer Cheadle informs me that Mr. Denney had his daughter with him in that hospital room. That waived the privilege.”
You could have knocked me over with a parking ticket. I’d forgotten. Mandy’s presence in the room that day had melted into the fabric of my memory.
Now it was blowing a hole in my case. A big one. I stammered a response. “Your Honor, Mr. Tolletson hasn’t offered . . . any proof . . .”
“Is what he is saying incorrect?” Judge Wegland asked.
“No. . . .”
“Well, then, how do you respond?”
“She’s my daughter, Your Honor. She’s five years old.”
“Is that legally significant?”
“No,” Tolletson said. “It isn’t. Under section 952 of the Evidence Code, a confidential communication means the client discloses no information to third parties unless those parties are there to further the interest of the client in the consultation. I don’t think there is any way to conclude that a five-year-old child is filling that requirement.”
Tolletson had done his homework, and it was now clear that I had been sandbagged. He’d kept this information under wraps until this moment, waiting for me to wander into his trap.
I hunted around my brain for something, anything, to say. “This is a little girl, Your Honor. How can she possibly be deemed competent to understand what was going on?”
“Is there a competency requirement, Mr. Tolletson?” The judge was relying on my opponent as the legal authority! I was cooked.
“I don’t believe so, Your Honor,” said Tolletson. “Besides which, a five-year-old child is certainly capable of understanding simple language, such as ‘I killed her.’ I don’t think Mr. Denney is here to assert that his daughter is mentally challenged.”
I could have punched him then. That was a needle he didn’t need to stick in me. But I decided that it was time to lick my wounds, move on, and preserve the issue for appeal.
“Your Honor,” I said, “I’ll submit the question. It’s my opinion that the attorney-client privilege has not been waived in this case.”
Without hesitation the judge said, “Your motion to exclude the statement is denied. Next issue.”
That was the motion to suppress the knife. I had not been able to run the motion at the preliminary hearing when Officer McGary was on the stand. Now I could.
Under the Fourth Amendment, police are required to have search warrants before they enter a home. There are a few exceptions to this, but if a search is warrantless, the burden to justify the entry shifts to the prosecution, which is why Benton Tolletson was forced to call Officer McGary to the witness stand to testify.
Tolletson led the officer through the events of that night. McGary basically repeated his testimony from the prelim, with one little change. Now McGary was “sure” that the call he got was for domestic
violence.
That one word,
violence,
as opposed to
disturbance,
was all-important. If Tolletson could convince the judge that McGary had acted like a reasonable, well-trained officer, the “exigency” exception to the search warrant requirement would apply. Officers who respond to certain emergency situations, like a possible victim inside a residence, don’t have to wait for a warrant.
I was convinced that McGary was embellishing, but it wasn’t going to be a walk in the park to establish that through the testimony of an unfriendly police officer.
“Good morning, Officer McGary,” I said when it was my turn to ask questions.
McGary looked at me with cool suspicion. “Good morning,” he clipped.
“You recall my asking you questions at the preliminary hearing?”
“Yes.”
“We talked about the call you got on the night of March 25. Do you remember that?”
“Yes.”
“I asked you if it was a call about possible domestic disturbance, or possible domestic violence. Do you remember that?”
“Yes.”
“And you weren’t sure, were you?”
“I’m sure now.”
“Are you telling the court your memory is better today than when you testified at the prelim?”
“I’ve had a chance to think about it.”
“Did anyone help you think?”
“I don’t understand.”
I motioned toward Benton Tolletson. “The district attorney, for instance?”
McGary shook his head. “He didn’t help me think.”
“You didn’t go over your testimony with Mr. Tolletson before your appearance this morning?”
“Sure I did.” McGary wasn’t intimidated by my question. Sometimes rookie officers will get the heebie-jeebies when asked that question, thinking that going over testimony is some evil act that will show their bias.
What I wanted was a hint that Tolletson had suggested the change. “Did Mr. Tolletson help you refresh your recollection?”
“Objection,” Tolletson said.
Surprisingly, Judge Wegland said, “Overruled. The witness will answer.”
“No,” said McGary. “I refreshed it myself.”
“Oh? And what memory refresher did you use?”
“I just thought about it, that’s all.” McGary sounded like a kid with cookie crumbs all over his face.
They just appeared there, Ma. Honest!
I decided that was a good place to stop. Tolletson had only one more question to ask. “Officer McGary,” he said, “did I at any time suggest to you that you do anything but tell the truth here today?”
“No,” McGary said sitting up straight.
Then came the legal arguments. Since Tolletson had to come up with a justification for the warrantless entry, he argued first.
“Your Honor,” he said, “this case clearly falls under the exigency exception, and we have a case on point,
People v. Higgins.
Officers responded to a domestic violence report. The court held they had a reasonable belief that domestic violence had happened, and therefore, going into the house to make sure everything was all right was permissible. It’s the same here, Your Honor.”
“Mr. Denney?” Judge Wegland said.
I was caught off guard. Tolletson had just cited a case I’d heard of, but I couldn’t remember the facts of the case. If I didn’t say something in response, I’d lose for sure.
I remembered I’d tossed into my briefcase a copy of a book called
Points & Authorities on Searches & Seizures,
a handy reference to the law. I fished it out and looked up the summary of the case Tolletson cited.
“Your Honor,” I said, “it appears that in
Higgins
a woman came to the door looking frightened. It was that observation that made the police suspicious, and that’s why the court held it was an emergency. In the present case, Your Honor, there is no such observation. In fact, there was no answer at the door at all, nothing even to indicate anyone was home.”