I'll Take Care of You (30 page)

 

When ballistics expert Thomas Matsudaira testified, Angelo MacDonald tried to poke holes in the analysis that the Hydra-Shok bullets could have been fired by only one type of gun, a Beretta 92F like Eric Naposki's.

“Pretty much anyone can commonly get Hydra-Shok bullets, right? Any Tom, Dick, Harry, or Nanette can get it, right?” MacDonald asked.

Murphy objected, and the judge sustained the objection—twice.

On redirect, Murphy came back with his own form of the question, focusing on the gun itself.

“Am I wrong saying it's popular?”

“Oh, no, it's popular,” Matsudaira said.

“It's available to you, me, Tom, Dick, Harry, or Eric?”

When the defense objected to Murphy's question, Froeberg overruled the objection.

“That's based on what's good for the goose is good for the gander,” the judge said.

 

 

Murphy typically started off a trial with a laid-back speaking approach, often talking so low and soft that his voice couldn't be heard in the gallery. His aim was to make things as simple, fast, and easy as possible for the jury to understand, growing more aggressive when he wanted to make a point or show he was “fired up” on cross-examination. Only then did his tone grow sharper and his questions more acerbic, signaling jurors that he thought a witness was not credible or was being uncooperative.

Murphy usually kept his cool, shaking his head, or staring down at his yellow legal pad as he pondered the next sharp comeback to dispel whatever questions the defense might have raised with the jury. But sometimes his enthusiasm was palpable as he jumped out of his seat to get in a couple last pithy questions to bring his points home. And he almost always got the last word.

After facing Pohlson in the Skylar Deleon trial, Murphy had feared going up against him again, “because he's so friggin' likeable.” But Murphy was even more scared that the combination of Pohlson and his co-counsel Angelo MacDonald—“the perfect New York lawyer and the hometown loveable guy”—could be deadly.

“I feared that before the trial and my worst fears came true,” he said, referring to the hammering, staccato style of cross-examination MacDonald had mastered, which made him a “tremendous trial attorney.”

A sharp contrast to Murphy's tall, lean, and athletic confidence during his direct questioning, Pohlson came across more as a humble, stocky Joe Everyman during his brief stints of cross-examination. While Murphy often used biting wit, Pohlson related to the jury by speaking in even more simple language, making self-deprecating jokes about not knowing how to turn off his own cell phone, teasing witnesses—even the judge—to let the jury know that he'd been around awhile. Rarely confrontational, he tended to ask short bursts of questions, not wanting to tax the jury's attention span.

But both of these attorneys marked a stark contrast to MacDonald, whose more theatrical, New York style was to ask about minute details and to repeat questions to underscore certain points. A man in motion, MacDonald was very animated, pacing around the courtroom, leaning on the defense table, grabbing his lip, and taking his glasses on and off. However, at one point, he asked so many similar questions that Judge Froeberg told him during a sidebar to cut down on the unnecessary and irrelevant ones.

“A lot of questions are being asked of these witnesses, and they're not the right witnesses, and it's just . . . it's getting very tedious,” the judge said.

“Are you telling me that I need to object more?” Murphy asked. “That might be the first I've heard that.”

Froeberg said that from his viewpoint, 90 percent of MacDonald's questions were objectionable, saying he would step in if Murphy didn't. The judge also scolded MacDonald for putting his hand on the railing separating him from the jury.

After his very detailed cross-examination of Juguilon and Matsudaira, MacDonald explained in the hallway that he was simply trying to educate the jury about guns, bullets, and forensics. This tactic could just as easily be viewed, however, as an effort to show the jury that he was knowledgeable and experienced as he questioned the witness. Either way, he came off as smart and likeable, albeit a little long-winded.

Pohlson continued to score points with the jury for humor, which helped break the tension in the courtroom. After Murphy questioned Lieutenant Craig Frizzell, now retired, about his surveillance of Eric Naposki and Eric's countersurveillance tactics, such as switching cars with Leonard Jomsky to try to trick police, Pohlson said lightly, “It sounds like neither you nor Mr. Naposki was very good at what you were doing.”

“What do you mean by that?” Frizzell countered dryly in an exchange that evoked some chuckling from the gallery.

Detective Voth, who spent something like nine hours on the stand, was recalled again toward the end of the prosecution's case, on July 7.

“Did Eric Naposki ever approach you and ask you any questions like, ‘Can we get extra patrols? I'm concerned about my girlfriend. There's a killer on the loose.' Anything like that?” Murphy asked.

“No, sir.”

Murphy then had Voth talk about two mailers for credit cards, which were addressed to Eric at the Seashore Drive house, which proved that Eric was, in fact, “living” there, a fact that he has denied to this day.

On cross-examination by Pohlson, Voth testified that he looked through forty or fifty different sets of phone bills for Nanette, and he also asked a manager at the Thunderbird for the nightclub's phone records. But he acknowledged that he never got Eric's.

“We asked him a couple of times and didn't receive them,” Voth said, acknowledging that he never obtained a search warrant to get the records.

“Isn't that something that you normally, in the course of an investigation of a murder case, would have obtained?” Pohlson asked, following up with a series of questions about other items for which the police had obtained warrants.

“Maybe, maybe not,” Voth said, refusing to give Pohlson what he wanted, which was an admission that it was, essentially, the police department's responsibility to prove Eric's alibi for him. “We didn't put that effort into that particular thing at that time. No, sir.”

 

 

During a sidebar with the judge, Pohlson said he wanted to use a page in Eric's notebook to counter the prosecution's characterization of Eric as “a money-grubber.”

Murphy disputed that he was trying to characterize Eric that way, contending that the defense was trying to use the journal as “self-promoted character evidence,” such as the defendant's goal of developing a better relationship with his children.

Trying to block the defense's move, Murphy said, “I got bad stuff on him for character. We have information he's worked as a collection agent for a loan shark in New York and was actually arrested for that.”

As far as illustrating Eric's state of mind or the truth of what he was saying, the judge said he didn't think the journal was relevant.

 

 

Jenny McLaughlin was the last prosecution witness, whom Murphy used to show, once and for all, that the defense's attempts to raise doubts about Eric being the shooter by casting a shadow over the late Kevin McLaughlin were fruitless and wrong.

“Ever hear your brother say, ‘I'm going to kill Dad'?” Murphy asked.

“No,” she said.

Asked about Kevin's reaction to his father's murder, she said, “He was very upset.”

“We've heard it a number of times throughout the trial. Did Kevin McLaughlin kill your father?”

“No.”

During his cross-examination, Pohlson tried to put the focus back on Nanette, reiterating that she was the one to steal from the McLaughlin family, not Eric.

“She even took your father's Babe Ruth baseball, right?”

“She very well may have,” Jenny said.

“Did you ever meet Mr. Naposki?”

“No.”

Then Pohlson switched tactics, asking questions that suggested Jenny had been a pawn used by police to entrap Eric into saying something incriminating, by pretending to be on his side.

Did the police ever ask you to “induce admissions or anything like that?” he asked.

“No,” she said.

When Jenny mentioned that it seemed that Eric got scammed by Nanette, Pohlson asked, “did you mean that or were you just saying that?”

“I was trying to listen to what he had to say. Interpret it.”

Pohlson also tried to show that Eric didn't actually benefit from Nanette's financial shenanigans, one of the requirements needed for the jury to find the “special circumstances” allegation to be true.

“Your family or estate never paid any money to Mr. Naposki, correct?”

“Correct.”

Murphy jumped back in to show that the opposite was, in fact, true, and that Eric had thrown veiled legal threats at Jenny over the phone while Nanette was in jail.

“Remember that whole litany?”

“Yes.”

Did Naposki ever call and say, “I'm terribly sorry about your father's death, or I have a security company, I can offer you guys protection?”

“No.”

Asked if she remembered any times when Nanette went shooting with Bill, Jenny said no.

And with that, the prosecution rested its case.

CHAPTER 39

The day before the defense was ready to start its case, Gary Pohlson and Angelo MacDonald spent that entire Sunday afternoon at the jail with Eric, discussing the pros and cons of him testifying. Murphy, they said, was a very tough cross-examiner. Just look at what he had done during the motion hearing to one of their witnesses, private investigator James Box.

They had debated this question throughout the trial, Pohlson said, “on an almost nonstop basis.” Some days, Eric wanted to testify; other days, he realized he shouldn't.

While Murphy had tried to show that Nanette had made a patsy out of Eric, who then killed for her, the defense was now going to try to show that Eric had a real alibi and that Nanette was a more likely killer than he was. The defense had about eight witnesses lined up, some of whom would be asked to provide testimony that proved it would have been impossible for Eric to commit the murder.

 

 

Over Murphy's repeated objections, Judge Froeberg granted the defense's motion to allow Box to testify about his knowledge of the telephone call Eric made the day of the crime. Although the judge acknowledged it was hearsay evidence, he said this was a remedy “to somewhat rectify the delay in prosecution,” which he believed was “the fair thing to do.”

That said, Froeberg denied the defense's request to take the jury on a field trip to view the soccer fields in Walnut Ranch Park. There was no need for the jury to get a feel for the distance between the field and the parking lot, he said, because they already had a phone record in evidence showing a call was made on Nanette's car phone at 8:24
P.M.
, immediately after she and Eric skedaddled off the field.

 

 

After lunch, Angelo MacDonald gave a sixty-four-minute opening statement, lending a whole new meaning to the words “timeline” and “patsy.”

MacDonald said the defense intended to prove that Eric was innocent, “because he was somewhere else at the time of the murder. He has an alibi that proves he could not—and did not—commit this crime.”

“If you find that Mr. Naposki had an alibi—you must find him not guilty,” he said. “It is an absolute.”

The defense will prove, he said, that Eric and Nanette drove twenty-six minutes from the soccer field parking lot to his apartment in Tustin, where Nanette dropped him off.

“It's now eight-fifty in the evening,” MacDonald said, “and she's off, lickety-split.”

After Eric changed clothes, he set off in “his lumbering Nissan Pathfinder” and drove by his friend Leonard Jomsky's house, heading toward the southbound 55 Freeway. He was about to get on the highway when he got paged, so he pulled into Denny's on Seventeenth Street, went inside, and called the bar manager on one of the pay phones.

“The defense will show there was a call placed at eight fifty-two
P.M.
,” he said.

In his dramatic, theatrical presentation, punctuated by gesturing and verbal exclamation points to hold the jury's attention, MacDonald presented a timeline incorporating Eric's varying claims. But with all the numbers of minutes and time trials being tossed around by the prosecution and now the defense, it may not have sunk in right away for the jury that this timeline lacked credibility. And when jurors applied common sense and basic mathematics to this scenario they decided that it was physically impossible, as the prosecution—and even the judge—would later proclaim.

MacDonald didn't take into account the time it would have taken Eric to get changed and get in his car before he even started to drive to Jomsky's house. But MacDonald was a great storyteller, just like Eric.

Eric was the “popular suspect, the patsy,” he said, but you “can't convict someone on innuendo.”

Eric was, in fact, late for a meeting that evening, the defense attorney said, an eight o'clock session with city officials about parking outside the Thunderbird. (MacDonald didn't mention that Eric originally had told police that he didn't have a meeting that night; it was the
next
night.)

After Eric returned the page from bar manager Mike Tuomisto, MacDonald said, Eric got back on the road around 8:54 or 8:55
P.M.
And by then, he said, it would have been impossible to make it to Newport in just thirteen or fourteen minutes, in time to kill Bill McLaughlin.

“I'll tell you why that particular night, that night of all nights” it was impossible, MacDonald said. “It was a Thursday night. It was a big night . . . the first night of the boat parade,” which translated into heavy traffic congestion.

Giving Eric fifteen minutes to get to the Thunderbird, he said, “gets us to nine after nine, nine-ten.” He added that Eric would have to be “superhuman” to park at the club, cross the bridge, go down the steps to the pedestrian-access gate, which was shrouded in trees and had no lighting, use the key to get in the gate, enter the house, leave the key in the door, drop one on the mat, go into the house, and then shoot Bill, all by 9:10
P.M.
, when Kevin heard the shots.

Because, by then, the defense will show that “the crime is already done. Someone else had already killed Mr. McLaughlin,” and that Eric had a “solid, simple, logical, reasonable, and compelling alibi,” he said. “He simply could not have done it.”

Nanette Johnston was the real culprit, he said, “an accomplished liar, cheat, thief, manipulator, con woman, and selfish, promiscuous gold digger. . . . When you combine those qualities with pretty, good-looking, in great shape, young, literally with the ability to charm the pants off the man she wants, extremely successful at fooling people, cheating people, taking advantage of people . . . Ladies and gentlemen, the defense will prove that Eric Naposki was just one of the many men she took advantage of. One of the litany of names we heard. One of the gym guys.”

Nanette was the one who “plotted and schemed . . . and she planned the killing of William McLaughlin. . . . She is the only person in this world who had the motive, the means, the opportunity, the knowledge, the wherewithal, the callousness, the dispassionateness, to pull this off.”

Only she knew when Bill was coming home, the extent of Kevin's disability, and how far away his bedroom was. The dog knew her and wouldn't attack her. Eric was getting too serious in the relationship, MacDonald said, and “only she knew that he could never keep her in the life that she was accustomed to.”

“The defense will show she had plenty of time to do this,” the defense attorney said.

The crime scene photos of the dining-room table and chairs show that Bill's papers are not askew, the table has not shifted, he said. “It's telling us that Mr. McLaughlin got out of his chair to greet someone he knew.”

As MacDonald described Kevin dialing 911, Kim McLaughlin put her fingers in her ears. Once he finished the violent portion of the story arc, Kim returned to doodling with colored pens.

Eric's alibi and the overwhelming evidence that Nanette “independently and exclusively committed this crime” created reasonable doubt, MacDonald said. The defense will prove that Eric is not guilty, he continued, but it did not have to prove that Nanette committed this crime.

“That's the government's job,” he said. But if the jury thought it was possible that she did it, “then that's a reasonable doubt.”

The government has a lot of power and manpower, MacDonald said. “The question for you is, did they exercise enough responsibility? Because at the end of this case, we're going to argue that they did not.”

 

 

As soon as the defense's first witness, PI James Box, started to testify, its case began to take a slow and painful tumble.

Box sounded just as sure of himself on the stand as he had during the first part of the “402” hearing, telling Gary Pohlson definitively that he'd seen the infamous “alibi” phone bill, with the 8:52
P.M.
call.

Box said his boss, Julian Bailey, asked him to verify that there was a pay phone with that number at the Denny's in Tustin, and also to verify the Thunderbird's number, both of which he did.

Box described his drive from Denny's to the main entrance of Balboa Coves on February 15, 1995, a “driving-experience experiment,” which had taken him twenty-one minutes and forty-seven seconds. This showed him that Eric would have arrived too late to commit the murder.

A major liability for the defense, Box voluntarily fed the prosecution some juicy details. He explained, for example, that the pattern of shots described by Bill's neighbor, Rosemary Luxton, fit the “double-tap” technique, in which Eric had been trained with the SWAT team.

In the interview with Luxton, Box said, she described that “the popping sound or gunfire was kind of in a uniform pattern,” which she thought was “odd.”

Asked to elaborate, Box said Luxton recalled hearing five shots around 9:10
P.M.
, but “it wasn't random, like they were scattered about. It was there were two shots, and then a period of time went by, and there were two shots, and the shots' sequence just seemed to be uniform.”

Pohlson then asked him to talk about his interview with Mike Tuomisto, the Thunderbird bar manager who noticed there was “a lot of traffic, more than normal traffic,” which he attributed to “the first night of the boat parade.... He told our client that he ought to leave a little bit early, because there was heavy traffic and he may need some extra time.”

“Did he tell you at what time he paged Mr. Naposki?”

“Probably did. I don't recall off the top of my head.” After Pohlson showed Box his own report, Box remembered. “Shortly before nine
P.M.
”

Finally, Box talked about his interview with the manager of the Tustin Hardware store, who “told the officers that the silver key could have been made at his store or another one of several Ace stores, either in Orange County or in the nation.”

 

 

Matt Murphy, a master of cross-examination, could slide the proverbial knife into witnesses before they even knew it, and get them to look like incompetent idiots or, even worse, liars. As he walked Box through his driving-time route, Murphy was able to show that Box took a completely roundabout way to get to Balboa Coves, insinuating that he did it on purpose to help his client.

“You drove that in twenty-two, sorry, twenty-one minutes, forty-seven seconds. Would it shock you to learn that we've driven it eight times and it takes an average of about thirteen minutes?”

“Objection, Your Honor,” Pohlson said. “Mr. Murphy's testifying.”

They broke for the day, but Murphy was in his element, and it would only get worse when they returned after the Fourth of July holiday.

On July 5, in open court but out of the jury's presence, Pohlson raised some objections to Murphy's line of questioning of Box, which prompted the prosecutor to issue a counterwarning, implying that he could make things even worse for the defense's key witness.

“Jim Box has a horrible reputation,” Murphy said. “His reputation for veracity is bad. If Julian's going to testify [Box is] an honest guy, I can line this hallway with people that are going to come in and say he is not an honest guy, investigators that work with him, people in the DA's office.”

Enough said.

 

 

By the time Murphy had finished cross-examining Box in front of the jury, he'd filleted the defense's “facts” of the case, along with Box's memory, his professional standards, ethics, methodology, and overall credibility by implying that the investigator was not only unprofessional but untruthful.

“Was there anything bizarre about the time-space continuum when you drove from Mr. Naposki's apartment to the Denny's pay phone?” Murphy asked with his classic sarcasm. “Like Bermuda Triangle stuff, lights in the air, anything like that?”

“No, there was nothing like that,” Box replied.

Murphy took Box through the same exercise as he had at the “402” hearing—“Do you remember whether you actually saw the bill, or if you were just told about the bill?”—as he reminded Box of his previous testimony from just a week earlier, which the investigator said he couldn't remember.

By his own admission, Box said he sometimes omitted facts from his reports to his boss, and also rewrote them. When Murphy asked if this was because Box knew he was legally bound to give these reports to the prosecution as discovery, Box said no, but his credibility was tainted nonetheless.

Even when Pohlson questioned Box, he couldn't do much to dispel Murphy's implications that Box had specifically chosen a longer route in an effort to prove that Eric couldn't have murdered Bill McLaughlin.

“Would the reason you drove down Superior have been so you could have an inflated number in terms of how long it took you?” Pohlson asked.

“Not really.”

“Was it even some part of ‘really'?”

On recross, Murphy had Box firmly and repeatedly confirm that he was sure the night of the murder was the first night of the boat parade. Pohlson had tried to hint in his questioning that Box had the wrong night, but the judge sustained Murphy's objection before Box could answer.

After Murphy had solidly made his point, he triumphantly pulled out an official record from the Newport Beach Chamber of Commerce, showing the jury that the boat parade had not actually started until December 17, two days
after
the murder. He then got Box to admit that if he wasn't being untruthful, then he was inaccurate—neither one of which was good for the defense. (Murphy subsequently called Raymond Luehrs, a chamber of commerce official, who undermined Box's credibility even more.)