“You have heard the expression that there’s two sides to every story. Well, that’s true. So when the prosecutor has his witnesses up on the stand, he’s telling you his side of the story. I get to tell our side of the story when I cross-examine. Real cross-examination isn’t like on TV. It’s not about being mean to the witnesses or making them cry. It’s about eliciting facts from them that the prosecutor doesn’t want you to know about, but that I do. I’m going to have questions for each witness, which will tell you our side of the story, so I’m going to ask you to listen carefully for when I do that.”
Bennie paused.
“The most important point of law that you need to keep in mind, and one that Judge Patterson will instruct you on, is that even though we are claiming self-defense, we do not have to prove self-defense. Under the Constitution of this country, the burden never shifts to Jason or to me to prove anything in a criminal trial. That burden always remains with the prosecutor, and my client, Jason, is absolutely innocent unless and until the prosecutor proves him guilty beyond a reasonable doubt.”
Bennie paused to let the concept sink in, and Programmer Guy seemed to understand immediately, raking a hand through scruffy hair. The other jurors seemed to be listening to her, returning solid eye contact or cocking their heads in a way that suggested she had planted the seed she wanted.
“We know that things are not always what they seem. Sometimes we need to look beyond the surface and question what we are being told. You’re smart people and you will need to do that, starting now. Look for the holes in the prosecution’s case, which I think falls far short of proving anything beyond reasonable doubt, much less the most heinous crime known to man. Thank you so much.”
Bennie turned away from the jury, and Martinez popped up, trying to steal her thunder, the way she had stolen his.
“Thank you, counsel.” Judge Patterson nodded. “Mr. Martinez, ready?”
Bennie got back to her seat, touching Jason’s shoulder before she sat down next to him. He was frowning, and she realized why when she saw the note that he had written on her legal pad.
I CAN’T BELIEVE YOU DID THAT! I TOLD YOU IT WASN’T SELF-DEFENSE!!
Bennie tore off the page, and Martinez called his first witness.
CHAPTER FORTY-THREE
The Commonwealth’s first witness was Officer Ryan Underwood, the arresting officer. Underwood was in his late thirties, with lively brown eyes behind wire-rimmed glasses, short brown hair, and sunburned cheeks that he’d gotten coaching his son’s Little League game. He was absolutely professional, even likable, as Martinez took him through the preliminaries, his years on the Philadelphia police force, the number of crime scenes he’d been at, and how he’d been called to the crime scene that night.
Martinez entered into evidence an enlarged black-and-white photo of the alley on Dunbar Avenue, and Bennie didn’t object because it was devoid of blood, a body, or anything else prejudicial. Martinez stood beside the easel, gesturing. “Now, Officer Underwood, when you arrived at the scene, where did you find the victim’s body?”
“It was lying faceup, on a slight diagonal, right here.” Officer Underwood pointed to the middle of the alley. “The victim’s head pointed south toward the front of the alley and his feet toward the back of the alley. North.”
“Officer Underwood, what, if anything, did you determine about the victim when you arrived at the scene?”
“He had no pulse or vital signs. His throat had been cut, and his clothes were extremely bloody. I attempted to administer CPR, but it was too late.”
“What do you mean by too late?”
“That they were mortal injuries. The victim had already passed. He bled to death.”
Bennie could have objected because the officer wasn’t qualified to give cause of death, but this wasn’t the time to quibble. Sniffling came from Doreen’s direction, and two of the jurors glanced sympathetically at her, but Bennie kept her attention focused on the witness. Martinez returned to the witness box, standing close enough to the jury box to be chummy. It was another trick that Bennie used herself, and she wondered briefly if their tricks would cancel each other out.
“Officer Underwood, isn’t the wide part of the alley, to the left, where you found Mr. Grusini’s truck parked, is that correct?”
“Yes.”
“And Mr. Grusini’s truck was a 2009 Ford F-150, white in color, correct?”
“Yes.”
Bennie knew he was leading the witness, but didn’t bother to object because it was permissible to elicit preliminary information.
“Officer Underwood, the defendant in this case is Jason Lefkavick. Do you see him in this courtroom and can you identify him?”
“Yes, at that table.” The witness pointed.
“And you have seen him before, is that correct?”
“Yes, I arrested him at the scene.”
“Officer Underwood, how did the defendant appear to you when you first saw him at the scene?”
Bennie thought it was vague, but she let it go. She wasn’t going to object unless it was absolutely necessary. She was putting all her money on cross.
Officer Underwood answered, “He was in a sitting position and he seemed kind of groggy.”
“Your Honor, I would like to move into evidence Commonwealth Exhibit 2, a large hunting knife with a jagged edge.” Martinez crossed the courtroom to Bennie, making much of showing it to her. She didn’t react and, mercifully, neither did Jason.
“No objection,” Bennie said, her tone neutral.
“So admitted.” Judge Patterson nodded, and the court clerk made the appropriate notes and labeling.
Martinez returned to his spot, holding up the knife like the Sword of Damocles. “Officer Underwood, have you ever seen this knife before today?”
“Yes.”
“Please tell the jury where you first saw this knife.”
“I took it out of the right hand of the defendant at the scene of the murder.”
“Was its condition any different than it is today.”
“Yes, it was covered with blood.”
“Now, Officer Underwood, did you have occasion to speak with the defendant at that time?”
“Yes.”
“What was your conversation?”
“I asked him if he was okay. He said yes. I advised him of his Miranda rights, then I informed him that the victim was deceased, and he said, ‘Good, I’m glad he’s dead.’”
Bennie kept a poker face as the jury reacted with a collective frown. It was home-run evidence of motive, fulfilling the “intentional” requirement for murder in the first degree. It was also a damning admission, which was why it didn’t qualify as hearsay, but Bennie wouldn’t have objected in any event. A few of the jurors checked Jason to see if he was reacting, but he merely blinked.
Martinez held up a hand. “To clarify, Officer Underwood, you’re testifying that the defendant said he was glad that the victim was dead?”
“Yes.”
“You’re sure that’s what he said?”
“Absolutely.”
“Officer Underwood, did you ask him why he said that?”
“Yes.”
“And what did the defendant say to you in response?”
“He answered, ‘It’s about damn time he paid for what he did to me and I got a lil’ justice for once in my effing life!’” Officer Underwood paused. “Obviously, he used the f-word.”
Bennie eyed the jurors, and the grandmother in the front row scowled.
“Officer Underwood, did you ask him what he meant by that?”
“No.”
“Officer Underwood, how did he seem when he said that?”
“Very angry.”
“Did you smell alcohol on his breath or on his person?”
“Yes, on his breath.”
“Officer Underwood, did he seem so inebriated to you that he didn’t know what he was saying?”
“No, not in my opinion.”
?
??Did you give him a breathalyzer test?”
“No, it’s not procedure in those circumstances.”
“Thank you.”
Martinez paused. “Officer Underwood, after that, did you transport defendant in custody to the Roundhouse?”
“Yes. My partner and I did.”
“Did you have any further conversation with respect to the murder?”
“No.”
“Thank you for your testimony, Officer Underwood.” Martinez looked up at Judge Patterson. “I have no further questions at this time, Your Honor.”
“Thank you, Mr. Martinez.” Judge Patterson faced Bennie, who was already on her feet. “Ms. Rosato, cross-examination?”
CHAPTER FORTY-FOUR
“Yes, thank you, Your Honor, I do have cross-examination.” Bennie crossed to the witness box and stood exactly where Martinez had, not to be outchummed. “Good morning, Officer Underwood. You testified on direct examination that you saw my client, Jason, in the alley, but you were not asked where he was located in relation to Mr. Grusini. Where was he located, in relation to Mr. Grusini?”
“He was here.” Officer Underwood pointed to the exhibit, farther back in the alley.
“For the record, you’re gesturing nearer the back wall of the alley, isn’t that correct?”
“Yes.”
“So that means that when you came to the alley, the first person you encountered was Mr. Grusini’s body and behind him was my client Jason?”
“Yes.”
“To the left was Mr. Grusini’s pickup truck, isn’t that correct?”
“Yes.”
“Officer Underwood, how much space would you say was between Mr. Grusini’s body and his pickup truck?”
“I would say, about two feet.”
“Thank you.” Bennie didn’t ask the next question, was there enough room to permit Jason to leave the alley by the front? The issue with any cross-examination was twofold: what did the witness know and what was he willing to say? Bennie was experienced enough to know not to push it too far and risk losing everything; Officer Underwood would say that he didn’t know, and he wasn’t willing to give her the conclusion she needed.
“Now, Officer Underwood, did my client Jason give you the knife freely?”
“Yes.”
“He didn’t try to hide the knife, did he?”
“No, he did not.”
“He didn’t get up and try to run, did he?”
“No.”
“Officer Underwood, to another point about which you weren’t asked. Isn’t it true that Jason told you the knife wasn’t his?”
Martinez jumped to his shiny shoes. “Objection, Your Honor, calls for hearsay.”
Bennie faced the judge. “Your Honor, it’s not hearsay if it comes in only for the fact that it was said, not for the truth of the matter asserted. I didn’t object during the prosecutor’s direct examination of this witness for that reason, and what’s good for the goose is good for the gander.”
Judge Patterson nodded, with a tight smile that showed she had gotten Bennie’s reference. “Objection overruled.”
Bennie turned to the witness. “Officer Underwood, isn’t it true that my client Jason told you that the knife was not his?”
“Yes.”
“What exactly did he say to you?”
“He said, ‘this isn’t my knife.’”
Again, Bennie stopped short of asking the next question, which would have been, whose knife was it? The witness didn’t have personal knowledge to answer the question and he wasn’t willing to admit that it was Richie’s. She let it go, trusting that the jury would follow her train of thought; if the knife didn’t belong to Jason, then it had to belong to Richie, and the only logical inference was that Richie had pulled a knife on Jason. The facts spoke for themselves, laying the foundation of a self-defense claim, even if Jason wouldn’t.
“Officer Underwood, did Jason say that the knife wasn’t his, in response to a question?”
“No.”
“So he volunteered that information?”
“Yes, that’s why I didn’t believe it.”
Ouch. It was a punch, but Bennie wasn’t about to fall down. “You didn’t believe it because he volunteered it?”
“Yes.”
“But Officer Underwood, you testified that Jason also said he was glad that Mr. Grusini was dead, correct?”
“Yes.”
“And Jason volunteered that testimony, did he not?”
“Yes.”
“But you believed that volunteered information, did you not?”
“Yes.” Officer Underwood blinked.
“So Officer Underwood, contrary to what you just testified, some volunteered information you believe and some you don’t.”
“Well—”
“The fact that Jason volunteered the information has nothing to do with anything, does it?”
“Uh, no, not really.”
“Officer Underwood, excuse me a moment.” Bennie crossed to the counsel table, picked up her exhibit, and approached the bench. “Judge Patterson, may I show this photograph to the witness?”
“You may.” Judge Patterson took a look at the picture and handed it back to Bennie, who took it over to the witness box.
“Officer Underwood, I’m showing you a mugshot, and I am asking you if it represents the way my client Jason looked when you first saw him.”
Officer Underwood frowned at the photo. “It does, and it doesn’t.”
Bennie had expected as much, but stayed the course. She could’ve introduced the mugshot later, but she wanted to make her point as early as possible. “Officer Underwood, is it fair to say that it’s a cleaned-up version of what Jason looked like when you first saw him?”
“The defendant? Yes.”
“Thank you.” Bennie addressed Judge Patterson as she walked to Martinez and showed him the picture. “Your Honor, I am showing it to the prosecutor and I move this mugshot into evidence as Defense Exhibit 10.”
“Any objection, Mr. Martinez?” Judge Patterson asked.
“No,” Martinez answered, his mouth tight.
“Thank you.” Bennie walked back to counsel table, set the photo down, and grabbed its enlarged version, which she carried to the metal easel and placed on top of the picture of the alley. The jury reacted almost instantly, shifting in their seats, which was enough to satisfy her. Jason’s mugshot showed flecks of dried blood on his forehead and blackening his eyebrow. His left eye was red, puffy, and swollen shut, and his enlarged goose egg looked as big as a baseball, which was the desired effect.
Bennie gestured at the exhibit. “Officer Underwood, as you can see, this is a larger view of the photo that is Defense Exhibit 10.” She approached the witness box. “Officer Underwood, does the exhibit accurately represent the injury that you saw on Jason’s face on the night in question?”
“Yes.”
“That’s the way it’s similar, correct?”
“Yes.”
“The way it’s different is that his injury was much bloodier when you first saw him, correct?”
“Define ‘much bloodier.’” Officer Underwood didn’t look at the jury because cops were trained not to, which made them seem evasive even when they weren’t. Until the PPD figured that out, Bennie would take advantage, every time.
“Officer Underwood, please tell the jury, in your own words, how much blood was on Jason’s injury when you first saw him?”
“There was some blood.”
“Yes, but how much blood?”
“It was dark, so it was hard to see.”
“Was there a small, a medium, or a large amount of blood?” Bennie controlled her sarcasm to be respectful to the witness, especially with so many unknowns among the jurors. But so far, she was loving this testimony. The more they talked about the blood on Jason’s injury, the less they were talking about the blood on Richie’s neck.
“I would say there was a medium amount of blood.”
“A
nd where exactly was Jason bleeding from?”
“From the forehead.”
“So above his eye is where this injury is, is that what you mean?”
“Yes.”
“Could you show us on the photograph where the blood was on his eye?”
“Yes, right here.” Officer Underwood pointed generally to Jason’s eye, which was all Bennie needed. She wanted to give the jury permission to keep looking at the exhibit, which showed Jason’s features grossly distorted by the injury; his eye and nose were swollen, and the white of his eye was completely red, which was disturbing.
“Officer Underwood, did you ask Jason how he got this injury?”
“No.”
Bennie stopped short of asking the next question, which was, didn’t you assume that he had been punched by Mr. Grusini? She didn’t need to go there, and the jurors had the same powers of deduction as the witness; Jason had a goose egg on his forehead, so he got punched by the only other person in the alley, who was Richie.
“Officer Underwood, did you offer any medical assistance to my client?”
“No.”
“You merely put him in handcuffs and arrested him?”
“Yes.”
“Even though he looked like this?” Bennie gestured at the photo.
“Yes,” Officer Underwood repeated, belatedly.
Bennie took the exhibit down because she knew jurors grew inured to gruesome exhibits over time, then she returned to the witness box. “Officer Underwood, you testified that Jason was groggy when you first saw him. What did you mean by that?”
“Dazed.”
“Did you have any opinion about why that was so?”
“Objection!” Martinez jumped up. “The witness is not qualified to give a medical opinion. He’s not a doctor.”
Bennie faced Judge Patterson. “Your Honor, I’m simply asking the officer to explain what he meant. He formed an initial impression, groggy and dazed, and we all understand that he’s not diagnosing an illness.”
“I’ll allow it.” Judge Patterson lifted an arched eyebrow. “But don’t go too far, Ms. Rosato.”
“Thank you, Your Honor.” Bennie turned back to the witness box. “Officer Underwood, what did you mean when you said my client was groggy?”