Chapter 35
Stan Turner
Before long Stan and Larson were back. Jodie closed up the trial notebook, stood up and stretched. Stan handed her some potato chips.
“I don’t want your stomach growling during cross examination.”
Jodie laughed and took the potato chips. She opened them and started eating.
“Well. You ready?” Stan asked.
“Yes, I am,” Jodie replied confidently.
The door to the courtroom opened and Judge Jasper walked in. Everyone rose as she took her seat.
“Be seated,” she said.
“Alright. Bailiff, please bring in the jury.”
The bailiff opened a side door and the twelve jurors who had just been selected walked in and took their seats in the jury box. There were eight women and four men. Four were Black, two Latino, and six Caucasian. Seven were blue collar workers, three professionals and two homemakers.
The judge addressed the jury giving them her standard instructions on their duties, the burden of proof, and jury conduct during the trial. When she was done she nodded to Goldberg.
“You may give your opening statement.”
Goldberg smiled brightly as he got up and walked to the lectern. “Your Honor, ladies and gentlemen of the jury. On behalf of myself and Mr. Stein, we want to thank you for your jury service. We know that you all have busy lives and jury service is a burden you could do without.”
Many of the jurors nodded their agreement.
“We discussed the facts of this case a little during voir dire, but now I want to tell you in more detail what this case is all about and why my client, Herbert Stein, believes he has been wronged by the defendant despite his apparent good intentions.
“As I mentioned earlier, Mr. Stein owns a jewelry store in Plano, Texas called the Jewelry Mart. He bought it several years ago and it is his only livelihood. As you might imagine there is an element of danger in operating any retail establishment. Thieves and robbers often hold up convenience stores and other businesses every day, but a jewelry store is a favorite target because jewelry and precious gems are small, extremely valuable, and easy to fence. In fact, Mr. Stein in the short time that he has been in business has been robbed several times. Fortunately, until this last robbery he has survived each holdup without injury.
“Now we will show that his survival has been the result of his careful attention to safety protocols communicated to him by the police and his various insurance carriers. Specifically, we will show that established protocol calls for the full cooperation with the armed robber who is holding up your store. This is to minimize the risk of bodily harm. Money can be replaced but people cannot.
“So, on May 7, 1997 when an armed robber came into the Jewelry Mart, Herbert Stein did what he had been instructed to do by the police and his insurance carriers–that is he offered his complete cooperation and gave the perp no reason to do him harm. Unfortunately, Bob Larson came along while the robbery was in progress and took it upon himself to intervene. Now he will testify that he is an ex-Army MP and fully qualified to handle this type of situation, but the evidence will show that his interference actually caused Herbert Stein to be shot in the leg and suffer unimaginable pain and mental anguish.
“Now Ms. Marshall will argue that as the result of her client’s intervention the robber was arrested, tried and convicted for his crime and that the Jewelry Mart suffered no financial loss as the result of her client’s actions. The problem with this is that Mr. Stein had insurance. He had insurance so he wouldn’t have to risk his life if a robber decided to target his store. The prudent thing for Mr. Larson to do would have been to simply call 9-1-1 and let professionals handle the situation, but he for some reason felt compelled to intervene and nearly got Mr. Stein killed.
“I know that everyone likes a hero, but Bob Larson is not a hero. He’s a careless meddler who had no right or authority to go into the back room of the Jewelry Mart and try to stop a robbery in progress. As the result of his negligent and reckless conduct Herbert Stein has suffered past and future medical expenses, extreme mental anguish, and incurred cost and attorney fees in bringing this action. At the end of the case the Court will give you special issues or questions to answer which will allow you to decide what damages to award Mr. Stein for the injury he has suffered.
“We are confident that after you have heard the testimony and reviewed the evidence in this case that you will find, by a preponderance of the evidence, that Bob Larson was grossly negligent and reckless in his behavior on May 7, 1997 and grant judgment in Herb Stein’s favor and against Bob Larson in an amount that will fully compensate him for his loss. Thank you.”
“Ms. Marshall. Would you like to give an opening statement at this time?” the judge asked.
Jodie had wrestled with this question for some time but finally decided she could damage Stein’s case significantly in cross examination so she didn’t need to give her opening statement right off the bat.
“No, Your Honor. I’ll wait until I present my case in chief.”
“Very well. Mr. Goldberg, you may call your first witness.”
“I call Herbert Stein.”
Herb got up and walked to the witness stand. Goldberg went to the lectern and spread out his notes.
“Mr. Stein. What kind of business are you in?”
“I own a jewelry store in Plano called the Jewelry Mart.”
“Please describe your business for the jury.”
“We sell fine jewelry, watches, and loose diamonds. We also do watch repair.”
“Were you open on the evening of May 7, 1997?”
“Yes. I was working the store alone that night. I usually have someone with me, but my employee had called in sick.”
“Did anything unusual happen on May 7, 1997?”
“Yes. We were robbed.”
“Tell us what you remember about the robbery,” Goldberg said.
“A short, middle-aged man with long blond hair came in and looked around. When I came up to see if he needed any help he pulled a gun on me and stuck it in my face.”
“Did he say anything?” Goldberg asked.
“He said if I wanted to live to do exactly what he instructed.”
“So, what happened next?”
“I raised my hands and told him I’d do whatever he asked. He said to take him to the safe. So, I did.”
“Did you open the safe for him?”
“I started to, but before I got it open I heard a scuffle behind me. I turned around and saw the defendant, Don Larson, wrestling with the robber for his gun.”
“What happened next?”
“I knew that the struggle would likely end badly, so I decided to make a run for it while the robber was distracted. But as I was fleeing past the two men the gun went off and a bullet hit me in the leg.”
“Were you in pain after you were shot?”
“Yes. Excruciating pain. It’s the worst pain I’ve ever felt in my life. I was light headed and almost fainted.”
“Did you go to the hospital?”
“Yes. I spent two days at Plano Hospital. They took out the bullet and patched me up.”
Stein next introduced the video surveillance of the attempted robbery from several different camera positions. The jury watched Michael Mahoney enter the store. He was wearing a ski mask so you could only see his eyes and his mouth. He looked around the showroom and then another camera showed him going into the back room. A third camera showed the struggle over the gun and Stein trying to get past Mahoney and Larson when he was shot. When the video ended Goldberg continued his direct examination.
“Have you had any problems since you left the hospital?”
“Yes. I can’t sleep at night. Every time I finally get to sleep I have horrible, violent nightmares that wake me up.”
“Could these be caused by the robbery rather than being shot?”
“No. The nightmares always involve a shooting. I see myself being shot or feel the sting of the bul
let.”
“Has this caused you any problems on the job?”
“Yes, I’m afraid to be there alone—particularly at night. I can’t concentrate anymore. I get distracted easily by simple noises like the air conditioning unit coming on or a door slamming.”
“Have you been to a doctor about this?”
“Yes. I told my regular doctor about it and he referred me to a psychologist, Dr. Harry Wine.”
“Have you gone to see him?”
“Yes. I see him every Thursday afternoon.”
“Has he prescribed you any medication?”
“Yes. He gave me something to help me sleep.”
“What is it costing you to go to Dr. Wine?”
“Three hundred dollars a week.”
“How long do you think you’ll have to be under treatment to fully recover?”
“Dr. Wine said it could take six months or a year.”
“So, for past and future treatments we’re looking at about $31,200?”
“Correct.”
“And how much did the hospital charge you?”
“Eleven thousand three hundred twenty-two.”
“What about prescriptions?”
“That’s a hundred a month.”
“So, you’re asking the jury to award you $43,522.00 in medical related damages.”
“That’s right.”
Stein showed the witness documentation to prove up the past and future medical expenses and asked him to authenticate them. Then he asked the court to admit the records into evidence. There were no objections so the exhibits were admitted.
“And of course you want the defendant to reimburse you for your attorney’s fees, right?”
“That’s correct.”
“Thank you. Pass the witness.”
“Ms. Marshall. Your witness,” the judge said.
Jodie stood up and walked to the lectern and set a legal pad in front of her.
“Mr. Stein. This isn’t the first time you have been robbed, is it?”
“No. It’s the fourth time actually.”
“How much was taken in the first robbery?”
“$132,000.”
“How about the second?”
“Ah $145,000 I think?”
“And the third?”
“$160,000.”
“How much was taken in this last robbery?”
“Well, ah, actually nothing.”
“Like zero?”
“Yes, nothing was taken.”
“And would you agree that was because the defendant, Bob Larson, risked his life to come in and stop a robbery in progress?”
“Yes, but I didn’t ask him to.”
“No. You didn’t, but still nothing was taken and the robber is now serving time in Huntsville prison, right?”
“Yes, that’s true.”
“What was your inventory on the day of the robbery?”
“I don’t know right off hand.”
“Was it more than $100,000?”
Stein nodded. “Probably?”
“More than $150,000?”
“A little more perhaps.”
“So, Mr. Larson saved you $150,000 yet you want him to pay you $43,522 plus damages for mental anguish and attorney’s fees.”
“You bet I do. I was shot.”
“I’m glad you brought that up. Isn’t it true had you just stayed still and not tried to flee the scene, you wouldn’t have been shot?”
“Well, do you expect me to just stand there while two men are fighting over a gun?”
“Objection, non-responsive,” Jodie said.
“Sustained,” the judge said. “Just answer the question asked.”
“What was the question?” Stein asked.
“Had you not moved when the struggle for the gun began, you wouldn’t have been shot?”
“I guess not.”
“So, your getting shot was partially your own fault.”
“Objection!” Goldberg exclaimed. “Calls for a legal conclusion.”
“Withdraw the question. . . . Mr. Stein, in addition to the inventory you mentioned, were there items in your safe that would have been taken had Mr. Larson not intervened?”
“Yes. I suppose.”
“What was in the safe?”
Larson looked at Goldberg. “Objection, irrelevant.”
“It’s not irrelevant. It goes to damages. Mr. Stein says he’s been damaged but I say he benefitted from Mr. Larson’s actions. The question is how much.”
“Overruled.”
“Some cash.”
“How much cash?”
“Ten thousand or so.”
“What else was in the safe?”
“Important papers.”
“What else?”
“Loose diamonds, but they were included in the inventory number I gave you.”
“Why did you remove the contents of the safe and take it to your car after Mr. Larson tied up the robber but before the police came.”
“I don’t know. I don’t remember why I did that. Maybe I was afraid the shop wouldn’t be secure while it was a crime scene.”
“Or was it because there was something in the safe that you didn’t want the police to see?”
“No. That wasn’t it.”
“Then why take out precious items from a safe where nobody could steal them and put them in a vehicle parked in the street that any car thief could have taken in thirty seconds?”
Larson squirmed in his chair.
“Could it be that there were drugs in the safe?”
“Objection,” Goldberg said. “Argumentative and prejudicial.”
“No. Absolutely not,” Stein answered anyway.
“It’s a fair question,” the judge said. “Overruled.”
“So, you don’t want us to know what was in the safe? I got it.”
“Objection! Argumentative.”
“Sustained.”
“I’ll rephrase. I think I know why you didn’t want the contents of the safe to be seen by the police.”
Stein just glared at Jodie. She smiled and pulled a document from her evidence stack. “I’m going to show you what has been marked Defendant’s Exhibit #1 and ask you to identify it.”
Jodie handed Stein the document and he looked it over. “I think this is the claim form for the first robbery.”
“Very good. So, this is the document that you turned into Travelers Insurance Company after you were robbed the first time?”
“Yes. That’s correct.”
“And you collected this claim, is that correct?”
“Yes.”
Jodie picked up a second and third document and Stein admitted that these were the claim forms for the second and third robberies.
“Now,” Jodie said. “I want you to compare the itemized inventory of stolen items and tell me why they are almost identical except for the quantity of each which accounts for the higher claims each year.”
Stein studied the three inventories. “Well, we sell a lot of the same inventory each year and just replace it, so they would look alike.”
“After you got the check for $132,000 for your claim on the first robbery did you replace all the lost inventory?”
Stein frowned, then looked at Goldberg.
“Did you replace your lost inventory or did you spend the money on something else?”
Stein studied the inventories and then shrugged. “We replaced some of it.”
“But some of the money was spent on other things, right?”
“I suppose.”
“Because a lot of that inventory was unsaleable so it would have been stupid to buy back stuff that didn’t sell.”
“I don’t know about that,” Stein said.
“In fact, the robbery was pretty convenient, wasn’t it? You got to cash out of all your unsaleable inventory at the expense of your insurance company.”
“Objection. Counsel is testifying.”
“Overruled. The witness will answer the question
.”
“No. That’s not true. I had no control over when my store got robbed.”
“Really?” Jodie asked. “Because I noticed each robbery occurred about the same time, just before summer.”
“So what. That’s just a coincidence.”
“Your summers are your slowest periods, aren’t they?”
“Yes, but I had no control over when I was robbed.”
“Yes, so you say. . . . How could you control when you would be robbed?”
“Right. I couldn’t.”
“Unless you knew the robber, Michael Mahoney. Did you know him?”
“No. Of course not.”
Jodie picked up a large book she had placed on the table and handed it to Stein. “Can you identify this?”
Stein’s mouth dropped open as he took the book. “It’s a high school yearbook.”
“Un huh.”
“For Hillcrest High School, right?”
Stein nodded. “Right.”
“Did you attend Hillcrest High School?”
Stein took a deep breath. “Yeah.”
“Let’s look on page 42. Is that your photograph?”
Stein nodded. “Uh huh.”
“Now look at page 24. Do you see a picture for Michael Mahoney? He looks quite a bit younger but is that not the same Michael Mahoney that robbed your store and is serving time in Huntsville as we speak?”
Stein looked at Goldberg who looked like he’d been shot with a stun gun. “Yes, but that doesn’t prove anything. Just because he went to the same high school. So what?”
“Did you know him when you were at high school?”
“No. Not really. I may have seen him around.”
“Look on page 57. Isn’t that a picture of you two on the tennis team?”
“Oh. Right. Yeah, I remember now. We were on the tennis team together.”
“So, you were friends then?” Jodie pressed.
“I guess. That’s been so long ago.”
“Now, your attorney showed us the surveillance videos of the last robbery.”
“Yes.”
“And you testified that the previous robbery was taped as well?”
“Yes, but the police took those tapes. I don’t have them.”
“Yes, they did and I’ve arranged with the Plano Police Department to bring them here today so the jury can see them.”
“Objection!” Goldberg said. “These tapes have not been introduced into evidence. If Ms. Marshall wants to introduce them she should wait until she puts on her case. Besides, the tapes are irrelevant and they were not produced during discovery.”
“Your Honor, I had these tapes brought here today as impeachment evidence. Mr. Stein testified that he didn’t know Michael Mahoney and that he had no way of controlling when he was robbed, but I think this video may prove those statements false.”
“Objection sustained,” the judge ruled. “But you may want to withdraw your objection so the Plano police officer who is here to authenticate the tapes doesn’t have to sit around here for another day. I’m going to allow the viewing of the tapes eventually anyway.”
Goldberg shrugged. “Very well, Your Honor. I withdraw my objection as a matter of courtesy to the witness.”
“Thank you, Mr. Goldberg. . . . Ms. Marshall, you may call your witness.”
Jodie put the Plano police officer on the stand to authenticate the tapes and then they were played for the jury. The two video tapes were quite similar and when they were finished Jodie froze the second video showing a clear shot of the robber facing the camera.
“Now Mr. Stein, if you look carefully at the robber in the third robbery and the robber in the latest robbery, even though they are wearing masks, don’t they look identical?”
Stein shook his head. “No. Not necessarily.”
“They are the same height and build, right?”
“More or less but not identical.”
“What about the tattoo?”
Stein squinted. “What tattoo?”
“Look carefully on his wrist. There is a tattoo of a coiled snake. The same tattoo that’s on the wrist of Michael Mahoney.”
Stein looked away and sighed. “Okay. Maybe it was the same guy, but I didn’t tell him to rob my store.”
“No, it’s all just a coincidence that a buddy from your high school tennis team robs your store twice, or was it four times?”
“I don’t know who robbed my store the first three times. They weren’t caught.”
“No, because you didn’t call 9-1-1 until you were sure they’d gotten away, isn’t that right?”
“Objection. Counsel is testifying.”
“Sustained.”
“And had it not been for Bob Larson you’d have gotten away with it again, right? And that’s why we’re here today, isn’t it? You were pissed off that Bob Larson screwed up your insurance claim and sent your friend, Michael Mahoney, to prison.”
“Objection!” Goldberg exclaimed. “Counsel is still testifying.”
“Withdrawn,” Jodie said. “Why is it that each year you get your insurance with a different carrier?”
“I don’t know. To get the best rate, I guess.”
“Are you sure that’s it or was it because you were afraid to file multiple claims with the same carrier? That would certainly raise a red flag.”
“No. That has nothing to do with it.”
Jodie looked at her notes and then at Stan. “Pass the witness.”
Goldberg questioned Stein for thirty minutes trying to rehabilitate his case with limited success. Then he called Stein’s doctor who testified as to his medical treatment and mental anguish suffered on account of being shot in the leg. Jodie challenged whether his mental anguish wasn’t over getting shot in the leg but rather from not being able to collect on an insurance claim with summer coming and cash flow being so bad.