Dying Declaration (43 page)

75

AT 10:00 A.M.,
while Silverman finished his introductory remarks, Charles mouthed a silent prayer. He was seated with Thomas at the defense table, with Theresa and the kids in the front row immediately behind them. Nikki had not yet arrived.

Things were happening so fast, spinning so far out of control, that Charles hardly had a chance to think things through. He was going on instincts, gambling instincts. He would sort it all out later.

Charles rose to his feet, even though it was time for the prosecution to present evidence on the issue of sentencing.

Silverman looked at him quizzically. “Mr. Arnold?”

“Judge, I don’t want to delay these proceedings. But new evidence has emerged this past weekend that changes everything. On the basis of that new evidence—” he paused and glanced toward the Barracuda—“which clearly demonstrates prosecutorial misconduct,
we would move for a new trial.”

When Charles had begun speaking, there had been the usual rustling and murmuring that filled a courtroom as the proceedings begin. But suddenly the courtroom was stilled, the charges of prosecutorial misconduct captured everyone’s attention.

Especially the attention of the Barracuda, who was predictably on her feet. “Does the desperation of defense counsel know no bounds?” she asked. “
This
is ridiculous.”

Silverman glared at Charles. “Those are serious charges, Mr. Arnold. The court does not take them lightly.”

“And I don’t make them lightly, Your Honor. We need less than half an hour, but justice requires that the court hear this evidence.”

“
What
evidence?” the Barracuda demanded. Silverman cut her off with a scathing look.

“Half an hour,” Silverman said. “No more. And if you don’t have some strong evidence, Mr. Arnold, you will be risking contempt. This is not the forum for taking cheap shots at the commonwealth’s attorney.”

“Yes, Your Honor. Thank you, Your Honor.”

Charles relaxed slightly and blew out a breath, knowing he was in too deep to turn back now.

“Well?” Silverman said.

“The defense calls Lieutenant Gary Mitchell.”

Mitchell, the African American police officer who had testified in the racial profiling case against Buster Jackson, rose slowly in the back of the courtroom and made his way toward the witness stand. He looked the same as he had a few weeks before—somewhat stooped, a man whose body showed every one of its fifty-five years. Wrinkles lined his droopy face and pulled hard at the corners of his mouth and eyes. Charles had called him on the phone nearly two hours earlier because he sensed that Mitchell was a man of integrity, a police officer he could trust.

“Please state your name for the record,” Charles began.

“Lieutenant Gary Mitchell, Virginia Beach Police Department.”

No sense wasting time on preliminaries,
Charles thought. “Have you recently received any reports concerning a possible suicide by Dr. Sean Armistead?”

There was a gasp from the prosecution table and a general stir from the courtroom. Silverman leaned forward.

“Yes,” Mitchell said simply.

“By whom and when?” Charles asked.

“At about 8:15 this morning. By you.”

The Barracuda scoffed. Spectators couldn’t resist nudging each other and whispering. Silverman banged his gavel and called for order.

“What were the circumstances, as reported to you, that caused you to investigate a possible suicide?”

“Objection,” Crawford said. “This is bush league.”

“Is that an objection?” Silverman asked. “Bush league?”

“It’s also hearsay,” the Barracuda griped. “Defense counsel can’t put a police officer on the stand to regurgitate what defense counsel said on the phone.”

“I agree,” Silverman said.

“I’ll rephrase,” Charles said, coming out from behind the counsel table and moving toward the front of the courtroom. “To your personal knowledge, did somebody discover a suicide note from Dr. Armistead?”

“Yes. Your paralegal, Ms. Nikki Moreno, was apparently trying to serve a subpoena on Armistead this morning—”

“Objection,” the Barracuda stated, sounding frustrated. “We’re right back into hearsay again.”

“Sustained,” Silverman ruled.

“Were you
given
a suicide note?” Charles asked.

“Yes.”

“By whom?”

“Nikki Moreno.”

Charles looked at Crawford and smirked.
So much for hearsay objections.

“Did the note cause you to look anywhere for a body?”

“Yes, it did.”

“Where?”

“Well,” Mitchell said, shifting in his seat. “I didn’t actually look myself. But the note gave us a probable location for the body, so we called the state police and asked them to look.”

“And where was that?” Charles asked.

“Along the Blue Ridge Parkway. In the same spot where Dr. Armistead’s wife previously committed suicide. My understanding is that it’s the same spot where they were initially engaged.”

The courtroom buzzed as reporters and spectators digested this juicy piece of information.

“Was the body found?”

Mitchell nodded, at first slowly, then more rapidly. “At 9:18 this morning, the body was located in the driver’s seat of Dr. Armistead’s car at the bottom of a sharp drop-off from a scenic lookout spot on the parkway. The car caught fire, so we’re using dental records to confirm the identification.”

The Barracuda went white. Silverman watched Mitchell intently, soaking in every word.

“Was it the same spot where Dr. Armistead’s wife had died?”

“Yes, sir. It was.”

Charles allowed the courtroom to absorb this news; then he turned and walked back to his counsel table. He grabbed three thick piles of documents. He took one pile—comprised of originals—and gave it to the witness. He placed the second pile on the Barracuda’s table. The third pile he kept as his own copy.

“Can you please explain to the court what these papers are?”

“This is what Dr. Armistead left behind. It’s more or less a suicide note with numerous attached exhibits.”

Charles watched the Barracuda out of the corner of his eye. She was thumbing rapidly through the documents, doing her best to look unfazed.

“What is the first page entitled?” Charles asked.

“Well,” Mitchell replied, “it’s addressed ‘To Whom It May Concern,’ but it is actually entitled Dying Declaration of Dr. Sean Armistead.’”

“And did you personally go to the Armistead house and compare the handwriting on this note with other samples of Armistead’s handwriting?”

“I did.”

“What did you find?”

The Barracuda rose to object but then apparently thought better of it and sat back down. It was well-settled law that lay witnesses could give opinions about the source of handwriting.

“It was definitely his.”

Charles then placed his copy of the documents on his counsel table and went up to the witness box to retrieve the originals. He walked deliberately to the judge’s bench and placed the originals in front of Silverman. “With the court’s permission,”
he said, “I would like to have this set of documents entered into evidence as the dying declaration of Dr. Armistead. Then I would like to read several excerpts.”

The Barracuda stood to object. But Silverman didn’t let her get the first word out. “You know the law on this, Counsel. The exhibit will be admitted.”

Charles returned to his counsel table and began slowly reading from the document.

“I, Sean Armistead, intend this document to be a dying declaration and thereby admissible in the court case of Commonwealth versus Thomas Hammond. I have attached supporting documents that substantiate all the claims I am about to make and sincerely hope that they will be admitted into evidence as part of the case.

“‘I must begin by apologizing to Thomas and Theresa Hammond, the Hammond children, as well as my own lover and wife, Erica Armistead, for so completely ruining their lives by my selfish actions. I pray that the Hammond family will find it in their hearts to forgive me and that my Maker will forgive me for what I have done to my own wife.

“‘Second, let there be no mistake about my testimony in the Hammond case’it was perjury—’”

The courtroom erupted, and Silverman had to use his gavel. Undeterred, Charles continued reading.

“‘I lied about Theresa Hammond coming to me after her son died and telling me that he had been sick for five or six days. That never happened. As far as I know, he was only sick for three days.

“‘I also lied about why I didn’t transfer Joshua to Norfolk Children’s Hospital. It was exactly as Mr. Arnold implied during his cross-examination. I didn’t transfer the patient because I didn’t want the doctors at that hospital to second-guess my decisions. My refusal to transfer may have cost Joshua his life.

“‘I lied because I was blackmailed by Deputy Commonwealth’s Attorney Rebecca Crawford . . .’”

A collective gasp filled the courtroom. At least one person sitting behind the prosecution table, totally blown away by the revelation, blurted out, “I can’t believe this.”

Charles paused and looked at the Barracuda, surprised to see her as composed as ever, staring at the paper without emotion,
as if she were following along and reading about someone else.

“‘It wounds me to admit this, but I had an affair with Ms. Crawford after my wife became ill with Parkinson’s. When Erica found out about it, she confronted Ms. Crawford and then went into a deep depression, eventually committing suicide at the same spot on the Blue Ridge Parkway where we were first engaged. When I found out, I immediately called Ms. Crawford and asked her to come to my house. After first talking to the Chesapeake police, I then talked to Ms. Crawford. She told me that the police knew I was having an affair but did not know with whom. She convinced me to lie to the police and tell them that I
was having an affair with a coworker.

“‘After I went on the record with that lie, things deteriorated between Ms. Crawford and me. More and more, I came to see that she was just using me and protecting herself. When I confronted her, she said she would expose my lie and indict me for murder if I didn’t protect our secret and comply with her new demands. She assured me that any jury in the world would convict me if they found out my wife died under mysterious circumstances and then I lied about an affair to the police. In exchange for whitewashing the investigation, Ms. Crawford demanded that I pay four hundred thousand dollars to her election campaign. She said she planned to announce later this summer that she would be running for commonwealth’s attorney. She also demanded that I give perjured testimony to help convict Thomas and Theresa Hammond and thereby improve Ms. Crawford’s chances of getting elected.

“‘I channeled the money for the election campaign through a bogus company named the Virginia Insurance Reciprocal. I had voluntarily made several deposits to that same company for the benefit of Ms. Crawford during our affair and before Erica died. I have included bank statements for that company. If you investigate the accounts that received the wire transfers from the Virginia Insurance Reciprocal account, you will find that they are tied to Ms. Crawford.

“‘To confirm the affair with Ms. Crawford, I have attached an itinerary for an alleged business trip to the Bahamas. It was really a one-week vacation with Ms. Crawford. The attached plane ticket receipt will confirm my itinerary. The airlines can confirm that she was on the same flight.

“‘If any further confirmation of the affair is necessary, check with the waiters at the Beach Grill, our favorite hangout. I always used cash, so there are no credit card receipts, but the waiters will remember us. We went there several times a week and always left big tips.

“‘I hope this statement is sufficient to undo the damage I have done in the Hammond case. I realize there is no way to undo the damage I did to Erica. I have no excuses and make none. I know it won’t make things better, but after signing this note, I, too, will take a final trip to the Blue Ridge Parkway. Erica deserved better than me, and I can never forgive myself for what I’ve done.’”

Charles finished reading and glanced around the courtroom. He looked first at his own client, big Thomas Hammond, sitting at counsel table, hands folded, eyes closed, as if praying. Those in the gallery looked stunned, as if they had just witnessed the suicide themselves. The Barracuda was the only one in the courtroom moving to any discernible degree, scratching and marking her copy of the declaration.

“And then he signed it at the end,” Charles said.

Silverman stroked his chin and surveyed the courtroom, looking slightly dazed himself. In all his years on the bench, he had undoubtedly never had anything that remotely prepared him for this. He finally noticed that Lieutenant Mitchell was still on the stand. “May the witness step down?” Silverman asked.

“Yes,” Charles said.

“No objection,” the Barracuda mumbled.

“Do you have any other witnesses?” After such a shocking revelation, the judge seemed to take some solace in the ordinary procedural rules that still governed in the courtroom.

“Just one,” Charles said. “Rebecca Crawford.”

76

THE BARRACUDA’S MIND RACED
wildly. It was sheer will and years of professional training that allowed her to keep her emotions in check while her world crumbled around her. A good lawyer was always part actor, never allowing her true emotions to come out, only what the role required. And right now the role required dignity . . . and indignation.

“That’s outrageous.” She stood and hissed. “Armistead can say anything he wants in his dying declaration because he doesn’t have the guts to stick around and defend his fabrications under cross-examination on the witness stand. So now, to add insult to injury, the defendant wants to call me as a witness?” She sneered. “Fat chance.”

“Are you refusing to take the stand?” Silverman asked. “I will not make you testify, but if you don’t—” he held his palms up—“I’ll have to take this evidence at face value.”

The Barracuda marched to the well of the courtroom, directly in front of the judge’s bench, and raised her right arm. “Give me the oath,” she demanded, “so I can deal with Mr. Arnold’s pack of lies.”

Within seconds, she had settled into the witness stand, staring out at her adversary.

“Good morning,” Charles said, smiling.

“Good morning,” the Barracuda spit out.
You jerk.

“Let’s get right down to it,” Charles said. “This four hundred thousand dollars paid by Dr. Armistead—under the guise of the Virginia Insurance Reciprocal—any chance that some of that money went to your account or an account you control?”

She hated his smug look, the condescending nature of his question. But she forced herself not to focus on the anger. She needed to think clearly, quickly. The accounts could be subpoenaed. There was no use denying it.

“Yes.”

Charles waited, looking like there must surely be something more, some further explanation.

“That’s it? Yes?” he asked incredulously.

“Yes, the money went into an account that would ultimately be controlled by my election campaign.” She tried to sound indignant.
“We were trying to keep it confidential because I had not yet announced my intention to run for commonwealth’s attorney. Still haven’t . . . before
this
.”

Charles just smiled and crossed his arms. She wanted to strangle him, choke that arrogant attitude right out of him.

“That’s it?” Charles asked. “That’s your full explanation? The man’s wife dies, and he just says, ‘Hey, now that my wife’s dead, I think I’ll donate a few hundred thousand as a campaign donation for a woman who has not yet announced her candidacy’?”

“When Dr. Armistead’s wife committed suicide,” the Barracuda replied acidly, “he went through a time of soul-searching and reprioritizing. He decided to put some of the money that he and Erica had accumulated to good use.”

Charles still had that quizzical look on his face, the knit brow of disbelief. The Barracuda decided to lay it on a little thicker.

“When you see a young patient die on your watch,” she continued, “because his parents won’t even bring him to the hospital,
you realize how important it is to have someone in the commonwealth’s attorney’s office who will enforce the laws.”

“Indeed,” Charles said. “Indeed.” He took a few steps, never taking his eyes from her.

“Did you have an affair with him?” Charles asked.

“Absolutely not.”

“Did he ever call you on your cell phone?”

“Of course, he was a witness in this case.”

“Did he call you often?”

The Barracuda shrugged.
What does he know? What documents does he
have?
“Often enough to be ready for his testimony.”

“Do you have your cell phone with you now?” Charles asked.

Crawford looked at Silverman. The judge simply returned her stare.

“Well?” Charles prodded.

“It’s in my briefcase, but it’s turned off. We
are
in court,” the Barracuda said snidely.

“Do you have a phone mail message that plays when the phone’s off?”

“Of course.”

Charles shuffled through the documents left behind by Armistead. He grabbed three near the bottom, took his own cell phone out of his briefcase, and turned on the power. “Is this all right, Judge?”

Silverman nodded.

While Charles played his little game, the Barracuda noticed the back door of the courtroom open. Nikki entered somewhat clumsily,
wheeling a stand containing a television and VCR player down the aisle.
What now?
Crawford wondered.
Is this a bluff?
She calculated the odds of Charles Arnold actually having videotaped evidence.
Of what?

“Can you identify these documents for the record?” Charles asked, holding them out with his left hand while holding his cell phone with his right.

“They appear to be cell phone bills,” the Barracuda responded.

“It appears that Dr. Armistead was on a plan that gave him a certain number of hours a month. Would you agree?”

The Barracuda snatched the documents and glanced them over with as much contempt as she could muster. “If you say so.”

“But in this particular month, February of this year, he exceeded those minutes. Do you see that?”

“Yes.”

“And can you read for us, from this list of phone calls, the one number that appears most often?” Charles held up his own cell phone, preparing to dial.

“Let’s skip the dramatics,” the Barracuda snapped. “That’s my cell phone number, and you know it. You don’t need to complete your cute little demonstration.”

“Would you care to explain to the court why Dr. Armistead was calling you so often in February of this year, months before young Joshua died?”

Crawford paused for a second but knew she had to come up with something quick. Innocent witnesses, those telling the truth,
didn’t pause to think things over. But things were coming at her too fast, one after the other. The good news was that Armistead wasn’t around to refute anything she would say. “I consulted him about medical issues in other cases.”

“So he called you at eleven thirty at night on February 14? and twelve thirty at night on February 16? and nearly midnight on February 20?”

The Barracuda felt her face getting warm. One lie leading to another. This pompous defense attorney having fun at her expense. She so desperately wanted to strike back. Instead, she used every ounce of self-control she could muster to keep her emotions in check.

“Unlike lawyers in private practice, commonwealth’s attorneys are not on the clock. Armistead was busy during the day at the hospital, and he was helping me with complex medical issues in some cases. I told him he could call anytime.”

Charles crossed his arms and smirked. He waited again, as if there must be more to her answer than that.

“Mr. Arnold,” Judge Silverman inquired, “anything else?”

“Sorry, Your Honor. I wanted to make sure she was finished.” Charles looked over at Nikki, who nodded back.

“Did you ever meet Dr. Armistead at the Beach Grill?”

“Once or twice on business, but nothing romantic, as Armistead claimed.”

“Did you know,” Charles asked slowly and deliberately, “that the Beach Grill has a security camera that periodically records its patrons?”

He’s bluffing; he has to be.
The Barracuda thought hard about the surroundings at the Beach Grill.
Was there a camera above the bar area?
She didn’t remember one. She would take her chances. What did she have to lose?

“I am not aware of that. In fact, I doubt it’s true.”

Crawford watched as Nikki turned and whispered to a young man in the front row. The Barracuda thought she had seen him before. But where?
A waiter? A bartender?
It was so hard to remember. She had always been too busy to notice those types of people.

Charles wheeled the VCR into the middle of the courtroom. “Can you see, Judge?” he asked.

Silverman nodded.

Charles turned again to the witness. “Did you ever hold hands with Dr. Armistead at the Beach Grill?”

Of course,
she thought. It had been so much fun to flaunt their tryst, to tempt the fates. Now she was kicking herself. Arnold was probably bluffing. But if he wasn’t, she would be guilty of perjury, on the spot, something the videotape would prove beyond reasonable doubt.

Charles crossed his arms and waited. The Barracuda looked deep into his eyes. She had made a career of being able to tell when people were lying. But there was no hint from him, nothing she could read. It was a huge risk, a possible perjury conviction. And for what? So that Thomas Hammond might spend a few years in jail.

She looked up at Silverman. “I’m invoking my Fifth Amendment rights and refusing to answer that question.”

“Did you have a few beers with him?” Charles asked.

“I invoke the Fifth.”

“Did you kiss him?” Charles asked.

The Barracuda snorted. “I invoke the Fifth.”

“Did you conspire with him to give false testimony in this case?”

“The game’s over, Mr. Arnold. I will no longer answer your misleading, insulting questions. I . . . take . . . the . . . Fifth.” The Barracuda spat out the words, demonstrating her contempt.

“And did you plan to murder Erica Armistead if she did not commit suicide?”

She hated not answering this question, her blood beginning to boil. She knew how it would look. But the time for looking good was over. Now she was thinking self-preservation. How many times had she goaded witnesses into answering questions that resulted in indictments. “Is there something about this you don’t understand, Mr. Arnold? I’m taking the Fifth.”

“No, Ms. Crawford,” Charles responded. “I think I understand perfectly.” Then, turning to the judge, “Nothing further.”

Charles wheeled the VCR unit off to the side of the courtroom and returned to his seat. The Barracuda watched for a moment in seething silence, then stood and stepped down from the witness stand, heading back toward her seat at counsel table.

“Ms. Crawford.”
Judge Silverman’s voice had a steely edge to it. She wheeled around to face his wrath.

She had practiced in front of him for years, but she had never seen him like this. He was pointing at her, his hand shaking.
“I have served this court a long time,” he said, “and I thought I had seen it all. But I have n-never—
ever
—seen such a blatant disregard for the rule of law, such totally unethical and . . .
abhorrent
behavior.” Silverman sat up on his seat and leaned forward, as if he were ready to come over the bench and strangle Crawford with his bare hands.

“You, ma’am, have been entrusted by this court with enforcing the law. But in light of your apparent conduct in this case,
that role will now fall to me. I am hereby issuing,
sua sponte
, a bench warrant charging you with obstruction of justice.

“Deputies,” he called out, “I remand Ms. Crawford to custody in a separate holding cell from the other prisoners. I will set the arraignment for 2:00 p.m. this afternoon, which ought to give Ms. Crawford sufficient time to retain a good lawyer.”

Two deputies approached and attempted to grab the Barracuda by each arm. She brushed them off, thrust her chin in the air,
and began walking from the well of the courtroom under her own volition with a deputy on each side. As she passed Charles,
seated at the counsel table, she refused to even look at him.

“No hard feelings?” he whispered, just loud enough for her to hear. “Or doesn’t it really work that way?”