PART 35 (47 page)

“I object, Your Honor,” said Ellis.

“The detective may answer. Mr. Bemer is bound by that answer.”

“No, Counselor.”

Sam had no further questions.

Ellis stood and asked Mullaly some questions on redirect. Mullaly described the fence he saw in the rear yard behind the buildings on Stanton Street. It was between ten and twelve feet high, he said, with wide horizontal planking.

Ellis called Detective Johnson to the stand, this time to continue the direct case. Johnson testified he had been one of the detectives who remained in Brooklyn in the rooming house Hernandez had pointed out, awaiting Alvarado's return. He and the other two detectives awaited Alvarado in the vestibule of the rooming house, at the top of the stoop, just behind the front door, which was half wood and half frosted glass.

The detectives remained there until they heard loud voices in Spanish conversation outside in the street. Johnson testified he opened the front door and discovered Alvarado standing directly in front of the steps leading into the building, speaking to the superintendent. Johnson testified he drew his revolver and arrested Alvarado, searched and handcuffed him, and started walking east on South 9th Street. Johnson said Alvarado had turned to him while they were walking and asked what he was being arrested for. Alvarado had had a newspaper in his hand and said to Johnson, “Not about the cop who was killed on Stanton Street!” In reply, Johnson said he had asked Alvarado why he mentioned that crime when he, Johnson, had said nothing about any particular crime.

At the station house, Johnson released custody of the prisoner to Detective Mullaly. Alvarado was then taken to the third-floor locker room. Johnson testified he went there later on two occasions. Both times it was to accompany Hernandez. Ellis had no further questions.

Sam rose and walked toward Johnson to cross-examine. Johnson's mind seemed like his body, hard to move.

“Did he at any time say to you, ‘What's this all about?'” Sam asked.

“No, he did not.”

“He didn't ask you what's this all about after you arrested him?”

“All he said to me was, ‘Is this about the cop who was killed on Stanton Street?' And I said to him, ‘Why do you ask me a question like that?' And he says to me, ‘Because I read it in the newspapers.'”

Sandro walked over to Sam. “Ask about the arrest. They didn't know Alvarado was there until after they heard the conversation in Spanish,” Sandro whispered in Sam's ear as they bent close together to avoid having the jury hear. “Show Alvarado could have escaped without their knowing he was there. And ask him about any resistance to arrest. He'll go along with you. He's too stubborn to change the story.”

“This door behind which you were standing in the vestibule, before you arrested Alvarado, it was half wood and half frosted glass. Is that right?”

“This is correct.”

“And you couldn't see through that frosted glass?”

“Only when I opened the door.” With each answer, Johnson had to hunch his hulk of muscle forward toward the microphone. Then he would sit back.

“But before you opened the door to arrest Alvarado, you only heard his Spanish conversation.”

“This is correct.”

“And you didn't know he was there until then?”

“That is correct.”

“And at that time he was talking to the superintendent?”

“That is correct.”

“And the superintendent was in the building prior to Alvarado's arriving? You saw him in the building earlier in the evening?”

“That is correct.”

“He didn't arrive with Alvarado?”

“He was in the building earlier.”

“When you first saw Alvarado, where was he?”

“He was just starting up the stoop.”

“Did you identify yourself to Alvarado?”

“Yes, I did.”

“Did he run away?”

“No, he did not.”

“Did he pull out a gun?”

“No, he did not.”

“Did he fight you?”

“No, he did not.”

“Did he resist you?”

“No, he did not.”

“Did he identify himself?”

“Yes, he did.”

“Did he attempt to give a false name?”

“No, he did not.”

“Did he yell at you?”

“No, he did not.”

“Did he curse you?”

“No, he did not.”

“Your witness,” Sam said as he returned to the counsel table.

Ellis had no further questions. He recalled Detective Mullaly to continue the narration of events after Alvarado was taken to the locker room for interrogation.

In his calm, assured way, Mullaly testified that he brought Alvarado up to the third floor because all the offices were still too crowded downstairs.

Sam rose and made an application that any statement Alvarado allegedly made to the police be excluded from evidence as being coerced by violence or fear. Ellis indicated to the court that this was not the point at which any voir dire was necessary. The judge allowed Ellis to continue.

Mullaly testified that Alvarado had given his name, age, and the fact that he did not have a job. Alvarado allegedly also told Mullaly that he had been alone in the movies on 42nd Street on the day of the murder, although he wasn't able to recall the title of the movie. Alvarado said he couldn't remember the name of the picture because he was “on the nod”—a state of sleepy, narcotic euphoria—having taken a shot of heroin in the men's room. Alvarado denied being with Hernandez that day.

Mullaly testified that Hernandez was then brought up to the locker room to confront Alvarado. According to Mullaly, after some urging to repeat what he had said earlier, Hernandez had said to Alvarado, “You killed the cop, you killed the cop.” Alvarado jumped from his chair and said, “You killed the cop, you killed the cop.” Mullaly had had Hernandez removed at that point. Mullaly testified that Alvarado then admitted seeing Hernandez on July 3rd, that Hernandez had driven to Brooklyn to show Alvarado his new car, that they rode around the block in Brooklyn, and that Hernandez had then left.

Mullaly testified that Alvarado had denied being in the car any longer than a few minutes, an hour at the most, and all that while in Brooklyn.

Mullaly had Hernandez brought into the locker room again, and asked him to repeat again what he had said to Alvarado. Hernandez said to Alvarado, “You shoot the cop, you shoot the cop on the roof.” At that point, Mullaly said, Alvarado jumped up and screamed curses in Spanish at Hernandez. Hernandez screamed Spanish curses right back. They lunged for each other and had to be restrained. Hernandez was removed, and, Mullaly testified, he attempted to calm Alvarado down. He said he asked Alvarado if he wanted to tell what really happened the afternoon before. Alvarado said he wanted to talk.

“All right, Your Honor. At this point, I think it is time for the voir dire,” Ellis announced to the court.

“You may inquire, Mr. Bemer. And again, I trust the jury understands the procedure the court is adopting in this case. The voir dire is to determine the voluntariness of the alleged confession of Alvarado. Not what was said, but the methods of obtaining the statement, if any.”

Sam interrogated Mullaly, who testified that Alvarado had not been asked any, not one, question directly concerning the death of the policeman. Without being asked a question, after the two confrontations with Hernandez, Mullaly testified, Alvarado freely and openly told the entire story of Lauria's death.

Mullaly denied taking movie-ticket stubs or anything else from Alvarado's pocket. Alvarado had about two dollars in loose change, Mullaly said.

“We'll recess for lunch at this time, members of the jury. Do not, however, discuss this case,” intoned the judge. The jury filed out; the prisoners were returned to the detention cells. All the spectators and lawyers and court officers left the courtroom.

“Any further questions of the witness, Mr. Bemer?” the judge asked, as court resumed.

“No, Your Honor.”

“Please proceed. Call your first witness on the voir dire, Mr. Bemer.”

“May I approach the bench, Your Honor?”

“All counsel, please.” The lawyers stepped to the bench.

“Your Honor, we are willing to put the defendant Alvarado on the stand, although we are certainly not obliged to do so,” said Sam. “However, I want it strictly understood that Alvarado's being on the stand now does not open the door for the district attorney to delve into portions of the defense at this time.”

“Now, Your Honor,” Ellis protested, “once the defendant is on the stand, I can ask him about anything relating to his credibility.”

“He can delve into all the immorality, past record, viciousness, if any, he wishes, Your Honor,” replied Sam. “Anything which deals with credibility. However, I object to any invasion of the defense prior to our being able to present it in its proper order, because that would be so prejudicial as to deny the defendant a fair trial.”

“All right. You'll go along with this, won't you, Dave?” the judge insisted.

“If you say so, Judge.”

“Proceed.”

Alvarado was called to the stand. The jurors watched as this man, described as a cold-blooded murderer, was sworn as a witness. They sat, waiting. Alvarado testified, in response to Sam's questions, that he had, on three separate occasions, been convicted of using narcotics, and that he had served three jail sentences. He said that he had never been arrested for any charge of violence before.

Alvarado was calm and courteous on the stand. He answered questions directly, and in English. He testified that Mullaly had removed the handcuffs after Johnson brought him into the station house; that they then proceeded directly up to the locker room. While on the stairs, Alvarado stated, Mullaly had hit him in the face. Alvarado was taken into the locker room. There, he testified, he was surrounded by eight or ten policemen who began to fire questions at him. He told them he didn't know what they were talking about, knew nothing about the death of Lauria. One of them drove a short, ramrod punch into Alvarado's stomach. Alvarado said that two detectives intertwined their arms in his, one on each side. They also each hooked a leg inside Alvarado's ankles, thus holding him spread-eagled in a standing position.

Sam had Alvarado step off the stand and demonstrate, with the aid of two court officers, how he was vertically spread-eagled. The jurors moved to the edge of their chairs.

Alvarado resumed the witness chair and testified that the police kept punching him in the chest and hammering him with questions about the roof and the dead officer. At one point, he said, he tried to drop down low enough so that the punch he was about to receive in the stomach would hit him in the face. He wanted to be cut or bleed, so that the evidence of his beating would be obvious. The policemen holding his arms jerked him up quickly.

Alvarado testified that one of the cops, a tall, nearly bald one, with some red hair, had said, “Listen, you black spic, you better talk to me and tell me the way you jump this police on the roof, because if you don't do it, I am going to kill you.” Alvarado said he had then cried because he was “ascared” of this man. The cops continued to punch him. When he was punched in the chest, he testified, his head was thrown back and struck against the metal lockers behind him. One time, he said, his head hit so hard that he fell to the floor dazed and groggy. He came to and began to pray to God in Spanish. He heard a voice in Spanish inquire, “You want to talk to me?” It was Lieutenant Garcia. He replied in Spanish to Garcia that he did not want to talk to him but he knew nothing about the case. Alvarado testified that Garcia then said: “Round Two. Kick him in the balls.” Alvarado said two detectives lifted him into the air by the legs, and spread one of his legs forward, the other to the rear. Alvarado testified he screamed and pleaded that he had had an operation in his groin area when in Sing Sing, and he'd die if they kicked him there. The detectives put him down and continued the stomach punches.

Alvarado testified that Detective Tracy then came into the room and announced: “Stop hitting that man. Let me talk to him.” Tracy took Alvarado away from the others and said that Alvarado should not be afraid, that he should tell the truth. Tracy said even though he himself had a gun and badge, it was still sometimes difficult to enter a place to go after a man with a gun. And so, if Alvarado had been on the roof, it was certainly understandable that he'd be frightened by the policeman with a drawn gun. Perhaps he panicked. That wouldn't be murder in the first degree, not for having panicked. Maybe manslaughter.

Alvarado testified he replied to Tracy that a cop was killed, and he knew that whoever shot the cop would get the chair, but he didn't do it.

Alvarado further testified that when he had returned home that night at about 1 A.M., he observed the lights on in the superintendent Jorge's apartment. He knocked on Jorge's door. Jorge opened the door and immediately said to him, “Luis, you kill a cop?” And Alvarado replied, “Jorge, you crazy?” And Jorge told him there were three detectives upstairs waiting to see him about the cop-killing. Alvarado testified he had had a newspaper with him that contained a story that a policeman had been killed, and the police were looking for the killer, a five-foot-ten Negro. Alvarado testified he said to Jorge: “I don't have anything to do with this, I don't have anything to hide. I'm going up to talk to them.” Alvarado then walked outside, talking to Jorge in Spanish, and started up the stoop to where he was told the detectives were waiting. A Negro detective, now known to be Detective Johnson, rushed out from behind the door at the top of the stoop, his gun drawn.

Alvarado testified that the detectives searched him in the station house and took from him the stubs of the movie tickets and $141 in cash, which he had in a money clip in his pocket.

Alvarado told the jury that he had that money as a result of receiving three one-hundred-dollar bills from someone who wanted Alvarado to buy heroin for him.