“Yes, sir, third watch, twelve to eight A.M.”
“What were your duties on that particular night?”
“Patrol the downtown Monterey area, check the patrons at the nightclub on Alvarado when the club closed to make sure they weren’t driving away intoxicated, respond to any incident calls at the hotels or burglar alarms going off at any of the downtown businesses. Make traffic stops as needed. Keep an eye out,” Millman said. Ms. Frey nodded, apparently liking this fresh-faced young man.
“You were patrolling with a partner?”
“Officer Kyle Graydon. He joined the force last year.”
“Did your patrol area include the city cemetery?”
“Yes, and the Catholic cemetery right next to it. The cemeteries are located about a mile from downtown, along Lake El Estero, just across from Dennis the Menace Park.”
“And during the first two hours of your shift did you pass by the cemetery? The city cemetery?”
“Yes, sir, once on the Fremont Avenue side and once on the Pearl Street side, where the park is.”
“Did you observe anything unusual during those drive-bys?”
Millman thought, then shook his head. “It was a quiet night. Occasionally, we get teenagers climbing the fence into the park to get onto the locomotive at the kids’ playground or just to party on the grounds there. Right across from the cemetery there’s a parking lot, and a grassy area with picnic tables where people come to feed the ducks in the daytime. Late at night, some come to make drug deals or sit in their cars. But that lot was empty on Saturday evening, April twelfth, and going on into Sunday. Like I say, it was a quiet night.”
“What about the parking lot for the city cemetery?”
“There isn’t one. You just drive through the gates-which are closed at sundown, by the way-drive through and park along the paved ways by the grave you want to visit. Or there are a couple of spots at the manager’s shack in the middle of the cemetery. But we don’t ordinarily patrol inside there at night, since the gates are closed.”
“Is the lot by Dennis the Menace Park and the municipal ball field closed at night?”
“There are always a few cars there, day or night. I think park personnel leave their cars there overnight. As long as the people aren’t hanging around, we don’t give them a hard time.”
“Did you observe cars in that lot during your shift during the early morning of April thirteenth?”
“Yes, sir. Officer Graydon and I were driving by and we saw an old Honda Civic pull out of the lot onto Pearl. We were just turning onto Pearl off El Estero, and we began to follow the vehicle.”
“When would that be?”
“After two in the morning of the thirteenth.” He put the time into parlance the jury could understand.
“Why follow the car?”
“The left taillight was out.”
“Do you always pull over cars with missing taillights?”
“The driver shouldn’t have been in the park lot at that time of night,” Millman said primly. “We check things out, try to keep the place safe.”
Jaime opened his mouth to continue his methodical line of questions but Millman jumped ahead. “We pulled him over right at the corner of El Estero and stopped behind him. Officer Graydon remained in the police car to call in the plates, and I approached the driver’s door with my flashlight. That was at two-ten A.M.”
“What happened then?”
“The driver rolled down his window. I asked for his license and registration. While he was getting it, I shined my flashlight around the interior of the car.”
Nina made a note, adding an exclamation point. The exact method by which Millman had discovered the bones had not been thoroughly reviewed in Klaus’s files. Paul had tried to interview Millman the week before, but the officer was on a brief paternity leave and hadn’t been available. They might have an illegal search and seizure issue. Unfortunately, the time to raise that issue was before trial.
“Why, oh, why didn’t we file a 1538.5 motion?” she whispered to Klaus, but he wiggled his fingers at her and kept listening. She pulled out the pretrial motions file and double-checked. Nothing. She had read the preliminary hearing transcript quickly the week before, and hadn’t noticed the potential legal issue. Her chest tightened, as if her heart were hardening itself against an assault.
Millman was busy covering that potential issue. “Standard procedure requires that we make sure the area within a vehicle where a driver could grab a weapon is clear.”
“You were not looking for anything but a weapon?” Jaime asked.
“Oh, no, just making sure it was safe to be standing there. That late at night you don’t want any surprises.”
“What, if anything, did you see, using the flashlight?”
Sensing a coming revelation, the jury paid attention. A thought pushed at Nina straight out of evidence class in law school: if you don’t object before trial, you can usually still raise it at trial, but if you don’t raise it then, the issue’s waived, gone forever.
Except, of course, at the legal malpractice hearing.
She didn’t have time to get up or to form a complicated thought. She just called out, “Objection!”
Jaime spun around, and she knew he had thought he was home free. Disappointed, the jury frowned her way.
Klaus whispered, “What are you doing?”
“Just one moment, Your Honor,” she said. She put her head close to Klaus’s, saying, “Why didn’t we raise the search issue?”
“What search issue? The flashlight? He’s entitled to a light.”
“No! No! There’s a case!”
“About a flashlight?”
“Klaus, I’m going to make an objection. For the record. Please don’t stop me…”
“By all means, make your case,” Klaus said mildly. “No permission is required.”
She stood. “The defense objects to the introduction of any evidence regarding items found in the car on grounds that the search was conducted in violation of the Fourth Amendment, which makes it an illegal search and seizure.”
Stuck in a pose in front of the jury, Jaime let out a disbelieving snort. Nina hardly dared to look at Salas, but she nevertheless felt the bullets of disapproval he launched toward her from the bench.
“Five-minute recess.” Salas admonished the jury not to talk about the trial. They filed out.
Then he aimed a look at her that told her she had blown whatever goodwill they had started out with. He said, “On the record. You have stopped this trial cold to raise an issue, which, unless I am mistaken”-he looked at the index of old pleadings in front of him-“has never before been raised. Am I correct? Was there a motion filed?”
Nina looked at Klaus, but Klaus just shrugged, and she thought, He has no idea or else he doesn’t give a damn.
“There was not,” Jaime said.
“Was there a 1538.5 motion filed after the preliminary hearing?”
“No, Your Honor,” Jaime said.
“How about a motion
“None was filed, Your Honor.”
“I apologize to the Court,” Nina said. “I am relatively new to this case, and need time to confirm Mr. Sandoval’s statements. I regret that this issue apparently was not identified earlier. However, the defense asserts its absolute right to raise it at trial.”
“All these proceedings I just mentioned,” Salas said, “they’re to prevent just this sort of thing-interruptions at trial, lost jury time, inefficient administration of justice.”
“Yes, Your Honor,” Nina said. “However, I object to the introduction of any testimony regarding what Officer Millman saw with his flashlight, or any evidence that might have been obtained as a result of the use of the flashlight.”
“Your authorities? Do you have a brief to present?”
“I request a continuance of twenty-four hours to prepare and present points and authorities,” Nina said desperately. She couldn’t remember the case about the flashlight, not now.
“Mr. Sandoval?”
Jaime returned to his table. Leafing through some paperwork, he said, “The officer has testified that it was late at night. He made a legitimate traffic stop, and it is well established that he had a right to make sure the driver didn’t have weapons within reach as he approached the car. It’s a matter of the safety of our officers.
“That’s number one. Number two, Your Honor, I object to any continuance. The defense received the police report outlining the traffic stop and use of the flashlight months ago. It is within the Court’s discretion to deny this motion for a continuance in order to conduct this trial in an orderly and efficient fashion…” He went on, but the words rushed by, a background torrent in Nina’s ears now.
When Jaime finished, Nina opened her mouth and let go of the emotions that batted at her, saying, This will bury Klaus; you are exposing him, the firm, and yourself to ridicule and possibly a malpractice accusation. She spoke to the law. “Your Honor, we should not have waited to raise this. However, if this tainted testimony comes in, there’s no way to block it out of the jurors’ minds later.” Implicit in that sentence was the threat that the verdict wouldn’t stand up on appeal.
Salas’s face darkened. He loved being on the bench. He exercised good judgment. He abhorred reversals. “You may cross-examine Officer Millman as to this issue, and you may raise it on appeal or do whatever you can with it later. But this Court will not put over the trial a day on a matter that could have been carefully briefed and heard on numerous-numerous-occasions prior to this trial. Is that the extent of your authorities right now? The prohibition in the Constitution against search and seizure? Do you have any California case law to present?”
“Not without time for research,” Nina said.
“The motion for a continuance is denied,” Salas said to the recording clerk. “The motion to suppress the testimony and evidence flowing from the flashlight observation is denied.”
A short silence followed. Then Nina said, “I reserve the right to raise the motion again after cross-examination of this officer.” She sat down.
“Bring the jury back in,” a dour Salas told the bailiff.
“A large green duffel bag was lying partly on the back seat and partly on the floor,” Officer Millman said. “Looked like it was falling off the seat. It was right behind the driver. Open about four inches.”
“Did you see anything unusual?”
“I sure did, a long object about eighteen inches long, with a sort of thick knob on the end. And another knob poking out where the bag wasn’t closed. I call that suspicious.”
“Why?”
Everybody in the courtroom waited for Millman to say he thought the objects were bones, that they were bigger than anything Colonel Sanders dished out, but Millman surprised them. “I thought they might be weapons,” he said.
Bones turned into rifles on that scary, dark night; it was an elegant move on Jaime’s part. He had just buttressed his legal-search argument with struts strong enough to support the cathedral at
