“If I told you that a person who had viewed those photographs had described all three cars as being the same type as the defendant’s 1991, 300SEL, would you be surprised?”
“Not in the least. From 1981 to 1991 Mercedes-Benz made several models in that basic body style that were, with minor differences, very similar. From 1981 to 1983 there was a model 300SEL, a four-door long-wheel-base sedan. From 1981 to 1985 there was the model 300SD. In 1984 and 1985 there was a 500SEL and the 380SE. From 1986 through 1991 we had a model 560SEL, which was similar in appearance
to the 300SEL and the 420SEL. And we had a diesel engine car in 1986 and 1987 with the same body. In 1990 and 1991 we had diesel models 350SD and 350SDL.”
“With all these cars looking so similar, how were you able to tell that the three cars in exhibits seven, eight, and nine were not the 300SEL?”
“Exhibit seven shows a 1981, 300SD. The most obvious difference is that the 300SD is four inches shorter. If you look at the front and back doors and windows, you can see that they are roughly the same size in the 300SD, but the back door and window of the 1991, 300SEL are longer than its front door and window because of the longer wheel base. This difference is obvious to me but would not be noticeable to someone who is not familiar with Mercedes-Benz body types.
“The 1985, 380SE in exhibit eight is also shorter, and the wheel design is different. The 1991 car has a solid disk where a hubcap would normally be, but the 1985 car has a concave disk with a center hub about the size of the fueltank cap.”
“Mr. Walsh, what discernible difference is there between the 1991, 300SEL and the 1987, 420SEL, the car in exhibit nine?”
“Mr. Nash, there is no difference at all. Not even an expert can tell the difference between those two cars. I knew they were different only because I supplied you with the photograph.”
“Was there any difference in the number of cars sold for the four models in the four photographs?”
“No. They all sold roughly the same in all four years.”
“And what color was the most popular color for the four models we have been discussing?”
“Beige.”
David turned and smiled at Monica. To the witness he said, “Thank you, Mr. Walsh. I have no further questions.”
“And how are you employed, Mr. Waldheim?” David asked the distinguished-looking businessman who had just taken the witness stand. Across from David, Monica listened with one ear as she carried on a hurried conversation with Detective Crosby. Walsh’s testimony had hurt, and she wanted Crosby to start looking for ways to rebut it. She was painfully ignorant about cars and had asked no questions of Walsh. That meant that, as of the moment, Ortiz’s testimony about the Mercedes was virtually worthless.
“I am the vice president in charge of menswear for Sherwood Forest Sportswear.”
“Where are your headquarters located?”
“Bloomington, Illinois.”
“And that is where your office is?”
“That is correct.”
From a pile of exhibits David selected the shirt that had been seized from Stafford’s house and brought it to Waldheim.
“I hand you what has been marked as State’s exhibit twenty-three and ask you if you recognize this shirt.”
Waldheim took the shirt and examined it. “Yes. This is part of last year’s summer line.”
“Would you tell the jury how many of these shirts your firm distributed nationally.”
Waldheim turned slightly and addressed the jury.
“Last year was a very good year for menswear. This particular shirt was one of our most popular items. I checked our records before flying here, and I would say that we sold some five thousand dozen of this shirt nationally.”
“How many shirts are five thousand dozen, Mr. Waldheim?”
“Well, one thousand dozen equals twelve thousand shirts, so…let me see…sixty thousand shirts.”
“And that is a round figure?”
“That is correct. The actual number was in excess of five thousand dozen.”
“Mr. Waldheim, are you aware of the shirt patterns used by your competitors?”
“Certainly. We have to keep tabs on the competition.”
“To your knowledge does Sherwood Forest, or any other shirt manufacturer, make a shirt with a pattern similar to this shirt?”
“Yes. That forest pattern was so successful, especially in this area of the country, that we put out another similar line, and so did two of our competitors.”
“Thank you, Mr. Waldheim. Nothing further.”
Monica had been doing some calculations while David questioned Waldheim. There is a rule of cross- examination which holds that an attorney should never ask a witness a question unless she knows the answer. Monica had a question she wanted to ask, and Waldheim’s testimony was so damaging that she decided to break the rule.
“Mr. Waldheim, your company distributes shirts nationally, doesn’t it?”
“Yes.”
“How many of the shirts you were just shown were distributed in this state?”
“Uhmm, something in excess of one hundred dozen, I believe. The shirt did very well here.”
“And of those one hundred dozen, how many were distributed in Portland?”
“I’m not certain, but I would guess more than half.”
“So we are talking about approximately six hundred shirts in the metropolitan area?”
“A little more than six hundred. Yes.”
“Nothing further.”
Monica was troubled. She had softened the impact of Waldheim’s testimony a little, but six hundred shirts was still a lot of shirts, and there were all those knockoffs from other companies. David was starting to cut away the basis for Ortiz’s identification, and if he did that successfully…
There was a stir in the courtroom and Monica looked around. While she had been lost in thought, David had called his next witness-Jennifer Stafford.
Jennifer walked to the stand without looking at David, but she did pause momentarily by Larry’s side. The look she gave him was one the jury could not see and David could not read.
Jennifer took the oath, then seated herself in the witness box. She sat erect, her hands folded primly in her lap. There was a trace of tension at the corners of her lips, and a tightness about her that betrayed her uneasiness. When David addressed her, she jerked slightly, as if she had experienced a minor electric shock.
“Mrs. Stafford, are you employed?”
“Yes,” she answered softly. The court reporter glanced at the judge, and Judge Rosenthal leaned toward the witness.
“You’ll have to speak up, Mrs. Stafford,” he said gently.
“Yes, I am,” Jenny repeated.
David noticed that Larry was leaning toward Jennifer, listening to her testimony with an intensity that David had not noticed when the other witnesses were on.
“Where do you work?”
“I teach second grade at Palisades Elementary School.”
“How long have you been teaching there?”
“This will be my third year.”
“How long have you and Larry been married?”
“A little less than a year,” she answered, her voice breaking slightly from the strain. David waited for her to compose herself. He fought the urge to go to her and hold her.
“Can you remember when you first saw your husband on June sixteenth of this year?”
