Lisa Scottoline - Mistaken Identity

“I got the BarcaLounger right next to the window. The window faces on the street. I sit by the window, for the light. Also the breeze. I don’t have air-condition.”

“So you were sitting in a chair by the window on the night in question. Was the window open?”

“That’s the only way I know to get the breeze.” The jury laughed, and Munoz grinned, fully playing to them now. “I ain’t kiddin’. You can sweat like a pig in this town. Worse than south Texas and that’s sayin’ somethin’.”

“Please, Mr. Munoz. Was there a screen in the window? And when you answer, please address me and answer the question by saying yes or no.”

“I was answerin’ yes or no.”

“No you weren’t, Mr. Munoz. Please say either yes or no, understood?”

Munoz cocked an eyebrow.

“The question is, was there a screen in the window?”

“’Course there was a screen in the window. That’s how I heard the noise. Sounded like a firecracker. I thought it was some kids, outside. You know, kids gettin’ ready for Fourth of July.” He glanced again at the jury and an older woman in the front row nodded in agreement. “You know, kids,” Munoz said again.

Hilliard looked up at the judge. “Your Honor, could you please instruct the witness to answer the question in the manner indicated? It would make the record much clearer.”

Judge Guthrie nodded curtly and turned to the witness. “Mr. Munoz, if you don’t mind, for the record.”

“If you say so, Judge,” Munoz said, glowering at Hilliard so fiercely that Bennie realized the prosecutor had made his first, and probably only, mistake of the trial. He had just turned a direct examination into a power struggle. The jury looked uncomfortable in their seats, a captive audience to the exchange.

“Mr. Munoz, do you know what time it was when you heard the noise you mentioned? As I said, please face me and answer yes or no.”

Munoz stared at the prosecutor. “No.”

“You didn’t look at your watch?”

“No. How’m I doin’, counselor?”

“Fine, Mr. Munoz,” Hilliard said, consulting his notes. “Now. There came a time when you looked out the window. Mr. Munoz, do you know how long after you heard the shot that you looked out the window?”

“I’m suppose to answer yes or no?”

“Yes. Answer yes or no, please.”

“Yes.”

“How long was it between the time you heard the noise and the time you looked out the window?”

“Yes or no?”

Hilliard inhaled audibly. “Obviously not.”

“Okay, you gotta tell me how you want my answer, or I don’t know. I’m not as brilliant as you. For the record.” Munoz smiled, and so did two of the jurors, but Hilliard gripped the podium and stood straighter.

“Mr. Munoz, how long was it between the time you heard the firecracker noise and the time you looked out the window?”

“A little while.”

“Mr. Munoz, can you describe the time any better than ‘a little while’?”

“You want me to answer yes or no?”

“Yes, please!”

“No.”

The jury stifled smiles, and Hilliard wiped a hand over his lumpy scalp. If he had hair, he’d be pulling it out. “Mr. Munoz, tell this jury exactly what you saw when you looked out your window.”

“I tol’ you, I saw a lady runnin’ by. I saw her face and her hair, goin’ right by my window.”

“So you got a good look at her?”

“Objection,” Bennie said, half rising. “The prosecutor is testifying, Your Honor. The witness didn’t say he got a good look. In fact, the witness hasn’t even said who ‘her’ is.”

“Sustained.” Judge Guthrie peered over his glasses. “Mr. Hilliard, the Court understands that you are trying to clarify the record, but please use care in how you phrase your questions.”

“Yes, Your Honor.” Hilliard squared off against the witness from the podium. “Mr. Munoz, just so the record is clear, would you identify the woman you saw running by your window?”

“Identify? What’s that mean?”

“Point her out in the courtroom,” Hilliard snapped, but Munoz was already squinting at Bennie and Connolly. His thick arm rose and he pointed a stubby index finger at the defense table, but his aim wavered.

“I saw one of them, I don’t know which one,” he said. “They look like twins.”

Bennie sat bolt upright in her seat, realizing what would happen the split-second before it did. Munoz couldn’t make the ID of Connolly, not with them dressed and looking so much alike.

“Mr. Munoz,” Hilliard said hastily, “you’re pointing at the defendant and not her lawyer, correct?”

“Objection!” Bennie said, rising to her feet. “That’s not what the witness did or said, Your Honor. Mr. Munoz testified he could not identify the defendant as the woman he saw running that night.”

“Your Honor!” Hilliard fairly shouted from the podium. “For God’s sake, the witness pointed right at the defendant.”

Bennie approached the bench. “Your Honor, Mr. Munoz pointed between me and my client. He said he couldn’t identify the defendant.”

Crack! Crack! Judge Guthrie banged the gavel, his brow creased with concern. “Order, please. Counsel, please, and in the gallery. This Court has previously admonished you, you must maintain order!” Judge Guthrie swiveled his high-backed leather chair to face the witness. “Mr. Munoz, permit me to clarify the record. Did you identify, by that I mean point to, the defendant?”

“I don’t know what the defendant is, I pointed at those ladies. They look like each other. The one I saw had red hair, anyway. Neither of them have red.”

“Move to strike as unresponsive and prejudicial,” Hilliard barked, and Bennie couldn’t restrain herself.

“Your Honor, there’s no grounds to strike the answer! The witness’s testimony is clear and he just confirmed it. Mr. Hilliard just doesn’t like the answer he got.”

Munoz pumped his head. “She’s right! He don’t like the answer, so he tells me I’m wrong. I know what I’m sayin’, Judge. I know what I saw. I saw a redhead.”

“Your Honor, please,” Hilliard said, scrambling for his crutches and shoving them under his elbows. “Let me rewind the tape a moment. Mr. Munoz, do you remember being shown a photo array by the police and picking out the defendant’s picture?”

“Objection, Your Honor!” Bennie said, but Judge Guthrie waved her into silence.

“Overruled.”

Munoz looked confused. “Photo what ?”

Hilliard plucked an exhibit from the podium, hustled with it to the stand, and set it down in front of the witness. “Let the record show that I am supplying Mr. Munoz with Commonwealth Exhibit 21, a photo array. Now, Mr. Munoz, have you seen this set of photos before?”

“Yeah.”

“And when you were shown it, didn’t you pick out the left middle picture as the woman who you saw running past your window?”

“So what?” Munoz tossed the photo array to the side, and Bennie couldn’t have done it better herself. “You asked me who is the lady I saw out my window. You said answer yes or no. You said point to the lady in the courtroom. I can’t do that and swear to God. You don’t like my answer, that’s too damn-”

“Your Honor,” Hilliard interrupted, “may we continue this discussion in chambers?”

“Objection, Your Honor.” Bennie stood as if rooted to the spot. “The prosecutor interrupted the witness’s answer. Mr. Munoz was in the middle of completing his answer.”

Judge Guthrie slammed the gavel to its pedestal. Crack! “Silence! In chambers, now, Ms. Rosato! Mr. Deputy, dismiss the jury! Mr. Hilliard, the Commonwealth’s outstanding motion to strike is granted. This colloquy is not for the record.”