Desperate Measures (40 page)

“I guess so. I didn't think much of anything about it at the time.”

Novak nodded. “But you surmised that sunglasses and a cap had to be worn by someone, didn't you?”

“I just didn't think of it at all,” Daniel said.

“Are you acquainted with the defendant, Alexander Feldman?”

“I know who he is.”

“Do you know where he lives?”

“Yes, sir. In the house next to ours.”

“Did you see him on his own property on numerous occasions?”

“Sometimes. Yes, sir.”

“How was he dressed on those occasions?”

“He always had on a baseball cap and sunglasses.”

“All right. Why did you go to the front of the house instead of using the back door?”

Daniel took another sip of water, then said, “I heard hammering and I thought my father was on the back porch fixing the rail.”

“So you got to the house, then what?”

“I ran upstairs and got my money, then down again, just as my mother came from the kitchen with a box. I took the box and she picked up her purse on the table in the hall, and I went out to her car and put the box on the front seat. She got in and started to drive, and I began to run back to Ben's car.” His voice was steady through this, but his hands on top of the witness stand were shaking. He put them in his lap.

“Did you speak to your mother?” Novak asked in a low voice.

“Not in the house. I put my finger on my lips. Like this, and she nodded.” He held his forefinger to his lips in the universal sign for silence.

“Did she say anything to you?”

Daniel shook his head, then said, “Not then. She stopped at the back door to tell my father that dinner was on the stove.”

“Did he say anything?”

“I don't know. I didn't hear anything. He was still hammering.”

“Did your mother speak to you before she left?”

“Yes, sir,” Daniel said in a near whisper. “At the car she asked me if I wanted a ride. I said no, that Ben was waiting.” He picked up his glass of water, not as if he wanted to drink, but as if he had to do something with his hands.

“Do you know how long you were in the house that day?” Novak asked after a moment.

“I didn't then, but now I do.”

“Will you explain to the court how you know?”

“Yes, sir. You and a detective asked me to go through the same motions as I did then. You timed me. It was thirty-nine seconds.”

“Do you think that's about the same as it was on June ninth?”

“I think so. I did the same things, ran upstairs to my room, and back down, just like then.”

“All right. So you took a total of four minutes and thirty-two seconds to run home, get your money, and run back to the car, and thirty-nine seconds of that time you spent in your house. Is that correct?”

“Yes, sir.”

When Barbara stood up for cross-examination, she said, “What I'd like to do is try to pinpoint when you saw the sunglasses and possibly a cap, where you were and where you saw them. I believe Mr. Novak's aerial view will serve, if we remove the transparency first. Or, Your Honor, I have my own aerial view that I could use instead.”

“Is there any significant difference?” Judge Mac asked.

“No, they are basically the same.”

“Mr. Novak, do you have any objections to the defense using your exhibit?”

“None at all,” Novak said. His assistant got up and removed the transparency, leaving the aerial view on the easel.

“Mr. Marchand,” Barbara said then, “if you will, please, I'd like to identify what we are seeing here. Is this your house?”

He said yes, and one by one she pointed to the outbuildings, the garage, then the vegetable garden, and he identified them. When she finished, she said, “You kept an area mowed and landscaped, including the vegetable garden, for about four hundred feet by two hundred. Is that about right?”

He said yes.

“Would you step down and point to the place on the map where you thought you might have seen someone?”

He stood up and approached the map hesitantly, then looked confused by it.

“This dense canopy is the orchard,” Barbara said, pointing. “You don't have to be exact, just indicate approximately where you thought you saw the sunglasses.”

He took several seconds before he put his finger on the map. Barbara put a little yellow disc on the spot.

“Now let's see if we can retrace your steps from that day. Just start where you think you emerged from under the filbert trees.”

After a moment he put his finger on the map. “About here, I think.”

“Could you already hear hammering?”

“Yes.”

“All right. There's a mass of bushes and ornamental trees there, and you were behind them, on the side closer to the road. Is that right?”

He nodded, and studied the map. “Yes,” he said. “That's right.”

“From there you could not see the rear of the property, could you?” Barbara said, studying the map with him.

“No, not from there,” he said after a moment.

“Then where did you go?”

“I think I came around in front of the roses,” he said.

“Let's talk about the rose bed for a moment,” she said, pointing to it. “It's about twenty feet by eight, isn't it?”

“I don't know,” he said. “I think it's about that.”

“We can find out,” she said easily. She went to her table and picked up a yardstick. “I'm sure there's a scale on the map. Yes, here it is.”

She measured, then said, “That's it, isn't it? Twenty feet by eight feet.”

He nodded, then said yes. His hands were shaking again, she noted sadly.

“All right,” she said. “Then where did you run?”

He moistened his lips and said in a nearly inaudible voice. “To the front door.”

“You didn't cut back through the shrubbery on the other side of the roses?”

He shook his head. “No.”

She knew he could see as well as she could, as well as Judge Mac could, that the only place where he might have had a clear line of sight to the back of the property was from in front of the roses for about seven or eight feet. The garage, two apple trees behind the house, the house itself, the buildings on the rear of the property, the high deer fence around the vegetable garden all would have obscured his vision from anywhere else.

She pressed the point, going over the route he had taken bit by bit, using the yardstick to demonstrate that he could not have seen the blackberry tangle except from those few feet in front of the roses.

“You may resume your seat,” she said then. After replacing the yardstick on her table, she faced him again.

“Mr. Marchand,” she said, “I'd like to clarify some of the testimony you gave earlier. Mr. Novak asked if you saw another person on the property and your answer was ‘I think so.' When did you think that?”

“I don't know,” he said. “I wasn't thinking of it at the time. I was just running.”

“You also said you were running behind bushes again after you saw something, but you were in front of the roses, weren't you? Not dodging bushes?”

“I guess so,” he said. He was looking younger by the minute, and more wretched by the second.

“Do you mean yes?” she asked, keeping her voice easy, not demanding or hard.

“Yes.”

“All right. Mr. Novak asked if you saw any other detail, and your answer was, ‘A cap, like a baseball cap. That's what I thought.' Is that correct? That you thought at the time that a person was back there wearing sunglasses and a baseball cap?”

“I don't know,” he said miserably. “I don't think that's what I thought at that very minute, maybe later on.”

“How much later?”

“I don't know. A day, maybe two days. I thought maybe that's what I had seen.”

“You said earlier that you had seen Alex Feldman on his property on occasion. Did you ever stop to chat?”

“No.”

“Did you speak to him at all?”

“No.”

“What was he doing when you saw him on that property?”

“Cutting brush, or getting the mail, something like that.”

“Did he speak to you?”

“No.”

“Did he appear threatening?”

He hesitated, then said no.

“Were you afraid of him?”

Daniel glanced at the spectators, then back to Barbara. “When I was small, I was a little afraid of him.”

“Why was that?”

“I don't know. He was weird, that's all”

“Did you talk about him at your house?”

He glanced again at the spectators, and this time Novak objected. “This is beyond the scope of the direct examination,” he said.

“Your Honor,” Barbara said, “this witness saw something that could have been sunlight reflected from leaves, but days later, after several sessions with investigators, that something crystallized into sunglasses and a baseball cap. I am trying to learn if Mr. Marchand was predisposed to interpret that fleeting glance as Alex Feldman.”

Judge Mac considered this for a moment, then said, “Overruled. You may continue, Counselor, but this is not a fishing expedition, understand.”

“Thank you, Your Honor.” She turned back to Daniel. “Did your family discuss Alex Feldman?”

“Not really ‘discuss,' just mention him, and not often.”

“When he was mentioned, what name was used? Did you know his name?”

He shook his head. “Not until now. I mean, recently. When he was arrested, I learned his name.”

“What was he called when he was talked about then?”

He looked at his hands, at her, the spectators, anywhere but at Alex. “The freak,” he said in a low voice.

“What else?” she asked. She was keeping her voice low, conversational, as unintimidating as she could manage; Daniel obviously was frightened, and she did not want him to become more frightened. Not yet.

“Devil, or devil freak,” he said, even lower.

“Anything else?”

“Devil spawn.”

“Who used those names, Mr. Marchand?”

“I don't know. Maybe we all did.”

“Did you ever hear him referred to any other way?”

“My mother just said the boy next door, or our neighbor.”

“Was that why you were frightened of him when you were younger, because he was called devil?”

“I guess so,” he said.

“Did you think he had horns, or had had horns that had been surgically removed?”

“When I was little,” he said.

“Do you think that now?”

Novak objected, and this time Judge Mac sustained the objection. “You've made your point, Counselor,” he said to Barbara. “Move on now, if you will”

Silently she agreed; she had made her point. “If you had seen an intruder that day, would you have mentioned it to your mother or father?”

“I guess so,” Daniel said after a moment. “There wasn't any time to tell them.”

She walked to the map and pointed to the yellow disc. “If a person had been here, or even within fifty feet on either side of this spot, he would have been visible to anyone on the back porch of the house, wouldn't he?”

“I don't know,” Daniel said helplessly.

“Well, it's a clear line of sight from the back of the house to most of the brambles, so that spot would have been visible also. Do you agree?”

“Yes, I guess so.”

“Is there an opening in the brambles back there?”

“No, it's thick. You can't get through them.”

“So if anyone had been at that spot, he would have had to approach from the orchard side, or from the woods on the other side. Is that correct?”

“Yes.”

“And from the woods side, once he cleared the house, he would have been visible to anyone on the back porch, wouldn't he?”

Daniel said yes.

“And then he would have had to cut through the backyard on a diagonal path away from the house, or else follow the edge of the mowed area, keeping near the brambles in order to arrive at that spot. Is that correct?” She traced a path as she spoke, and it appeared as far-fetched as it sounded.

“Objection,” Novak called out finally. “This is getting too hypothetical. No one knows what that person did or why.”

“Sustained. Move on, Ms. Holloway,” Judge Mac said.

She nodded. “It has been shown that the spot where the boys parked was a quarter of a mile from your driveway, and from the map here we can determine how long the driveway is.” She measured it and said, “Two hundred feet. Are you a good math student, Mr. Marchand?”

“Pretty good,” he said.

“Do you remember the rule about the square of the hypotenuse being equal to the sum of the square of the two legs of a right triangle?”

He looked wary and uncertain. “I think so.”

“In my day we said the square hippopotamus was equal to two square legs,” she said smiling. Daniel did not smile. “Let me draw the figure.” She picked up a drawing pad from her table and propped it up on the easel, then drew a line. “This represents the quarter mile on the road from where Ben Hennessey parked, to the driveway,” she said. “A quarter mile, or one thousand three hundred twenty feet.” She drew a very short line downward, perpendicular to it. “And this is the driveway, two hundred feet.” She connected the two lines, finishing the triangle. “And this line represents the route you took, cutting through the orchard and yard to get to the house. It's not exact, of course, because there were trees and bushes, but it's a fair approximation. We'll label them
A
,
B
, and
C
, just like in the old geometry books. Now, according to Euclidian geometry, the sum of
A
squared plus
B
squared equals
C
squared. We'll use a calculator for the arithmetic.” She did the math and wrote the figures on the paper, then said, “So
C
equals one thousand three hundred and thirty-three feet, and that's the distance you covered, give or take a foot or two.”