VEE. Obtaining testimony from a witness is a balancing act. The facts in this case, in its entirety, could be summarized in one simple sentence. Michael went to the home of the deceased, entered the home, was challenged with a weapon, and broke the now deceased plaintiff’s neck. It’s that simple. Presentation of the facts in that manner, to the jury, would be suicide for Michael.

Properly worded questions prompt proper responses. Proper responses lead to additional questions, which if presented properly, continue the process. The jury, exposed only to the testimony they are presented in court, must decide the case based on the testimony. This case had very little evidence. Testimony was the primary case. Testimony is not evidence, nor is it fact. It is testimony. Evidence, when introduced to the court, must be done according to law. Testimony may expose evidence. That exposure, if clear, opens the door for the introduction of proof, through the evidence, that the testimony is accurate.

“Mr. Ripton, when you went to the home of the now deceased, upon his greeting, what was he feeling?” I asked from behind the lectern.

Count Michael, just like we practiced.

Now, Triston, object. Do it.

“I do not know what he was feeling, if anything, ma’am,” he responded into the microphone after a lengthy delay.

“No feelings? Interesting. Let me see,” I raised my hands to the top of the lectern and gripped the edge as if I were frustrated.

“Let me rephrase. What, Mr. Ripton, was the state of mind of the deceased when you went to the home,” my voice echoed through the ornate courtroom.

Do it you simple bastard, object.

Count Michael, count.

“Your honor, I object,” the prosecutor barked from the rear of the courtroom.

The judge lowered his glasses, leaned forward, and focused on the prosecutor as I paused.

“And your grounds for objection?” he asked.

“Your honor, counsel is attempting to introduce to the jury the state of mind of the now deceased. The defendant is incapable of accurately testifying as to the state of mind of the deceased. The testimony would be a matter of opinion, and not a matter of law. Opinion is not, your honor, testimony,” he stated.

“Granted. Counsel, you’re cracking the ice. Don’t fall through,” the judge remarked.

“Duly noted, your honor,” I turned from the lectern, inhaled, looked up at the jury, and exhaled slowly.

The jurors were all focused on me.

“Mr. Ripton. When you went to the home of the deceased, upon arrival – how was your arrival announced?” I asked in a frustrated tone as I turned to the lectern.

“I don’t understand the question,” he responded after a short pause.

We’ll get their attention, just stay with me Michael.

“Your arrival to the home, Mr. Ripton,” I barked.

The judge looked up from his desk and removed his glasses.

“When you arrived at the home, did you ring a bell? Honk your horn? Clap your hands? Mr. Ripton, how did you bring the resident of the home to understand that you had arrived? Kick in the door?  Pound on it? What, Mr. Ripton, did you do to announce your arrival?” I screamed as I gripped the top of the lectern until my knuckles whitened.

Count Michael, god damn it count.

“Counsel, you’re on the threshold of badgering your own witness. If this continues,” The judge paused and pushed his glasses onto his face.

“Answer the question, son,” the judge said softly over his right shoulder.

You’re doing good Michael, they’re paying attention now. Every fucking one of them.

“I rang the doorbell,” he responded.

I hesitated and looked up at Michael.

“I’m sorry, I didn’t hear your response could you repeat yourself?” I asked.

“I rang the doorbell,” he said into the microphone.

The amplified sound resonated through the courtroom.

“The doorbell?” I asked.

“Yes ma’am,” he responded.

“So, given any other means of announcing your arrival, you chose something as simple as the doorbell?” I asked.

“Yes ma’am,” he responded.

“Who answered the door?” I asked.

“Tucker, ma’am. The deceased,” he responded after a short pause.

“Was he armed?” I asked.

“Yes ma’am,” he responded.

“So, the door was answered. And the man, who you identify as the now deceased, was armed, and was the one who opened the door, is that correct?” I asked.

“Yes ma’am,” he responded.

“How did you react?” I asked.

Give it to them, Michael. They’re listening.

He removed his glasses and looked down at the desk in front of the witness stand. As the glassed dangled from the fingers in his right hand, he continued to look down and focus on the desk. Slowly, he reached to his face, and wiped his eyes with his left hand.

“I. I uhhm. I don’t remember everything, ma’am,” he hesitated, still looking down.

Do it Michael, you got this.

He sniffed audibly through his nose, rubbed both eyes, and looked up. His eyes were red and full of tears.

Those must have been some hot peppers.

“It happened really fast. He answered the door, pointed the pistol at me, and asked me to leave,” he responded, his voice cracking with emotion.

“Did you know the deceased, Tucker?” I asked.

He nodded his head.

“Yes ma’am.”

“Were you shocked?” I asked.

“Yes ma’am.”

“Did you see, hear, or smell anything else at this time? Were you able to think clearly? Can you recall?” I asked.

Here we go.

He looked down at the desk, hesitated for several seconds, and provided the response that I could not obtain through prosecution’s testimony. As he rubbed his eyes, he looked up.

“Yes ma’am,” he responded.

“Tell the court, Mr. Ripton. I ask questions, you provide answers, it’s simple. Tell the court, if you recall clearly,” I stated as I gripped the top of the lectern.

Michael looked up at the ceiling, hesitated, and looked down. His focus seemed distant, and he was facing the jury.

“Alcohol, ma’am,” he stated.

I suspect, Triston, you will…

“Your honor, I object. The defendant cannot accurately testify as to what he believes a now deceased man consumed prior to his arrival,” the prosecutor snapped.

No but a toxicology report can, asshole.

“Counsel?” the judge said with a voice of uncertainty.

“Your honor, may I approach?” I asked.

Holy shit, this couldn’t be any more perfect.

“Both of you,” the judge stated as he waved his hand toward his chest.

As we approached the judge, I tried to contain a smile. The jurors are ignorant as to the procedures in regard to law. They don’t know the rules, regulations, and procedures of introduction of evidence or questioning witnesses. Had I asked Michael a question, obtained testimony, and introduced evidence to support it, it would appear rehearsed. The rehearsal of the testimony would, in the juror’s minds, make the statements less valid.

Now, after meeting the judge and talking out of earshot of the jury, the request for the evidence would seem as if it were exposed in the short meeting.

“Your honor, I merely asked if the defendant could recall anything. Sounds, odors, what he may have heard. He expressed his recollection of the events was not clear. I was attempting to prompt a thought process. His recollection appears, your honor, to be smelling alcohol, not claiming that the deceased had been drinking, but merely smelling the odor,” I whispered as I turned toward the prosecutor and pursed my lips.

The judge looked at the prosecutor.

“Your honor, the witness cannot testify opinions, we’ve been through this and case law prohibits it,” the prosecutor stated.

“I’m well aware,” the judge sighed.

“Counsel,” the judge breathed as he shifted his focus to me.

“He can, your honor, testify as to what he smells,” I stated.

The judge pushed his glasses up his nose and looked up from his desk. As he looked back down, he nodded his head slowly.

“Counsel is correct. He may testify as to a smell, if he smells it. Where are you headed with this charade, counsel?” the judge asked.

“Charade your honor? I beg to differ. With all due respect, I’d now like to ask to introduce evidence to support or deny the presence of alcohol in the blood stream of the deceased. The medical examiner’s office surely had a toxicology report, didn’t they, I don’t recall,” I lied.

“Counsel?” the judge asked, now focused on the prosecutor.

Triston nodded his head sheepishly.

“Yes, we have a toxicology report. 16B,” he stated as he rolled his eyes.

The judge relaxed into his seat, nodded his head, and smiled.

“Continue counsel. Tread lightly,” he stated.

“Always, your honor,” I said softly.

As I walked slowly back to the lectern, I focused on the floor. Upon reaching my station, I turned, lightly placed my hands on the edge of the lectern, and looked at the judge.

“Your honor, it appears the medical examiner’s office has performed a toxicology report,” I paused, looked past the jurors, and at the prosecutor’s desk.

Slowly, I turned my head to face the judge.

“And, based on the testimony of the witness, I would like to request that exhibit 16B be introduced as evidence,” I stated.

“I’ll allow it. The exhibit?” the judge asked.

Prosecutor Triston slowly walked to the clerk of the court and handed him a report in a transparent protective sleeve. As he turned to walk back to his desk, I attempted to contain my smile.

The toxicology report could have been introduced by me into evidence. Defense is provided the same evidence as prosecution. Had I introduced it, it would appear to the jury as being less dramatic, less revealing, and would have held far less value. As it was introduced, through the judge, Michael’s tearful testimony, and the prosecutor’s hand, it had more of a dramatic effect.

The clerk of the court looked at the evidence and handed it to the judge. After a precursory glance, the judge handed the evidence to the clerk, who walked to the lectern and handed the evidence to me.

“Your honor?” I asked as I motioned toward Michael.

The judge nodded his head.

I walked to the witness stand and handed Michael the report.

“Mr. Ripton, I have provided you a report, which was provided to the court by the courteous Mr. Triston, who I thank graciously. It should have a line item for BAC, or blood alcohol content somewhere. Do you see such reference?” I asked as I turned to face the witness stand.

Michael, well familiar with the report, appeared to be confused. He slipped his glasses on, looked through the glass lenses, and followed his finger along the report.

“BAC, ma’am?” he asked.

“Yes,” I responded.

“Yes ma’am,” he stated.

“Can you read the numeric value if there is one listed, I haven’t taken a look at the evidence yet. Read the value listed to the court, Mr. Ripton,” I said pleasantly.

“Point zero six, ma’am,” he stated.

I stepped from the lectern and raised my hands to my face slowly.

“Excuse me, did you state point zero six?” I asked, holding my fingertips to my cheeks.

Michael looked back at the report, studied it for a long second, and responded.

“Yes ma’am. Point zero six,” he stated.

“Thank you Mr. Ripton. Now, where were we? Ah, yes. By your testimony, you arrived, rang the doorbell, and Tucker, the deceased, which was an associate of yours, had answered the door. Upon opening the door, he was armed with a handgun, and you smelled what you identified, and the toxicology report supports, was alcohol. What happened next?” I asked.

“That’s where it gets kind of fuzzy. I was scared. I don’t remember every detail, but I remember most,” he said as he slowly removed his glasses again.

“Please, if you will. Do your best to recall the events accurately, and express to the court your recollections, Mr. Ripton. Only what you’re certain of,” I stated in a kind voice as I turned away from the lectern and listened.

“Well, I said, I’m Mike. What are you doing? And he told me to get off the porch and leave,” he paused.

“Please, tell the court exactly, ver batum, what was said if you recall, Mr. Ripton,” I stated.

He looked up from the witness stand, hesitated, and straightened his glasses.

“Ma’am. An exact statement would include expletives,” he said quietly.

“Please, state exactly what happened and what was said,” I stated.

“Yes ma’am,” he responded.

“Tucker opened the door with a gun in his hand, and his hand was roughly at his waist. I was shocked that he had answered the door with a gun. The firearm scared me. The way it was pointed at my mid-section, it could have killed me even if it accidentally discharged. I said, what are you doing? It’s me, Mike. He responded, get off my fucking porch. It was then that I smelled the alcohol. I said, put the gun down, you’re making me nervous. I remember at that time he raised the pistol, pointed it directly at my face, and said something. I do not recall what he said,” he said very clearly and methodically as if he were recalling facts.

Perfect.

“What happened next?” I asked softly as I slowly shook my head in disbelief.

“I remember hitting the pistol, and we struggled. The next thing I knew, He lay in my arms and wasn’t moving,” he responded.

“Did you strike him?” I asked as I turned to face the witness stand.

“No ma’am.”

“Did you punch him?” I asked.

“No ma’am.”

“Did you push, shove, or kick him?” I asked as I raised my right hand to my cheek.

“No ma’am, none of those things,” he responded.

“Well, Mr. Ripton, what exactly, did you do? The deceased is reported to have expired from a broken neck,” I stated.

“I reacted,” he responded, nodding his head slowly.

“You reacted?”

“Yes ma’am.”

“Have you experience at disarming gun wielding homeowners, Mr. Ripton?” I asked.

Here we go. Eat this, Triston.

Michael looked down, removed his glasses and looked up toward the jurors as he held his glasses in his hand.

“A few months ago, I was preparing to eat at a Japanese restaurant. A man attempted to hijack me. To car jack me. He approached my car with a loaded weapon. He threatened me, the woman with me, and said he was going to take my car. I was scared, and I did as he asked. I got out of the car, and asked the woman to call the police,” he hesitated and stared at the jurors.

“Did she call the police?” I asked as I raised my eyebrows, my voice full of suspicion.

“Yes ma’am. She did. In the time it took the police to arrive, he made it clear he intended to kill us if he had to. She was scared, and remained in the car. He continued to make demands, and as he focused on the car, I hit his right hand with my left fist, and disarmed him. The police arrived at the exact instance of the incident, and witnessed the criminal being disarmed,” he said.

“So, to recite your testimony in summary, a man attempted to carjack you. He threatened your life, and the life of your female companion. You reacted by hitting the hand that held the pistol, and disarmed the attacker. This incident was witnessed by police?” I asked.

“Yes ma’am.”

“Was there a police report filed, Mr. Ripton?”

“Yes ma’am.”

“Were there any shots fired?” I asked.

“Yes ma’am, one at the time I disarmed him.”

“Was anyone injured?” I asked as I turned to face the jury.

“No ma’am. By the grace of God, he missed.” he responded.

“And this time, Mr. Ripton. The event in question, was a shot fired?” I asked.

“No ma’am. I’m not so sure this time, the shot would have missed. I was scared, and I reacted in a manner I felt was necessary to save my life,” he sighed.

“To save your life from an armed intoxicated attacker. I have no further questions your honor,” I stated as I turned to face the defense desk.

“Counsel, have you anything for redirect?” the judge asked.

“Just a few, your honor. I’ll be brief,” the prosecutor stated.

Be careful Triston, you’re going to get bit.

“Mr. Ripton. You said you were attacked a month ago or so. Oddly enough, I believe I read that report. Sorry for your string of bad luck. Now, in the first attack, the criminal was disarmed, and if memory serves me correctly, later in an attempt to flee, fell in the parking lot, and received contusions. Other than you striking his hand, and disarming him, he was not injured by you, is that correct?” the prosecutor asked.

“That is correct sir,” Michael responded after a brief pause.

“Mr. Ripton, if you were able to disarm him without killing or injuring him, what was different about his attack, as defense counsel likes to call it. What was different? What caused you to choke the attacker?” the prosecutor asked.

You asked, asshole.

After a long pause, Michael sat up in his seat. A quick glance toward the jurors confirmed all eyes were on Michael.

“Sir, after the first attack, I suffered from what I believed to be PTSD. I have not been diagnosed. I found sleeping difficult. Immediately following the attack, I met a decorated United States Marine, who suffers from PTSD. The Marine began teaching hand-to-hand combat at a local gym that I frequent, and I accepted his invitation to the classes. The classes included disarming attackers and some chokeholds, one of which I attempted to use on the deceased,” Michael paused and pushed his glasses firmly against his face.

“So, you chose upon seeing the pistol raised at your face, as you testified, to use a Marine choke hold to save your life. Or let’s say to prevent a further attack?” the prosecutor asked.

“No sir. I didn’t choose. From the extensive training by the Marine mentioned, it was instinct. I did not think. I did not make a decision, I reacted. It was a reaction without thought,” Michael said flatly.

Triston placed his hands on his hips, inhaled, and audibly exhaled.

“That is all for this witness, your honor,” he sighed.

“Counsel?” the judge asked.

“Nothing further,” I stated.

“You’re dismissed, son,” the judge said.

Michael got up and walked slowly to the desk where I stood. The prosecution team talked briefly and turned to face the judge.

“Your honor, we’d like to call one additional witness,” the prosecutor said.

“Your honor, there are no witnesses listed that haven’t been called,” I stated as Michael sat down.

“Your honor, we just learned of this witness. The state would like to call Joshua Jackson. This is significant to show a pattern of behavior on Mr. Ripton’s part, your honor,” he stated.

What the fuck?

“Your honor, by my watch, it’s three o’ five. To allow direct, cross, and redirect may take hours. As a matter of respect to the court, to the jurors, and considering the fact that I am unaware of this mystery witness, I respectfully request that the court consider adjourning until tomorrow morning,” I stated.

Fuck.

The judge looked at his watch and looked at the jurors. Another quick glance at his watch, and he looked up and into the courtroom.

“I’ll allow the witness. Considering the timeframe and Mrs. Simon’s request, I will consider this day over. We will reconvene in the morning, at zero nine hundred,” he stated.

Thank God.

“Who the fuck is the witness, Michael?” I whispered as I sat down.

Michael raised his hand to his face, and stared straight ahead.

“Remember the story about me cutting the finger off that guy? And hitting him in the face with a hammer? It’s him.” he whispered.

I looked down at the desk and covered my mouth.

“When we’re dismissed, you and I are going to talk. I am not going to lose this fucking case. I am not. Underfuckingstand that Michael,” I whispered between my clenched teeth.

Underfuckinstand it.