There was a polite murmur of laughter in the courtroom. Harber’s face turned a little pink. He was a big man with sandy hair cut military-short, the way they like it in the Sheriff’s Department.
“Now, when you and your partner arrived at the Elliot house, you said you saw my client standing out front in the turnaround. Is that correct?”
“That is correct.”
“Okay, what was he doing?”
“Just standing there. He had been told to wait there for us.”
“Okay, now, what did you know about the situation when the alpha car pulled in there?”
“We only knew what dispatch had told us. That a man named Walter Elliot had called from the house and said that two people were dead inside. They had been shot.”
“Had you ever had a call like that before?”
“No.”
“Were you scared, nervous, jacked-up, what?”
“I would say that the adrenaline was flowing, but we were pretty calm.”
“Did you draw your weapon when you got out of your car?”
“Yes, I did.”
“Did you point it at Mr. Elliot?”
“No, I carried it at my side.”
“Did your partner draw his weapon?”
“I believe so.”
“Did he point it at Mr. Elliot?”
Harber hesitated. I always liked it when witnesses for the prosecution hesitated.
“I don’t recall. I wasn’t really looking at him. I was looking at the defendant.”
I nodded like that made sense to me.
“You had to be safe, correct? You didn’t know this guy. You just knew that there supposedly were two dead people inside.”
“That’s right.”
“So it would be correct to say you approached Mr. Elliot cautiously?”
“That’s right.”
“When did you put your weapon away?”
“That was after we had searched and secured the premises.”
“You mean after you went inside and confirmed the deaths and that there was no one else inside?”
“Correct.”
“Okay, so when you were doing this, Mr. Elliot was with you the whole time?”
“Yes, we needed to keep him with us so he could show us where the bodies were.”
“Now was he under arrest?”
“No, he was not. He volunteered to show us.”
“But you handcuffed him, didn’t you?”
Harber’s second hesitation followed the question. He was in uncharted water and probably remembering the lines he’d rehearsed with Golantz or his young second chair.
“He had voluntarily agreed to be handcuffed. We explained to him that we were not arresting him but that we had a volatile situation inside the house and that it would be best for his safety and ours if we could handcuff him until we secured the premises.”
“And he agreed.”
“Yes, he agreed.”
In my peripheral vision I saw Elliot shake his head. I hoped the jury saw it too.
“Were his hands cuffed behind his back or in the front?”
“In the back, according to procedure. We are not allowed to handcuff a subject in the front.”
“A subject? What does that mean?”
“A subject can be anybody involved in an investigation.”
“Someone who is arrested?”
“Including that, yes. But Mr. Elliot was not under arrest.”
“I know you are new on the job, but how often have you handcuffed someone who was not under arrest?”
“It’s happened on occasion. But I don’t recall the number of times.”
I nodded but I hoped it was clear that I wasn’t nodding because I believed him.
“Now, your partner testified and you have testified that Mr. Elliot on three occasions told you both that he was not responsible for the killings in that house. Right?”
“Right.”
“You heard those statements?”
“Yes, I did.”
“Was that when you were outside or inside or where?”
“That was inside, when we were up in the bedroom.”
“So that means that he made these supposedly uninvited protestations of his innocence while he was handcuffed with his arms behind his back and you and your partner had your weapons drawn and ready, is that correct?”
The third hesitation.
“Yes, I believe that would be so.”
“And you are saying he was not under arrest at this time?”
“He was not under arrest.”
“Okay, so what happened after Mr. Elliot led you inside and up to the bodies and you and your partner determined that there was no one else in the house?”
“We took Mr. Elliot back outside, we sealed the house and we called detective services for a homicide call-out.”
“Was that all according to sheriff’s procedure, too?”
“Yes, it was.”
“Good. Now, Deputy Harber, did you take the handcuffs off of Mr. Elliot then, since he was not under arrest?”
“No, sir, we didn’t. We placed Mr. Elliot in the back of the car, and it is against procedure to place a subject in a sheriff’s car without handcuffs.”
“Again, there’s that word ‘subject.’ Are you sure Mr. Elliot wasn’t under arrest?”
“I am sure. We did not arrest him.”
“Okay, how long was he in the backseat of that car?”
“Approximately one half hour while we waited for the homicide team.”
“And what happened when the team arrived?”
“When the investigators arrived, they looked in the house first. Then they came out and took custody of Mr. Elliot. I mean, took him out of the car.”
There was a slip I dove into.
“He was in custody at that time?”
“No, I made a mistake there. He voluntarily agreed to wait in the car and then they arrived and took him out.”
