9TH JUDICIAL DISTRICT: People v C. Head

People vs. C. Head

1972

The 9^th Judicial District of the State of Colorado encompasses Pitkin, Garfield and Rio Blanco Counties, extending from Aspen in the 21^st Century, through Glenwood Springs, Rifle and Meeker all the way to Rangeley, in the 19^th Century.

Rangeley is the second largest city in Rio Blanco County. It boasts maybe 2,000 souls – and that’s 7 or 8 times larger than the closest city, Dinosaur, on the Utah border about 18 miles away. Rangeley has one moving picture show – but it’s closed – and the best restaurant in town is the Anchor Inn on State Highway 64 on the banks of the White River. Don’t get excited, the White River is mostly a wide stream there, but the Anchor Inn has great country fried steak and gravy, and on Friday nights, all you can eat spaghetti or fried fish. Oh, yeah, Rangeley Community College is perched on a rise overlooking the town.

State Highway 64 is an old yellow striped two-laner that runs along the White River Valley between Meeker to the East and Dinosaur to the West and right through the middle of town, where it’s called

Main Street

. Being as how there’s likely to be more cows and sheep on the road during the day than there ever are cars, (and at night there are always many times more elk), you can understand why the State of Colorado doesn’t have a lot of budget allocated to repairing the heaves and potholes that pock Highway 64 caused by the rough high country winters. Well, this figured big time into Cecil Head’s defense.

You see, Cecil was my first for real case as a prosecutor. Deputy District Attorney of the Ninth Judicial District, to be exact. Cecil drove a laundry truck, one of those squarish top heavy step vans? I don’t know exactly what his route was, but I think he picked up and dropped off laundry from the local hotel, restaurant, jail and all that, to and from a laundry over in Utah – but I could be wrong about that detail. Anyway, this particular afternoon, Cecil eased his laundry truck carefully from its parking place in front of the Ace High Saloon, where he had enjoyed quite a long lunch, and headed down Highway 64 toward Dinosaur, right past Deputy Sheriff John Candy’s squad car parked by the river bridge. Cecil didn’t see John, because John had strategically parked where he was hidden by the Anchor Inn. But John, he surely saw Cecil. Most people think that cops just watch for speeders, but unusually slow drivers attract their attention, too. Besides, Cecil was known by the local constabulary to be prone to have a few too many every time he stopped at the Ace High, being as how he was something of an alcoholic. So John watched Cecil drive oh-so-slowly and carefully across the bridge, heading out of town. Being highly trained and naturally suspicious of this activity, John followed him. Cecil was concentrating on his driving, and apparently didn’t see the squad car behind him.  As his van picked up speed, it commenced to meander, right and left, back and forth across the centerline. Before John could turn on his lights or siren, the van pulled to the right and lurched suddenly when its front wheel hit the soft shoulder, tipped on its right wheels, and skidded to a stop on his its side.

John flipped on his bubble gums, jumped out of the squad car and rushed up to see if Cecil were hurt. The front windshield of the van was cracked. Cecil was unconscious, with some blood on his forehead, where his head had apparently hit the windshield. John immediately called the paramedics, who rushed out and took Cecil to the Community Hospital.

Now, this sequence of events complicated the prosecution. Back then, nobody was so all fired up about drunk driving, which was fairly common and only a misdemeanor, but they were really prickly about invasion of privacy, especially because a lot of the college kids were using marijuana, which was a felony. So, cops couldn’t just give a breathalyzer, and they didn’t have those portable jobs yet, anyway. Instead, they had to give the alleged criminal a choice of blood alcohol tests, breath, urine or blood. This presented a problem, because Cecil was unconscious at the scene, so he couldn’t express a preference, which meant that John couldn’t get any blood alcohol sample. But John knew Cecil was drunk. He smelled alcohol on his breath, he had seen him come from the Ace High, he knew Cecil’s drinking habits, and he had seen his erratic driving. So when Cecil came to at the hospital, he found a summons pinned to his shirt for driving while intoxicated, aka DUI.

This presented a real problem for Cecil. He already had some alcohol related driving violations on his record, and if he was convicted this time, he would lose his license - and his job, because he needed a license to pick up and deliver the laundry. So rather than seek a deal, Cecil mailed in a not guilty plea and asked for the Public Defender. However, the Public Defender’s office is in Glenwood Springs, nearly a hundred miles away, so Cecil and the Public Defender had not met before today. That wasn’t much of a problem, though, as the Sean O’Rourke, the Public Defender, had handled so many drunk driving cases over his career that he didn’t need much in the way of preparation, anyway.

Like I said, this was my first for-real prosecution, and the first time I ever saw Sean O’Rourke was also when I walked into court that night. I was with Fast Eddie Swenson, the Assistant District Attorney and Chief Trial Deputy., who came along to introduce me to the local law enforcement community, and to look over my shoulder to see how I would do in my first jury trial. Fast Eddie was a pretty good trial lawyer, but he was a really great skier who at one time had hopes of making the Olympic Team in the downhill, which is why he was called Fast Eddie and why he was practicing as the Assistant DA while living in Aspen with his skier girlfriend. With a lifestyle like that, Eddie was kind of my hero! Of course, Eddie and Sean knew each other well and were pretty good friends. They were both looking forward to razzing the rookie DA. Anyway, when I walked in, an obese florid-faced Irishmen with flaming over-the-shoulder hair and a long red beard, was sitting at counsel table with meek little Cecil Head, who looked even more tiny and mousy for being next to the massive O’Rourke.

Eddie and Sean chatted while I visited with John Candy, who was my one and only witness. I had actually met John for the first time earlier that same day, along with the Town Marshal. John was short and round, with a tanned cue ball head, clean shaven with a crew cut. He looked kind of stuffed into his heavy cotton brown Sheriff’s suit. He wore a broad brimmed tan cowboy hat, and shined cowboy boots with toes that pointed outward at right angles to the handle of his six gun. He was a real friendly fellow.

The Town Marshal, on the other hand, was not a happy camper.

Fast Eddie had told the Marshal that he was bringing the new Deputy DA to meet him, and Eddie told me that the Marshal’s claim to fame was that he kept the Rangeley hippies in control. With Aspen at one end of the same judicial district, and the college on the hill overlooking Rangeley, the City Fathers considered hippies and drugs a real problem, on a par with cattle rustling. In fact, the Marshal had recently stuck a Johny club into the stomach of some long hair standing next to his flower-power VW van in downtown Rangeley, worked him over with his fists, and run him out of town, “to send a message that his kind wasn’t wanted here” So, when he saw the new Deputy DA sported a wispy Fu Manchu mustache and shoulder length over-the-ears hair, he was none to happy to make my acquaintance, even less so when I casually mentioned to him that it probably wouldn’t be a good practice anymore to go around beating up hippies that were just passing through town, as that might be regarded as illegal. Funny, I don’t remember ever seeing the Town Marshal again, the entire time I was the Deputy DA.

Well, the attorneys in our office were really only part-time DA’s, the rest of the time we practiced civil law. And we were also the Town Attorneys for the municipality of Rangeley. There was only one attorney who actually lived in Rangeley, and he was also the Town Judge. Come to think of it, his first name was Cecil, too – must have been a really popular name in Rangeley for some reason, I don’t know, maybe they shared a common ancestry or something. Being the only local attorney and the Judge of course created a real problem when it came to prosecuting crimes, which is one reason why we out-of-towners served as town attorneys. I kind of suspected Cecil wanted some other attorneys in town, too, because its well known that two attorneys in a town always make more money than just one. Anyway, when Cecil was also elected Mayor, he decided there were just too many conflicts and he had to step down as Judge. There being no other lawyers in town, or even for 50 miles, the City Fathers looked around for the person with the next most legal training, and offered the job to the Mayor’s legal secretary. Robin Half or Bobbie, as she was known, also ran a used furniture and antique store on the side. She said she couldn’t handle three jobs, so the Mayor lost his secretary in the deal, too. I had met Bobbie at her store earlier that afternoon, and bought a used dresser for my bedroom. We had spent some time together tying it into the trunk of my car. I nodded hello to her when she mounted the bench.

The Bailiff did his hear-ye hear-ye’s, and after the appropriate entries of appearance, we seated a jury fop 6 and commenced the trial. I called Deputy Sheriff John Candy to the stand.

“How long have you been a Deputy Sheriff?”

“About 12 years.”

”And over the course of that 12 years, have you encountered many people under the influence of alcohol?”

“Of  course, many.”

“How many?”

“Oh, I don’t know, over 12 years, likely thousands.”

“And how many of those were driving cars?”

“Oh, hundreds were operating vehicles under the influence.”

“Have you had any special training in recognizing persons under the influence of alcohol?”

“Yes.”

“What training would that be?”

“Courses by the Colorado State Police.”

“What symptoms do you look for?”

“Balance problems, inability to walk a straight line, slurred speech, inability to concentrate, when they are attempting to drive, erratic driving behavior, such as excessive speed or slowness, weaving or inability to hold a straight course, the smell of alcoholic beverages on their breath, that sort of thing.”

“And do you have any personal experience with people under the influence of alcohol?”

“You mean, outside of being a sheriff?”

“Yes.”

“What would that be?”

“Well, I drink, and I have friends and family who drink, and I have personally observed the effects of alcoholic beverages on them, and myself.”

“How long have you drunk alcohol?”

Deputy Candy looked sheepish. “If its all the same to you, I’d rather not say,” he said. The entire courtroom chuckled.

“Might that be because you started before you were of legal age, say in high school, maybe?”

”Might be,” allowed Candy. The court chuckled again.

“Ok. Now, tell me, did you see Mr. Head the afternoon in question?’

“I should smile, I did. I arrested him.” The court appreciated that humor, as well. The jury warmed to John Candy. When the laughter died down, I resumed.

“No, before the arrest. When did you first see Mr. Head?”

“I saw Cecil exit the Ace High Saloon and get into his laundry truck. It was parked in front.”

“Tell me, does the Ace High Saloon serve alcoholic beverages?”

“Yessir, that’s why the call it a saloon!”

“Did you notice anything unusual about Mr. Head’s behavior when you saw him exit the saloon?”

“Well, he stumbled a little on the curb, but I don’t know if that is unusual, at least in Cecil’s case.”

“What do you mean by that?”

“Well, the Ace High is one of his favorite hangouts, and he often stumbles when comes out of there, if you know what I mean.”

“Objection,” roared O’Rourke, jumping to his feet. “He is trying to insinuate a conclusion.”

“Let’s not go any further with that, ok?” I said to John. “Just tell us what you saw.”

“Ok,” said John. O’Rourke sat back down.

“So, where were we? Oh, yes, Mr. Head got into his laundry truck in front of the Ace High Saloon. What did you observe next?”

“Well, Cecil, I mean, Mr. Head, he drove his laundry truck down

Main Street

very, very slowly, like he was having trouble keeping it on the road…”

“Objection,” interrupted Mr. O’Rourke. “Conclusion.”

“What do you mean, Mr. O’Rourke?” asked Bobbie Half.

“Your honor, he can’t tell us what Mr. Head was doing in the Ace High restaurant, or even if he had lunch there. He may have just stopped to pick up a load of laundry. He can’t tell us why Mr. Head was driving slowly; there could have been a dozen reasons. He is interpreting what he saw to fit the conclusions he wishes to reach. He must stick to the facts of what he saw, not testify to his conclusions from what he saw. That invades the province of the jury.”

“Hmm,” said Bobbie, turning to me “Do you have anything to say?”

“Well, from his years of experience and training in observing drunk drivers, I believe he can testify to his reasonable conclusion as to why this behavior was taking place, your honor.”

“He has not been qualified as an expert,” retorted O’Rourke, “and so far, all we have heard is that Cecil was driving his laundry truck carefully through the middle of town, which seems to me to be very reasonable behavior. There is no foundation for any conclusion. Everyone who drives slowly down

Main Street

is not drunk!” One or two of the jurors nodded in agreement.

“John,” said Bobbie Half, talking to Deputy Candy, “I think for the moment you had better stick to the facts of what you saw.”

“Yessum,” said John.

I wondered if Robin Half had been John’s kindergarten teacher. I seemed to remember somebody telling me that she was a retired elementary school teacher. Round one to O’Rourke.

“Mr. Candy, please resume telling us what you observed,” I said.

John looked at me and resumed his story. He had been on the stand hundreds of times in his career. It is very difficult to rattle what is essentially a professional witness.

“Mr. Head proceeded across the bridge, very slowly, and then immediately he began to pick up speed. As he picked up speed, the laundry truck began to weave back and forth across the highway.”

“Did it cross the centerline?”

“Several times. Back and forth.”

“And then what happened?”

“One time the van went wide to the right, and its tires got into the soft sand on the shoulder of the highway.”

“Does that cause a problem, the soft sand, I mean?”

“Yes. When a vehicle is at speed, tires that hit a softer surface will tend to slow down. The differential in speed between both sets of tires will pull the vehicle in the direction of the slow side.”

“Which in this case, was the shoulder, off the pavement?”

“Yes, and when that happens, the natural instinct of the driver is to try to get the vehicle back on the pavement, and typically, to over correct.”

“Over correct?”

“Steer too sharply in the direction they want to go. So when Cecil’s tires sunk into the shoulder, his vehicle leaned toward the ditch, and when he turned the front tries suddenly back towards the pavement, the van lurched and tipped over.”

“Off the road?”

“Yes, to the right. It fell over down the embankment and skidded to a stop on its side. Its windshield was broken.”

“What was Mr. Head’s condition?”

“Not too good.”

“What do you mean by that?”

 “Well, when I first got to the vehicle, he was unconscious. He had a bad knock on the head, and his forehead was bleedin’. I smelled alcoholic beverages on his breath. He came to while we were waiting for the medics to arrive, and wanted to get up. I had to convince him to stay put in the van while I finished looking around to make sure fuel wasn’t leaking or anything.”

“Then what happened?”

“Well, Mr. Head watched me do my accident scene investigation until the medics got there. They examined him and extracted him from the vehicle, and took him to the hospital”

“Now, John, did you get any bodily fluid samples to establish whether Mr. Head was under the influence of alcohol?”

“Nossir, I couldn’t.”

“You couldn’t?”

“No, I needed him to tell me whether he would submit to a blood or urine sample, and he could not, because he was either unconscious or not making much sense.”

“What about a breath sample?”

“Well, it’s kinda difficult to get a person to blow into a tube when they are unconscious. And anyway, we don’t have that kind of equipment available to us. Tight budget, you know.”

“What about later, at the hospital?”

“By the time I was done securing the accident scene, and he was treated for his injuries, it was too late to get an accurate sampling. They said he had a concussion.”

“So you do not have any scientific tests to corroborate that Mr. Head was under the influence of alcohol.”

“No, I don’t.”

”However, based on your observations, before and at the accident scene and of his behavior and the conduct of the laundry truck, and your training as a Deputy Sheriff, as well as your own personal experiences, were you able to form an opinion as to whether Mr. Head was operating his vehicle under the influence of alcohol?”

“Objection,” interrupted Mr. O’Rourke. “That is a legal conclusion, and beyond the competence of this witness.”

Judge Half looked to me. This was a B.S. objection, O’Rourke just seeing if he could bully the rookie prosecutor. However, having just taken the bar exam, this time I was ready.

“Your honor, the Colorado Supreme Court has held repeatedly that a common lay person can testify from their own experience whether a person appears to be drunk. The Supreme Court has also held that a properly trained and experienced officer of the law can testify from his observations his opinion whether a person is operating a vehicle under the influence. If this were not the case, there could have been no convictions for drunken behavior of any kind before the advent of scientific tests. I can provide you the case citations if you wish.”

Judge Half looked from me to O’Rourke. Sean didn’t say anything. “Objection overruled,” she said. Round two to me!

“You may answer, Officer Candy.”

“Yes, I was.”

“Ad what was your conclusion?”

“That Mr. Head was clearly under the influence of alcohol, and that led to his driving off the road while operating his vehicle.”

“Thank you. No further questions.”

O’Rourke crossed Candy with a few perfunctory questions, knowing he wouldn’t get anywhere with him. I had no redirect. Then I got to do something really cool, for the first time.

“Your honor, the People rest.”

Then O’Rourke put Cecil Head on the stand. Cecil was small and slim, with shiny black hair slicked close to his scalp. He wore a white cowboy shirt with pocket buttons, pressed blue jeans and black shined boots. Under O’Rourke’s guidance, he related how he had stopped at the Ace High Restaurant to drop off and pick up laundry as part of his regular route, and stayed to have a burger, fries and coke for lunch. He drove slowly down

Main Street

because he wanted to stay well within the speed limit because he had had several tickets from the local police. He gave the impression of a hard working stiff who was trying to mind his own business but was unjustly put-upon by the police.

“So, did you speed up when you crossed the bridge?” O’Rourke asked him.

“Yessir, I did.”

“Why?”

“Well, the speed limit was higher! Plus, I was leaving town, and there’s nothing out that way but sagebrush.”

“Did you go faster than the speed limit?”

“Nossir, I didn’t get no speedin’ ticket, did I?” Head set his jaw and smirked right at Candy.

“Now, you heard Deputy Candy testify that you commenced to weave back and forth across the road, right?”

“Yessir, I heard that.”

“Is that true?”

“Yessir, it is.”

“Well, why did you do that?”

“The highway out that way is full of potholes. The highway department doesn’t patch them after the winter.” Several jurors nodded in agreement. “There was nobody coming the other way, and that’s an old laundry van I hafta drive. The shocks is pretty well shot on that old truck, so it’s a real jolt when you hit them potholes.”

“So, you were weaving to avoid the potholes?”

“Yessir, I was. They’re all over the road out there, for miles. I had to steer back and forth to go between them, best I could. The highway department really oughter fix them.”

“So, Mr. Head, tell us in your own words what happened when your van went off the road.”

“Well, like I said, I was goin’ back and forth to avoid them potholes, and concentratin’ real hard on where I was steerin’, y’know? I must been headin’ back to the side of the road when all of a sudden, uh, this big black bird flew up out of nowhere and distracted my attention.”

I looked up from my notes. A big black bird?

“A big black bird?” O’Rourke asked.

“Yessir, a big black bird, like a raven or maybe a vulture. You know, with big wings.”

“What happened?”

“Well sir, it flew up right in front of my truck, I don’t know exactly where it came from, it surprised me, you know? It hit smack! right in the windshield, with its wings spread and I couldn’t see where I was goin’. That’s when I went off onto the shoulder, and those vans, they’re top heavy when they ain’t loaded down, y’know. So just like Deputy Candy said, the van lurched, and when I tried to pull it back up on the road, well between those old shocks and bein’ top heavy and all, it tipped right on over into the ditch.”

“And then what happened?”

“Well, I don’t rightly know, cuz just like Deputy Candy says, I was knocked plumb unconscious. I don’t remember real clearly after that. Like he said, I had a concussion”

“And that’s why you had the accident? Not because you had anything to drink.”

“Yessir, I mean nossir, it didn’t have nuthin’ to do with drinkin’.”

“Your witness counsel.” O’Rourke turned to me when he said this, facing away from the jury, and rolled his eyes as if to say, “I take them as I get them.”

I was stunned. I had never heard anything about any bird. As I stood there, Fast Eddie tugged at my jacket. “Ask for a recess,” he mouthed.

“You honor, can I have a few moments to talk with my witness and co-counsel.”

Judge Bobbie said, “Sure, but don’t take too long. It’s getting late.”

Fast Eddie, John Candy and I went out in the hall. “What’s this about a bird?” I whispered.

“Yeah, there was one,” said Deputy Candy.

“What? Why is this the first time I’m hearing about that?”

“Well, I didn’t think it would come up,” said John.

“Well, it has!”

“And we’ve got to say something about it,” advised Eddie. “So tell us…”

“Well, when I was investigating the scene of the accident, I found this dead vulture a few feet in front of the van. But it was dead…”

“Yeah,” Fast Eddie said, “It had been hit by a laundry truck!”

“No, no, no,” protested John. “It had been dead for a while. It had dust and stuff on it. No blood or anything. It didn’t happen from the accident.”

“I’ve still got the bird,” offered Candy.

“You what?” Eddie and I asked at the same time.

“Yeah, it’s in a bag in the refrigerator.”

“Why?” I asked.

“Cecil came to just as I was moving it to so I could kneel down to look under the van. I set it down next to him while I was trying to talk him into staying put till the medics came. Then when they got there, I had to move it so they could get to him, so I figured I had better put it in the trunk of my car, as part of the accident scene.”

“So that’s where he came up with the story.”

“Must have been.”

“So what do we do now?”

“One thing’s for sure,” said Eddie. “O’Rourke won’t let you testify as to how and when the bird died. You may get by with giving an opinion on whether Head was drunk, but not on the time of death of a bird. We’re screwed.”

Just about that time, the bailiff stuck his head in the corridor. “The Judge is asking for you.”

“Be right there,” said Fast Eddie. Then to me, “Ask for a continuance. We got the bird, we can send it to the lab. Let’s go.”

We trooped back in. I went to the podium. “Your honor, I would like to recall Officer Candy to the stand, but first we would like to request a short continuance.”

“A what?” asked O’Rourke?

“A continuance,” I repeated.

“For how long?” Judge Half asked. “It’s getting late.”

“You mean a recess.” O’Rourke said.

“No, I mean a continuance,” I said.

“A continuance?” Judge Half asked. ‘What for?”

“To be able to present some additional evidence, your honor.”

“The state can’t have a continuance to gather additional evidence, your honor,” O’Rourke objected. “The state has to be ready to proceed. It filed the charges, and my client has a right to a speedy trial.”

“Mr. O’Rourke has a point. What kind of evidence?”

“To get the results of an autopsy.”

“An autopsy?”

“Of what?”

“Of the bird, you honor.”

“What?” asked O’Rourke?

“The bird that your client said he hit,” I answered.

“Well, if you have the bird, you should have done that before,” he said. “The state has to be ready to proceed at trial.”

“What do you have to say about that?” Judge Half asked.

“We were ready to proceed, your honor, but we also had the right to rely that the witness would abide by his sworn oath,” I said.

“What do you mean by that?” she asked.

“Being sworn to tell the truth, the whole truth and nothing but the truth, we had no idea that Mr. Head would take the stand and lie, so we had no idea that we would need an autopsy of this bird.”

I spread my arms hopelessly, entreating her indulgence. Attorneys all know that witnesses lie on the stand, especially in criminal proceedings, and it’s rule number one of cross examination that you never directly accuse a witness of lying under oath. But I could some up with nothing better. The courtroom was quiet, except for Fast Eddie trying to muffle his laughter. Sean O’Rourke was so flabbergasted that he was momentarily speechless.

He waited too long. Judge Half broke the silence. “That makes sense to me. How long will you need?”

I turned to Fast Eddie, and then back to the Judge. “The lab is over in Fort Collins, and we will have to work with the veterinarian’s schedule, but 3 weeks should be enough.”

”Three weeks…” started O’Rourke.

“Should be fine,” finished Judge Half.

“Your honor, they rested their case already!” he objected again.

Bobbie Half looked at him sternly. “I said, three weeks should be fine.”

We left the courtroom with O’Rourke sputtering profanities at us, “I can’t believe you’re making me come back up to this piss hole again in three weeks to listen to some bull shit autopsy on a god damn fucking bird!”

Three weeks later, we were once again in the Rangeley courtroom before the same jury and Judge Half, this time with a second witness, a veterinarian from Colorado State University. O’Rourke had settled down and resigned himself to his fate.

“Your Honor, the People recall Deputy John Candy to the stand. Deputy Candy, I remind you that you are still under oath.”

John Candy proceeded to relate how he had found a dead vulture at the scene, covered with dust and with no fresh blood, with the eyes pecked out. How he had placed the bird in the trunk of his patrol car, and carefully preserved it in the refrigerators in the evidence room at the Sheriff’s office. How he had personally packed it an ice cooler and driven it to Fort Collins, where he delivered it to the laboratory at the School of Veterinary Medicine at Colorado State University. Mr. O’Rourke had no questions.

We next called the veterinarian who had personally performed the autopsy on the dead vulture delivered to him by Officer Candy of the Rio Blanco County Sheriff’s Department. He testified to his education and credentials as a veterinarian. Given the description of the preservation of the carcass by Officer Candy, he related how he could determine the approximate time that had elapsed since the time of death by the condition of the vulture’s carcass and its organs.

“So, Doctor, based on the information testified by Officer Candy, and your examination of the vulture, were you able to determine with a reasonable degree of scientific certainty, the date of death of the vulture in question?”

“Yes, I was.”

No objection from O’Rourke.

“And what is that conclusion?”

“The vulture was dead at least a week before the date of the accident in question.”

“You’re sure?””

“Absolutely.”

Mr. O’Rourke had no questions.

“The People recall the Defendant, Cecil Head, to the stand.”

Mr. Head arose slowly from the defense table, and very reluctantly walked the fifteen feet to the witness box. He stood there with his right hand raised.

“You may be seated, Mr. Head. May I remind you that you are still under oath, and needn’t be resworn?” Mr. Head nodded sheepishly and sat down. O’Rourke just looked at the table in front of him.

“Now Mr. Head," I began, “about this bird. Would you care to tell us again how it flew up into the windshield?”

“Well, I thought it did, you know, I did have a concussion.”

“Yes, I remember that. But when you were last on the stand, I also seem to recall you remembering things quite clearly up until  you had the accident, isn’t that right?”

“Yessir.”

“And you didn’t receive the concussion until the accident, isn’t that right?”

Mr. Head didn’t say anything, obviously searching for a response. “Mr. Head?” I prompted.

“Uh, well, I suppose that’s right.”

“And before the accident, you remembered a big black bird hitting the windshield with its wings spread, isn’t that correct?”

“Uh, yessir, I did say that.”

“Well, now, are you changing your story?”

“Well, I don’t remember so good what exactly happened.”

“You don’t want us to believe that dead birds can fly, do you?”

“Maybe it wasn’t a bird.”

“Really? What might it have been?”

“Maybe it was a big rock!”

“A big rock? Maybe about this big?” I asked, holding my hands about a foot apart, about the size of the vulture carcass.

“Couldda been.Maybe it flew up when I went on the shoulder. There’s lots of gravel there, you know.”

“I suppose that’s so, isn’t it?”

Mr. Head nodded vigorously.

“Well, Mr. Head, let me ask you about something else. If I recall your testimony correctly from three weeks ago, it was the sudden impact of this black object, whatever it was, that surprised and distracted you, isn’t that correct?”

“Yessir, that’s what done it.”

Thank you, I thought to myself – that’s my story and I’m sticking to it.

“And you said that’s what caused you to drive off the pavement onto the shoulder?”

“I’m not so sure of that,” Head equivocated.

“Would you like me to have the court reporter read back the transcript of your testimony?”

“Well, I don’t know...”

“Why don’t we do that, just to be sure and to refresh everybody’s recollection? After all, it has been three weeks. Miss Reporter, could you read back that passage we talked about?”

The reporter shuffled through several pages of her transcription, and looked up at me, “You mean starting with ‘I must have been heading..?”

“Yes, that’s it,” I replied.

The Reporter unfurled her hieroglyphics and read in a monotone, with no inflection:          “Question, Mr. O’Rourke: So, then that must have occurred before the van tipped                    over, right?”

Answer, Mr. Head: I must have been heading back to the side of the road when all of a sudden, this big black bird flew up out of nowhere and distracted my attention.

Question, Mr. O’Rourke: A big black bird?

Answer, Mr. Head: Yes sir, a big black bird, like a raven or maybe a vulture. You know, with big wings.

            Question, Mr. O’Rourke: What happened?

            Answer, Mr. Head: Well sir, it flew up right in front of my truck, I don’t know      exactly where it came from, it surprised me, you know? It hit smack right in the     windshield, with its wings spread and I couldn’t see where I was going. That’s       when I went off onto the shoulder.”

“That enough,” I stopped her. “So, Mr. Head, do you remember that was your testimony?”

“Yessir, I guess it was,” he said sheepishly.

“Just a few more questions, sir. So you testified that you were still on the pavement when this black object collided with your windshield and distracted you, is that correct?”

“Yessir.”

“About how high off the ground is the bottom of your windshield? About 3 feet, maybe?”

“Maybe, that’s about right.”

“So to hit the middle of the windshield, it would have to be 4 or 5 feet off the ground, right? Mr. Head?”

“Somethin’ like that.”

“So, just how big was the wingspread on this rock?”

“Objection,” came O’Rourke out of his chair.

“Withdrawn,” I countered. He sat back down. “Let me rephrase that last question, Mr. Head. Can you explain to me how this one foot in diameter rock was four or five feet in the air in the middle of State Highway 64 so that it could collide with your windshield?”

Mr. Head just sat there, frozen like a deer in the headlights.

“No further questions, your honor.”

Mr. O’Rourke had no redirect. Closing arguments went quickly, and the jury was out less than thirty minutes, hardly long enough to read the jury instructions and figure out the verdict form. They returned a unanimous verdict of guilty, driving while intoxicated. Fast Eddie, John Candy, Sean O’Rourke and I retired to the Anchor Inn for some chicken fried steak. Cecil Head’s driver’s license was suspended. And the following week, I bought a second dresser from Bobbie Half’s antique shop.

© 2010 R. Lavers