People v. H. Head
It wasn’t long before the law had another run-in with the Head family. Cecil having lost his license, and Rangeley being a small community, he was careful to have his wife, Henrietta, drive, at least so long as they were in the town limits. Who knows what they did in the invisible vastness outside of town?
Anyway, in order to frequent their favorite watering hole, the Ace High Saloon (and restaurant!), they still had to drive to and through town. Actually, to wasn’t much of a problem. From presented the problem.
Sure enough, a few weeks after the saga of the Big Bird, Henrietta was pulled over driving away from the Ace High and charged with D.U.I. Married to a professional drinker, Henrietta was also savvy in the ways of D.U.I., so she declined a blood sample and demanded a urine test. Nobody likes being stuck with a needle, drunk or sober, so this is a logical choice, but it is also the preferred choice of habitual offenders because it is well known that the procedures for taking a valid urine test to determine blood alcohol content are cumbersome, and that the storage and laboratory procedures are fraught with opportunities for error. Void to purge, wipe to prevent contaminants, pee again, store under secure conditions at prescribed temperatures until the lab can run the test, which might not be for several days in a small burg like Rangeley. The only lab technician is unlikely to hang around at 2 in the morning just in a case a drunk is brought in. Oh, yes, and you can’t forget to maintain a duplicate sample that can be re-tested, which makes you less that popular with those who like to store their sack lunches in the refrigerator. Whoever thought this might make sense, other than defense attorneys?
Deputy Candy accompanied the local constabulary with Mrs. Head to the community hospital to take her urine sample, per her right and due request. For reasons Deputy Candy didn’t explain, the sampling was botched. “Maybe she couldn’t pee the second time?” he suggested. “That’s usually it.” Whatever the reason, once again I had a case against a member of the Head clan unsupported by any scientific evidence of being under the influence. And once again, the venerable O’Rourke was opposing counsel. But this time I had professional medical personnel as a corroborating witness – the nurse on duty, Nancy Dragonette.
I drove up to Rangeley the afternoon of the trial to meet with my witnesses and prepare my case.
Nancy could not meet with us until after work, so I met with John late in the afternoon to gather the basic facts. We set had an appointment with
Nancy at 5:30 at the Sherriff’s office in the municipal building. Trial was to start at 7, in the courtroom in the same building. John went out to get some sandwiches while I waited for
Nancy. She arrived right on time.
‘Hi,” she said shyly as she came in the door. “Are you the District Attorney?”
I couldn’t find my voice. She was stunning. My tongue suddenly seemed too large for my mouth. It couldn’t make words. Her perfect white teeth and sparkling brown eyes were framed by chestnut, bouncing shoulder length ringlets which shimmered in the overhead lights. I understood now why John may have volunteered to take Henrietta to the hospital, outside his normal jurisdiction.
I nodded mutely. “Can I hang up my coat? It’s warm in here,” she said.
“Oh, oh sure,” was all I could manage. I pointed to the coat tree by the door. I watched transfixed as she wriggled one arm, then the other out of her overcoat, and turned to profile as she hung it on the tree. It only got better. She was still in her nurse uniform, you know, those form-fitting thin little white things. Hers cupped two little mounds of perfect breasts that jiggled when she wriggled, and as her coat stripped back it revealed a slim little waist. The uniform ended somewhere near her knees above in shapely calves. She shook her hair and stood looking at me, waiting expectantly.
“Well?” she asked.
“Yes. Oh, sorry,” I replied dumbly, hastily getting to my feet and pulling out a chair for her in front on the desk. As I held her chair I took a deep breath to regain my composure when she couldn’t see me. I wiped some sweat off my forehead. It wasn’t that warm in the office. As I straightened my tie, I noticed an engagement ring on her left hand.
“Be professional,” I scolded myself as I walked around behind the desk. “What do you do?” I asked.
“THAT was stupid!” I said to myself even as she answered.
“I’m a nurse, silly. That’s why I’m here! Can’t you tell?” She struck a modeling pose in her uniform, as if to say, “Dummy.” All I could think was “Let’s play Doctor…”
I tried to pull myself together by reaching into my briefcase and setting a yellow legal pad, rustling in front of me. “God, I hope I’m not blushing,” I thought.
“That uniform will be great in front of the jury,” I said, trying to sound knowledgeable and authoritative.
“Oh, good. I wondered if I should change, but I really didn’t have time.”
“I wouldn’t change a thing,” I said, and was rewarded by a fetching smile.
“So, your name is Nancy Dragonette? That’s an interesting name, Dragonette.”
“My father was French,” she said.
“Are you from around here? I mean, originally?”
“No, I’m from
Denver. I took this job straight out of nursing school.”
“Why here? It’s kind of remote.”
“I like it out here. My father used to hunt around here. And at work, I get to do a lot more
lots sooner than if I had stayed in
Denver in a bigger hospital.”
“That makes sense to me. I’m not a big city person, either. Married?”
“No, not yet,” she smiled at me, covering her engagement ring with her right hand as she answered. I smiled back.
Deputy Candy came to my rescue, suddenly backing in the door with an armload of sandwiches and drinks.
“Hey boys and girls, I see you’ve already met. Is anybody hungry?”
“Famished,” she said, turning the bright light of her attention on John.
“Me too,” I said lamely, trying not to sound disappointed.
Over submarines and Coca cola, we got down to the business of what happened in the night of the arrest of Henrietta Head. “So
Nancy, how would you describe what condition Henrietta was in when John brought her into the hoispital?”
“Oh, man,” she said between bites of salami and lettuce, “she was drunk. Really drunk.”
“How drunk?”
“Falling down drunk. She could hardly stand up. That’s why we couldn’t get the urine sample,” she said.
“Why is that?” I asked.
“Well, you know, I took her into the bathroom there? And John said I had to stay with her, to make sure she followed the procedure right and that it was really her urine in the cup, you know?”
“God this is sick,” I thought, “I’m sitting here talking with her about taking another woman’s urine sample and all I can think about is how sexy she looks.”
“Hmm,” I said. “Go on.”
“Well, she was so drunk she couldn’t sit on the toilet! That’s why we couldn’t get the sample. I tried to hold her up and, well, help her aim, you know, but she kept slipping off the seat onto the floor.”
“And you can testify to that?”
“Oh, sure. I mean, she couldn’t even sit up on the toilet. That’s drunk.”
I had Deputy Candy who pulled her over for erratic driving and accompanied her to the hospital, corroborated by the nurse on duty who would testify that Henrietta Head was so drunk that she couldn’t sit on the toilet seat long enough to fill a plastic cup with urine. This was going to be a piece of cake. She had never testified before in court, so we went over the procedure a little bit, but we spent most of the rest of the interview time talking about other things. There weren’t that many guys her age in Rangeley. Her new fiancé was out of town for the week. She was having second thoughts about getting married so young, but he was pushing. She lived alone in her apartment. No, I’m not married either. Yes, it would be a long drive all the way back to Glenwood Springs when the trial was over.
Nancy preceded us out the office. Deputy Candy nudged me in the ribs and whispered with a conspiratorial wink, “She likes you, pardner.” Things were looking up.
Deputy Candy and I took our places at counsel tale in the courtroom just before 7 o’clock. Nancy Dragonette sat behind the rail, just in back of us. I said “Hi, Bobbie,” to Judge Half, and hello to O’Rourke. “No continuances tonight, right?” he asked. “No, I don’t plan on it,” I laughed back. Henrietta head didn’t laugh. Neither did Cecil, seated in the gallery behind the defense table.
Voir dire and jury selection went quickly. Soon we had a mixed jury of men and women impaneled. In opening statements, I told them that we would not be presenting any scientific evidence of intoxication, so that O’Rourke couldn’t make hay out of revealing that lack to them and confusing them with demands of scientific proof. However, I reminded them that people in their common experience were perfectly capable of determining whether other people were drunk, or not, and this was true long before they invented alcohol blood tests, even before there were cars – the jury nodded appreciatively at my little joke - and that the issue before them was not the percentage of alcohol in Mrs. Head’s blood, but whether she was too drunk to safely operate a car. Blood alcohol level was just one kind of evidence, a way to conclusively show that based on a presumption written into the law that above a certain percentage, you could not operate a car safely. However, that was just one kind of evidence, and the other was the observations of eye witnesses. When I sat down, I felt I had pretty well de-fanged our lack of scientific blood alcohol evidence. O’Rourke surprised me by deferring his opening statement until the beginning of his side of the case, so we began.
Deputy Candy did well on direct, as expected. He was parked near the river when he observed a blue sedan driving erratically from the direction of the Ace High. Erratically meant weaving across the center line. He pulled the car over and smelled alcohol on the breath of the driver, so he asked her to dismount the vehicle. She appeared to be driving under the influence of alcohol. Her speech was slurred. He did not have her perform a field sobriety test (walking a straight line, closing her eyes and touching her finger to her nose, standing on one leg, etc.) because he deemed her incapable of performing it. Instead, he placed her in his car and took her to the community hospital.
Cross did not go so well. O’Rourke was good. He had done hundreds of drunk driving cases.
No, Candy did not see Mrs. Head get into her car, so he did not see her walk before she got in the car, and he could not say that she actually came from the Ace High, only from that general direction. Yes, the Ace High was a restaurant as well as a tavern. And yes, it was true that anybody proceeding on the main road through town heading west would come from the direction of the Ace High. So in fact, he had no basis to conclude from that observation either that she had been drinking, that she was coming from the Ace High, or even that she had been in a bar. How long had he seen the blue sedan proceeding from his vantage point? Less than a minute, just a block, maybe two. And just how was it proceeding erratically? Weaving across the center line. Not big wide sweeping weaves. No, the car did not completely cross the centerline. And how many times had the blue sedan wandered across the centerline? He wasn’t sure, maybe two or three times. Maybe one or two times? Yes. Maybe only once? He didn’t think so. Yes, he had observed people driving cars who straddled or went across the centerline who were not drunk. More than once. Yes, he himself had on occasion been driving a car that inadvertently went across the centerline. What does alcohol smell like? Deputy Candy had difficulty describing it (try it yourself – how would you describe it)? Had he ever smelled cough syrup? Of course. It smelled sweet, too. Did he know that cough syrup had alcohol in it? Yes. Could he tell the difference between cough syrup smells and say, the smell of a Cosmopolitan? Yes, he thought so. Had he ever tried it on a blind test basis? No, he hadn’t. He did not ask her to do a field sobriety test? No, he did not. He just decided that she would fail? Yes, that was his conclusion? Wasn’t the whole purpose of the test to see if she would fail, or pass? Yes, it was. But he just concluded on his own that she would fail without letting her try? Yes. But then he took her to the community hospital for samples for a blood alcohol level test? Yes. But why would he do that if he had already concluded that she couldn’t pass the field sobriety test? Standard procedure. And this was the test that the District Attorney said he was unable to enter into evidence? Yes. Isn’t it standard procedure to get attest done if you take person fro their car to the hospital to get the test? Yes. But that wasn’t done in this case? No. Just like they field sobriety test is standard procedure? Yes. But that wasn’t done in this case, either?
Deputy Candy didn’t look so good, and I was pissed. Not at him. It wasn’t his fault. He answered truthfully. At myself. I hadn’t covered the field sobriety test enough on direct, and I hadn’t prepared him for this kind of cross examination. Instead, I had been making goo-goo eyes at Nancy Dragonette. I tried to minimize the damage on cross. We emphasized how long he had been with the department, what training he undergone in recognizing people under the influence of alcohol, what the symptoms were. That he had stopped the car because of the erratic driving, but he had not concluded Mrs. Head had been drinking until after he had stopped the car. He tried to slip in that she habitually hung out at the Ace High bar, but O’Rourke objected tat there was no foundation based on his testimony that she had been there, and his objection was sustained – and so Candy looked like he was trying to say something that Judge Half ruled he shouldn’t. We were able to establish that he didn’t administer the field sobriety test be he observed she had difficulty standing, and though she would fall and might even hurt herself if she tried to walk toe to toe or stand on one leg or shut her eyes to touch her nose. But he couldn’t talk to her condition in the hospital bathroom because he couldn’t accompany her or see her there. But we still had our nurse, “She was so drunk she couldn’t sit on the toilet seat without help.”
I couldn’t see it during Candy’s examination, because she was seated behind me and my attention was on Candy and O’Rourke, but as O’Rourke systematically ripped holes in Candy’s credibility, Nancy Dragonette became increasingly apprehensive. When she was sworn in, she looked like the proverbial deer in the headlights – but still enticingly delicious. Things were going to be ok.
I took her through the standard questions to settle her down. Easy stuff, name, address, how long she had been in Rangeley, where she worked, what her duties were. What she was doing when Deputy Candy and Mrs. Head came in. What the procedures were for taking a urine sample to determine blood alcohol levels. She made a good presentation, attractive and competent.
“Did you have occasion to observe Mrs. Head’s behavior?”
“What do you mean?”
“Well, did you see her walk, did you talk to her?”
“We really didn’t talk. Deputy Candy just said that they were there for the urine sample, and that I should accompany her to the bathroom to make sure it was done properly.”
“Did she walk to the bathroom?”
“Well, sort of.”
This was not going well. An experienced witness would have responded, ‘No, she couldn’t walk by herself,’ or something similar. She was too nervous. I was going to have to drag it out of her.
“What do you mean, sort of?”
“Well, Deputy Candy walked with her, he held her by the arm.”
“Because she could not walk by herself?”
“Objection,” interrupted O’Rourke. “Calls for a conclusion. There’s no foundation. There is no testimony that Miss Dragonette saw Mrs. Head walk by herself.”
The objection was sustained.
“Did you see Mrs. Head attempt to walk by herself?”
“No, not really,” she answered.
No matter. The real deal was coming – ‘she was s drunk she couldn’t even sit on the toilet seat.’
“Ok, now then, you accompanied her into the bathroom, is that correct?’
“Yes,” she breathed.
“Did you observe anything unusual about her behavior while you were with her in the bathroom?”
“What do you mean, unusual?”
“Shit – just say she couldn’t sit on the toilet seat, can’t you?” I though to myself, beginning to lose my temper. “What do I ask her without drawing leading objection?”
“Well, anything that might lead you to conclude whether or not she was intoxicated?”
“Oh, I don’t know if I could do that.”
“What?” I said to myself. O’Rourke looked up from the defense table, smelling blood. He opened his mouth to speak and half rose.
“I beg your pardon?” I blurted before O’Rourke could say whatever he was planning to say. “Why not?”
“I couldn’t say whether or not she was intoxicated.”
O’Rourke sat back down.
“What?” went racing through my brain again, “Why can’t you just say what you said to me three times not more than an hour ago, that she was so drunk she couldn’t sit on the toilet seat without help?” I just looked at her for a moment.
“Well, did you not form a conclusion as to whether Mrs. Head was intoxicated?”
“Objection. Asked and answered. The witness just admitted she was incapable of making such a judgment.”
“Sustained.”
“Did you obtain the urine sample?”
“No, we did not.”
“Why not?”
“Mrs. Head couldn’t pee into the cup.”
“God damn it, can’t you just say she was too fucking drunk to sit on the toilet without help?” I screamed to myself.
“Why not?”
“Well,”
Nancy looked a little embarrassed. “She had trouble aiming?”
The jury tittered sympathetically.
“SHE-WAS-SO-FUCK-ING-DRUNK-SHE-COULDN’T-FUCK-ING-SIT-ON-THE-FUCK-ING-TOILET-SEAT, YOU-FUCK-ING-NO-MIND!” Of course, I didn’t say that, I just wanted to.
“Could she sit on the toilet seat?” I asked.
“Objection. Leading the witness.”
“Sustained.”
“Why did she have trouble aiming?”
“Objection. Calls for conclusion as to state of mind.”
“Your honor, I’m not asking about her state of mind. I’m just trying to find out what Miss Dragonette observed that caused her to believe that Mrs. Head had trouble aiming.”
“That seems reasonable,” said Jude Hoff.
“So long as The District Attorney isn’t trying to lead her into testifying whether or not Mrs. Head was intoxicated. Miss Dragonette has already testified that she is not competent to testify as to that,” aid O’Rourke.
“Yes,” agreed Bobbie Half, “So long as you don’t try to lead her into testifying whether or not Mrs. Head was intoxicated. Please proceed.”
“Thank you, your Honor,” I said. “You may answer the question, Miss Dragonette.” I sent brain wave messages as hard as I could, “The answer is, she couldn’t fill the cup because she was so drunk that she couldn’t stay on the toilet seat by herself…”
“Oh, dear,” said Miss Dragonette. “I’m afraid I don’t remember the question.”
“That’s all right, Miss Dragonette. Just relax, and I’ll ask it again. I’ll even rephrase to make it clear that I am not asking you to make a conclusion about Mrs. Head’s state of mind. OK?”
“Yes, OK,” she said nervously.
“OK, then. What did you observe that made you believe that Mrs. Head had trouble, er, aiming her urine to get it in the sample cup?”
I wanted to add, “You twit, just say she kept sliding of the toilet seat.”
“Why did I believe she had trouble aiming?”
“Yes.”
“Because she kept missing.”
‘Oh my God,’ went through my brain.
“Anything else?”
“Objection. Asked and answered. Leading the witness.”
“I’m afraid I have to sustain that objection.”
There were no further questions of any consequence. O’Rourke didn’t cross examine. He knew not to screw up a good thing.
I had no more witnesses. ”The prosecution rests.”
O’Rourke didn’t even put on a witness. We went straight to closing arguments. O’Rourke hammered on reasonable doubt.
Deputy Candy never saw where she came from and never saw her take a drink. He did not have Mrs. Head do a field sobriety test, and for some unexplained reason, the state did not offer a blood alcohol test, even though Deputy Candy took her to the hospital precisely for that reason. Miss Dragonette could not form a conclusion as to whether or not Mrs. Head was intoxicated. If she, there and on the scene that very night, could not form such a conclusion, how could they, in this courtroom several months later, with no field sobriety test and no scientific evidence of blood alcohol levels, make such a conclusion, especially beyond a reasonable doubt? And remember, she did not have to take the stand in her defense, as she was presumed innocent unless proven guilty, which was the burden of the State of
Colorado.
My argument? Well, I couldn’t comment on Mrs. Head not taking the stand in her own defense to say where she was really coming from and what did happen or did she even remember anything about that night, because that is not allowed, regarded as an infringement against her Constitutional right against self-incrimination. And, I couldn’t say she was so fucking drunk she couldn’t even sit on a toilet seat. And I couldn’t say the nurse on duty said she was intoxicated. And I had not scientific evidence of a blood alcohol level that would create a legal presumption that she was under the influence of alcohol. So, I reminded them of Deputy candy’s training and testimony about her erratic driving behavior, her slurred speech and his conclusion that having her do a field sobriety test was unnecessary because there was no way she would have passed in her inebriated condition.
Judge Half gave the jury their instructions and they filed out to the jury room. Deputy Candy, Miss Dragonette and I retired to the Sheriff’s office to await the verdict. As soon as we shut the door, I couldn’t wait anymore, I was just shaking my head.
“
Nancy, why wouldn’t you say she was intoxicated? I mean, you told me time and again that she was so drunk that she couldn’t even stay on the toilet seat with out help!”
She looked at me with her big doe eyes. “Why, you didn’t ask me if she was drunk.”
It took me a minute to process what she had said. I just looked at her, a little bit dumfounded. I looked at candy. He rolled his eyes to the ceiling and said nothing. Finally I asked, as nicely as I could muster, “
Nancy, what’s the difference?”
She said nothing. She just kept looking at me.
Her eyes started to fill with water. “I didn’t think I could say she was intoxicated.” She mumbled.
“I’m not a doctor.”
“Yes, I know that. You’re a registered nurse.”
“But only a doctor could say whether or not she was intoxicated.”
“What?” I asked.
“Only a doctor could say whether or not she was intoxicated,” she repeated.
“
Nancy, drunk is just intoxicated with alcohol. In fact, I think drunk and intoxicated are synonyms for each other in the dictionary.”
“But I thought only a doctor could say whether or not a person is intoxicated,” she repeated.
I just shook my head, “No.”
“I’m sorry,” she mumbled. “I didn’t know.”
“But then why didn’t you just say that she couldn’t even sit on the toilet seat without help? That’s why she couldn’t pee in the cup?”
“I don’t know,” she said lamely. “I guess I was nervous. My mind just went blank. ..I screwed up, didn’t I? Is she going to get off because of me?” Her lower lip trembled.
“I don’t know. That’s up to the jury. But it sure would have been a lot easier if you had just said up there what you told me in here.”
“It is my fault, isn’t it?”
“No, that’s ok,” I said. “It’s not your fault. If she gets off, it’s my fault. I should have made it clear to you exactly what I expected you to say. I should have gone over the exact question I was going to ask and the response I expected. I didn’t. That’s my fault.”
“I’m sorry,” she said again.
“It’s ok,” I said. “All we can do now is wait.”
“Do I have to wait? I have an early morning shift tomorrow,” she said.
“No, you don’t have to wait. It may be a while before they come back in. You go along. We’ll tell you what happens.”
She stood up to retrieve her overcoat from the tree. As she stretched over to reach it, her skirt slid up her leg, exposing more of her thigh. I couldn’t tear my dirty mind away from the way her body moved under that trim little uniform.
“Thanks,” she said at the door. “And I really am sorry that I screwed up.”
No, ‘See you later?’ or ‘Here’s my phone number, I’ll wait to hear from you’ or ‘Please come by afterwards and jump my bones…’
“Thank you,” I said. “And you didn’t screw it up,” I lied to her back as she stepped through the door.
Not the parting I had hoped for. I looked at Candy. He shrugged his shoulders. “Hey, if it gets too late,” he said, “I can clear out the bunk in the cell, and you can sleep there tonight.”
“Great.”
It got very late. Despite the lack of all the good ev8idence, the jury was evidently having a difficult time with this case. A little pasty midnight, Bobbie Half called us back into the courtroom. The jury filed in and took their seats.
“Mr. Foreman, has the jury reached a verdict?” she asked.
“We have, your Honor.”
“Will the defendant please rise?” Mrs. Head stood up and faced the jury.
“And what is that verdict, please?”
“We find the defendant not guilty,” announced the foreman.
Bobbie thanked the jury for their service, and exchanged good nights with counsel. We dispensed with the usual post-trial banter as we were all tired. Besides, I really wasn’t in the mood. Mrs. Head gave me a triumphant look as she left the courtroom.
“You want me to fix up that bunk?” Candy asked.
“No. Thanks anyway, but I’ll pass,” I said. “I’ll just drive on home.”
But I didn’t get home that night. Two thirds of the way to Meeker, my engine quit on me. There were no cell phones in those days, no traffic on this road late at night, and nothing but coyotes, elk and mule deer for miles in all directions, so there was nothing to do except try to keep from freezing in the chill mountain fall air. I pulled out a blanket from a road emergency kit that I kept in my trunk, and huddled beneath it in my parka in the back seat until morning, teeth chattering while I tried to keep warm with thoughts of Nancy Dragonette. I woke in the early morning, startled to be surrounded by a thick fog and dozens of ghostly figures – elk that had come down from the cold in the high country to stand on the pavement and enjoy the heat it gave off from what it had absorbed from the sun during the day. An hour later, a rancher on his way to town stopped, and gave me a ride into town in his pick-up.
I never saw Nancy Dragonette again. I suppose she eventually married her fiancé.
