05.A.Descent.Into.Hell.2008 (42 page)

“I don’t know,” Pitonyak said.

The prosecutor displayed the photo of the cuts on her chest, and asked the same question. Again, Pitonyak answered, “I don’t know.”

“Who put her hands in the bag?” Bishop demanded.

“I don’t know,” Pitonyak said.

“Who put her head in the bag?”

“I don’t know.”

“How long did it take to cut her head off?” Bishop asked.

“I don’t know,” Pitonyak replied.

Bishop asked if Pitonyak purchased the hacksaw because the machete wasn’t working, and he again insisted that he wasn’t the one wielding the weapon.

“But your DNA is on the grip,” Bishop pointed out.

“I didn’t use the machete,” Pitonyak answered, kneading his hands and appearing nervous. “I admit it was my machete, but I didn’t use it.”

Bill Bishop eyed Colton Pitonyak with total disgust. “I have no further questions, your honor,” the prosecutor said.

On redirect, Roy Minton attempted to repair the damage. “The last number of questions that Mr. Bishop asked you were about who had done those things to Jennifer’s body. It was either you or it was Laura. Is there any question about that?”

“No there is no question,” Pitonyak said. He looked angry, but controlled. “I know I didn’t do those things.”

Then, Minton asked his client, a young man who contended he was so drugged and drunk that he couldn’t remember shooting and killing Jennifer Cave, dragging her body to the bathtub, or the bloody result, “Is it clear in your mind that it was Laura?”

“I can’t think of any other options,” Pitonyak said.

As if it were a deep confession, something he was ashamed of, Pitonyak admitted he’d lied to the hardware store owner about the purpose of the hacksaw. Colton, Minton said, had to realize that since he bought the tools, he was as guilty as “if you’d been capable of doing it?”

“Yes, sir,” Pitonyak said.

In his self-description, Colton Pitonyak was a young man who wasn’t able to do such a ghastly act. He was too weak-stomached. Then, Minton, again, portrayed his client as little more than a youngster, asking about the paintball guns found in his apartment. What had Colton done with them? He’d horsed around like a college kid.

“My friends and I used to have little…play games of war with them,” Pitonyak said, smiling.

“Here in Austin?” Minton asked.

“Yes, sir.”

With that, at 2:30 that Friday afternoon, Colton Pitonyak left the witness stand, while in the background his mother could be heard crying.

A key defense witness wasn’t available until Monday, so testimony was about to wrap up for the week, when Sam Bassett called a last witness. Javier Rosales walked into the room. A construction worker, he’d been brought in directly from his job, wearing jeans and a bright yellow T-shirt with a tropical cocktail on the back. Prosecutors had just heard about Rosales the day before, and Detective Fugitt tracked him down and took his statement the previous night. Rosales had worked as a waiter at Baby Acapulco, the same loud, brightly painted Mexican restaurant where Laura Hall waitressed for a period after the killing. As usual, it would soon become evident that Hall hadn’t been averse to talking about the killing.

“As soon as we listened to what Rosales would say, we knew we wanted the jury to hear it,” says Sam Bassett.

“What did Laura Hall tell you?” Bassett asked.

“That she masterminded the escape, and would have gotten away if she hadn’t called her father,” the heavyset man said. But then, Rosales said Hall had told him something else, something that didn’t jibe with what Colton Pitonyak had just said on the witness stand, something that didn’t bolster the defense: “that she
helped
cut up a human body.”

As the jury and spectators left the courtroom, McFarland thought that it had been a good day for the prosecution. Pitonyak hadn’t been believable on the witness stand, she judged. His story had too many holes, too many conveniently remembered memories versus his insistence that he remembered nothing of such grisly scenes as the cutting up of Jennifer’s body. As for Javier, he’d only reinforced the prosecutors’ views: that Colton Pitonyak was the one who’d done the major work dismembering the body. McFarland had one more thought: She hoped Laura Hall was watching the trial. She wondered how Hall felt hearing that Pitonyak laid the blame for the dismemberment entirely on her shoulders.

“Pitonyak was on the stand burying Hall, to save his own hide,” Bergman concurred. “He’d used Laura Hall for sex, and he was using her again.”

Much of the courtroom cleared out, with the exception of a few reporters and the two families, as Judge Flowers took up with the attorneys the most important legal argument of the trial: the defense attorneys’ request to give the jury the option of lesser charges against Pitonyak, specifically the additions of manslaughter and negligent homicide.

“Do you have an opinion on that?” Flowers asked the prosecutors.

“My position is that they haven’t raised evidence in such a manner as to deserve any consideration,” Bishop responded. Colton Pitonyak hadn’t gotten on the stand and testified to either shooting Jennifer as she attacked him, in self-defense, or holding the gun and having it accidentally discharge and kill her. Saying he wouldn’t have done it on purpose, Bishop argued, wasn’t enough.

“I want to know why you think you’re entitled to it,” Flowers asked Minton.

“We believe the evidence raised issues and we’re entitled to it,” Minton said. He went through the points they’d raised during the trial, including that Pitonyak said he didn’t know the gun was loaded, that the defense expert testified it could easily misfire, and that Pitonyak insisted he and Jennifer were friends and he wouldn’t have killed her on purpose.

The gun was so bad, Minton said, that it was more than likely that the shooting had been an accident. “I’m ashamed Smith and Wesson put it out,” he added, his voice rising emotionally in the courtroom.

The evidence to support a lesser charge wasn’t there, Bishop responded. “The possibility of an accidental discharge doesn’t raise the evidence, or it would in every court and every murder.”

With the fervor of a preacher pounding home the message of the week’s gospel, Roy Minton repeated Colton Pitonyak’s version of the events that led up to the murder. The gun had been in the house for only forty-eight hours. He didn’t know it was loaded. There was no evidence that showed any altercation, nothing to suggest there’d been a struggle. And the prosecutors had no motive. They’d shown no evidence of any prior violence or even anger between Colton and Jennifer.

Judge Flowers, looking tired, said, “I will read some cases on it.”

The weekend was a sad one. Sharon thought often of Jennifer, wondering what she’d seen in Colton, why she continued to be his friend. The trial was expected to conclude the following Monday, and they drove back to Austin and checked in at the Radisson on Sunday afternoon. That evening, Sharon and Jim had dinner with Jack and Tracey Bissett. When Sharon was in the lobby, she noticed Eddie Pitonyak walking toward her. It was obvious that he didn’t recognize her at first, and she simply crossed her arms and stood her ground. When he looked up and saw her, he turned and walked away.

At 8:30 the following morning, Judge Flowers was on the bench, and Minton and Bishop again argued that lesser offenses with shorter maximum sentences should be included in the charges against Pitonyak. Doing so would give jurors more options to choose from, increasing the chances of a lighter sentence. It was the ball game for Minton and Bassett. They needed that lesser charge to ensure that the jury, so horrified by the photos, didn’t come down hard on their client. To counter Bishop’s charge that they hadn’t presented sufficient evidence to support a lesser charge, Minton said that was coming. “[The reason] we are putting Dr. Richard Coons on is to discuss the effect of alcohol and Xanax on the brain, to explain how the memory works,” Minton told Judge Flowers.

“I don’t think it’s helpful to the jury for someone to say this is an accident due to alcohol and drug abuse,” Bishop countered.

Dr. Richard Coons, a favorite in Texas law enforcement, was an expert witness used by prosecutors and defense attorneys alike. Minton argued that Coons would explain that Pitonyak probably didn’t remember that night, by detailing the effects of drugs and alcohol. The judge considered Minton’s suggestion, then announced he’d made his decision. The only charge the jurors could consider against Colton Pitonyak was murder. Disappointed, Minton walked back to the defense table, Bassett beside him. They’d fought hard, but they’d lost.

Minton’s first witness on the stand that Monday morning was Bridget Pitonyak, there to tell the jury about the night in February 2005 when she and Eddie went out to dinner at Sullivan’s steak house with Colton and his group of friends, including Jennifer and Scott. “Anything unpleasant about that experience?” Minton asked.

“No,” Bridget said. It had been a cordial evening. Her son liked Jennifer. The implication: He wouldn’t have intentionally killed her.

On cross-examination, Bill Bishop asked Bridget to focus on August 17 and 18, 2005, the time of the killing. “Do you recall sending your son several messages?” he asked.

Bridget said she did. Colton had text-messaged that he was going to Houston. She didn’t dispute that she might have text-messaged and told him it was driving her crazy “not knowing what’s happening.”

“Did he tell you what happened in Austin?” Bishop asked.

“No,” she said.

“Did he tell you why he went to Mexico?”

Again, Colton’s mother insisted, “No.”

On the witness stand, Richard Coons was impressive, tall, solidly built, with glasses and graying hair. A forensic psychiatrist, Coons had testified in many of the most sensational cases in Texas history, including a few years earlier in the trial of Celeste Beard, a former country club waitress, for the murder of her multimillionaire husband. Not only was Coons a medical doctor, but he had a degree in law from the University of Texas, and he was more than comfortable in a courtroom.

“Have you done work for the DA’s office in Austin over the years?” Minton asked.

“For thirty-two years,” Coons said. Answering questions, Coons explained how memory works, how the brain stores it in layers that consist of immediate, short-term, and long-term in the hippocampus, the part of the brain central to memory. Then he discussed the possible effects of alcohol and Xanax on the brain. Large amounts of both combined, Coons said, “and you can’t lay down the memory.” Using the drugs over a long term and in large amounts had “an additive effect.”

Yes, Coons said, the result could be blackouts, whole periods of time that were unaccounted for when no memory existed.

“Take someone twenty-two years of age who is drinking one fifth to a quart of vodka daily and using Xanax, two, three, four, five of those pills a day. Is it inconsistent that he has forgotten an entire day or an entire night? Can it be blocked so entirely?” Minton asked.

Bill Bishop objected, saying the question had already been asked and answered, but the judge allowed Dr. Coons to answer, “It will impair the memory for all the time you are sufficiently intoxicated.”

“During that period of time, you don’t have any memory to pull back up?”

“Yes.”

The prosecutors asked Coons no questions, and at 9:30 that Monday morning, the defense rested.

After Dr. Coons left the witness stand, Sam Bassett rose to register an objection to be officially entered in the trial transcript. “We object that the charge does not include manslaughter and criminally negligent homicide,” Bassett said, preserving the objection for appeal, as the court reporter, Rita Grasshoff, typed his words into the official record.

Judge Flowers ordered a twenty-minute break, and then closing arguments would begin.

Thirty

At 9:50 that Monday morning, court reconvened. The two alternate jurors were dismissed, and Judge Flowers read the charge to the remaining twelve, the law they were to adhere to when deciding Colton Pitonyak’s fate. There were aspects that cut both ways. “Voluntary intoxication does not establish a defense to a crime,” Flowers read. “…the burden of proof rests with the state” and “if you have any reasonable doubt, thereof, you will find the defendant not guilty by your verdict.”

“Ladies and gentlemen,” Stephanie McFarland said, walking up to the jury, as she began closing arguments. On the screen Bishop projected the Burger King receipt from the day of the killing. “Colton Pitonyak didn’t like onions. Colton Pitonyak didn’t eat onions. You should believe that not because the defense told you but because it’s supported by the evidence, the undisputed evidence that this man,” she said, pointing at Pitonyak. “Shortly after buying a hacksaw to carve up his friend, he stopped at Burger King and ordered a meal, and remembered to make sure it didn’t have onions…You need to rely on the undisputed evidence in this case. The defendant’s testimony is full of inconsistencies not supported by the facts.”

Quickly McFarland zeroed in on the issues she knew the defense would emphasize, that there’d been no evidence of an argument or a struggle and that the prosecutors hadn’t proven Colton Pitonyak had any reason to kill Jennifer Cave.

“The state didn’t need to prove motive,” she maintained. “Specific intent is formed in an instant.”

During voir dire, Roy Minton discussed manslaughter and criminally negligent homicide with the jurors. “[Those options aren’t in the charge] because there’s no evidence disputing that this act was knowingly and intentionally [committed],” she said. “The law says that if you kill someone with a deadly weapon, then specific intent can be inferred. There is no evidence that this was an accident.”

McFarland stood and looked at the jurors, from one face to the next: “Their whole case is ‘I don’t remember, but I know it couldn’t have been intentional.’” Pitonyak, she said, wasn’t credible. He would lie to keep from going to prison; he was a drug addict and a dealer. “Don’t be fooled by his nice hair cut and nice suit.”