Summer Theater, Covelo

They don’t have a playhouse in Covelo. Theater lovers have to travel to the courthouse in Ukiah to enjoy Round Valley's summer rep.

“It must be a slow news week,” Justin Petersen said. He was speaking to a reporter who happened to be at a hearing for his client, Ernest Merrifield, of Covelo.

It was a slow news week. But an unneighborly spat in Mendocino County's Far East provided some pretty good entertainment.

No, the Merrifield matter wasn’t earth-shaking. In fact, it scarcely qualified for the criminal calendar, but on a dull day in midsummer Ukiah where formal entertainment is pretty thin it filled the bill.

A large audience looked on, many of them whispering to their friends, and hissing and gasping, as the drama unfolded.

Disputes between neighbors, as any cop can tell you, run along predictable lines. When the cops arrive everyone starts pointing at everyone else and often even the combatants have trouble remembering exactly who was the aggressor and who was the victim.

In this case Deputy DA Scott McMenomey had it all backwards.

His victim, Tammy, had certainly looked like a victim when she was found outside her Covelo home in February, late at night, without her pants or shoes. She said she’d been attacked by the defendants — Ernie Merrifield and his daughter Marla. The Merrifields, the allegation went, had been assisted in their father-daughter assault by a third person whose role in the events wasn't made clear.

Defense attorney Justin Petersen was speaking for the Merrifields. He put Ernie Merrifield on the stand, and we soon learned that Tammy had been on an alcohol-induced rampage culminating in an all-out frontal attack on the Merrifield home.

How Tammy lost her pants was, I guess you could say, kind of like the ancient theater maxim that if you introduce a gun in Act One, that sucker better go off before the play's over. In this one, Tammy's pants was the gun. We all wondered in Act One how the heck she'd lost them.

They set the stage in court by having the witness draw a diagram of the crime scene. Every courtroom has a big pad of butcher paper on an easel at the front of the room next to the witness stand. Mr. Merrifield sketched his property lines, the position of his house, the location of the fences and so on as his attorney, Mr. Petersen, asked him to put this in, put that in.

Petersen: “Now, this line here, at the bottom of your diagram, is that the fence? Does that line represent the fence running along the south side of your 10-acre lot?”

Merrifield: “Yes, that’s the fence that Tammy was driving the truck along that night.”

Petersen: “Where was she?”

Merrifield: “She was right up against the fence.”

Merrifield was equipped with a pointer that the court bailiff, Deputy Art Barkley, had given him. He tapped the bottom of the diagram with the pointer and said, “She ran over some blackberry bushes right about here. And at this point, she ran right up against the fence.”

McMenomey: “Objection, non-responsive, move to strike.”

Judge Anne Moorman: “Sustained.”

Seemed responsive to me and I wondered why the judge had agreed that it wasn't. Then I learned why the judge had disallowed Merrifield's answer. Merrifield had answered prematurely and a little too thoroughly.

Petersen: “Ernie, you have to wait and let me ask the questions, okay? Now, let me see if I follow you so far: You said she came along the fence here, ran into the blackberries here, and went up against the fence, is that correct?”

McMenomey: “Objection. Counsel is leading the witness.”

Petersen: “I was merely trying to clarify the testimony so far, your honor.”

Moorman: “Overruled. You can answer, Mr. Merrifield.”

Merrifield: “Yes, that’s right.”

Petersen: “Then what, if anything, happened?”

Merrifield: “She backed up and rammed into the bushes and the fence again, but couldn’t get through so she backed up and proceeded in this direction.”

The witness indicated with his pointer that Tammy was headed in the direction of his house, piloting her vehicle like a battering ram.

Petersen: “What did you do?”

Merrifield: “I was hollering at her, saying ‘Tammy get out of here!’ and Marla was—”

McMenomey: “Objection, non-responsive.”

Moorman: “Sustained.”

Petersen: “Hold on, Ernie. Let’s back up. Where was Marla?”

Merrifield: “She was on the porch with her cellphone taking pictures.”

Petersen: “What did Tammy do?”

Merrifield: “She revved up her engine and raced in this direction.”

Petersen: “Where were you, at this time?”

Merrifield: “By then me and Marla, we were down in this area here, in front of the porch, and when she came toward us, we scattered.”

McMenomey: “Objection! Non-Responsive! Move to strike!”

One of the objectives of lawyering is to make it difficult if not impossible for the opposing party to clearly state their case. To do that they yell out objections to interrupt the narrative flow, hoping to confuse things. Some judges allow the cheap tricks, others do not.

Moorman: “Overruled.”

Petersen: “What did you do?”

Merrifield: “I put up my hands, like this, and said, ‘Tammy, stop!’”

Petersen: “Did she stop?”

Merrifield: “She did stop, but not because of me, but because of the planter and the cherry tree—”

McMenomey: “Objection, non-responsive and we’ve heard nothing of any planters or fruit trees.”

Obviously, Tammy was trying to pile into the Merrifields and their house when things got in the way.

Moorman: “Sustained. Counsel, rephrase.”

Petersen: “Your honor, perhaps if we could get some different colored markers, we could add some other features to the diagram.”

Bailiff Barkley produced a bag of colored markers, and somebody in the audience snickered, “Where’s the coloring books? Is that what these guys do all day?”

Judge Moorman glowered in the direction of the snickering and proper courtroom decorum was restored.

Petersen: “Now, Ernie, if you could draw on the diagram a blob with this yellow marker where the planter was…?”

Moorman: “Mr. Petersen, do we have to say ‘blob’?”

Petersen: “Well, no, your honor. Is there some other term you would prefer?”

Moorman: “Yes, there is. Why don’t we call it a spot or a circle, or something like that?”

McMenomey: “Your honor, I have no objection to calling it a spot, a dot or a circle.”

Moorman: “Mr. Petersen?”

Petersen: “I’ll stipulate to spot, your honor.”

Moorman: “Alright, then. The inelegant term ‘blob’ will be replaced with the much more appropriate word ‘spot.’ Mr. Petersen, you may proceed.”

Merrifield drew the “spot.”

If you'd heard this exchange at the Geary Theater you'd think maybe Sam Beckett had written it.

Petersen: “So that is where the planter with the cherry tree was?”

Merrifield: “Yes, and the peach tree was over here.”

McMenomey: “Objection! Non-responsive. Move to strike!”

O hell yeah. Gotta get the peach tree sorted out from the cherry tree.

Moorman: “Overruled, Mr. McMenomey. But let’s have the peach tree in a different color, shall we?”

Petersen: “By all means, your honor.” Mr. Petersen sorted through the bag of markers and selected one. “How ‘bout this nice lavender, your honor?”

Moorman: “Yes, that would be very appropriate.”

Yes. A lavender peach tree. Of course.

Murmurs of approval arose from the audience — or was it snores?

Petersen: “And so this is where the truck came to rest?”

Merrifield: “Yes, that’s where she stopped.”

Petersen, flourished a sheaf of 8x10 color photographs: “With the court’s permission, I would like to submit these photos…”

McMenomey: “Objection! I haven’t seen those pictures!”

Petersen smiled obligingly and held the pictures up for McMenomey to see, perhaps not inadvertently giving the audience an eyeful as well. We saw a white truck with the door open, some articles of women’s clothing, a bottle of booze in the cup holder, a woman on the ground wearing nothing but a hoody. This photo had been chastely cropped at the waist.

McMenomey: “No objection, your honor.”

Petersen: “When were these photos taken?”

Merrifield: “The next day, February 9th, by my daughter, Marla.”

Petersen: “Now, you heard Tammy testify on the stand that Marla came out of the house and cussed up a blue streak — is that what you saw?”

Merrifield: “No. All Marla said was, ‘My dad called the police and they’re coming to take you to jail.’ I had just gone in the house to call 911 — even though Marla had called when we saw her coming down the fence.”

Petersen: “Did you make the call?”

Merrifield: “No. I was going up the steps of the porch when the truck door opened and here comes Tammy out—”

McMenomey: “Objection! Non-responsive! Move to strike!”

Moorman: “Overruled.”

Petersen: “Your honor, we’d like to play the video from Marla’s phone.”

This was easier said than done. The high tech equipment at the Courthouse is state of the art, but nobody can run it without the tech guy. The court clerk tried. Petersen tried. The bailiff refused to try. Even the judge came down off the bench, her black robe sweeping behind her, and tried. In the end, the tech guy had to be called from the top floor to come down and play the video. Meanwhile, the testimony resumed.

Petersen: “So: Marla’s standing there and Tammy gets out of the truck as you are going up the steps to the house to call 911?”

McMenomey: “Objection! Leading! Move to strike!”

Petersen: “Your honor, I was just recounting the previous testimony to make sure I had the sequence of events right.”

Moorman: “The objection is overruled.”

Petersen: “So Marla’s standing there; Tammy exits the truck. What happens next?”

Merrifield: “Tammy started pulling her hoody off…”

McMenomey: “Objection, speculation, the witness doesn’t know what the victim was doing with the hoody.”

Petersen: “What, exactly, was Tammy doing with the hoody?”

Rather awkwardly, Merrifield demonstrated: “She grabbed her hoody sweatshirt like this, by the hem around the bottom, with her arms crossed, and started moving her arms up and over her head in a swift, fluid motion, revealing her upper torso and, uh, well, the parts thereof…”

Peterson: “Go on, Ernie. What happened next? If anything?”

It was pretty hot in the courtroom. Ukiah’s ambient temps were going into triple digits all week and this may have been the cause of the witness’s ruddy pallor. But it seemed to me the witness was blushing in the air-conditioned courtroom.

“She pulled off her hoody and came after Marla, walking very fast, with her arms out like this.”

The witness held out his arms in the fashion of a bear anticipating a great huge bear hug.

Petersen: “And Marla; what was she doing?”

Merrifield: “Just standing there.”

Petersen: “She didn’t back up, or anything?”

Merrifield: “No, she stood her ground.”

Petersen: “And you, what did you do?”

Merrifield: “I started down the steps. But you see, I had a plank there for pushing the wheel-barrow up the steps, so I could bring cordwood up to the house for the woodstove and, anyway I was picking my way down…”

Petersen: “What time of night was it?”

Merrifield: “It was after seven.”

Petersen: “And so, that time of year — was it dark?”

Merrifield: “Yes. But the night light was on.”

Petersen: “There was a light?”

Merrifield: “Yes. On a pole in the yard.”

Petersen: “Ernie, can you mark with a blob — Er, strike that. Can you mark with a spot on the diagram where the night-light pole was?”

Moorman: “Can we use a different color for the light, Mr. Petersen?”

Petersen: “Certainly, your honor. Would this purple one be satisfactory?”

Moorman: “Counsel?”

McMenomey: “The People have no objection to purple.”

Moorman: “You may proceed with the purple then, counselor.”

Petersen: “So, Ernie, you’ve put the night-light pole just a little behind and to the east of the potted cherry tree; does that mean it was near the truck?”

McMenomey: “Objection! Lack of foundation! The position of the truck has never been established on the diagram. Move to strike!”

Moorman: “Mr. Petersen, would you care to re-phrase your question?”

Petersen: “Yes, your honor. Thank you. Ernie, can you draw the truck on the diagram at the approximate place it came to rest?”

Merrifield drew in Tammy's truck.

Petersen: “We now have a representation, a cartoon of a truck, just in front of the planter and with the night-light pole just behind it. And we can see from this arrangement that the area where this incident took place must have been pretty well-lit. So tell me Ernie, were you able to see what was taking place?”

Merrifield: “Yes, I was.”

Petersen: “Your honor, I’d like to offer this photograph into evidence.”

McMenomey demanded to see it first, which gave the rest of us a look, too: It was the truck, the driver’s door open, a bottle of beer in the cup holder, and a bright light on a pole above the cab of the vehicle. We also see Tammy’s boots in this picture, suede with a fleecy cuff at the top, on the seat of the truck.

Petersen: “So you see Tammy coming at Marla, after pulling off her sweater—”

Merrifield: “Yeah, like this” — again he demonstrated the open arms of the aggressor. “Then Tammy started trying to pull Marla’s sweater off.”

McMenomey: “Objection! Speculation! Move to strike!”

Petersen: “What did Marla do?”

Merrifield: “Marla started throwing punches.”

Petersen: “What kind of punches?”

Merrifield: “I dunno…” He held his fists even with his upper torso and shot pokes out from them by turns. “…like this.”

Petersen: “So these were jabs, not windmill punches?”

Merrifield: “Yeah, that’s right.” Then succumbing to paternal pride, Merrifield added, “Yeah, she was doing pretty good, too—”

McMenomey: “Objection! Un-responsive, and pure, unsubstantiated speculation — move to strike!”

Petersen: “Your honor, I believe we are ready to play the video CD from Marla’s cellphone.”

The surveillance camera, long familiar to the courtroom habitué has found its way into pop drama, and with the social media craze, civilian cellphone videos, photographs, and vocal recordings have started turning up in court as evidence.

The video began with a black screen, then we hear the baying of a dog as two dim headlights appear. The lights grow brighter, the dog barking grows more furious. Then we hear the roaring of an engine. The lights get brighter, the engine roars louder, and the blaring of high-volume rock music drowns out the dog. Suddenly, the headlights turn full-force onto the screen and a voice calls out, “Tammy we’re calling the police on ya!”

Judge Moorman: “Is that it?”

Petersen: “That’s it, your honor. That’s all we have.”

McMenomey: “It is what it is; that’s all you get.”

Moorman: “Okay, let’s turn the lights back on. You may proceed with your questions, Mr. Petersen.”

Petersen: “Ernie, can you tell us what happened next?”

Merrifield: “Well, as I said earlier, I heard Tammy get out of the truck so I made my way back down off the porch and by then they were fighting on the ground.”

Petersen: “What did you do?”

Merrifield: “I tried to get them to stop. I kept saying, “Stop fighting, get up you two. Stop it!”

Petersen: “Did they stop and get up?”

Merrifield: “No, they kept fighting.”

Petersen: “Were they saying anything?”

Merrifield: “No, but Tammy was making a noise, kinda growling like a cat.”

Petersen: “What, if anything, did you do?”

Merrifield. “I grabbed hold of one of Tammy’s feet that was sticking out and tried to pull her out of the fight, but she had hold of Marla’s hair, I guess. All I could see was a mass of hair from both of them because their faces were close together, and when I tried to pull her, her boot came off.”

Petersen: “Is that one of the boots we saw in the photograph, what are commonly called Ugg Boots?”

Merrifield: “I call ‘em muckalucks. But yeah, it’s the high-top suede boots with the fur or wool around the top.”

Petersen: “Then what happened?”

Merrifield: “Then I took hold of Tammy’s other foot, only this time higher up — I’d only got ahold of the instep before — and this time when I pulled her boot came off again, and this time her pants came off as well.”

This testimony caused a collective gasp in the audience.

Petersen: “What did you do?”

Merrifield: “I dropped ‘em right there, and kind of stumbled backwards, having lost my balance. Then after I’d regained my balance I kept saying ‘Stop fighting, you two. And get up!”

Petersen: “Did they?”

Merrifield: “No. So I went back and worked my way into the mass of hair and got ahold of Tammy’s hands and pried her fingers loose out of Marla’s hair, and then I finally got them apart. Then Tammy grabbed Marla’s sweater and tried to pull it over her head.”

McMenomey: “Objection! Speculation! Move to strike!”

Petersen: “What did you do?”

Merrifield: “I told Tammy to get in her truck and wait there until the deputies got there. But first, thinking she might try to get away, I took the keys from the ignition. Then the deputies showed up.”

Mr. McMenomey turned and strode to a woman who was with an officer from the DA’s Victim-Witness office. He asked this woman, who seemed to be Tammy, if what Merrifield had said was accurate. We couldn’t hear the whispered response, but from the way McMenomey threw up his hands in frustration, Tammy had answered in the affirmative.

Events were as Merrifield had testified. Tammy should have been the defendant, the Merrifields the victims. The DA had it backasswards.

The DA’s office failed to return our calls seeking clarification.