Two Convictions for the Price of One

Two Convictions for the Price of One 

Written by Detective (Retired) Martin Swirko 

www.allroutesareamber.com

As I mentioned in one of my older stories, my new education began pretty swiftly after I left the police academy and started working on the mean streets of Manchester. Before you roll your eyes at my mean streets comment, I soon found that the streets within several Manchester neighborhoods truly were mean

After a few years of working Uniform Patrol, and, after interacting with cops from not only around Manchester but from around the country, I came to the conclusion that if a cop did a solid year in patrol in this city, he or she should have become a pretty well rounded and experienced cop by that time. A year on the streets here certainly wouldn’t make anyone a veteran cop, but in this city, despite it not being as big as Boston or Providence, spending a year on the street here would expose a new cop to many, many facets of basic patrol functions. In fact, a year on the street here would give a cop what it might take several years for cops in some communities to experience and learn from.

I graduated from the NH Police Academy in late June of 1991. I know this dates me, but it is what it is, and although times change, I believe basic police work never changes. After completion, I then spent three hellacious weeks in steamy hot Ft. Jackson South Carolina performing my active duty military obligation for that summer. Sometime in July, I returned home ready to start my new career at MPD. I was 35 years old, and at the time I was told that I was the oldest rookie cop ever hired by MPD. I’m sure that’s not true anymore, but that’s what I was told at the time. 

I was assigned to what was then the old 6PM-230 AM patrol shift. I was happy as hell to get that shift. At the time, it was the busiest eight hours of the 24 hour day in terms of calls for service. The shift was known as the “jeep shift” and as far as I could determine, years ago the department did not have enough cruisers to put out a full shift during those hours which overlapped the 3PM -1130PM and midnight shifts, so they obtained several three wheeled Cushman carts for the 6-230AM officers to patrol with. So, somehow, using Cushmans evolved into that shift becoming known as the Jeep Shift. 

By the time I got assigned to it, thankfully there were no more Cushmans in use. However, at 6PM every night MPD put a full shift consisting of 7 or 8 cars (referred to them in calls signs as X cars) a roving wagon, a plainclothes Street Crime (Anti Crime) Unit and at least one additional Patrol Sergeant on the street. These X car routes or beats overlapped the regular patrol car routes on the other shifts and therefore provided more and quicker back up for the other patrol units as well as more cops to handle the increased number of calls for service during those eight hours. At the time, I was thrilled that this was my first assignment during my first summer on the job. Today, I still feel fortunate to have started my career working that shift, and my hasty introduction to the intensities and dangers of police work.

At the time, Manchester Police Officers were considered Probationary Officers during their first year on the job. This meant that, in accordance with New Hampshire labor laws, we could be terminated without cause at anytime during that first year. We were not allowed to join the union while we were on Probation (although we were not a closed union shop, most of us payed union dues) and it was not until the last day of our probationary employment would we officially learn if we would remain employed with the department.

During that first year, 2 of my 18 classmates with whom I got on the job with and went through the academy with were terminated before finishing probation. For anyone terminated during their probationary period, even if they didn’t do anything wrong, that termination usually meant that they would never do police work again. The end of probation was the last time the department could look at a cop, and if they thought he or she wasn’t cut out for police work for whatever reason (or they just didn’t like him or her) they could just cut that cop loose without cause, explanation and without union protection.

After completing ten weeks at the Manchester Academy, we then did ten more weeks at the state academy. The state academy, in Concord was the entity that would provide our certification as police officers allowing us to work in NH. Just about every other state in the country accepted New Hampshire Police Accreditation for officers who left NH to work in other states and locations. The ten weeks at the State Academy required we lived there from Monday through Friday, and we went home on weekends.

The next step for a new cop in Manchester was to complete eight weeks as a trainee, with an assigned Field Training Officer. During the time you were on and assigned to an FTO, even though you were fully certified as a police officer, you were not allowed to work planned overtime or any paid details, or alone in any circumstance. Only when your FTO signed off on you as a trainee, and you completed your FTO period satisfactorily, would you be allowed to work by yourself or with another officer who wasn’t training you. 

The FTO period was basically three phases. Then first was you rode with your FTO, watched everything, did as told and kept your mouth shut, other than to ask questions. For out of towners like me, it was also the time where we had to learn our way around the city. Any FTO who had a trainee with him or her was considered to be alone in a one officer car. If a call for service required a back up, (Crime in progress, domestic disturbances, or other unknown problem calls) even though the FTO had a fully certified police officer in the car, for dispatch purposes the FTO was considered to be riding alone and another unit would always be sent as back up when appropriate and available. 

So it was that during my first week I found myself riding with Billy C. who was a great cop. That year Bill was one of several officers assigned to the city schools as Officer Friendly, part of the old D.A.R.E. program. Since school was out for the summer, he spent the summer in patrol on the Jeep Shift. 

One typically hot humid New England summer night, I’m not sure what time it was, but it was still light, Bill decided to stop into one of the local grocery stores at the corner of Lake Av and Union St. Lake and Union, if it wasn’t then, in time became recognized as the highest crime location / intersection within the State of New Hampshire and quite possibly anywhere north of Boston. It didn’t take long for me to learn why. On any given day or time one could come across any level of odious behavior, from someone squatting at the intersection with their pants at their ankles taking a dump, drinking in public, gang activity, prostitution, openly selling drugs up to and including gun play. 

Bill, who was a really friendly and outgoing guy was always a pleasure to work with, and he seemed to know everyone on the street. Citizens, victims, soon to be victims and habitual criminals alike, he knew them all and always stopped to chat them up. And, what impressed me most was that almost to a person, to include the shitheads, they always responded in a friendly manner and treated him with respect. It wasn’t unusual for him to stop and talk to someone he had arrested recently to ask how they are doing, ask if they are behaving, what did they do when they got out of jail, etc. In addition to being the friendly and approachable face of law enforcement, he was a master of gathering intelligence out on the street. I learned a lot watching and working with Billy on and off for many years. 

As instructed, I pulled up in front of the local convenience store (sadly, the owner and his brother were murdered during a home invasion in Manchester in the early 2000’s) and Billy told me to stay put, asked me if I wanted anything and said he’d be right out. I got out of the cruiser to stretch my legs and get a better view of the circus that played out nightly in and around that parking lot. That was the first time I met Jim Smot (not his real name). Smot came stumbling around the corner, bleeding from what turned out to be several slash type knife wounds. The first thing that I noticed was that his cheek had been sliced in such a fashion that it was actually hanging down and on top of his jaw bone, only remaining attached to his face by a small piece of flesh. It was like someone sliced a turkey from the top, but didn’t completely remove the piece of meat he just cut into. I also saw the telltale oval shaped holes and lacerations that characterized stabbing types of knife wounds.  In short, he was a bloody a mess. Smot saw me, stumbled over towards me and sort of pawed at me while collapsing to the ground. He lay on the ground, rolling around and crying out, pleading with me to help him. I yelled for Billy, and started to assess Smots injuries, just like we were taught, figuring I would have to provide some type of medical care or at least stop the bleeding. The problem was, he had been slashed and stabbed in numerous places on his body, and I didn’t think we had enough pressure bandages to cover all of them. 

Billy ran out, made some comment about how he can’t turn his back on me for a minute and he went to work. Smot was still babbling and literally crying like a baby. An ambulance and the Fire Department arrived quickly, along with other police units. The medics did their job and loaded Smot into the ambulance. Billy grabbed, me ordered me to get into the ambulance with him, told me not to leave his side until I was relieved by a Detective or a Sergeant. He told me try to find out what happened, and above all write down everything Smot said. So I climbed into the back of the rig, and tried calm and talk with Smot while the medics worked. 

The siren wailed and my radio crackled. The ambulance bumped and zig-zagged around corners negotiating it’s way though traffic and worn down city streets. I bounced around trying to focus while keeping my balance and composure at the same time. The paramedics were deadly serious. They worked while calling ahead to the hospital letting them know what they were coming in with. It felt as thought I was in a movie, but the man who oozed blood from a dozen knife woulds was real enough. It had taken 35 years to get here, but I had arrived.

During the time I rode with Smot, he kept crying and begging me not to let him die. He told me several times he knew he was going to die and he didn’t want to. I tried to reassure him throughout the ride, and continued to do so even after he was wheeled into the trauma unit at the Elliot Hospital. During this time, between the sobs and his pleading for his life, I got the following information from him, although not necessarily in this order:

Smot, who was unknown to me at the time, was what we in Manchester referred to as a “Frequent Flyer’. He and other members of his family were basically habitual criminals who the PD often had contact with, and had arrested many times. They were regularly involved in petty and miscellaneous crimes, as well as the occasional felony. To put it bluntly, they were a pain in the neck to deal with on a regular basis. In the next few years I went on to arrest one of his brothers several times, and they always seemed to be out on the street between jail sentences causing some degree of havoc. Jim Smot explained to me between his wails and cries to keep him alive, that he had ripped off or robbed a particular street drug dealer a few weeks prior to this night. It seems he had been arrested and charged with Armed Robbery for that robbery, and was currently out on bail for it. While talking to me, he admitted to me that he did in fact commit the robbery he was on bail for. Something I’m sure he came to regret for sometime

Mr. Smot went on to tell me, that earlier that evening, a woman approached him and offered to have sex on him. Apparently, this offer seemingly out of the blue was too good to pass up. He said that this woman led him to a tenement nearby on Pine Street, and into the corner of the first floor stairwell. When this women who he claimed not to know started to paw at him he began to unzip his pants. It was at that time that someone appeared from the shadows and started to slice and dice him with a very big, very sharp knife. His assailant, apparently used the woman to set Smot up and lure him into the hallway. It became apparent to me, based on the wounds that I saw, that Smot’s attacker did not want to kill him, he just wanted to teach him a good lesson that Smot would not soon forget. Smot identified his assailant as the man that he himself had robbed and had been arrested for. All during this time, he told me and anyone else within earshot that he knew he was dying and he didn’t want to die. 

My “new education” continued as I remained by Smot’s side, as ordered, while the trauma team went to work. The cheek that hung down onto his face was bad enough to have to look at. I found myself subconsciously touching my own cheeks, I guess to reassure myself they were still intact. Soon the docs started to probe each stab wound with rods to determine how deep they were, as well as where they went. I would not soon forget the yellowish, gelatinous material that the docs were excavating from those woulds. They actually pulled the material out and placed it to the side. I asked the Docs what they were removing, and they told me it was body fat. Over the years, I would see this ritual performed many times while stabbing victims were being treated, and I certainly saw a lot of human fatty tissue during the many autopsies I would later attend. But that evening, this sight really grossed me out. However, I was professional enough to force myself to remain calm and collected. Eventually, we took custody of Smot’s clothes, and as the detectives took over the case, we processed and placed them into evidence. Billy and I went back into MPD so that I could type our reports on the incident. Billy typed his own reports, and then looked over all my work to insure it was accurate and contained all relevant information. When I was done, Billy told me I did a good job at the scene and later at the hospital, and we eventually back to work, on to the next adventure. That was the last I heard of or from Smot, who would survive. Subsequently, I learned that the name of the person who cut Smot up that night was one Pedro Gomet (Not his real name, and I apologize to any authentic Jim Smots or Pedro Gomets that may be out there).

Sometime later, I received a subpoena for a Superior Court case which apparently was going to trial. This particular trial was for Gomet who sliced and diced Smot the night I found him. Or, I should say, he found me. The problem for the prosecutor was that Smot, being a street guy and somewhat career criminal (although he didn’t appear to be an overly tough hooligan in the ambulance) refused to testify in the trial against his assailant. The prosecutor had one question for me: Did Smot believe he was going to die when he made the statements he made to me during the ambulance ride? Certainly, it’s always difficult to know with any certainty what is in anyone’s mind at any given time. My answer was that he surely did act as thought he believed he was dying. Smot wept openly, told me several times he knew he was going to die, and begged me several times not to let him die. He clearly acted as thought he was not ready face his maker. I opined that, based on his behavior and statements at the time, I believed that he was convinced he was dying. The prosecutor asked me if I felt comfortable repeating this while under oath during the trial. I told him of course I would because everything I put in my report was true, and even more importantly, I truly believed that he believed he was going to die. In fact, I wasn’t sure myself at the time that he wasn’t going to die. 

Then the prosecutor laid this gem on me. He went on to explain that we should be able to convict Gomet at the trail of attacking Smot with the knife (deadly weapon) on my testimony alone, even if Smot refuses to co-operate. The reason? Smot had given me a Dying Declaration. It turns out that a person doesn’t have to die after making a dying declaration in order for it to be admissible in court. The statement is considered to be truthful on it’s face, as long as the person who made it believed he or she was dying at the time the statement was made. I was shocked, to say the least. I had known about dying declarations, I probably seen them on old episodes of Perry Mason or other whodunits on TV. However, I always assumed that one had to die for a statement to be considered a dying declaration. I’m pretty sure they never covered that subject at the police academy.

So, almost a year later we went to trial on the stabbing case. I testified as to Smot’s dying declaration. The judge threatened to find Smot in contempt of court for refusing to testify, despite that Shot did not testify as a witness. The Defense tried to disallow my testimony. I was grilled as to what I testified Smot had told me, how and why I believed that Smot was dying, and how I knew that Smot believed himself to be dying. Furthermore, once it was established that Smot’s statements to me met the legal criteria to be considered a Dying Declaration, it was established that the Dying Declaration was one of the Hearsay Evidence exceptions that exists in the law. Hearsay is when someone testifies to what someone else said or saw, without that person being present to testify him or herself. Normally, with very few exceptions, so called “hearsay evidence” is not allowed at criminal trials. Not only was the Dying Declaration ruled admissible, but unlike most other testimony, it is assumed to be true on its face, per se, because the person believed he was dying at the time he made it. 

Apparently my testimony held up to scrutiny because the motions to suppress both my testimony and the declaration itself were denied, and in the end, the jury convicted Gomet and as a result he got a significant state prison sentence for the assault. It tuned out to be a satisfactory outcome to me because Smot’s assailant, who apparently was a murderous, street level or higher drug dealer, was off the streets for a few years. Certainly Mr. Smot was neither a boy scout or an innocent victim in the strictest meaning of the phrase, nevertheless, sending Mr. Gomet away for a few years was a good thing. However the case got better and took on an even stranger twist.

Now that the case for the stabbing was resolved, it was time for Smot to go to trial for robbing Gomet previously. Once again I received a subpoena for this case, and once again I sat with the prosecutor to prep for my testimony. 

In this case, not unexpectedly, Gomet, who was then in State Prison, refused to testify against Smot for robbing him. Any threats to hold Gomet in contempt of court were meaningless because he was already locked up in Concord. Normally, like most criminal cases (except for homicides) that case would just die and go away without the testimony of the victim. Not this time, however.

Since Smot’s statements to me had already been adjudicated and declared a valid and admissible Dying Declaration in the case against Gomet, it could now be used against Smot, because Smot, believing he was dying made several statements that night telling me that he did rob Gomet, and that’s how he identified Gomet as his assailant and as a bonus Shot provided Gomet’s reason or motive for stabbing him! 

So, once again against the protests of Gomet’s attorneys, I was able to testify to the statements Smot made to me during his ambulance ride. Smot was convicted of the armed robbery of Gomet, and he also got a significant state prison sentence.

As I look back at that case, even thought I cannot claim to have arrested either one of the two, I did get to play a significant, probably the biggest role in both convictions. Mostly because I did what Billy C. told me to do, and even more importantly, the judges and jury members who listened to my testimony believed I was truthful. What I learned that night was never lost to me.

Many years later, I showed up at the scene of a murder / suicide. There was one victim dead, a second victim who had also been shot and severely injured, but survived. My partner and I both rolled on the call immediately, and since I was the first detective on the scene, and being senior to my partner, I took charge of the scene in accordance with MPD SOP. As I spoke to the shooting victim who survived, I thought at the time there was a good chance he was going to die. The victim tried to explain to me who shot him as well the deceased victim. He told me his assailant had also shot his daughter and pleaded with me to find and help her. I tried to reassure that man, and when the ambulance pulled up, I instructed one of the patrol officers present to go with the victim to the hospital and not leave his side until relieved. Most importantly, I told him to write down everything the victim would say. My thought at the time was that in case the victim did die, we may have needed a dying declaration to use in the case. Fortunately, this victim survived. Sadly, the second victim was deceased by the time I got to her, and the man that killed her went on to kill himself. There would be no arrest or trial for that murderer who killed his wife and shot her father.

Apparently, I did learn my lesson well during that hot July evening way back when. That case turned out to be a twofor, because that dying declaration I took (I had no idea at the time it would later be ruled as such) resulted in the removal of two common thugs off the streets for more than a few years. In that respect, it was very unusual in that one statement was used in two separate cases to convict two thugs that committed serious crimes against each other. Like I said earlier, it didn’t take too long working the streets of Manchester to gain invaluable insight and experience, and not to mention, see the worst behavior of that members of our society has to offer.

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