Oregon State Police question Michael Ware and Catherine Duvall in the shooting deaths of two in Bend.
This next scene from Affirmative Action follows sequentially immediately after the scene (previously published in two prose versions) in which Michael Ware, formerly Jonathan Tyne, wakes after recovering from surgery for near-fatal gunshot wounds.
You may not recall how badly Ware was wounded. Here is what I wrote to describe what was done to save his life:
- The cop questioned Catherine for over an hour and then, apparently satisfied; he let her dress and had her driven to the hospital. When she got there Michael was still in surgery. Corporal Dietz had radioed ahead so a team of three nurses with a gurney and a trauma surgeon were waiting at the emergency entrance. Tyne was barely conscious when they arrived; his lips cyanic, his blood pressure having dropped to 60 over 40, clearly in circulatory shock. He was transferred to the gurney and whisked directly into an operating room.
- An x-ray of his torso revealed the bullet had split into three pieces. He was given a spinal to numb him from the diaphragm down and two units of whole blood. Dietz had managed to learn that Tyne’s blood type was B-positive before he became incoherent. A three-inch incision was made in his abdominal wall and the splinter was removed, the lacerated anterior branch of the renal vein was sutured, the blood suctioned from his abdominal cavity and three pieces of lead were removed from the external oblique muscle above and to the left of his navel. A small puncture the sliver made in his bladder was also repaired. His blood pressure back up to a healthy 120 over 70, he was stitched up, administered antibiotics and a tetanus shot and after several hours in a post-op recovery room, he was wheeled, still unconscious, into a semi-private two-person room. The other person in the room, separated from Tyne by a portable curtain divider, was a ten-year old boy whom the day before had had his tonsils removed.
Several of my long-term readers requested that I post this scene, so I am. That such a scene is coming is made clear, twice, in those aforementioned scenes when Catherine Duvall says:
- Catherine moved her chair closer to Michael’s bed and gripped his hand, fiercely. She leaned close and whispered, “There’s a cop outside who wants me to tell him when you’re awake and can talk. Also, your nurse made the same request. Can you talk?”
And at the end of those scenes I wrote:
- Catherine kissed him on the mouth, and it was not the kiss of just a friend. “To be continued,” she said, and went to the door and spoke briefly with officer Prater. Glancing on the other side of the curtain Catherine noted the boy in the next bed was paying close attention to the adult happenings on Michael’s side of the divider. The cop made a call and thirty minutes later the Hispanic cop who had shown them Nick Parma’s body arrived to question him. Before he arrived a different nurse, a candy striper, came in pushing a wheel chair and she hustled the other patient out of the room. The cop, now dressed in a well-cut dark blue suit and maroon tie, knocked on the door but entered without waiting for permission and got right down to business.
So, for your reading pleasure, here is:
Detective Araya grills Michael Ware and Catherine Duvall about the shooting deaths of the Venezuelan hit-man Jorge Humberto Argueta Otálvaro and Nicholas Parma.
He introduced himself as Detective Hector C. Araya, Oregon State Police, showed Tyne his badge and explained that he was in charge of a Deschutes County Major Crime team that had been activated to investigate the shooting. Tyne asked if the detective intended to read him his Miranda rights and if he did Tyne intended to contact his attorney. Araya said he’d already heard most of what had happened from Ms. Duvall and based on that he didn’t think Mr. Ware would be charged with a crime. He just wanted to hear what happened from Mr. Ware, but of course, if Mr. Ware preferred to have an attorney present, he had no objection.
Before he said anything about the shooting Tyne asked the cop to call Lt. Castelano of the Oakland, California PD, tell the Lieutenant what happened and ask him about Jonathan Tyne. It was Sunday, but Tyne knew that Mike’s position on an organized crime task force meant he was on-call twenty four-seven. The cop left the room to make the call. He was gone twenty minutes or so and when he returned he addressed Tyne as Mr. Ware; said he understood.
Catherine was just emerging from the bathroom where she’d gone to throw water on her face; arguing with Michael, she frequently said, was exhausting. As she poured a cup of ice water for Tyne Araya took the only chair on Tyne’s side of the room, the lightly upholstered recliner Catherine had spent the night in. As she handed Tyne the water, a noticeable tremor in her hand, she asked if she should leave the room. When Araya said she could stay if she wished Tyne patted the bed for her to sit. He elevated the back of the bed so he was sitting upright, more or less, and then rearranged the air hoses that powered the cuffs attached to his calves. He handed her one of his pillows so she could rest her back against the bed rail. Once she was settled Tyne explained exactly what had happened.
The only item he omitted was that he’d had words with Nick Parma at the Bend airport and the only reason he kept this information to himself was that Araya seemed not to know Tyne was a pilot. He could not explain this omission on the part of the authorities, either here or in California, but he saw no reason to enlighten them. Besides, no one was interested in how he traveled to and from his ranch. They probably assumed he drove.
After Tyne thought he was done, that he’d told everything that had happened at least twice, the cop said, “I’d like to get a better understanding of this motion detector that alerted you of the break-in? Could you be a little more specific; for example, where you acquired it, how it works, things like that.”
“Those motion detectors… there are two; one just outside the front door and the other in the inside corner above the door.”
“Please tell me about both of them?”
“I purchased them several weeks ago from Capitol Security Supply of Reston, Virginia… from the company’s catalog. When I knew for sure I’d be spending my weekends here in Bend, staying with Ms. Duvall, I felt I needed an early warning system… just in case Frank Tosca learned what I was doing and where I was staying…”
“Excuse me, do you know Tosca sent these men or are you assuming he did?”
“The latter, but isn’t it obvious? I mean Argueta Otálvaro was a pro. Soft armor, NV goggles, a suppressed pistol with its serial numbers ground off. If Tosca didn’t send him then Deschutes County sure has one hell of an interesting burglary problem.”
“You were saying… about these motion detectors?”
“Both devices are battery-powered 802.11b wireless sending units operating over the 2.4 GHz radio band. They work with a base station, a PCMCIA card that plugs into a Macintosh computer. The card fits into a type II slot and it has an antenna – what we call a dongle – that hangs on the lid of a laptop. To get an alert that would wake me up but not arouse the suspicions of an intruder I wrote a software longcase clock, what some folks call a grandfather clock, in AppleScript. I did it as an exercise… to learn AppleScript, but after it was done I saw how I could use it with the motion detectors.
“I own a real longcase, eight-day clock with selectable chimes. So, I recorded two chimes melodies, Westminster Quarters and St. Michaels and turned them into ringtones with some music software I own. Then, I attached the scripts to file folders as folder actions and configured them to run whenever a file arrives, in this case, the small file that the base station writes when it receives an alert. Are you with me so far detective or is this too technical?”
“I’m familiar with event models such as Apple Events. Please continue.”
“Cool. So, first the script reads the time from the computer’s hardware clock and then plays the melody that’s the closest approximation to real time. What I mean is this. The way longcase clocks work, the length of the melody is a function of which quarter-hour is being announced, with the hour strike at the top of the hour. The outside device plays the St. Michaels melody while the inside one plays Westminster. I sleep with the laptop on my bedside table and I turn the outside device on with a wireless remote when we are both in the condo for the night. I turn the inside one on when I go to bed. At home my clock isn’t anywhere near my bedroom so it never wakes me but here it’s right next to my ear and I set the Mac’s speaker volume on max. Except last night I was reading when the St. Michaels chimes began to play. Then, when I heard an attempt to force the door I knew someone was trying to break in. That’s when I woke Ms. Duvall.”
“And gave her your gun?”
“Un-huh. A nine-millimeter SIG-Sauer P225.”
“Where is this gun now? We didn’t find it when we searched your room.”
“It wasn’t in the bedside table?”
“I have it,” said Catherine. “It’s locked in the trunk of my car along with most of Mr. Ware’s personal stuff.”
“Did you fire it or in any way participate in the actual shooting?”
“No, but I would have, had anyone other than Mr. Ware or the police come through my bedroom door. At first, when Michael gave me the gun and told me what I had to do I didn’t think I could. But then as I waited to see whether… to see whether anyone would try to hurt me, I knew I could. I was ready and I told the 9-1-1 operator I would shoot if I had to. Stupid woman; she kept telling me to forget the gun and go to the window and scream my head off. I only wish…”
When she didn’t finish her sentence Araya prompted her with, “You only wish what?”
“I was about to say I wish I were proficient enough to have helped.”
“Maybe, just maybe if Mr. Ware’s motion detectors had set off a burglar alarm and you had screamed your head off, shooting and killing these men might not have been necessary. Did that thought occur to either of you?”
“Ever hear of Kitty Genovese, Detective Araya?” said Tyne.
“No, should I have?”
“Probably before your time. Catherine Susan Kitty Genovese was a woman who was repeatedly stabbed near her home on a residential street, a street very much like Bend’s 8th Street, in Queens, New York City while a dozen witnesses looked on and listened and did nothing. While she lay dying, her assailant raped her. Kitty was twenty-eight at the time of her death in 1964. The New York Times incorrectly reported there were 38 witnesses who did nothing, but twelve is bad enough.
“How come it took you guys so long to respond?”
“The county has limited resources and it was a busy night.” Araya, sensing he was losing control of the interview, quickly changed the subject. “Who installed these motion detectors?”
“I did. I masked the lens and painted the inside device and its mounting bracket to match the wall and installed them while Ms. Duvall was away.”
Araya turned to Catherine and said, “Did you know these devices were present?”
“No, I know nothing about them.”
. . .
Both Tyne and the cop were looking at Catherine’s face; watching her eyes. She was staring intently at the cop, glaring actually. He’d seen that look before on several occasions, usually when she was very angry with him. She was giving a good impression of not being concerned about those wireless sending units but he was certain there was a reckoning coming.
“So, you didn’t obtain Ms. Duvall’s permission to install them?”
“Why not, since you were, what…”
“Yes, a guest, yet you installed these devices in your host’s home without her knowledge. Why?”
“Initially Ms. Duvall knew me as Michael Ware, my stage name. I knew that if I told her about the motion detectors I’d have to tell her my real name. For my own selfish reasons I didn’t want her to know who I was and that I’d been involved in a shooting earlier in the year in California.”
“Didn’t you think you had a responsibility to Ms. Duvall to warn her that she might be in danger?”
“Yes, I did, but as I said, my reasons for not telling her were selfish. I thought if she knew she would not wish to work with me and even though I installed the motion detectors, which implies I was conscious of the risk, I thought being in Oregon, away from the Bay Area and using a fictitious name that the risk was minimal. Obviously, I was wrong.”
“You need to understand something detective,” said Catherine. “Two days ago, Friday, Mr. Tyne told me his real name and the reason he uses an alias but I already knew who he is. Our relationship was and is a business one but as closely as we’ve worked, there was always the possibility it would become… personal. So, to protect myself, so to speak, I made an effort to learn as much about Michael as I could. It wasn’t particularly difficult discovering he wasn’t who he said he was. I’ve known since we started working together but for my own selfish reasons, I didn’t want him to know that I know.”
The cop had been watching Tyne’s face during the woman’s revelation. He’d managed to keep his face expressionless but not completely. Tyne thought it best to assume that Araya now knew that Catherine’s knowing his name was Tyne and not Ware came as a surprise.
What the cop didn’t know, what he couldn’t know was that it wasn’t so much that Catherine knew his name was Tyne. He’d known for several weeks that she knew his real name. What surprised him was that Catherine would come to his defense, stick her neck out, so to speak, and expose herself to suspicion of being part of a conspiracy.
Turning his attention back to the woman Araya said, “Why not, or is that too personal?”
“It is but I’ll answer. I wanted Michael to want to tell me… on his own. I believed that if and when he told me it would mean he trusted me… and if he never told me… well, then that would mean he didn’t trust me. It was important to me that at some point we’d reach that level of trust but in truth, I too believed the risk was minimal.”
“How, exactly, did you make that discovery?”
Catherine smiled, enigmatically, and said, “Come on detective, a girl has to have some secrets, even from you cops.”
“You do realize, Ms. Duvall, that you just made yourself a potential suspect to the crime of conspiracy to commit murder?”
“I knew you would eventually come to that, as soon as you figured out who he is… or was, since he went to court and made that name change legal. Go ahead and check me out. You will in any case. You won’t find any connection between me and this Tosca crowd.”
When the cop said nothing but stared, intently, at her she said, “One other thing detective, the fire at Di Giorgio’s effectively ended my performance contract. It was Mr. Ware’s intent to return to John Day after dinner Friday night. Because of the storm he decided to wait until the weather cleared. Those devices he installed only work if he’s here, with the laptop. Had he not been here those men would have made me tell them where he was, everything I know about him. I wouldn’t have wanted to tell them… but I would have. I think it’s reasonable to assume they would have killed me, afterwards… don’t you?”
Never taking his eyes away from Catherine’s, the cop said to Tyne. “Mr. Ware, when did you know about the fire?”
“Friday morning, when I arrived at the condo. Ms. Duvall left a note asking me to come to the restaurant.”
“He works for you, doesn’t he?”
“Yes, he does.”
“Didn’t she call you to say there was no need to come to Bend?”
“She did, Thursday, but my cell phone wasn’t working. I listened to that message when I got to the restaurant.”
Araya looked doubtful so Catherine fetched Tyne’s cell phone from the pocket of his sweatpants hanging on a wall hook. She found the voicemail function and played the time stamped entry for the cop to hear.
Araya continued to stare at her for almost a minute and then turned back to Tyne and said, “And then you blinded him with that combat light.”
“Temporarily blinded him.”
“Of course, temporarily, except he was dead before he recovered his eyesight.”
“I sincerely hope so. I hope the last thing he saw through his NV goggles was a sun so bright it fried his eyeballs.”
“Did you issue a warning before you fired?”
“A warning? And give up the only advantage I had? No, I gave no warning other than the light. You can certainly think of it as a warning of sorts.”
“Because the proper response to a light like that is to fire a volley at it.”
“Why not a verbal warning? If he’d seen the shotgun, seen that you had the drop on him, he might have fled. It might not have been necessary to shoot him.”
“Two reasons. My only advantage in an otherwise one-sided confrontation was surprise and I wasn’t about to relinquish it. I was inside a dwelling, not my own but nevertheless, a dwelling, one in which I was a resident. We’d called 9-1-1 and had retreated as far as it was possible to retreat without jumping from a third story window. I decided if they got to the top of the stairs before you people arrived I had the right to shoot, without giving a warning and I was going to shoot. And I feared that if I challenged him, he’d turn when he heard my voice and shoot the instant he saw me. He was just as ready as I, possibly high on something other than adrenaline. Had I waited, even long enough to say freeze or something really stupid like drop your gun or I’ll shoot, it might have been me lying dead on the stairs instead of him… and then he would have tried to kill Catherine.”
“You seem rather well informed?”
“I should be; I completed the training to obtain a permit to carry concealed. Some of the legal issues discussed in that class were confusing so I followed up with my attorney.”
“And the second reason?”
“Unlike you cops I’m under no obligation to observe any sort of escalation of force doctrine. They came into my home – I regard it as such, based on my business relationship with Ms. Duvall – to kill me… and by association to kill her too, so I was determined to use every means available to defeat them, including shooting without warning. And when the night-light was turned off I knew they were coming and I was damn well going to shoot if they came up those stairs. And just for the fuckin’ record, I don’t have to give no stinkin’ warning.”
The two men stared at each other, the cop frowning, disbelief written all over his face. He looked doubtful, as if he actually believed Tyne should have issued some sort of verbal warning and threatened to shoot if the man refused to lay down his weapon. Suddenly it occurred to Tyne why, so he said, “The look on your face makes me think you’ve never been in a gunfight, never been at the sharp end?”
The cop said nothing but Tyne saw something in his eyes, so he continued. “A verbal warning is like a bluff, as it were, and may work with an amateur but sends the wrong message to a pro. It tells the pro you are more scared of shooting than not shooting. He knows he can take you. If he’s close enough he can take your weapon and if not he can shoot you before you can shoot him. In either case you’ve lost the fight. Bluffing with a gun in your hands is a form of vacillation and vacillation can get you killed.”
Without ever looking away Araya said, “Tell me about this night-light?”
“It’s a small red light that’s plugged into an outlet near the breakfast bar,” said Catherine.
“Ms. Duvall turns it on just before she goes to bed,” said Tyne.
Araya turned to Catherine and said, “Do you remember turning the light on last night?”
She thought for a minute and then said, “I think I did but I can’t swear that I did. We were up late last night, talking, and I was very tired when I went to bed.”
“How do you turn it on?”
“It has an on-off switch, just like a wall switch.”
“Do you ever turn it off by unscrewing the bulb?”
“I never have.”
He turned to Tyne and said, “How about you Mr. Ware? Do you ever turn it off by unscrewing the bulb?”
“I never turn it on or off, by any means. It’s not my home… except last night I turned it on when I went downstairs to fetch my computer.”
“You just got through saying it was.”
“Only with respect to the legal theory of self defense within a dwelling.”
“If the night-light was off how did you see to shoot?”
“There’s a skylight over the stairs. Enough moonlight was coming through it that I could see a silhouette against the wall.”
The two men stared at each other for a moment and then Tyne said, “So detective, are you going to tell us whether the bulb was unscrewed or not?”
When the cop said nothing Tyne said, “I’ll take that as a yes. Were there fingerprints on the bulb?”
“Someone wiped the bulb clean.”
“Well it sure wasn’t one of us. What would be the point?”
Changing the subject again Araya said, “We found both Winchester and Federal empty shotgun shells, 3-inch magnums, on the landing and in the second bedroom. Why the mix of loads? Was that accidental or deliberate?”
“The first was the Winchester, a 2 ¾ inch 328-grain rifled slug. The rest were 3 inch Federal #2 buck, and yes, that mix was deliberate. I figured anyone that came might be wearing Kevlar… so; I aimed the first shot at his armhole. Only Winchester offers that particular load in 20-gauge but for buckshot I prefer Federal loads, because they contain a superior wad and by their markings can easily be distinguished from slugs.”
“Why a twenty and not a twelve?”
“I’m allergic to recoil and I wanted something a small woman could shoot, comfortably, without the punishing kick of a light twelve.”
“A neat little ambush, wasn’t it?”
“Where were you guys when Ms. Duvall called 9-1-1?”
Instead of answering Araya said, “One last question… you shot Mr. Argueta Otálvaro three times but Mr. Parma only once; yet there was an unfired round in the chamber of your shotgun. Why didn’t you shoot Parma a second time?”
“He dropped his gun and turned to flee. Once he did that I no longer had the right to shoot… so I didn’t.”
Detective Araya stared at Tyne for a long time and then said, “I think that’s it. I have all the information I need. Thank you both for being so forthright.”
“What happens next?” said Tyne.
“I’ll write up a report and make a recommendation to the district attorney. He may want to talk to you or Ms. Duvall himself.”
“And you’re going to recommend exactly what?”
“That the shooting was justified. That it would be inappropriate to prosecute you. It’s his decision, not mine, but the circumstances here are pretty clear.”
“What name are you going to put in your report?”
The cop stared at Tyne for a long time and then he said, “Ware, of course. What other name would I use? I asked to see your ID and you showed it to me, so I’ll check the box… to note that for the record.”
“When will I be able to return to my condo?” said Catherine.
“It won’t be long, certainly before the end of the week… Technically it’s still a crime scene… until I finish my report and the coroner submits his.”