Defense tactics irk judge

Sharna Johnson

CANNON AIR FORCE BASE — A special agent with the Air Force Office of Special Investigations was the brunt of defense ire and sarcasm on Wednesday, accused of a botched and careless investigation in the first-degree murder trial of Airman Basic Edward Novak II.

Under cross-examination, OSI Agent Thad Payne took a verbal beating from defense attorney Maj. Shawn Vandenberg, who implied shoddy evidence collection, aggressive interrogation tactics and careless mistakes were made in the investigation.

After almost 45 minutes, Chief Trial Judge for the Air Force Dawn Eflein called a halt to the questioning and excused the jury so she could admonish Vandenberg.
“You began your cross-examination of this witness 45 minutes ago. Your words, your tone, your references and your questions have become increasingly sarcastic,” she said sternly, eying Vandenberg with obvious irritation. “If you don’t refrain, you’re going to forfeit your right to cross-examine this witness,” she said.

A subdued Vandenberg replied “yes ma’am,” before Eflein ordered a five-minute recess and quickly left the bench.

Eflein issued Vandenberg a similar reprimand, albeit milder, Monday for his cross-examination of Novak’s former commanding officer.

During his testimony, Payne said he dusted the front and back door of the Novak residence with bright orange powder.
“But you took no prints, no lifts and of course wouldn’t be able to explain why no orange (powder was left behind or observed by anyone),” Vandenberg asked.

When Payne testified he didn’t document dusting the doors in his notes because nothing was gained from the effort, Vandenberg pressed again.
“Do you not think that in a homicide case it might be a good idea to at least take some notes about dusting the front door of a residence where someone was found deceased?”
“I guess it makes sense — I’m testifying that I did it… Well hindsight being what it is, twenty-twenty, I could have done better, yes,” Payne said.

Payne also took responsibility for not instructing maintenance personnel to wear gloves and take care when transporting a toilet from the crime scene.

Kimberly Novak died Oct. 28, 2004, of blunt force trauma and strangulation, a state medical examiner ruled. Edward Novak reported he found his wife’s body in the bathroom of the base housing unit the couple shared.

Edward Novak faces life in prison if he is convicted.

Testimony will resume today.

Pretext phone call:

Wednesday morning jurors heard the audio recording of a conversation between Edward Novak II and his mother-in-law Patricia Bollman in which she attempted to illicit incriminating information from him.

Bollman previously testified she agreed to conduct the recorded call at the request of the Air Force Office of Special Investigations.

Bollman told Novak investigators wanted to know the order things happened in the night Kimberly Novak died, asking him if he could tell her his version.

As he responded, his tone of voice became flat and hesitant.

“I really don’t remember much of that whole week pretty much,” Novak replied. “I know we played around after we got back from Wal-Mart but after that I really don’t remember.”

Testimony highlights:

• Maj. Keith Crook, an agent with the Air Force Office of Special Investigations testified on his involvement in the case as the regional forensic sciences consultant.

Stationed in Colorado at the time, Crook said he attended the autopsy of Kimberly Novak, and finding the death suspicious, went to Cannon to assist in the investigation.

In his role as a consultant, Crook said he helped to collect and process evidence at the Novak home and advised agents on aspects of their investigation.

Crook conducted a re-enactment of the report Novak gave of how Kimberly Novak was found. Using a female agent, Crook directed her to sit on the floor in front of a toilet with her legs to the left between the toilet and the tub. He then directed her to place her head in the toilet under the seat and closed the seat and lid on her head for photos. In a second scenario, he placed a television on top of the toilet lid over her head.

Under cross-examination by Maj. Jeff Palomino, Crook testified he used television from the Novak house for use in his experiment.

The re-enactment was conducted almost two months prior to the television being sent to the crime lab for finger printing, he admitted.

A print from Edward Novak II and an unidentified individual were later found on the television.

“I’m sure you would agree it’s not good practice to use an actual piece of evidence from a crime scene in a reenactment,” Palomino queried. Crook replied, “Absolutely sir, I showed poor judgment.”

Crook also took multiple close-up photos of Edward Novak’s injuries Nov. 1, 2004, during much of which he was handcuffed to maintain a controlled situation, Crook said.

Novak had a wound over his right eye, a scratch on the right side of his neck, a mark believed to be a bite wound on his left wrist and two scratches on the inside of his left elbow.

Court martial fast fact:

Because the five officers serving as members of the panel (jury), are drawn from bases other than Cannon, their time at Cannon is classified as a temporary duty assignment (TDY).

While on TDY, the cost of travel is paid for, military members receive per diem payments intended to cover the cost of their meals and the cost of their accommodations are reimbursed by the Air Force. Per Diem rates are calculated based on the area a member reports to for service.