Ed McBain_Matthew Hope 12 Read online

  Copyright © 1996 by Hui Corporation

  All rights reserved.

  Warner Books, Inc.,

  Hachette Book Group

  237 Park Avenue, New York, NY 10017

  Visit our website at www.HachetteBookGroup.com.

  First eBook Edition: April 2009

  ISBN: 978-0-446-56030-6

  Contents

  Copyright Page

  Chapter 1

  Chapter 2

  Chapter 3

  Chapter 4

  Chapter 5

  Chapter 6

  Chapter 7

  Chapter 8

  Chapter 9

  Chapter 10

  Chapter 11

  Chapter 12

  Chapter 13

  ALSO BY ED McBAIN

  The 87th Precinct Novels

  Cop Hater • The Mugger • The Pusher (1956) The Con Man • Killer’s Choice (1957) Killer’s Payoff • Killer’s Wedge • Lady Killer (1958) ‘Til Death • King’s Ransom (1959) Give the Boys a Great Big Hand • The Heckler • See Them Die (1960) Lady, Lady, I Did It! (1961) The Empty Hours • Like Love (1962) Ten Plus One (1963) Ax (1964) He Who Hesitates • Doll (1965) Eighty Million Eyes (1966) Fuzz (1968) Shotgun (1969) Jigsaw (1970) Hail, Hail, the Gang’s All Here (1971) Sadie When She Died • Let’s Hear It for the Deaf Man (1972) Hail to the Chief (1973) Bread (1974) Blood Relatives (1975) So Long as You Both Shall Live (1976) Long Time No See (1977) Calypso (1979) Ghosts (1980) Heat (1981) Ice (1983) Lightning (1984) Eight Black Horses (1985) Poison • Tricks (1987) Lullaby (1989) Vespers (1990) Windows (1991) Kiss (1992) Mischief (1993) And All Through the House (1994) Romance (1995)

  The Matthew Hope Novels

  Goldilocks (1978) Rumpelstiltskin (1981) Beauty and the Beast (1982) Jack and the Beanstalk (1984) Snow White and Rose Red (1985) Cinderella (1986) Puss in Boots (1987) The House That Jack Built (1988) Three Blind Mice (1990) Mary, Mary (1993) There Was a Little Girl (1994)

  Other Novels

  The Sentries (1965) Where There’s Smoke • Doors (1975) Guns (1976) Another Part of the City (1986) Downtown (1991)

  AND AS EVAN HUNTER

  Novels

  The Blackboard Jungle (1954) Second Ending (1956) Strangers When We Meet (1958) A Matter of Conviction (1959) Mothers and Daughters (1961) Buddwing (1964) The Paper Dragon (1966) A Horse’s Head (1967) Last Summer (1968) Sons (1969) Nobody Knew They Were There (1971) Every Little Crook and Nanny (1972) Come Winter (1973) Streets of Gold (1974) The Chisholms (1976) Love, Dad (1981) Far From the Sea (1983) Lizzie (1984) Criminal Conversation (1994) Privileged Conversation (1996)

  Short Story Collections

  Happy New Year, Herbie (1963) The Easter Man (1972)

  Children’s Books

  Find the Feathered Serpent (1952) The Remarkable Harry (1959) The Wonderful Button (1961) Me and Mr. Stenner (1976)

  Screenplays

  Strangers When We Meet (1959) The Birds (1962) Fuzz (1972) Walk Proud (1979)

  Teleplays

  The Chisholms (1979) The Legend of Walks Far Woman (1980) Dream West (1986)

  This is for

  Richard Dannay

  1

  In the state of Florida, it doesn’t matter if it’s day or night as concerns the burglary statutes. You can go in at any hour, it doesn’t affect the punishment. What matters is if you’re armed or if you assault someone, that’s Burglary One, and they can put you away for as long as the rest of your natural life. If the structure you enter happens to be a dwelling or if somebody’s on the premises when you go in, why that’s a Burg Two, and they can lock you up for fifteen years.

  Warren was going in during the daytime—if she ever got the hell out of there—and he wasn’t armed, though he did own a license to carry. The condo was a dwelling, so if he got caught in there he was looking at a max of fifteen because in the state of Florida, if you stealthily entered any structure or conveyance without consent of the owner or occupant, that was considered prima facie evidence of entering with intent to commit an offense.

  But he had to get in there, anyway.

  If only she would hurry up and go about her business.

  He turned on the car radio.

  I had filed my complaint in Calusa’s federal court for the Middle District of Florida, asking for an order to show cause. Judge Anthony Santos had signed a temporary restraining order and had set a hearing for the twelfth day of September. A U.S. marshal had then served papers on Brett and Etta Toland, the owners of Toyland, Toyland, ordering their appearance at the hearing. It was now nine o’clock on the morning of the twelfth, a blistering hot Tuesday in Calusa, Florida.

  The first thing Santos said to me was, “How are you feeling, Matthew?”

  I wished people would stop asking me how I was feeling.

  Or what it had felt like.

  It had felt like all the lights suddenly coming on after a power failure. One moment there was utter darkness below, while above a raging electrical storm flashed intermittent white tendrils of lightning and boomed ugly blue thunder. I was standing in a deep black pit slowly filling with oily black water that rose inexorably to my waist, and then my chest, and then my throat. I was chained to the walls of this fathomless black pit while above lightning crackled and thunder roared and the fetid black water inched up toward my mouth and then my nostrils. And all at once there was a crashing bolt of lightning and a shattering thunderclap so close they seemed to be inside the pit itself, shaking its wet stone walls, filling my eyes and my head with bursting sound and blinding incandescence and…

  With a mighty leap, I sprang out of the pit.

  That’s what it had felt like for me.

  Maybe if you came out of a coma five months ago, it was different for you.

  “I’m fine, Your Honor,” I said.

  “Are both sides ready?” Santos asked.

  “Matthew Hope, representing the plaintiff, Elaine Commins.”

  “Sidney Brackett, representing the defendant, Toyland, Toyland.”

  Brackett was Calusa’s best man for legal matters pertaining to copyright or trademark, famous for having successfully defended the landmark Opal Oranges infringement suit. I was Calusa’s best man for all seasons, famous for having got shot twice—once in the shoulder and once in the chest—last April. I’m fine now. Really. I’m fine, goddamn it!

  “I’ve reviewed the complaint, the affidavits, and the legal briefs from both sides,” Santos said, “so I think we can do without any lengthy opening statements. I hope you’ve explained to your respective clients…”

  “Yes, Your Honor…”

  “Yes, Your…”

  “…that the purpose of this hearing is to determine whether Toyland, Toyland—hereinafter referred to as Toyland—should be enjoined on a preliminary basis from further production, distribution or sale of a teddy bear they call Gladys the Cross-Eyed Bear, for which Ms. Commins is claiming copyright, trademark, and trade dress infringement. It is your burden, Ms. Commins, to prove ownership of a valid copyright and trademark for the bear you call Gladly, and—as to Count I—to further prove unlawful copying of protected components. As for Counts II and III, it is your burden to prove infringement of the trademark and trade dress. Does everyone understand this?”

  “Yes, Your Honor, this was all explained to my client.”

  “My clients as well, Your Honor.”

  “As I’m sure counsel has further explained,” Santos said, “ideas cannot be copyrighted. Protection is afforded only to the expression of ideas. For example, it’s not enough to show that both plaintiff and defendant used the idea of a cross-eyed bear whose vision is corrected by eyeglasses. In order to prove copyright infringement, it must be show
n that the expression of this idea was copied. The essence of copyright infringement lies not in the defendant’s taking of the general idea or theme of the plaintiff’s work, but in the taking of the particular manner in which the plaintiff has expressed those ideas in the copyrighted work.

  “Similarly, in order to prove trademark and trade dress infringement, it must be shown that a similar use of names and design features would be likely to cause confusion in the marketplace. The design features of a product may be given trade dress protection, but only if they are inherently distinctive or have achieved secondary meaning in the marketplace. Is all of that clearly understood?”

  “Yes, Your Honor.”

  “Yes, Your Honor.”

  “Has it also been explained that a permanent injunction cannot be granted until after a trial on the merits?”

  “Yes, Your Honor.”

  “Yes, Your…”

  “Before we proceed, then, I should mention that the Court fully recognizes the exigencies of the case, Christmas being right around the corner, so to speak, in terms of getting one of these bears into the stores, whichever party may prevail. At the same time, and exactly because of the very real and pressing commercial considerations for both sides, the Court does not intend to be rushed into any decision.”

  On the other side of the courtroom, seated at the defense table with his clients, Sidney Brackett sat stone-faced. Or bored. Or both. A squat chubby little man who bore an unfortunate resemblance to Newt Gingrich, he sat flanked by two of the more attractive people on this planet, Mr. and Mrs. Brett Toland, accused teddy-bear thieves.

  “I should also mention that the rules of procedure in a hearing are identical to those in a trial,” Santos said. “There is no jury, but everything else is the same. The plaintiff presents his…”

  I was thinking that everyone in the world already knew all this, at least insofar as it bore similarities to criminal law. Everyone in the world had watched the Simpson trial for the past twenty-two years, six months, three weeks and twelve days and knew all this procedure stuff even better than I myself did. I was thinking it was too bad there wasn’t a jury here because then ordinary citizens who weren’t lawyers could catch any mistakes I made, and maybe write to tell me all about what a lousy lawyer I was, I just loved getting “Gotcha!” mail. When I woke up at Good Samaritan Hospital, in fact, I’d found a pile of letters from strangers who felt I was somehow responsible for having got myself shot, and somehow derelict in not coming out of the coma soon enough to suit them. Actually, I’d have enjoyed popping off that table in ten minutes flat, but medical problems prevented me from doing so. Better yet, I would have preferred not having the medical problems to begin with. Even better, I would have preferred not getting shot at all. You try getting shot sometime, and I’ll write you a letter when you refuse to come out of a goddamn coma.

  Then again, people keep telling me I seem a bit crotchety since I woke up.

  “…a direct examination of each witness,” Santos was saying, “followed by the defense’s cross-examination. The plaintiff is then allowed a redirect, and the defense a re-cross. After the plaintiff has rested its case, the defense then calls its witnesses, and the same rules of questioning and requestioning apply. If there are any questions from either of the contesting parties, please let me hear them now. I want everyone to understand exactly what’s about to transpire.”

  There were no questions.

  “In that case, Mr. Hope,” Santos said, “if you’re ready with your first witness, we’ll begin.”

  Hurry up and come out of there, Warren thought.

  He usually drove a beat-up old grayish Ford, which was a very good car for someone in his profession to drive unless he wanted everyone in the state of Florida to know just what he was up to. Trouble was, she knew the Ford, had in fact been in the car more times than he could count, so he couldn’t very easily park it up the street from her condo without her making it in a minute. Black man parked in a dilapidated gray Ford, who else could it be but good ole Warren Chambers?

  So he’d parked here on the corner in a borrowed red Subaru with a dented left fender, and was hulking down now under the shadow of a big banyan tree dropping leaves all over the hood the way pigeons dropped shit. From where he was parked he could see the exit driveway from the parking lot in front of her condo. He knew her car. He’d be able to spot her the minute she left. If she left.

  A fly buzzed his head.

  Trouble with sitting here all the windows open.

  Hated Florida and its goddamn bugs.

  Kept watching the exit drive. It was on this end of the lot, big white arrow painted on the cement, pointing in. Big white arrow on the other end of the lot, pointing out. So come on, he thought. You got an arrow showing you the way, let’s do it.

  He looked at his watch.

  Nine thirty-seven.

  Time to get out and get hustling, he thought.

  Elaine Commins—or Lainie, as she preferred calling herself—was thirty-three years old, tall and spare with an elegantly casual look that spelled native Floridian, but she had come here from Alabama only five years ago, and she still spoke with a marked Southern accent. She was wearing for this morning’s hearing a long pleated silk skirt with a tunic-length cotton pullover. No panty hose or stockings, just bare suntanned legs in a sling-back shoe with a low heel and a sort of openwork macramé toe. On the pinky finger of her right hand was the same gold ring she’d been wearing when first she came to my office. She’d described it then as a Victorian seal ring, its face in the shape of a heart, its band decorated with florets. The gold of the ring and the wheat tones of her outfit complemented her long sand-colored hair, pulled back and away from her face in a ponytail fastened with a ribbon the color of her green eyes. Those eyes seemed wary and intent and—well, not to be unkind, but merely for the sake of accuracy—a trifle cockeyed.

  In America, the word “cockeyed” means “cross-eyed,” what the British call a “squint,” although in America someone “squinting” is not looking at you “cockeyed,” he is merely narrowing his eyes at you, looking at you with his eyes only partly open, the way he might look while squinting at the sun, for example, hmm? A funny language these colonials have, wot? Lainie wasn’t truly cross-eyed. That is to say, neither of her eyes turned inward toward her nose. But she was cockeyed in that her left eye looked directly at you while her right eye turned outward. The defect was vital to her claim—in fact, I hoped it would win the day for us—but it nonetheless gave her an oddly vulnerable and exceedingly sexy look. Placing her hand on the Bible extended by the clerk of the court, she swore to tell the truth, the whole truth and nothing but the truth, so help her God.

  “Would you tell me your name, please?” I said.

  “Elaine Commins.”

  Her voice as soft as a hot summer wind blowing in off the Tennessee River. Cockeyed green eyes wide and expectant in a face kissed by sunshine, left eye staring straight at me, right eye wandering to the American flag in the corner behind the judge’s bench. Bee-stung lips, slightly parted, as though she were breathlessly anticipating my next question.

  “And your address, please?”

  “1312 North Apple.”

  “Is this also the address of your place of business?”

  “It is. I work from a small studio in my home.”

  “What’s the name of your business?”

  “Just Kidding.”

  “What sort of business is that, Ms. Commins?”

  “I design children’s toys.”

  “How long have you been doing this kind of work?”

  “Ever since I graduated from the Rhode Island School of Design ten years ago.”

  “So for ten years you’ve been designing children’s toys.”

  “Yes.”

  “Have you had your own business for all of those ten years?”

  “No, I’ve worked for other people in the past.”

  “Did you once work for Toyland, the defendant in
this case?”

  “I did.”

  “In what capacity?”

  “As a member of the design staff.”

  “Designing toys?”

  “Yes. Children’s toys.”

  “Did you design Gladly the Cross-Eyed Bear while you were in the employ of Toyland?”

  “I certainly did not!”

  “When did you design the bear?”

  “In April of this year.”

  “And you left your job at Toyland when?”

  “This past January.”

  I walked to the plaintiff’s table, and picked up from its top one of two seemingly identical teddy bears. The one I held in my hand as I walked back to the witness stand was some nineteen inches tall. The one still on the table was an inch shorter. Both were made of mohair. Each had hanging around its neck a pair of spectacles on a gold chain.

  “Your Honor,” I said, “may we mark this as exhibit one for the plaintiff?”

  “So marked.”

  “Ms. Commins,” I said, “do you recognize this?”

  “I do.”

  “What is it?”

  “It’s a stuffed toy called Gladly the Cross-Eyed Bear, which I designed and had copyrighted and trademarked.”

  “I offer the bear in evidence, Your Honor.”

  “Any objections?”

  “None,” Brackett said. “Subject to our argument that the bear was not designed by Ms. Commins.”

  “Duly noted.”

  “Ms. Commins, was the design of this bear original with you?”

  “It was.”

  “To your knowledge, before you designed and named this bear, was there any other teddy bear in the world called Gladly the Cross-Eyed Bear?”

  “To my knowledge, there was not and is not.”

  “Have you registered the trademark Gladly the Cross-Eyed Bear?”

  “I have.”

  “Your Honor, may we mark this document as plaintiff’s exhibit number two?”

  “So marked.”

  “Ms. Commins, I show you this document and ask if you can identify it for me.”