Blood Ambush

by Sheila Johnson

  Stallings told the court that he had been completely inundated with Barbara’s case. Due to the complexities and dire consequences associated with capital charges, he believed that an adequate defense could not be provided due to the need to prepare for the four other cases also set for trial during the June 23, 2008, docket. Therefore, he asked that the court grant the motion to continue the case to another available date.

  It came as a devastating blow to Barbara’s defense when the motion to continue was denied, and the trial, as well as the four other cases, were set to proceed as scheduled, with no additional time to prepare for any of them. Rodney Stallings had been under tremendous pressure before; now, with the motion to continue unexpectedly denied, and the trial looming, desperate times were going to call for desperate measures. He had fully expected the continuance to be granted, and now he would have to ramp up his preparations for the trial drastically.

  In addition to the failed motion to continue, another large group of motions were filed on Barbara’s behalf on June 18. One of those most important to the outcome of the trial was a “Motion in Limine to Preclude the State from Moving to Admit into Evidence Photographs Prejudicial to Ms. Roberts.”

  The photos in question, taken at the crime scene and at the autopsy, were incredibly shocking and gruesome, and Stallings feared the jury would be unduly swayed by the sight of them and, therefore, prejudiced against his client.

  The motion asked the court to act pursuant to the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article 1 of the Alabama Constitution, and preclude the state from moving to admit into evidence any gruesome and highly prejudicial photographs of Darlene Roberts’s body.

  Gruesome and highly prejudicial photographs of the victim, Stallings said, would advance no evidentiary purpose and serve only to inflame the passions of the jury in violation of Ms. Roberts’s rights guaranteed by the state and federal constitutions.

  The state’s photographic evidence depicted full-body and close-up head shots of the victim that were entirely gruesome, gory, and inflammatory. They served no evidentiary purpose, the motion said. Because it was a capital prosecution, exacting standards had to be met to assure that it was fair. The court must not permit the photographs to be introduced at Ms. Roberts’s upcoming trial, Stallings said. The prejudicial effect of the photographs would clearly outweigh their probative value, and their admission would constitute irreversible error.

  Stallings cited several prior court cases where photos of the same nature had been ruled inadmissible at trial. Even when dealing with noncapital cases, the court had ruled as inadmissible the introduction of photos during autopsy, since they did not portray wounds at the time they were inflicted.

  The motion also said that the Alabama Legislature had mandated that no death sentence should be imposed under the influence of passion, prejudice, or any arbitrary factor. And at a capital trial, the avoidance of inflammatory appeals to the passions and prejudices of juries was constitutionally protected. The United States Supreme Court, the motion said, had repeatedly held that because of the qualitative difference [between death and any other form of punishment], there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

  As a matter of state law, the motion said, it was established that where the prejudicial effect of photographs outweighs the probative, they should not be admitted.

  Another point in the motion stated that it was clear from the photographs introduced by the state as discovery that close-ups of the victim’s head and the full-body shots of the corpse had very little to do with whether Ms. Roberts committed these acts, and even less to do with what penalty she should suffer if she was found guilty. Instead, the photographs were gratuitously gruesome and inflammatory. The purpose of the trial, the motion said, was to determine the truth about guilt or innocence. Ms. Roberts entered the court cloaked in a presumption of innocence. It was no answer to say that Ms. Roberts had only herself to blame for the gruesome nature of the photographs of a killing she wasn’t even alleged to have committed personally. At that juncture in the trial, she was presumed innocent, and at the sentencing, if any, she was to be judged by a fair and impartial jury, not an inflamed panel.

  The motion stated that under the law, the photographs must be excluded, even if they did have some evidentiary value in light of their highly prejudicial nature. A previous court case had established that a photograph must be excluded if there was no showing that the probative value outweighs any prejudice. In particular, the motion said, that rule applied to the admissibility of photographs that depicted gruesome scenes involving victims of violent crime. In interpreting that evidentiary role, the courts had stated that in situations where the state has already made out its case and the photographs are merely cumulative in nature and were not “substantially necessary to show material facts or conditions” the probability was high that the probative value of those photographs would be outweighed by their prejudicial effect.

  If Barbara was convicted, Stallings said, the gruesome bloodiness of the photographs would have an enraging impact on the jury. What was relevant in a capital sentencing hearing, he said, was assessing the conduct, culpability, and character of the defendant. Instead of a sentencing hearing in which the jury was required to weigh aggravating and mitigating circumstance, thoughtfully consider Barbara’s role in the offense, conscientiously judge her character and background, and finally decide whether she should be executed or sentenced to life imprisonment without parole, the jury would be overwhelmed by the gruesome photographs and would be motivated by passion and prejudice.

  Because Stallings had seen the photographs of Darlene Roberts, he knew they would have a great negative impact on the jury. His motion was an attempt to suppress those photos and lessen the damage they were very likely to do to Barbara’s case if they were shown during the trial. His efforts failed, however, and as Darlene’s family members fled the courtroom to avoid such an upsetting sight, the jury would be shown the gruesome photos of Darlene Roberts lying facedown in the murky water of the farm pond, her horrific injuries plainly showing.

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  Another motion that was introduced on June 18 was clearly made in order to lessen the potential burden on Rodney Stallings during the trial. He filed a motion to adjourn at a reasonable time, asking that the trial adjourn each day without extending over into the evening hours.

  The motion said that defense counsel anticipated that the trial could last at least two weeks. A traditional workday consisted of eight hours, and throughout the trial, each evening, Stallings would have to consult with Barbara concerning each day’s developments and the strategy to be pursued on the next day. Stallings said he would have to research legal questions that arose during the trial, possibly make arrangements for witnesses’ travel, and confer with them prior to their testimony. An excessive work schedule, he said, would prohibit Barbara from receiving effective representation.

  If the proceedings, with or without the jury, lasted long into the evening, he said, the defense would have no time in which to prepare for the next day. While the long days and evening hearings would obviously affect all concerned, it was Barbara whose life was at stake, and who would suffer from the lack of care and attention that hurried proceedings would yield. Therefore, the motion asked that the court would be adjourned each day at a reasonable time.

  A motion for adequate sequestration of jurors was filed asking that adequate sequestration of jurors prior to and during the trial be ordered by the court.

  Since it was to be a capital prosecution, exacting standards should be met to assure that it was fair, the motion contended. There could be no more serious duty that a juror ever had to face than the decision between life and death in a capital case, the motion said. A decision by the Mississippi Supreme Court was cited, which said that a jury’s verdict must be based upon the evidence and not affected by extraneous influ
ences. The court, the decision said, had repeatedly recognized the gravity and immeasurable solemnity of a jury’s deliberations during the sentencing phase of a capital murder trial. The importance of this deliberation might, at times, cause inconvenience and hardship; however, to allow distractions and outside influences to infect the jury’s thoughts at such a critical juncture of the proceedings was to devalue human life.

  Despite any suggestions to the contrary, the motion said, the jury must be sequestered at Barbara’s capital trial. The publicity surrounding the case and the sensationalizing of the crime necessitated sequestration, and allowing the jurors to separate during the pendency of the capital case would result in the need for a new trial.

  Sequestration should take place before the jurors were sworn, the motion stated, keeping those who had been questioned on voir dire separate from the others. The failure to follow this procedure could be fatal to any resulting verdict. Stallings cited a Louisiana case where the court noted that the purpose of sequestration was to insulate the jurors from outside influence or the possibility thereof, even unconscious; and in capital cases, especially, the sequestration was strictly enforced so that, upon a separation of a juror after she was sworn, a presumption of misconduct arose and irreversible error would be presumed. (This was in reference to a case where unsupervised telephone calls were made by jurors during a capital trial.)

  The motion also noted that there were more subtle rules guiding what may and may not influence the decision of a juror, such as a ruling in a 1991 Alabama case that it was improper for a juror to read a dictionary during deliberations.

  Some intolerable opportunities for prejudice seemed to occur in almost every capital case, the motion said, and the court should take careful measures to avoid them. For example, jurors in motels were sometimes exposed to television or radio programs that could be devastating. Capital verdicts had also been reversed where jurors relied on their Bibles in reaching a verdict.

  In a case that could go over two or more weekends, jurors sometimes went to church. Again, sometimes the preachers in church preached sermons that might favor one party or the other. It would be most unfortunate were this to cause the case to get reversed.

  The motion also said that where and with whom jurors dine could also raise causes for concern. Sometimes jurors were taken to dining facilities that had a history of racial discrimination, or where the jurors might be exposed to local patrons with strong views about the case at hand. The jurors’ badges identifying them as such might only spur the patrons to greater excess. Stallings cited a reversal in a Virginia case where jurors were having a meal and one of the patrons of the restaurant expressed the opinion that they should execute the defendant.

  Those, Stallings said, were only a very few of the examples of what might happen in a trial, and the court should take excruciating care to avoid any possibility of jury taint by effectively sequestering all jurors prior to and during the trial, and set out the means of sequestration in open court.

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  On June 18, in order to put together a more accurate view of exactly what had happened at the farm pond near the home of Vernon and Darlene Roberts on April 6, 2006, Rodney Stallings filed a motion to allow the defendant to view the scene of the crime with her attorneys. It asked that a law enforcement official be allowed to take Barbara and her attorneys to the scene of the crime, at least one week prior to trial, and allow them to discuss the facts of the case in a manner whereby the law enforcement official would not hear the discussion. In support of the motion, Stallings listed a ruling from Washington State that said it was necessary that defense counsel view the crime scene in the presence of the defendant.

  The facts of Barbara’s case, the motion said, were so complicated that there was no way for her to explain adequately the situation to her attorneys in a manner whereby they could take pictures, take measurements, or otherwise properly investigate the scene of the alleged crime without her assistance. To deny her the right to do that would amount to a denial of due process of law and effective assistance of counsel as guaranteed by the Alabama and United States Constitutions. To allow the defendant to view the scene as requested would not prejudice the state’s case in any manner, and would only serve to promote a fair and impartial trial.

  A wide array of other motions were filed, most having to do with witnesses and evidence. A “Motion for Deposition of State Expert Witnesses and Request for Production of Documents” asked that the court grant Barbara’s counsel leave to depose the expert witnesses that the state intended to call to testify and to direct the state to provide the curriculum vitae, certificates, qualifying documents, and all other background documentation necessary to assess adequately the qualifications of the state’s expert witnesses. The motion also referenced an Alabama Supreme Court decision that held that the hovering death penalty is the special circumstance justifying broader discovery in capital cases.

  A “Motion for Discovery of Institutional Records and Files Necessary to a Fair Trial” asked for the production of all requested documents from the state for inspection and copying. The “state” referred to any and all of the following organizations: the district attorneys for the Ninth Judicial District of Alabama; the Cherokee County, Alabama, Sheriff’s Office; the DeKalb County, Alabama, Sheriff’s Office; the Alabama Bureau of Investigation; the Georgia Bureau of Investigation; the Rockdale County, Georgia, Sheriff’s Office. The “state” also meant all present and former agents, officers, investigators, consultants, employees, and staff members of organizations or officials named above.

  The court asked in a motion for production of negatives, to direct the state to produce the negatives of all photographs taken by any prosecution agent in preparation for the case. In this instance, since digital photography has almost universally become the standard practice, the defense was furnished with discs containing all photos taken by the various agencies concerned.

  Stallings also filed a motion to reveal the identity of informants and to reveal any deals, promises, or inducements. This motion was primarily directed at the testimony of jail inmate Tonya Regalado, and Stallings wanted to establish whether or not any rewards had been promised to her in return for her testimony.

  Stallings asked for a court order directing the state to reveal the identity of all confidential informants, to reveal any promises or understandings (explicit or implicit) with any witness or informant, and to reveal whether any threats or inducements of any nature whatsoever had been made regarding any witness or informant.

  Another motion, filed at the same time to inspect, examine, and test all physical evidence, asked for a court order compelling the state to produce certain items of physical evidence in its possession and control, collected by the state in the investigation of the murder of Darlene Roberts, for inspection and testing by experts designated by defense counsel.

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  While Rodney Stallings was busy filing motions, the state requested and received a court order for the transport of Tonya Regalado from the custody of the Department of Corrections to the Cherokee County Sheriff’s Office for the trial, which was set for June 23, 2008, at 9:00 A.M. in the third-floor courtroom. The order directed the sheriff or one of his authorized deputies to transport Regalado from Tutwiler Prison to the Cherokee County Jail for the duration of the trial, then return her to prison after the trial’s conclusion.

  Regalado was expected to testify about conversations she and Barbara had while they were both in the Cherokee County Jail together. Regalado claimed that Barbara had told her details of Darlene Roberts’s murder, with Barbara allegedly saying to her that it was she, not Schiess, who had shot Darlene, point-blank, at the pond.

  Another inmate had given a written statement to the authorities about what Regalado had said to her about Barbara and their interaction at the Cherokee County Jail. That statement, which comprised hearsay evidence, would have provided proof of the relationship between the two women if it had been admissible as evidence.


  The inmate stated that she was an inmate in the Cherokee County Jail, having been transferred there from the Etowah County Jail on October 2, 2008. While she was there in Etowah County, Tonya Regalado was brought in from August 4 to October 2. She had been temporarily transferred there from Tutwiler Prison.

  We were sitting out in the day room talking, remembering that we had met once at a dope house, the inmate wrote.

  During the dayroom conversation, the woman said that she told Regalado that she was going to have to be transferred to the Cherokee County Jail before she was released. Regalado told her, she said, that when she got there, there would be a lady, Barbara Roberts, who was doing life for murder.

  Tonya said she had almost drove Barbara crazy singing this song, “One, two, I’m coming to get you.”

  Regalado told the inmate that Barbara had made her life hell at the Cherokee County Jail and was the reason Regalado was sent on to prison. Regalado went on to tell the woman that Barbara and her boyfriend had raped, tortured, beat, then shot to death another woman. The inmate claimed that Regalado was talking as if they enjoyed it, like Barbara was a monster. She never mentioned the man’s name, the inmate said, only that he was Barbara’s boyfriend.

  She wrote that she really didn’t know either Barbara or Regalado, only briefly. Regalado had been transferred to Etowah County on a county charge, and after court she told the woman that her sentence was to run concurrent and she still would be serving about fourteen months at Tutwiler.

  From this inmate’s statement, it was clear that there was no love lost between Tonya Regalado and Barbara Roberts. Had this letter been allowed as evidence, Regalado’s testimony against Barbara might perhaps have been viewed differently.

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  The capital murder trial of Barbara Ann Roberts began, as scheduled, at 9:00 A.M. on June 23, 2008, in the Cherokee County Courthouse, with Circuit Judge David Rains presiding. In spite of the intense heat and the inadequate air-conditioning system in the old, outdated building, spectators filled the church pewlike seating in the courtroom to capacity, and many more left, disappointed, when they were unable to squeeze into the room. The case had created so much interest among the public that it had become one of the most anticipated trials in the county’s recent history.