The Killing Kind

by M. William Phelps

  Something Hamlin and Bell had discussed with Sumner before his testimony was what he should say regarding Hembree’s psychological condition. Sumner was told repeatedly, Hamlin said, not to analyze Hembree psychologically. Don’t go down that road of saying he’s a sociopath, a psychopath, and, especially, a pathological liar. That wasn’t Sumner’s job, Hamlin stressed. The detective was there to discuss what Hembree had said and verify those facts.

  “Do you think Hembree was lying when he talked about killing Randi and Heather?” Hamlin asked Sumner before court began that day.

  “No,” Sumner said, adding that he believed Hembree 100 percent.

  “So he’s not a pathological liar, then. He does tell some truths. But if you go up there and say he’s a pathological liar, you’re saying he lied about killing these women,” the ADA outlined.

  The impression Hamlin had left with her brilliant cross-examination of Hembree was that he, in fact, picked and chose what he lied about. It was a conscious decision; it wasn’t something he couldn’t control. He intentionally selected when to tell the truth and when to fabricate.

  Sumner, however, got up on the stand and called Hembree a “liar.”

  Really? Hamlin said to herself as Sumner went on with Beam to talk about Hembree not always telling the truth.

  Beam saw an opening as Hamlin sat, frustrated.

  “Do you remember telling me that Mr. Hembree . . . couldn’t tell the truth consistently?” Beam asked Sumner.

  “Yes, I do remember telling you that.”

  “That was your opinion, right? And that’s how you phrased it, correct?”

  “That was my opinion, without clarifying the answer. I wasn’t able to clarify my answer after making that statement.”

  “But your opinion is still, and was, that he can’t tell the truth consistently?”

  “That is true of certain matters, certain individuals, um, certain people he stated he killed.”

  Stephanie Hamlin wanted to pull out her hair.

  “As far as you know?” Beam asked.

  “Of course.”

  “That’s your opinion, right?”

  “Based on the evidence, that is my opinion.”

  “Okay,” Beam concluded. “I don’t have any further questions.”

  During a recess, Hamlin found Sumner and cornered him. “How dare you go up there,” she said angrily, “and say that after having what? One meeting with him? And all of a sudden, you become this expert on how much Danny Hembree lies or doesn’t lie, when obviously he has told the truth on numerous occasions.”

  Sumner felt bad. He didn’t know what to say. The prosecutor had a point.

  Hamlin was livid. They had been sailing along; Hembree’s defense was falling down. Now this bump! Sometimes, that’s all it takes for that one juror on the fence—a reason to disagree with the state and—boom—a hung jury. A problem juror—a mistrial.

  Any number of possibilities.

  The point was, Hamlin said later, “Hembree doesn’t always lie. And here was one of our own saying that Hembree was a liar. Sumner was agreeing with the defense.... I mean, look, I don’t know Detective Sumner that well, and I somewhat understand what he was trying to do. But we told him not to analyze Hembree. I guess our personalities just don’t match up. I was really pissed at him.”

  “That’s what I thought about Danny Hembree,” Sumner said later.

  Sumner’s analysis of Hembree was “totally objectionable, and we did object to it repeatedly,” Hamlin explained.

  After that hiccup, Hembree’s hired clinical psychologist, Dr. Claudia Coleman, under the direction of Beam, told jurors she had done an evaluation of Hembree after being contacted by his attorneys. And through Coleman’s testimony, Beam was able to get the psychologist to say exactly what he needed: Hembree had a history of making up confessions. She believed he could be lying here, too, and that his answers to her during their sessions were truthful.

  Coleman said Hembree suffered from “major depression since adolescence.” She had reviewed “thousands of pages” of documents pertaining to his mental-health history. That research, combined with her personal meetings with Hembree while he was in prison, contributed to her opinion.

  Coleman’s testimony went on far too long. Her answers, although quite professional and believable, were far too long-winded. Juries want sound bites, not graduate-school-level textbook descriptions of disorders they have no interest in learning about. They want “yes” or “no,” with a little bit of context. As this type of expert testimony carried on, it came across as a hired doctor bolstering a defendant’s argument. It became so obvious it was almost embarrassing to listen to at times.

  After a lengthy discussion among the lawyers, without the jury present, there was one point when the judge allowed Coleman to talk about what Hembree’s lawyers referred to as a “brain injury” Hembree had. Coleman said it was her opinion that “he has a brain impairment, my testing shows, and it’s consistent with several things in his history. . . .”

  One could almost hear the gallery collectively think: So what? The guy might have a brain injury. Yes, he abused drugs and alcohol. He probably had been whacked in the head during fights on a number of occasions. Sure, he had lied about things in the past and had confessed to things he did not do. Yes, he sat with countless psychologists and was even treated in psychiatric hospitals for mental disorders. And, of course, Hembree, like Coleman said, was your classic narcissist.

  True, Coleman had testified in court over two hundred times throughout a thirty-year career and made, just in the past five years alone, over $500,000 doing it. But none of this mattered in the end: Danny Hembree had admitted killing these two women, and the science and evidence backed up his statements. There was no spinning those facts. These were truths Hembree was now trying to take back.

  As Locke Bell tore apart Coleman’s testimony on cross-examination, bringing into question all that money she had made testifying in court for various defendants, he brought up one pivotal, nearly forgotten point regarding Hembree’s “false confessions.” Bell was able to sketch out for jurors through his questioning of the psychologist—with Coleman consistently agreeing—that Hembree, within that DVD of him traveling around with Sumner and Hensley, knew all of the facts of Heather’s and Randi’s deaths he had talked about during his interrogations: where they were dumped, how they were brought out to each location, where Heather’s clothes were located, how he murdered both women, etc. None of what he said during that car ride or inside the box was ever recanted, at any time, to law enforcement. He had told this story to police and never went back on it. Even after he cut those deals with the DA and got placement in the prison he had wanted, Hembree stuck to his admissions.

  Coleman could do no more than repeatedly agree with Bell that Hembree knew detail after detail surrounding the girls’ murders, the dumping of their bodies, it all panned out through the evidence, and was backed up—without question—by his own (unrecanted) statements to law enforcement.

  Late into Halloween, Dr. Donald Jason, Forsyth County medical examiner and pathologist, sat in the witness stand and told his story of reading through the autopsy reports, examining the autopsy photos, and reviewing a transcript of the interviews Hembree conducted with Hensley and Sumner. It took all of about five minutes into his direct testimony, after being asked about Heather’s cause of death, for Dr. Jason to give Beam the goods: “In my opinion, it’s not possible to scientifically determine what the cause of death of Heather Marie Catterton was based on the autopsy and where she was found and the autopsy including the toxicology report. There are indications that the most probable cause of death is cocaine toxicity.”

  Bell objected to that response.

  Beam continued and Dr. Jason furthered their argument of Heather dying by overdose. He stated how much cocaine was in Heather’s system and testified that Heather’s body did not display “any trauma that would be consistent with being cause of death.”

&nbs
p; No fractures.

  No brain injuries.

  No bruises of any significance.

  No signs of strangulation.

  Mostly just small, insignificant “abrasions,” said the doctor.

  Heather, the doctor testified, most likely died of a cocaine overdose.

  When Bell got hold of him, the DA latched on to Dr. Jason’s disregard for how Randi died and how his opinion was based solely on Heather’s case. Then Bell got the doctor to admit that within one of his own reports, he had written, It cannot be determined scientifically from the autopsy and the toxicology report [how Heather had died]—and that his testimony and his report differed in viewpoints.

  As a final cross-examination question, Bell asked: “Did you see where Danny Hembree said he took a plastic . . . bag and held it over her mouth and suffocated her that way? Did you see that?”

  And the doctor responded: “Perhaps. I don’t really remember.”

  Jurors had to ask themselves: How could you do a thorough reexamination of the cause of death and miss that one, seemingly all-important fact?

  The Hembree team brought in its forensic scientist, a toxicology expert, to testify that Heather had large amounts of cocaine in her system—a fact that had been well established by this point in the trial. It was redundant testimony. They were beating a drum too loudly and far too repetitively. The jury was either going to buy that Heather died of an overdose or they were not. Most likely, they were going to toss all of the testimony associated with her blood and cocaine toxicity levels and rely on what Hembree had said, plus the fact that Heather, sad as it sounded, was a chronic crack cocaine user and used to high levels of the drug.

  Next up was a licensed psychologist to talk about Hembree’s brain injury and its effect on him making up stories. Redundant testimony once again, offering nothing in the form of explaining how Hembree, a career criminal with violent offenses all over his record, wound up being in the presence of two dead girls in fewer than three weeks.

  On November 1, Beam called a physician to counter the state’s claim—and the admission Hembree had made several times to law enforcement—that Hembree punched Randi in the face. The doctor, in the end, said he could find no evidence that Randi’s body showed those kinds of injuries. On her nose, or anywhere.

  An issue came up; Beam asked that the jury be excused. He had a serious matter to discuss. It involved something unorthodox, and perhaps a bit costly and even dangerous. But he felt it needed to be done in order for his client to get a fair shake, especially in the face of the death penalty.

  The judge was curious, as was everyone else in the courtroom.

  Hamlin and Bell could only look at each other in bewilderment.

  What now?

  CHAPTER 109

  Richard Beam had the floor.

  The passionate defense attorney began his argument with the DVD videos. He said the state’s videos were the only source for jurors to get a clear picture of the Hembree residence. That was a little bit unfair. Yet, what would be equally unfair was for his defense team to go out and make its own video. Even if the defense attorneys did that, it still wouldn’t give jurors a good depiction of Momma’s house and how “tight it is in reality” inside the residence. There was a “marked difference” in stepping into the home and seeing it on video, Beam suggested.

  In addition, Beam suggested the same could be said for the trailers.

  Thus, Beam motioned for the opportunity to allow the judge and jury to take a bus trip to both locales and view them in person. It was imperative to his defense and for the explanations he was going to be giving jurors surrounding those residences.

  Bell had several problems with this. On the top of the state’s list was the simple fact that two years had gone by and there was “no guarantee things are the same way [inside either place]. Mr. Hembree says to the police, ‘I want to get all this resolved so Momma can clean the house up.’ We have no guarantee that the furniture is still in there. We have no guarantee that the basement . . . [or] anything looks like it did before.”

  Next, Bell argued, the crimes that took place inside the trailers “happened at night” and Hembree’s defense had “not shown any reason why” going out there during the daytime would be beneficial. This thought led Bell to bring up a point he had wanted to make for some time.

  “I think we need to take this into tremendous consideration.... [It’s] from the Gaston County tax office. It’s the footprint of this house with the measurements. Your Honor, if you look at that, you will see the bedroom—if you take the twenty-nine feet that the house is in width, subtract out four feet for a hallway, which has been testified to, and the stud walls in between it, you have about twenty-five and a half feet. You have rooms on either side. You have—what you end up with, Judge, is a bedroom of about twelve by twelve.” The size of the room, Bell added, worried him; there wasn’t enough room in the house for everyone to fit. He listed how many people would be walking through those tight spaces. “We have fifteen jurors. We have the defendant, sixteen. Your Honor is seventeen. Court reporter is eighteen. Nineteen and twenty for the lawyers.... That is before we bring in the sheriff. . . . From a security standpoint, we’re talking about twenty-one people, plus the deputies, shoved into this room, with the court reporter trying to write and take it all down. The jury cannot be protected.”

  What if Hembree tried something? Bell proposed. What if Hembree had made this suggestion to go out there so he could hurt somebody?

  “I thought it was ridiculous and it proved nothing,” ADA Hamlin said later. “Being in that basement [again] would be so creepy. I truly believe Hembree just wanted to see his house one last time before he went back to prison, and that is the only reason he wanted to argue this motion.”

  “Mr. Hembree would have to be in restraints,” Bell continued, trying to convince the judge this was not going to be as easy as shuffling everyone into buses. Precautions had to be taken into account. “If he is in an area the size of that, with all the jurors and everybody else, Your Honor included, he would have to be in very, very secure restraints, which as Your Honor knows, you’re not supposed to show the defendant in that kind of situation. So even in those restraints, if he volunteered to have shackles on, still the jury would not be safe.”

  Beam argued that the photos were not an accurate portrayal of these pivotal locations and the jury deserved to see them in person. “It’s a different spatial relationship when you’re there in person versus the photographs,” Beam said. “I’m not saying the photograph isn’t accurate. It is. It just doesn’t convey the spatial relationships of the rooms, and there’s no way to do that with a video or photos. It requires going in person.”

  The judge thought about the possibilities as he talked through it with both sides, leaning toward a visit. First, though, he wanted to head out to each place himself, which he would do during the lunch recess. He worried about the media reporting from the scene. Was that a violation of Momma’s privacy? Would any of the jurors’ identities be compromised?

  “The paramount rule is,” Beal advised, sending a message to any media present, “at no time shall the jurors be videotaped or photographed . . . so that’s where we stand. We won’t know any more until . . .” Beal paused. “I really . . . have trepidation about this process, but the first step is, I have to go see it. . . .”

  Just after giving a clear warning to the media, fifteen hours later, when court resumed on November 2, Judge Beal said he had been informed that one of the local news stations aired footage of a juror entering the jury box. Thus, the judge suspended all coverage of cameras inside the courtroom, announcing he would make a final decision on the matter when he had a moment to review the footage. The question everyone was asking, however, would that one mishap by the media destroy Danny Hembree’s chances of getting the jury out to Momma’s house and the trailer?

  CHAPTER 110

  When the trial resumed, the same expert testimony Hembree’s defense had been trying
to sell to jurors regarding how the girls had died continued. There was a bit of testimony surrounding an idea that Randi did not have a broken nose, despite Hembree’s confession of having punched her in the nose while inside his den, thus the reason for all the blood that forensics had uncovered. Bell had put up an expert who testified there was broken cartilage on Randi’s nose. Hembree’s expert said he didn’t find that to be true.

  Before the end of the day, Beam called a retired Gaston County Police Department detective. He had interviewed Hembree in the late 1970s and early 1980s. Beam asked the detective about a statement he had taken from Hembree.

  Yet, no sooner had he been called than Beam concluded: “Other than those documents (reports) that you have in front of you, you don’t have an independent—away from those documents—recollection of actually speaking to Danny Hembree?”

  “No, I don’t.”

  Many wondered why the cop had been called, to begin with.

  The rest of the day was essentially eaten up by arguments without the jury present. The state wasn’t sold on the idea that going out to both places was prudent. It was a dangerous hassle for everyone and did not move proceedings forward—and maybe even a way for Hembree to flex that control he so desperately craved.

  ADA Hamlin argued with Beal about the differences in the properties then and now. There was no comparison. It might even confuse jurors more than help them.

  The state’s arguments did no good, however. Judge Beal explained, “I’ve already addressed the fact that I realize there are some differences, but I think the value of seeing the property is of value [and] is substantial to the jury. In my discretion, I’m going to order that there shall be a jury view to take place [tomorrow] .”

  Beal explained the rules for the visits.

  Everyone was going: Hembree, his lawyers, the state, judge, court reporter, and several sheriffs.