by Monica Hesse
Given the judge’s ruling, Agar’s next best hope was that Tonya would be found guilty in her early trials. In that situation, the defense might decide to plead guilty for all the other charges, in exchange for a packaged sentence. Zaleski, on the other hand, hoped Tonya would be found not guilty and the other charges might eventually be dropped. For a felony count of arson of an abandoned structure, the minimum penalty sentencing was two years per count, and the maximum was ten years. If the trials didn’t end soon, Tonya could live out the rest of her days in prison.
THE FIRST TRIAL took place on January 13, 2014. It was the first trial but the final fire, the one that got Tonya and Charlie arrested on Airport Road.
In contrast to Accomack’s old brick courthouse, the Virginia Beach court complex was modern, with escalators and glass walls, and bland courtrooms that looked like they’d been outfitted with an Office Depot catalog. In the spectator pews, the handful of Accomack residents who’d gotten the day off of work and come to the trial out of curiosity were clustered behind the desk reserved for the Commonwealth’s attorney. The journalists, mostly local media and television affiliates who set up cameras in the back, clustered on the side of the defense, eager for a glimpse at Tonya.
When the court was called into session at 9 a.m. on the thirteenth, prospective jurors also peered curiously at her as she strolled in slowly, chin high, to her seat between Allan and Christopher Zaleski. She had lost weight in prison and appeared fine boned and fragile. She was wearing a blue button-down shirt and black slacks, brought for her by a friend, but funds hadn’t been deposited into her temporary Virginia Beach commissary account in time for her to buy makeup and hair products. She looked unkempt, stripped of the armor she normally applied so carefully. A few in the panel recognized her anyway, from following the news, but to most of them she was nobody. Her face was expressionless. Some of the jury panel didn’t know what to make of her: at least one, a retired nurse, looked at the small woman surrounded by the hordes of uniformed men—deputies from both Accomack and Virginia Beach, members of the Virginia State Police—and immediately felt sorry for her.
Once court had been called to order, Judge Tyler began to explain why there were both blue Virginia Beach law enforcement uniforms and brown Accomack uniforms present in the court. “This is a case that arose in Accomack County, on the Eastern Shore,” he said. “I know from having been raised in the western part of Roanoke County as a child and then moving to the shore after I started practicing law that 50 percent of the people in the Commonwealth of Virginia don’t know where the Eastern Shore is. Now, I presume that people in Virginia Beach know that if you go across the Bay Bridge-Tunnel for seventeen miles, when you fall on the land over there, you’re in Northampton County, Virginia, and if you go seventy miles from the Bridge-Tunnel, you’ll come into Maryland. I apologize to all of you who know where the Eastern Shore is; I just have run into so many people who don’t.”
Tyler was a retired judge, who occasionally came back to serve on rotations. He’d been on the bench eighteen years and had, over time, developed an excruciatingly patient way of explaining things that assumed jurors did not know anything, but did not make them feel guilty about it.
“I am going to tell you a story,” he continued, still perfecting his description of the uniqueness of the county. “A friend of mine was a great Virginia Tech advocate. He went to all of their football games. They solicited him to give a donation to Virginia Tech. When the band formed up on the field, the football field in the shape of the Commonwealth of Virginia, they never added the Eastern Shore. So he made them add a little strip of the Eastern Shore of Virginia before he would give them $50,000. So that will give you some idea. The location of this event—Mr. Agar, state the location of this event, please?”
“The town of Melfa,” Gary Agar said, rising halfway from his seat to supply the judge with an answer.
Only after Tyler felt that the atmospherics had been properly and thoroughly set did he pivot again to talking about the case at hand and how he would be selecting jurors for it. From time to time, he remarked on a name that seemed familiar. “Killmon is an Eastern Shore name—do you have any relatives over there?” the judge interrupted one prospective juror’s questioning.
“It is—my grandfather is from there. He met my grandmother on Tangier Island and he carried her off,” the prospective juror said.
“Well, he had to carry her off,” the judge said, “because those people won’t go unless you take them.”
The selection lasted all morning. In the end, the jury consisted of, among others, a nurse, a federal safety compliance officer, a homemaker, a counterintelligence counsel agent, a college student. When it was lunchtime, Tyler remarked that he planned to obey Virginia Beach custom on some court-related things, such as breaking for lunch at 1 p.m. instead of noon the way he usually did. However, there were some things he preferred to do his way. “It’s going to be the Accomack rule on clothing, bailiffs,” he said. “Nobody’s coming in with torn jeans, flip-flops, T-shirts, field clothes, et cetera.”
And it was time for the trial to begin.
“WE HAVE ALL HEARD OF ARSON.”
Gary Agar stood before the newly assembled panel with his graceful hands, and introduced the jury to the charge they would be asked to evaluate. “This arson is one dealing with the burning of a structure, the structure having a value of over $200. It’s not that difficult a statute, and the proof is just this: The Commonwealth has to show that the structure was burned in whole or in part. And that the defendant did that with malice. Malice is just the doing of a wrongful act intentionally, without any cause or excuse.
“The second charge faced by this defendant is that of conspiracy. Conspiracy is where—and let me just read it from the statement of the law: ‘The defendant entered into an agreement with another, and that agreement was to commit arson, and they both intended to commit arson upon their entering into that agreement.’ So it is not a complicated law, but it is exacting. The Commonwealth needs to show this beyond a reasonable doubt. That’s what we have to show—now let me tell you how we’re going to prove it.”
The Commonwealth would begin, Agar continued, by calling as a witness the owner of the property in question. He would then call the troopers who witnessed the fire being lit by a man—a man who ran, “lickety-split” back to a van driven by the defendant, Tonya Bundick. He would call the sheriff’s deputy and the police officer who stopped the van, and the firemen, and the officials who had performed the search of the van, and Scott Wade, the investigator who questioned Bundick, and a man from Verizon Wireless who would tell them technical things about an important call made at 11:35 p.m. on the night the defendant was arrested.
“There will be a lot of evidence here,” he finished. “But I think at the end of this it will be very clear the defendant cannot sit back here in this position of ‘Gee, I just didn’t know what was going on.’ The evidence will show she’s just not in that situation at all.”
Agar returned to his seat, and without a transition, Allan Zaleski rose from his. He moved slowly, almost creakily; there was a vague Columbo quality to him—a man who feigned simplicity while retaining everything. After a brief introduction, he got to the facts: “Charles Smith and Tonya Bundick were lovers. They were not married, but they lived together in the town of Parksley. It was a two-year relationship. My client had two—has two—children, is the single mother of a thirteen-year-old and an eleven-year-old. She met Charles Smith. He was a self-employed man, and he later moved in with Ms. Bundick.” One night the couple was running a few errands, Zaleski said, and this was the night that Charlie got out to light a fire. But Tonya didn’t know anything about it.
“It’s interesting,” Zaleski continued, philosophically. He was in the habit of taking off his eyeglasses, and gesturing with them. “You’ll find that the fire was set with a cigarette lighter, something you can stick in your pocket. Not a can of gasoline anybody could carry, or turpentine or an
ything like that. You can stick it in your pocket, run out, do what you intend to do. It’s obviously what Charles Smith intended to do. He’s confessed to it.”
In order for Tonya, the purported getaway driver, to be found guilty on arson and conspiracy to commit arson, the Commonwealth would have to prove that Tonya was a driving force in the plot. It wasn’t even enough for her to be aware of the fires—not that he was saying she was—but she had to have “encouraged” Charlie in the crimes. “I think you’ll all conclude that Mr. Agar has failed in the duty of requiring that level of proof,” he said, finishing his opening argument. “Thank you very much.”
IT’S AMAZING how boring trials can be. How even the most salacious of crimes committed under the most colorful of circumstances can result in testimony that is tedious and snoozy.
Claude Henry, the owner of the house on Airport Road, was brought in and questioned for several minutes about the material comprising the driveway (packed grass) and the existence of a water heater (there wasn’t one; he’d had it removed because he was afraid vandals would steal it), and whether or not the house had working electricity. Troopers Willie Burke and Troy Johnson were each brought on the stand to discuss the placement of their tent, and the use of their night-vision goggles, and approximately how long it appeared to take Charles Smith to light the house on fire.
Trooper Martin Kriz took the stand and explained that Tonya, when he searched her, had told him about a ChapStick in her bra. Because of the trooper’s Eastern European accent, the word “ChapStick” ended up with an “ah” sound in it. “Chahpstick.”
“Did you find any weapons?” Allan Zaleski asked Kriz.
“No, sir.”
“Any lighters on her? Cigarette lighters?”
“No, sir.”
Gary Agar, on redirect with Trooper Kriz, unintentionally revealed that he had been flummoxed by the young trooper’s accent when the trooper talked about discovering Tonya’s lip balm. “You stated she had a chopstick?” he asked incredulously. He had a habit of slowly repeating back the witness’s final phrases in his rumbling, singsong voice. “Did she indicate where she had the chopstick?”
“She told me it was in her bra,” said Kriz, who didn’t understand that Agar misheard him.
“In her bra?” Agar repeated. “What, if anything, did you do at that point?”
“I removed it,” Kriz said. The accent confusion was never cleared up, and approximately half of the courtroom was left with the impression that the accused arsonist must have a proclivity for Chinese food.
The cell phone expert that Agar had found was a custodian of records from Verizon Wireless, a man named Avram Polinsky, who took the stand holding a sheaf of papers and explained what they represented: calls and text messages occurring between two particular cell phone numbers on the evening of April 1. Agar explained that the fire in question took place at 11:35. Did Mr. Polinsky have any calls that were placed at that time between Charlie and Tonya? Polinsky shuffled his papers and said he did—three of them, all placed at 11:35. One lasted five seconds, one lasted six, and the final one lasted a full three minutes. Those were the only calls between the phones that evening.
The last witness of the day was Charlie. The only witness anyone cared about was Charlie. The ten or so reporters in the courtroom had half expected him not to show up; Charlie himself had reconsidered his decision more than once, up until the last minute.
His hair was close shaven and his hands were shackled, which made him hunch even further into himself as he entered from the right, through doors that led to a small holding cell. The path to the witness stand took him directly in front of the defense table where Tonya sat between her two attorneys. Behind her, the journalists sent to cover the trial picked up their notebooks, ready to write down anything the former lovers said or mouthed as Charlie walked past. The two hadn’t seen each other in months, since Tonya was released from the Accomack jail on bail. But they didn’t look at each other, not even once. Tonya kept her eyes straight ahead and Charlie kept his on the floor until he settled into the witness stand and hunched forward into the microphone.
“Mr. Smith, I think if you just sit back, I think that thing picks up pretty good,” said Judge Tyler, motioning that Charlie didn’t have to bend quite so close to the microphone. “You don’t need to lean up.”
Charlie nodded and backed away, but only by a few inches, as Agar approached him.
“Have you come to tell the truth today?” Agar asked.
“Yes, sir.”
“Is this difficult testimony for you?”
“Yes.” Charlie’s voice was barely more than a whisper, and despite the judge’s promise that the microphone would pick up his voice, the attendees in the gallery had to strain to hear him.
“Judge, I would object to that,” Allan Zaleski said. “It’s leading.”
“Sustained.”
Agar continued, barely missing a beat. “Mr. Smith, do you know Tonya Bundick?”
“Yes, sir.”
“How do you know her?”
“She was my fiancée.”
“Would you point her out to the jury, please?”
Charlie raised his eyes the barest minimum in order to accomplish the task of looking, for the first time, at the love of his life. “She’s right there,” he said.
“Your feelings for her?” Agar asked.
“I still love her,” he said, and his throat caught.
Agar knew that the defense, during cross-examination, would light upon Charlie’s previous criminal record, so he decided to get there first, pivoting to the check forgeries that landed him in prison the first time. He asked Charlie how many felonies, exactly, did he currently have under his belt? Charlie shook his head as if the number was near unfathomable. “Thirtysome?” he guessed. Agar affirmed the number and pointed out that the number was so high because all of the forgeries had happened at once—Charlie had burned through an entire book of checks. But he admitted to those forgeries. And he’d admitted to the breaking and entering.
And he’d admitted, more recently, to setting the arsons. “Yes, sir,” Charlie agreed. He had done those fires.
Periodically, Agar would stop roaming the room to glance back down at the prosecution’s desk. On it, he had laid out a legal pad, with the questions he planned to ask Charlie written in neat print.
15) Riding around?
16) Who driving?
17) Purpose in driving around?
The questions stretched all the way down to number thirty-five, by which point he planned to have guided Charlie up to the night of his arrest.
“Now, were you living with Tonya Bundick when these arsons began?” he asked.
“Yes, sir.”
“And how did they begin?”
On the stand, Charlie shrugged, as if the thing was just as much a mystery to him as anyone else. “It just kind of happened one night. Having a bad night and rode by an abandoned house and decided to set it on fire.”
“Who set it on fire?”
“I went into the house first, and I didn’t set it on fire, and then she went in and set it on fire.”
“Did you do any more arsons other than that?”
“Yes, sir,” Charlie said. They had done them until they finally got caught.
“Did you develop a particular scheme or manner of doing those fires?” Agar asked.
Again, Charlie shrugged. “It was just what we always did. A phone call. Get dropped off, then pick up the phone and tell them where to come pick each other up. I couldn’t tell you word for word because it I don’t remember, but it basically stayed the same . . . She would drive most of the time except for in the beginning.”
“Why was it different in the beginning, Charlie?” Agar asked—question number twenty-one on the list.
“Because I really didn’t want no part of it. But then, she almost got caught, and I couldn’t stand it. She got all cut up, and I couldn’t stand seeing her that way, and I told her if we had to
keep doing it, then I’d do the arsons.”
“Did you change your mode of arson at that point?” Agar tried asking. Charlie hadn’t explicitly said that Tonya had lit the first fires, and Agar wanted that clarification.
Charlie shook his head in confusion at the word “mode.” “I don’t know what you mean by that,” he said.
Agar tried again: “Who lit the fires in the beginning?”
“Tonya did.”
“And after that, were there other fires?” Agar asked.
“Yes.”
“And who lit the next fire?”
“She did.”
“And who lit the next fire?”
“She did.”
Agar asked Charlie a few questions about how they would select properties, and then consulted his notes again. “Now, on April 1, did you and Tonya Bundick leave the house in Hopeton that evening?”
They had, Charlie said. On the evening of April 1, they had been out as usual, riding around. They had eventually ended up at The Wine Rack to get gas. After The Wine Rack, he said, “I went to go burn down a house.”
“You went to go burn down a house?” Agar repeated.
At first they had driven down Texaco Road to burn a house there, Charlie said, but it was too close to the state police barracks, and they decided it wasn’t safe, so they headed toward Melfa instead, and while they drove they made plans for the evening.
“What, if anything, were you talking about?” Agar asked.
“I was going to burn down a house.”
“What did you say?”
“That I was going to burn down a house.”
“And what, if anything, did Tonya Bundick say?”
Charlie shrugged. “Nothing, really. Just that she didn’t think it was smart to burn that one in front of the road that came out in front of the state police barracks.”
She had suggested they go farther into Melfa, at which point they selected the house on Airport Road, at which point Charlie told Tonya he worried it was a setup, at which point she said it wasn’t, so he got out to burn down the house, calling Tonya once to tell her he was about to do it, and again while it was being done.