by Monica Hesse
“Did you do a whole lot of planning for that operation?” Agar asked.
“No.”
“Why is that?”
“Because,” he said, “we’d done it before.”
Agar had finished his direct examination. Judge Tyler called a recess then, until the next morning. It was after 5 p.m., he never liked to go beyond 5:30, and he assumed the Zaleskis would take longer in their cross-examination of Charlie Smith than half an hour. The reporters, who had been required to leave their cell phones and laptops outside of the courthouse, ran to their cars so they could Tweet and file updates from the trial. “Eastern Shore arson suspect’s fiancé testifies,” they wrote. “At arson trial, all eyes on Tonya Bundick’s former lover.”
The next day the cross-examination started. Christopher Zaleski would be handling it. He had a more fiery questioning style than either Agar or his father, and a slight smirk that implied he didn’t believe any of Charlie’s answers, even before they were given.
“You’re pretty comfortable up there today?” he began.
“I guess as good as I can be?” Charlie said, appearing confused by the question.
“Well, you’ve done this before. This isn’t the first time you’ve testified in a courtroom, is it?”
“Testified?”
“Been sworn in.”
“Oh.”
“Gave statements under oath.”
“No, it’s not.”
Agar had been right in his assumption that the Zaleskis would gravitate toward Charlie’s criminal past; it was the surest way to set him up as an unreliable witness. The younger Zaleski pointed out that Charlie had testified before, because he’d been in trouble before, and when he’d been in trouble, he’d cried, just as he had on the stand the day before.
“No,” Charlie said, he hadn’t cried.
“You didn’t?”
“No.”
“Okay,” Christopher scoffed. “You blamed it on the drugs, though, didn’t you?”
The Zaleskis’s plan, it became clear, was to paint Charlie as unreliable from multiple angles. He was unreliable because he was a repeated convicted felon. He was unreliable because he was a drug user, who had relapsed multiple times. He was unreliable—this whole trial, by de facto, was unreliable—because Charlie was on a first-name basis with the sheriff, because Godwin had told him, “We’re going to help you out, Charles,” on the night that he was arrested. Charlie, the drug-addicted repeat offender who was personally acquainted with the police, knew that the only way to help himself out was to throw someone else under the bus and hope for a good deal in exchange. “Your plan was to implicate her, wasn’t it?”
“No.”
“Okay. But you did.”
“I know I did.”
“You’re doing this to get some assistance, aren’t you?”
“Not that I know of.”
“To get your time cut?”
“Ain’t nobody offered me nothing.”
Eventually, Christopher came around to the real reason that Charlie’s testimony should not be considered reliable by the jury: because he loved Tonya. Too much, unhealthily. He wanted to own her.
“Own her?” Charlie repeated.
“You wanted people to know she was taken. Didn’t you write, ‘I want you to wear a ring so people know you’re taken’?”
“Well, yeah. That was after she wrote me a letter saying to buy her a ring.”
“You would do whatever it takes to be with her, right?”
“Yeah,” Charlie said.
“And you know if you’re in here and she’s out there, she’s not going to wait around, don’t you?”
“Well, yes, I’m concerned about that.”
“Because you know you’ve got thirty-one felony convictions plus these new ones, right?”
“Yes.”
“It would kill you if you found out that she was dating somebody else, wouldn’t it?”
“Yeah, it would.”
“You love her so much it isn’t funny?”
“Yeah.”
Christopher moved on to his next point: that Charlie had been the one to volunteer in the fire department—the one to excel there, to learn how to move around in the dark, to learn how to set fires without accelerants. What about the fact that Charlie wasn’t on good terms with the fire department, and must certainly have wanted revenge on the members there? Wasn’t that a sign that he must have been in a pretty desperate place, the kind of place that might lead someone to light fires? And finally, what about the bedroom issues he was having with Tonya?
“There were problems with your relationship,” Christopher said. “I mean, she was your girlfriend. You were supposed to be doing things.”
“Yeah.”
“You couldn’t perform physically with her, could you?”
“No, I couldn’t.”
“In fact, for eighteen months leading up to this, and these are your words”—he paused for effect—“ ‘My dick stopped working.’ ”
In the press gallery, journalists collectively picked up their pens, ready to capture the outburst that seemed sure to follow from Charlie. They’d read the transcripts of his confession and knew how mortified he seemed to be by the idea of other people knowing his bedroom problems.
But an explosion didn’t come. “Yeah,” Charlie said.
“And you were concerned about that, weren’t you?” said the younger Zaleski. “Because you knew if you couldn’t satisfy her she was going to look elsewhere?”
“Yes, sir,” Charlie said sadly.
Christopher let that hang in the air before moving on. When Charlie had confessed to the sheriff, he’d talked about a broad manner of things, Zaleski prompted, pacing the floor. “Talked about your demons. Your drugs. Your relapse, your history, your work in the fire department, getting kicked out of the fire department.”
“I never talked about getting kicked out of the fire department,” Charlie answered, which was true.
Charlie offering this sort of specific correction wasn’t good for Tonya, because it made Charlie look like a man who not only told the truth but told it exactingly. In the grand scheme of things, it didn’t matter whether Charlie had talked about being kicked out of the fire department. He was a readily admitted forger and drug user and arsonist with erectile dysfunction. But when he bothered to correct Christopher Zaleski about whether he’d specifically talked about being kicked out of the fire department, he came across as a person who wanted to be helpful and make sure the story was told right.
Christopher was getting visibly agitated. It seemed, he pointed out, that Charlie was really good at blaming other people for things. He was now blaming Tonya for his lighting the fires. But hadn’t Charlie, in fact, enjoyed those fires? “You set some of them for revenge, didn’t you?”
“What do you mean?” Charlie asked, and Christopher brought up the fire that Charlie had lit because an acquaintance was hitting on Tonya on Facebook.
“Those weren’t instances where you guys were having a bad day and riding around and decided to set the place on fire. You did those on your own, right?”
“What do you mean?” Charlie asked again. “By myself?”
“Yes.”
“No sir, I didn’t.”
“You told the sheriff you did those by yourself.”
“I mean I lit them by myself,” Charlie explained. He had held the lighter; Tonya was waiting in the van.
Gary Agar kept his redirect brief. Christopher Zaleski had touched on Charlie’s sense of inadequacy in the relationship, specifically the problems of his impotence. Agar was looking for a little clarification.
“How, if at all, did that relate to these fires?” he asked.
“I didn’t have no clue. Just, I did whatever it took to make her happy. Because they kept telling me at the [doctors’ offices] that it was all in my head, that I thought she was too good for me that that’s why I couldn’t perform, and I didn’t want to lose her.”
“Why would a fire improve a situation where you had no sex?” Agar asked.
Allan Zaleski rose. “I object to that, judge. Calls for speculation.”
“Sustained,” the judge said.
CHAPTER 25
“THEY CAME OUT OF EVERYWHERE”
IT WAS ALLAN ZALESKI’S BELIEF that when you had a client whose defense was that they were innocent, then you had nothing to lose by putting them on the stand. Tonya wanted to testify. She wanted to tell her story. On the second day of the trial, she got her chance.
The courtroom was quiet as she was called to the stand. Even her walk was divisive: some of the watchers in the gallery thought that her languid stroll was a sign that she considered herself to be above the proceedings, that she was treating the affair like a red carpet walk instead of a felony trial. Others saw not defiance, but dignity, an admirable refusal to be dehumanized by the seediness of the situation. She reached the stand and slowly took a seat, a cat settling itself. Her voice in the courtroom was soft and lilting as she repeated her name to the bailiff; there was an air of gentility that people who hadn’t heard her speak before weren’t expecting.
She was forty years old, she told the elder Zaleski, Allan, as he began her questioning with basic biographical details. She was the mother of two children. She had lived with Charlie in a three-bedroom, one-bathroom house, and he had done auto-body work, and she had been a certified nursing assistant until she left that job to take care of her son. She had been in jail from April to September of the previous year, and then she had made bail, and then she had been arrested again in December. Charlie always had bad self-esteem when they were together. “It was like I constantly had to reassure him why I was with him, why I loved him, what I saw in him,” she said. She’d known he had drug problems. That’s why she’d asked him to take a drug test after they’d been dating a little while; she wanted to make sure he hadn’t relapsed, because sometimes his actions were “sporadic.” She might call him and ask him to pick up a loaf of bread on the way home, and he’d get home and there would be no bread. That’s what she meant by sporadic. He was forgetful. He acted funny.
Allan nodded thoughtfully to all of her responses, and then said he wanted to steer her attention to April 1. Did she remember that night?
“I do,” she said. It was the night she was arrested while driving Charlie’s van, and Zaleski was careful to underscore that point—that Tonya owned two vehicles, but on the night of April 1 they weren’t even in her car. They were in Charlie’s van as they drove north to Maryland for a shopping trip.
“We had left my house, I guess it was probably around 6 o’clock because I was going to go birthday shopping for my boys,” she explained. “Their birthdays were going to be April 3 and April 9. So I wanted to get their birthday gifts, so we had gone to the Walmart in Pocomoke.” Her sons wanted smartphones for their birthdays. The ones in the Walmart electronics department were more expensive than the $300 she’d allotted, so they tried a nearby GameStop, and Family Dollar, and then they went back to Walmart, which had turned out to have the best deal after all. Before they checked out, she and Charlie decided they needed a few groceries. “So when we got into the grocery section—mind you, I was the one, I was buying the items that night, I was the one who had the money—and Charlie wanted a box of Steak-umms. And to make a long story short, when we would use his money to go to the grocery store, everything had to be bought as a meal. You know, everything had to be a meal. And he picked up these Steak-umms and he said he wanted to get those and he was going to take them home and fix them. And, of course, I’m like, but you can’t do that because everything has to be a meal. You know, we’re planning our money out. We have to get enough to make meals that will last. So we got in an argument over a box of Steak-umms.”
Tonya kept talking, and what she was talking about suddenly wasn’t a story about the night that the fires stopped and her life changed in Accomack County. It had become a story about relationships, and those nights when the person you love is suddenly the person who irritates you most, and when Steak-umms grow to represent not a dinner choice, but the symbol of financial independence, and finally getting it together to move up in the world.
Tonya’s story was about a waning love affair, and the relentless struggle of being alive and working class in 2013.
She made him put the Steak-umms back. She was touchy. He was touchy. They left the Walmart, Charlie driving, and they were supposed to stop to make a car payment at a nearby auto center but Charlie didn’t even stop the car. They got closer to their house, but then before they could turn onto their street, Charlie turned to her and asked if she wanted to go down to Onley, to a different Walmart. She thought maybe he wanted to get his own presents for her sons. He hadn’t gotten anything for them at the other stores.
“So we went—we got back to my house because I wanted to check on the boys and make sure they were okay, put the groceries away, and we proceeded to go down to the Onley Walmart. And when we got there, things still weren’t right,” Tonya said. She went to look in the underwear section and he was right there, glued to her elbow, the way he used to be glued to her in her own clothing store, only this time it wasn’t cute and it wasn’t endearing. “And I mean I won’t lie. I was a little irate with him. So I was like, ‘Do you have to be up my ass while I’m looking—excuse me—while I’m looking at underwear?’ ”
They left the second Walmart. They drove a while, stopped at The Wine Rack to get gas. Tonya told Charlie that he seemed like he was in a bad mood that night and that he didn’t want to be there with her. It had been a hard stretch of time for them, she said, with his mom passing away and business being rough. She offered him an out. She said, “You know, if things are too hard for you to deal with with my sons—if things are too hard for you to deal with, just tell me. You know, all you got to do is walk.”
After they got gas, Charlie said he wanted to ride around for a while. A bit later, he stopped and peed and then asked Tonya if she could drive. She drove a little more, through the back roads of Melfa, and then he asked to stop and be let out again. She didn’t bother to ask why; she was already pissed at him. She eventually doubled back and tried calling his cell, but he didn’t pick up.
“And did he call you then?” Allan asked.
“He called me a little while later.”
“All right. And what did he say?”
“Well, at first when he picked up the phone, I didn’t hear anything. It was just a lot of muffling,” she said. “It sounded like somebody was holding the phone in their pocket or something.”
“But then what happened?”
“And then he just told me—he said, ‘Come back and get me.’ ”
“When he first got out of the van, did he have anything in his hands?” Allan asked, angling at whether Tonya would have seen him carrying a lighter or anything that indicated what he was about to go do.
“No.”
“When he got back in the van, did he have anything in his hands?”
“No.”
“And so then did he ever mention to you anything about, ‘We’ve been caught,’ or anything like that?”
“No.”
“Did you see any other traffic on the road?”
“I did not,” Tonya said.
“Okay. So after he got back in the van, what happened?”
“I got to the Melfa light, and a car came up behind me and I had to stop because the light was red; and when I proceeded to make my left-hand turn when the light turned green, there was the cops. I mean, they came out of everywhere.”
She didn’t know Charlie was going to light the fire. She didn’t know he had lit any fires. She didn’t know anything about the fires, she said. What she knew is that Charlie was the type of guy who acted “sporadic,” who would leave the house to pick up bread and then get to the grocery store and forget why he was there. She thought he might be back on drugs. Everybody knew Charlie had a drug problem. Those nights when Charlie was o
ut lighting fires, she assumed he was working late, trying to bring in extra cash for a business that didn’t seem to be going well since he’d moved out of his stepdad’s shop. That’s what she knew.
Gary Agar approached his cross-examination with an air of disbelief.
“Now, you’re very articulate,” he said. “You speak very well. How much education do you have?”
“I graduated high school,” she said.
“And then Charles had low esteem, he always needed assurances, and you were his girlfriend.”
“Yes.”
“And did you give him those assurances?”
“Well, of course. I loved him.”
For the jury who had just seen Charlie bumble through his testimony and not understand some of the terminology, Agar was trying to illustrate one of his central theses: Tonya was the dominant partner in the relationship. Charlie depended on her, for everything from a place to live to the building of his own self-esteem. He might have been the one caught with a lighter, but if there was an orchestrated plot behind the actions, it would have been orchestrated by Tonya.
Agar tried to bring her to the concept of “riding around” that he had noted in her interrogation with Scott Wade. Hadn’t she told Wade that she and Charlie went out riding around a few times a week? How was it possible that she wouldn’t have been aware of Charlie’s fire-starting proclivities, if she was in the car with him so much? He brought up the prison phone calls, the fact that when she and Charlie talked on the phone while she was out on bond and he was in the county jail, she had made a point to say, “They’re recording this.” (She hadn’t wanted to discuss the case, she explained.) He brought up their prison letters, and the fact that Tonya sounded like she was pretty good at tracking down legal information online. (“I wouldn’t say that. I know how to go online and Google something.”)
He wasn’t expecting to get a sudden courtroom confession, and he didn’t. Tonya was poised and collected, never displaying a negative emotion stronger than slight irritation. She had good comedic timing. When Agar asked what she’d made of the fact that Charlie—who by her account had already asked to pee once—asked to be let out again, she sighed in a way that anyone familiar with the daily exasperations of a relationship could relate to: “You know what? I really didn’t ask him anything because we were already not getting along.”