To Love and to Kill

by M. William Phelps

  For this prosecutor, that one statement put Emilia at the scene. Yet, the next comment out of Emilia’s mouth to Michelle was even more detrimental to any later story Emilia would tell of not being at the scene: “Did you help at any point during all of that?” Michelle asked, and Emilia subsequently replied, “Yeah, I helped him tape her to the chair,” King recounted.

  At this very early stage of the trial, jurors had to be asking themselves: Why would an innocent woman, not inside the trailer when a kidnapping, torture and murder took place, ever admit to such a thing to the sister of the man who purportedly acted alone in killing his wife, if she didn’t do it? On face value, with common sense employed, the insinuation seemed ludicrous. Her later story of not being at the scene was, simply, King repeated more than once, Emilia Carr changing her story again to fit the new circumstances.

  For a little under a half hour, King talked jurors through his case, concluding, as prosecutors often do, on a persuasive note, imploring jurors to follow the evidence, same as law enforcement had done.

  “Listen to all of it,” King said, especially the tape of the Michelle/Emilia conversation. “Watch her reactions on the videotapes,” he added, referring to the interviews Buie and Spivey had conducted. “Listen to the inflection in her voice, and you decide.” He paused brilliantly here, allowing the power of suggestion its rightful place. Then, softly, “You decide,” he said again. “Thank you.”

  CHAPTER 77

  CANDACE HAWTHORNE HAD her work cut out for her as Emilia’s appointed defense counsel. With long, flowing, curly blond hair and large-framed tortoise-shell glasses, Hawthorne looked the part of the experienced death penalty lawyer she had become. She’d been involved in capital cases as far back as 1998 as an assistant public defender and several in between. In May 2008, however, Hawthorne represented then-twenty-year-old Renaldo McGirth, the “primary actor,” according to the court that tried and convicted him, in the brutal execution-style murder of sixty-three-year-old Diana Miller inside her retirement community home. In that case, Hawthorne went face-to-face with Brad King, too—and lost big-time. McGirth actually made history during the course of the trial after becoming the youngest inmate in Florida to be sent to death row.

  On the flip side of that loss, in December 2009, Hawthorne successfully negotiated a deal for a Brooksville, Florida, man after helping him avoid trial and a potential death sentence. Regarding her client in that case, Hawthorne said after the deal was finalized and signed, “It would have been difficult to humanize him [to a jury]. He wasn’t a Boy Scout.”

  Hawthorne knew these capital murder waters well. She understood that each death penalty case was dependent upon the circumstances and individual on trial, and how he or she fared in the eyes of public opinion and the evidence. Yet, she also knew that, in their favor, death row in any state using capital punishment was not brimming with females. Still, the cards were stacked against Emilia when the numbers were taken as a whole. With California having the most inmates on death row at 741 (as of 2013), Florida was second with 412. Even more discouraging was the overall size of death row between 1968 and 2010: 517 to 3,158. Death row had grown considerably over the course of forty years by a tad over six times.

  The one number Emilia had on her side among those same stats, however, was her race. In Florida, out of those 410 inmates on death row, as Emilia sat in the courtroom on December 1, 2010, watching Candace Hawthorne prepare her notes for her opening statement, 223 were white, 153 black, and only 34 Latino.

  Dressed in a business suit, with a beige blouse, Emilia sat with her head held high as Hawthorne began. There can be no doubt Emilia was certain that once a jury heard her side of the story, numbers and stats and opinions would not matter. Because when the facts presented themselves to the jurors, each would understand that Emilia had no choice but to listen to Josh. She had feared that if she had told the truth at any time, Josh would do to her and their unborn child what he had done to Heather. You put a woman in fear for her life and the lives of her children and she will do anything in her power to survive, Emilia was now saying with this new defense she was mounting—even lie through her teeth in spite of herself and the incredibly expanding evidence against her.

  “As to the theory of what happened,” Hawthorne said a few moments into her opening, “that is going to be for you to decide after you hear the evidence from the witnesses and look at the documents. . . .”

  On a board in the courtroom, Hawthorne wrote out a date: September 2008.

  “That’s one of the things I disagree with,” she said. “I think this case started back then. And it probably started many years before that, because Josh and Heather were like oil and water.”

  So Hawthorne’s case, as many suspected, was going to be built on a foundation of Josh and Heather’s volatile and violent relationship, and how motive in this case centered on Josh, not Emilia.

  Hawthorne explained how Jamie Carr, Emilia’s ex-husband, had custody of Emilia’s fourth baby, a child supposedly fathered by Josh. Hawthorne was smart to work in “high-risk pregnancy” when talking about this child and how Emilia was pregnant during the course of being questioned, which just might help later on when all of those statements came back to bite her.

  The bare essential of this murder, Hawthorne maintained, was in that month of September when Heather was arrested on battery charges after Josh made a complaint against her.

  “Emilia was a witness to that,” Hawthorne pointed out.

  Then Ben McCollum’s name came up, Hawthorne saying how Heather moved in with Ben as a nanny, only to begin a romantic relationship with him.

  “Josh was very possessive of Heather,” Hawthorne announced. “And when Heather had other men in her life or other people in her life, he would do whatever he could to chase them away, to remove them, because he didn’t want Heather having a relationship with anybody but him.”

  It was a strong argument for motive, devoid of Emilia, of course. Josh had acted all on his own, Hawthorne seemed to suggest. He was a man who hated Heather for what she had done to him. When Ben and Heather hooked up, well, that was a last-straw scenario for Josh. He couldn’t handle the rejection.

  Josh was “afraid that Heather was going back to Mississippi and [would] take the kids, like she had before,” Hawthorne outlined.

  It must have all looked good on paper and then sounded feasible when spoken by such a prestigious, competent attorney. But where was Emilia in all of this? She couldn’t just be the “other woman” sitting on the sidelines innocently. Emilia had done and said things she needed to explain.

  James Acome was next. Heather had moved in with James, Hawthorne said, pleading with jurors to focus on this important detail, because Emilia needed “financial support and somebody else in her life to take care of her kids.”

  This was something Josh, in jail at the time, could not fathom, could not handle and could not process emotionally. That rage Josh had harbored all his life bubbled to the surface, as it had so many times before.

  Josh, Josh, Josh.

  Hawthorne banged on and on. Josh wanted Heather to himself. Josh wanted to be with his kids. Josh was not in control of any of this while in jail. Josh was afraid Heather would disappear with the kids.

  Again, it sounded good. A finger had been pointed. But the facts of the case dictated that while Josh was on the telephone with Emilia during this same period, he was wooing Emilia, telling her how great she was, how much he loved her and how he was finished with Heather entirely. The facts, in other words, did not support Emilia’s argument.

  “But did Emilia Carr really want to kill Heather?” Hawthorne asked. She allowed the statement to resonate with jurors.

  “No!” she answered. “Probably got mad at her, probably threw some words around, but there is no evidence to support any real anger or violence. It’s just, you know, tit for tat, and it went back and forth.”

  Sounded great.

  Tit for tat.

  Blow for blow.<
br />
  Word for word.

  Only problem here was that Emilia’s tat included pulling a knife on Heather, holding it to her throat, threatening Heather and—from her own mouth—trying to snap Heather’s neck.

  Where did that fit in?

  Hawthorne argued that Emilia was in no position to hurt Heather because she was pregnant. Any “dispute” (or issue between them) that Emilia and Heather had, Hawthorne said, was “over at the house, babysitting her children.”

  There was no choice in the matter for Hawthorne but to address all of those interviews Emilia had voluntarily given to the police. She needed to talk about how Emilia held back info—and there was only one way she could get her client out of it.

  Blame the police.

  Hawthorne claimed Emilia was kept at the MCSO longer than she should have been. The detectives had promised to take her home “real soon,” but they never did. They shifted her around to different rooms in order to unnerve her. Rooms that both had a camera and didn’t, as if it was an intentional part of getting Emilia to admit things she didn’t say. She also suggested that the police did not give Emilia much food or drink. Emilia’s pregnancy was “high-risk” and she was under a lot of stress. Emilia had wanted to help, but they scared her when they said they’d found a body on her mother’s property.

  Hawthorne illuminated this: “Because Josh [had] told her, ‘You don’t want to say anything because you’ll wind up in the same place. And don’t worry about Heather, she’s closer than you think.’”

  The documentation and recordings of these interviews, however, would tell a different story for jurors—and contradict most of what Emilia was claiming here.

  There was also a suggestion that DCF acted in concert with the MCSO when they took Emilia’s children into custody on March 24, the day the ball dropped on Emilia and she found herself facing a crisis of needing to find out more about the case in order to get her children back.

  “So that morning,” Hawthorne said, “. . . at [a probate] hearing, Emilia Carr sees Michelle Gustafson . . . and they talk. And Michelle starts up a conversation and they make a plan to get together later. And then Emilia calls her later.”

  Nowhere in there did Hawthorne mention that Michelle initiated the meeting after Emilia called her on the phone wanting to know what Josh was saying.

  As for that recorded conversation in the car between Michelle and Emilia, something that Hawthorne had no choice but to try and explain away, she put it all on Buie and Spivey for coaxing Michelle into asking the right questions to get the answers they wanted.

  Hawthorne spent all of three sentences talking about that recorded conversation and then, perhaps smartly, moved on.

  Moments later, after collecting her thoughts, Hawthorne looked up from her notes and concluded by stating that Emilia was a victim of an overzealous investigation that needed a scapegoat beyond Josh. She asked jurors to pay attention to this theory during the course of the trial: “And the trickery used by law enforcement, did that compel Emilia Carr to give a false statement to the police to try to help prosecute Josh and allow her to become a witness?”

  The problem with an argument like this was that Josh had admitted his role—completely. He was ready to accept death; they had that admission in his own handwriting. They did not need Emilia to convict Josh.

  “It’s not going to be easy,” Hawthorne said in the end. “. . . I wish you Godspeed in your task.”

  CHAPTER 78

  THE STATE PROMISED a chronological version of its case from the moment Heather went missing to the arrests of Josh and Emilia and all of the evidence it gathered afterward. And that was exactly how Brad King began on the morning of December 1, 2010, after opening statements concluded.

  Brenda Smith, Heather’s boss, a twenty-five-year employee of the Iron Skillet at the Petro, came in and told her story of that February 15, 2009, afternoon when Heather seemed so agitated and nervous after talking on the phone to a man Smith believed to be Josh Fulgham. Heather, Brenda Smith said, completed her shift at 3:00 P.M. and left; Brenda never saw her again.

  Brenda’s testimony was quick and to the point. She set up the disappearance and connected Josh to calling the Petro and being one of the last people to have communicated with Heather.

  Candace Hawthorne was gentle with Heather’s friend and boss. As a defense attorney, you have to choose your battles wisely; you can’t attack everyone. Less is always more, especially when you’re fighting for the life of your client. And defense attorneys know going into any trial that, despite what the law says (innocent until proven guilty), you are always coming from behind.

  For the most part, Hawthorne used Brenda Smith to make sure jurors understood that Heather was dating Ben McCollum in late 2008 and that Heather broke it off with him to marry Josh, but Josh was arrested one month after the wedding.

  Hawthorne asked Brenda about a meeting Heather had with “two men” in business suits during the first week of February. They had “some papers” they wanted Heather to sign. Brenda spoke with Heather after the men left the restaurant.

  “And did you give her advice?” Hawthorne asked.

  “Yes, ma’am, I did.”

  “Okay, and did you advise her that she shouldn’t sign those papers?”

  They did not discuss what papers they were, but it was clear that it had something to do with dropping charges against Josh.

  “Yes, ma’am, I did.”

  “And did you tell her that ‘When he gets out, he’s really going to kill you’?”

  “Yes, I did.”

  Hawthorne did a fair job with Brenda Smith, being sure to point a finger directly at Josh. If she was to be successful, Hawthorne had to build a case against Josh as a monster—a vicious, violent sociopath—a man who had made a decision to murder Heather on his own and drag Emilia into it against her will.

  CHAPTER 79

  OVER THE COURSE of the morning, Ben McCollum told his version of knowing Heather, offering no surprises. Ben set up a timeline for the state, telling jurors how he had entered the picture in early 2008, only to be booted from Heather’s life after she decided to marry Josh. And once again, Ben gave Hawthorne the opportunity to paint Josh as a thug—a yelling and screaming soon-to-be ex-spouse who threatened Ben and Heather on numerous occasions.

  After Ben, twenty-seven-year-old James Acome filed into the courtroom. James had a terrible overbite to contend with, which made him a bit hard to understand at times. He had piercing blue eyes and short-cropped black hair, along with a bit of a criminal record to explain. At first, James talked of how he had gone to school with Emilia, which was how they first met. And when Josh and Heather moved into town from Mississippi, James said, he and one of his buddies became friends with them.

  Emilia sat, staring at James Acome, a bit of a self-righteous smile on her face.

  As he explained his life in Citra and McIntosh, James said he had an on-again, off-again relationship with Emilia and they sometimes slept together.

  “And as a result of that relationship, have you been told that one of her children is yours?” Brad King asked.

  “Yes, sir.”

  “Who told you that?”

  “She did.”

  The subject of James Acome’s buddy came up next—that same friend Emilia had allegedly asked, along with James, to lure Heather so she could snap her neck. James said they all hung out together, even while Josh was in jail during that January through February 2009 window of time.

  King wanted to know if, during that period, James Acome had ever seen Emilia put her hands on Heather.

  “Yes, sir,” James testified.

  They discussed the circumstances surrounding the attack. Heather and Emilia were hanging out at Josh and Heather’s trailer, James explained. They had been drinking. Emilia was ready to leave and had started packing her things. She told Heather she had a letter Josh’s mother had dictated to her over the phone that she needed Heather to sign. Emilia wanted Heather not only to sign i
t, James testified, but to write something to the effect of Emilia giving the letter to Josh’s lawyers so they could rewrite it the way they wanted and use Heather’s signature.

  “She said she wasn’t writing that,” James testified that Heather told Emilia.

  “And what was Emilia Carr’s response to that?” Brad King asked.

  “That’s when Emilia Carr walked up behind her and wrapped her hand around her ... and pulled a knife and put it to her throat.”

  James said he jumped up and “grabbed Emilia in a choke hold and she dropped the knife.”

  Both girls made up, James said, and actually apologized to each other.

  King made sure to get James Acome’s felonies on record, for James had no trouble admitting to “three [arrests] dealing in stolen properties,” and then King passed the witness to Hawthorne.

  Hawthorne wanted to know when James began seeing Heather.

  He said he moved in with her on January 26, 2009.

  James then said he knew Josh “very well.” Josh had never threatened him, and he had never seen Josh threaten or strike Heather.

  Then Hawthorne got into that knife incident James had described for King. By the time she was done, James Acome had said they were drinking a lot and continued to maintain a relationship in the days after the altercation. So the implication was that it couldn’t have been all that bad if Heather continued to allow Emilia in her life after the alleged knife incident.

  After that and several inconsequential questions, James Acome was cut loose.

  Next in the witness chair was James Acome’s friend.

  Out of the box, he said he had known James for ten years. They hung out a lot together. He also knew Josh. And Emilia.

  “And what do you actually call Emilia?”