King asked one question, wanting to know if the Yera house had a phone back in February 2009, and if Miracle recalled getting any phone calls for her sister that night.
“No, not that I can recall,” she told jurors.
Maria Zayas, Emilia’s mother, was called next. Maria talked briefly about how she did not have had a complete, formal education, but she managed to learn how to read and write.
Not far into her testimony, Maria mentioned how Emilia was living with her back in February 2009. That night, February 15, Maria said, she could recall vividly because they were celebrating a birthday and James and his friend had stopped by the house.
Then, echoing Miracle’s testimony in responding to Brad King, Maria said she did not recall Emilia receiving any phone calls that night.
Ending Maria’s very brief direct testimony, Hawthorne asked Emilia’s mother if the MCSO had ever asked her who was at her house on that night.
“No, ma’am,” she said.
Hawthorne then wanted to know if Maria ever saw Josh that night.
“No, ma’am,” she said again.
Under his cross-examination, King established the phone number Maria had back in February 2009. The reason he did this was because phone records would prove that Josh did call the house that night, despite what Miracle and her mother had recalled. All of this business about none of them remembering if Emilia had received any calls was purely conjecture and a waste of time, especially when the phone records proved Josh had called Emilia.
After Maria walked off the witness stand, there was some discussion about Hawthorne’s next witness. Lunchtime was quickly approaching and Hawthorne did not want to get into it, only to have to break for lunch shortly thereafter. So she wanted to know if it pleased the court that they recessed at this point.
The judge agreed.
Gavel.
Chowtime.
CHAPTER 84
SHE HAD TO do it. Emilia believed she had no choice in the matter. The one witness that could tell Emilia Carr’s story best was, of course, Emilia. She had to take the stand and explain to these jurors that she was forced to watch this horrible act of deadly violence. She had feared for her life and that of her unborn child if she spoke about any of it to the police. It was her only chance to make all of the evidence against her fizzle into that gorgeous Florida orange-and-yellow sunset that would take place later that day just outside of the courtroom windows. Rare, indeed, is the day that a murder defendant testifies in her own defense, only because it opens her up to cross-examination. Still, Emilia Carr was someone who believed she could explain anything away if given the opportunity. Her taking the stand fell right in line with her continually contacting the MCSO during the investigation to divulge bits and pieces of information piecemeal.
“Miss Carr,” Judge Pope asked Emilia before the lunch break, “your attorney has indicated that you intend . . . to take the stand and testify. Have you discussed with your lawyer the advantages and disadvantages of you taking the stand to testify in your own defense?”
“Yes, sir,” Emilia said.
Judge Pope asked several additional questions, alerting Emilia to her right to remain silent and it being her choice, and her choice alone, to give up that right. He reminded her that the state had the right to impeach her testimony on cross-examination and wanted to know if Emilia understood that.
“Yes, sir,” she said.
Emilia explained that she was ready. She wanted to talk. She wanted jurors to hear from her what happened.
What wasn’t discussed, however, as the court sorted out how Emilia felt regarding testifying on her own behalf, was the unspoken fact that Emilia had to answer two vital questions jurors would be asking themselves after hearing the testimony: Why did she admit to Michelle Gustafson that she had participated in the murder with Josh if she hadn’t been involved? What purpose would that admission serve?
CHAPTER 85
JOSH FULGHAM SAT in jail waiting for the outcome of his former lover’s trial. For Josh, he hoped the jury did not fall for Emilia’s charm and wit. He thought he knew Emilia better than anyone—especially how manipulative and conning and convincing she could be when needed. He knew that had he been given the opportunity to testify against her—which he wasn’t going to be—how he viewed his culpability would be overshadowed by his actions.
As Josh sat and waited for Emilia’s trial to conclude, few things were more impregnated in his mind than those moments when he and Emilia murdered his wife. Some of the details, which Josh remembered later, included what he thought about in the hours after they had killed Heather and had begun to contemplate the notion of now having to bury her body.
“A lot of things went through my mind in those twenty-four hours after we killed her,” Josh explained to me. Thinking about what to do with Heather’s body, Josh said, his mind “went blank.”
One of the more disturbing parts of it all, Josh said, was when he finally decided to bury Heather in the back of the trailer. He dug that hole, he explained. But when it came time to “drag” Heather out there and put her in the hole, he was horrified of the notion of seeing Heather’s face.
“I pulled the bag out there and made Emilia keep a cover on the face so I did not have to see it because it was sticking out of the bag. I put the bag in the hole and Emilia pulled the cover over the whole bag. . . .”
As many suspected later, Josh placed that board over Heather because, as he told me, “I did not want to throw dirt in Heather’s face.” That blanket he had put over her head was more of a shield, so he didn’t have to look at her face.
He claimed he was a “nervous wreck for the next thirty days.”
Josh said he gave Buie “his confession” on Heather’s birthday because he was tired of lying and believed he “owed it to her to tell the truth and get closure on the case.”
Josh called Buie his “buddy” and said he had “a lot of respect for him.”
As for Heather, Josh said, he asked her one day why “she got me so mad and caused me to abuse her.”
This is your classic abuser blaming the victim. It was Heather’s fault, according to Josh’s own admission, that he had to hit her. Heather, he said, responded to him on that day that the only way she could get his attention was by making him furious.
“After she told me that, I tried to change, and for a while, I . . . got calm about the stuff and did everything I could to make her happy.”
Josh blamed the birth of his second child with Heather for ruining their sex life—which, in turn, made him go out and start “screwing around.” Everything, he said, went downhill from there.
As Josh later explained, Emilia was a woman who provided him with that sex he was missing at home. Nothing else. She was a mere sexual partner. He had no feelings of love for her. Emilia was just ... well ... there. He spoke of that time when he met Emilia and she was the perfect remedy for what he was missing at home.
“I am not proud of any of this stuff,” Josh said. “I will regret the rest of my life how I treated Heather, for being involved in murdering her, not because I am in prison, but because she gave me beautiful babies. . . .”
Josh realized Emilia would ultimately blame him and accepted that there are “people that will feed into her bullshit.”
In the end, Josh said, Emilia, he “and God all know what happened out there that night.” Then, in a strange choice of words, Josh said, “I take full credit for my part in this. . . .”
Maybe he meant “responsibility,” not so much “credit.”
He believed Emilia should do the same.
“She got in that car with my sister and made that confession. . . .”
In his mind, Josh concluded, he blamed Emilia for Heather’s murder.
On December 6, 2010, like everyone else connected to this case, Josh was waiting for one thing: What would Emilia say on the stand?
CHAPTER 86
EMILIA WORE HER hair up in a French twist, with one corkscrew lock hanging
down over her forehead, curling along her eye line, brushing up against her cheek and flowing down below her neck like a perfect black ribbon. She dressed conservatively in a gray blazer, dark pants and a white shirt—an older Catholic school student was likely the look they were going for. She came across as relaxed and calm. Emilia looked good, actually, all considering. Many believed the next day or more on the stand for Emilia was going to be the performance of her life—literally. Taking things this far and not agreeing to a plea, Emilia was fighting for not only her freedom, but also trying to avoid a place on death row.
As soon as Candace Hawthorne started, a well inside Emilia opened up and she seemed to be forever on the verge of tears. Did this show of emotion come across as Emilia being sympathetic? Was Emilia showing legitimate sorrow for the entire mess she was involved in? Or was Emilia simply sorry for herself?
Jurors gave no indication that any of it mattered at this stage. They sat stoically, for the most part, holding their cards close; some were taking notes, and others listening carefully, not reacting one way or another.
Emilia, of course, was an expert at hiding her true emotion, so any waterworks here was out of character for the twenty-six-year-old.
Candace Hawthorne threw several softballs out of the gate: Where were you born? How did you get the name of Carr? Where were you living in 2009? How many children do you have? Yet, after giving jurors the opportunity to hear Emilia’s vitals, Hawthorne dove right into those murky waters with Emilia, asking her why the MCSO contacted her in March 2009.
What was interesting about this exchange, particularly, was a revelation from Emilia that she did not know a missing person report had been filed on Heather until she spoke to the police. According to Emilia’s testimony, she had no idea Heather had been considered missing. It was a good explanation, if jurors believed it, of why she never thought Josh might be responsible.
Emilia talked about those early interviews she gave to Buie and Spivey, explaining how she was allowed to go home in between many of the interviews. Contrary to what King had argued, however, Emilia then said Buie and Spivey were constantly calling and asking her questions and wanting to know if she would come back down to the station house. The way Emilia spun this, it sounded as though she had been badgered continually by the police. She said she didn’t sleep much that first night or after because they kept demanding more information from her.
“Okay,” Hawthorne said, “now, you have sat here with us listening to the video recordings of your interviews, right?”
“Yes.”
“And you have listened to the audio recordings of your interviews?”
“Yes.”
“Okay, did you lie to the police, Miss Carr?”
Emilia paused. “Repeatedly,” she said with a straight face.
“Why?” Hawthorne asked.
And here came the overall argument Emilia wanted to get across: “Because they kept threatening I wouldn’t see my kids. In the very first interview, Buie said, ‘You want to see that baby born, don’t you?’ I love my kids.” She began to cry. “I would have said anything.”
And thus began a back-and-forth exchange between the defense attorney and the defendant detailing how Emilia believed that when she lied to the police, she would be telling them what they wanted to hear. After she told those lies, she believed, they would let her go, and then she would be able to see (and keep) her kids. Emilia talked about being frightened of the state swooping in and taking her children away from her for good, because she was a suspect in a murder case. This was the main reason why she had lied to the police of her involvement: If she gave them specific information about the murder, they would consider her a witness—not a suspect—and, hopefully, would leave her alone.
“Why did you talk to Michelle Gustafson?” Hawthorne wanted to know. This was the other high-pitched ringing in jurors’ ears. Why would Emilia admit to precise details of the murder if she hadn’t been involved?
“Because the detectives kept telling me for immunity I had to know what I was talking about,” Emilia explained. “I needed more details, more details. So I figured if I can meet with Michelle . . . and act like I was on her brother’s side, she would feed me more information.”
Once she got that additional information about the murder, Emilia added, she could then go back and feed it to Buie and Spivey to prove she knew what she was talking about, thus taking the heat off her.
This was extraordinarily important to the totality of her situation, Emilia insisted. Because if DCF ever found out she was involved in this case—on any level—they would take her children away from her for good (which they ultimately did). So, in educating herself about the details of the murder (or finding out what Josh had told Michelle), Emilia said she could give the MCSO what they were looking for. All of it would make her look good in the eyes of DCF.
The other aspect of the investigation Emilia had to explain—if what she was now saying held any water—had been that walk-through of the trailer with Detective Brian Spivey. Why in the hell would she do that if she had no idea what happened? Why would she give Spivey all those details about Heather being strapped to the chair, a bag over her head, Josh running around the trailer like a madman, Emilia finding her body?
“They wanted me to cooperate,” Emilia told jurors. “That’s what they wanted.” She said Josh had been telling them she knew about the murder, so she tried to placate that notion of being at the scene Josh had described. It was all part of her so-called elaborate plan to seem like she knew more than she did. She added how the MCSO felt she was involved. “I knew I [wasn’t]. I didn’t see the harm in [telling them I was].”
Emilia kept hitting on this idea of involving herself, telling Michelle and the MCSO she was more involved than she was because she knew Josh was telling lies about her and she needed to get hold of the right information so she could work toward helping the MCSO. Throughout this entire time, she said, Emilia believed the MCSO was trying to convince the SAO that she should be given immunity in the case in order to testify against Josh.
That call to Emilia’s house on the night Heather was murdered, the one the MCSO proved with phone records, Emilia explained: “[Josh] wanted me to put my baby up for adoption.”
That was the purpose of him calling the house that night.
“Did he tell you he was bringing Heather over [during that same call]?” Hawthorne asked.
“No.”
“Did you know Heather was coming over to your home?”
“No.”
“Did you ever go out to that trailer the next day?”
“No.”
“Did you go out there that night?”
“No.”
“When was the first time you knew Heather was buried on your mom’s property?”
“When Detective Buie told me.”
Candace Hawthorne finished. Emilia’s direct testimony took all of about fifteen minutes. They never discussed the proposition Emilia had made to James and his friend—the payout of five hundred to seven hundred dollars to lure Heather over so she could snap her neck. The jury had to be thinking that since they never discussed it, there was either some truth to it or Emilia did not have an answer.
Either way, there were unanswered questions that Emilia and her attorney did not go near. But one could bet that SA Brad King would as he stepped up and prepared to mount his cross-examination.
CHAPTER 87
WHEN IT CAME to questioning defendants, Brad King had the experience, the savoir faire, the tenacity and the nerve. He possessed the careful nature not to overstep his boundaries and allow his personal feelings to get in the way of what can be the most difficult job a trial attorney faced. After all, like the American Bar Association says in its general standards: The prosecutor . . . must exercise sound discretion in the performance of his or her functions. Juries don’t want to be patronized and smacked upside the head with pompous, over-the-top lectures by prosecutors simply looking to move up the political
chain toward a cushy position. They don’t want to squirm in their chairs while a prosecutor rips a defendant to shreds in what might seem like a steamroll. Members of the public chosen to sit on murder trials are smarter than that. They’ll reject it on merit alone. Juries want facts, fair questions and a prosecutor who knows his case inside out—despite what Hollywood versions of this important part of our judicial process depicts.
Brad King began exactly where he believed the jury would most likely want him to: “Miss Carr, you told this jury that you lied to Marion County detectives . . . a number of times—is that right?”
“Yes.”
“And did those lies begin on the first night, March 18, 2009?”
Emilia wanted to know which interview King was referring to.
“The very first one.”
“I don’t believe so.”
“So your testimony is that you were telling them the truth when you said that the last time you saw Heather was on January the tenth?”
“No, that was a lie, sorry.”
Emilia then explained that the last time she recalled seeing Heather was “mid to late January.” SA King got the defendant to admit that it was near the time Emilia had grabbed Heather by the hair and threatened her.
The SA and his defendant next got into a bit of a verbal sparring match when King mentioned how Emilia watched the video of her interview. On this video, one could clearly see that she did not react passionately or lash out at all when they told her to stop lying if she wanted to see her child born. More than that, Emilia had displayed a striking lack of empathy. Why didn’t she break down, in other words, if she had felt so threatened by all of this?
Emilia did not have an answer.
They discussed how Emilia had told Michelle that she wanted to kill Heather.
Emilia agreed. She had, in fact, said those words. (What else could she do? They had her on tape.)
“Okay,” King continued, “did you go to [James’s friend] and offer him money to help you kill her?”
To Love and to Kill Page 26