To Love and to Kill

by M. William Phelps

  “No, sir.”

  “No?”

  “No.”

  “Did you go to [James] Acome?”

  “No.”

  “So your testimony is that you were lying to the detectives on March 24, 2009—”

  “Yes,” Emilia said, not allowing King to finish.

  King continued his train of thought: “. . . when you told them that you were there with Joshua Fulgham and Heather Strong in your trailer?”

  “Yes. Yes, I lied.”

  The gallery was quiet and tense. This was the apex of the SAO’s case. One of Heather’s killers was totally denying any role in this crime.

  “And you lied to them when you said you tried to break her neck?”

  “Yes.”

  King went through a litany of other “facts” Emilia had provided investigators, all of which Emilia now said she had lied about.

  Taping Heather to the chair.

  Lie.

  Placing the garbage bag over her head.

  Lie.

  That she spoke to Josh about killing Heather.

  Lie.

  That she knew Heather had been murdered inside the trailer in her mother’s backyard.

  Lie.

  She saw Heather in the trailer, alive and dead.

  Lie.

  On and on and on, this went. Emilia claimed to have lied about everything.

  Then the obvious question: “So you don’t even know who actually killed her?”

  “No, I don’t.”

  “That’s your testimony here today?”

  “Yes.”

  Actually, Emilia held her ground quite well on the stand. She came across as poised and confident, although there was a touch of sarcasm in her voice at times, some tears at others, but she remained unbreakable.

  As King and Emilia traded barbs back and forth for the next five minutes, King and the jury heard nothing more than: “I lied, I lied, I lied.”

  Not at all frustrated, because he knew the facts and evidence proved Emilia was telling the biggest lie of all right there on the witness stand, King posed a question he was certain jurors were asking themselves: “So, is your testimony today also that Josh ... never said anything to you about having killed Heather Strong?”

  “No, he didn’t.”

  What about that conversation with Michelle? Was all of that untrue? King wanted to know.

  “No,” she said, meaning that some of what they discussed was factual.

  Shortly thereafter, King checked his notes and looked up at the defendant. He asked, “Do you really, Miss Carr, have any idea how many lies you told so far in this case?”

  “Quite a few,” Emilia answered, and King thought that was the perfect note to end on, suffice it to say he was not going to get her to admit to anything that made her look in the least bit guilty of anything other than lying.

  There was a redirect, a recross, both of which lasted about ten additional minutes—and that was the end of Emilia Carr’s starring role in her trial. As these things go, she managed fairly well. There was no glorious moment by the prosecutor presenting a smoking gun, breaking her down on the stand. Emilia had an agenda and she stuck to it. Now it was up to a jury either to take her at her word, or believe she was still telling lies.

  As the day drew to a close with a few minor motions and arguments by the attorneys, Candace Hawthorne said she was done.

  The defense rested.

  Outside the courtroom, as Candace Hawthorne walked toward her car, a reporter asked Emilia’s attorney about all the “lies” Emilia had admitted telling in this case and how it would ultimately impact the jury’s overall impression of her.

  Hawthorne made a great point after she stopped walking, looked at the reporter, and fired back, “They haven’t proven the body of the crime. There is no physical evidence to show Emilia Carr was there.”

  CHAPTER 88

  TUESDAY, DECEMBER 7, 2010, started off on a rather chilly note, with temperatures hovering in the thirties. Pretty darn cold by Florida standards at any time of the year. It was quite windy, too, making it feel much colder than it actually was. But skies were clear and the warm weather was just around the corner. No one could stop that unbearable, tropical heat from invading the Sunshine State in the coming weeks.

  SP Rock Hooker took to the floor to give the state’s closing. As the closer in a trial of this magnitude, one did not want to belabor any issue, bore jurors with legal terms, laws and rules, or shower them with what he believed to be his clever writing skills, making jurors feel as if they didn’t understand the case they had just sat through. A sassy lawyer, who thought he was smarter than everyone else, could easily alienate jurors during his final bow. The best closings stuck to the facts and remained short; they did not make anybody in the room feel like an idiot.

  “‘He was stronger, so he held her down,’” Hooker said thunderously, opening with a monumental, straightforward line from Emilia’s mouth. “‘I taped her hands and feet. . . .’”

  Hooker then beseeched jurors to “decide . . . that this case” was simple when boiled down to the unassuming facts, because “[it was] about a husband and a girlfriend who decided to murder the wife and bury the wife in the ... pregnant girlfriend’s backyard.”

  For this prosecutor, it didn’t get much more simple than that.

  Hooker talked about the two counts Emilia faced, both of which the jury needed to focus on during deliberations. He asked jurors not to forget that murder in the first degree was only one side of the indictment coin; the second was kidnapping. Added together, these charges were as serious as things got inside a courtroom.

  He said the state shouldered the burden of substantiating its case and the “evidence is how we prove the charges. . . .”

  It was clear that the most important word here was “evidence.” It was not “speculation” or “conjecture” or “opinion.”

  Evidence.

  As he continued, Hooker shared with jurors the notion that Heather being a mother and having two children should not enter into the jury’s discussions, same as Emilia, the defendant, having four children should not be. Being mothers might be noble, it might be the most important job both women did in their lives, but it should not have anything to do with the facts of the case.

  “This idea of not having sympathy for either of the parties,” Hooker said, would be an instruction by the judge. “Your verdict,” he then added smartly, “should not be influenced by feelings of sympathy that you may feel for either side.”

  Continuing, Hooker reminded jurors that they would better serve the community if they used their “collective memories” when trying to recall evidence, and, if needed, they should request to see or hear some or all of the interview tapes.

  The SP next talked very briefly about each interview Emilia agreed to, before focusing on that trailer walk-through Emilia conducted with Brian Spivey. He said that interview Spivey did with Emilia inside the trailer was pivotal because Emilia, on the stand the previous day, had “recanted all of that as not being true.”

  Reminding jurors why they were all there, Hooker said, “Heather Strong is dead! . . . The death was caused by the criminal act of Emilia Lily Carr. . . .” He referred to what Josh and Emilia did as “premeditated murder.”

  The worst kind.

  “Killing with premeditation is killing after consciously deciding to do so, continuously deciding to do so. The decision must be present in the mind at the time of the killing.”

  These were all poignant marks to hit upon. This type of bare-fact argument placed the burden of the crime, the viciousness and the brutality, where it belonged: Hooker was saying Emilia and Josh took the time to plan out the end of a life, and then carried that plan out in the most violent, cruelest ways imaginable. For up to thirty minutes, Heather Strong knew she was going to die. The agony and emotional torture she went through at the end of her life was unfathomable. During the entire time Emilia and Josh made this plan and set it into motion, either
one could have walked away.

  In the end, Rock Hooker told jurors to pay attention to the facts of the case, look at the evidence, study those interviews between Emilia and the MCSO and make sure not to be fooled by an admitted, compulsive, pathological liar.

  CHAPTER 89

  CANDACE HAWTHORNE OPENED by thanking jurors for their service, a classic way of establishing that all-important rapport and projecting humility and respect. But then, in a quite awkward and rather flowery way, Hawthorne quoted Sir Walter Scott: “‘Oh, what a tangled web we weave, when first we practice to deceive.’”

  Though she had good intentions with this memorable quote, it came off as insipid and fairly confusing, not to mention over-the-top rhetoric.

  Hawthorne announced the main characters involved in that “tangled web” as Emilia, Buie and Spivey, among others, which set the stage for her primary argument: Emilia, a very pregnant woman, was intimidated, confused and worn down by two cops to the point that she believed she was going to lose her kids if she didn’t come up with the answers that these MCSO detectives were looking for.

  She said the case revolved around the “relationships between the parties” and “statements, statements, statements.”

  Effectively, she brought up the physical evidence. “To sum it up, real short and sweet, there is no DNA evidence that has been testified about in this court that came back showing Miss Carr’s bodily fluids on anything.... No saliva. Hair. Nothing!” She added that not one Florida Department of Law Enforcement (FDLE) expert testified about the “duct tape, any roll from the duct tape, anything !” No hair “taken out of the trailer.” She claimed they had no fingerprints.

  Her argument sounded rock solid. Emilia wasn’t being tied to this murder by any physical evidence whatsoever. As Hawthorne talked about it, the impact was generally felt. Juries love—and maybe expect today more than any other time in history—to see CSI TV show evidence putting the proverbial gun or knife or garbage bag in the perp’s hand. They yearn to see that flashy, computerized super forensic evidence they see on crime dramas. It’s been referred to as the “CSI effect,” when juries sit, wanting and waiting for the forensic evidence to tell them definitively that the defendant is guilty. Yet, in this case, Hawthorne skillfully wove into her closing, they were not going to find any such thing.

  Hawthorne told jurors about the trailer being on Emilia’s mother’s property as just about the only connection to her there; she talked about the medical examiner being unable to determine cause of death until she referred back to the MCSO reports; then she talked about what they did have: the body of Emilia’s boyfriend’s wife found buried on that same piece of property.

  “Heather Strong . . . ,” Hawthorne said, “God bless her.”

  Emilia’s attorney banged on, always going back to the lack of any physical evidence pointing to her client. As the clock ticked over her shoulder, Hawthorne covered everything she could—or at least any part of the case that did not place Emilia under any guilty light. She even mentioned how the CSI team from the MCSO sifted through all of the dirt in the hole where Heather’s body had been uncovered and around the immediate area, but they found nothing indicating Emilia was ever there. She asked jurors to “set aside all the other stuff, anything any witnesses said” for a few moments and just put the focus on that lack of physical evidence. What did it say? What did it explain to jurors about the case the state was charging?

  Throughout it all, Hawthorne probably spent too much time sounding these chimes simply because the state had already explained that Emilia, being an accessory to the murder, sat by and watched Josh do most of the physical, hard work involved in suffocating Heather and handling the body.

  For fifteen minutes, Hawthorne talked about the tape and how none of it contained any evidence that Emilia ever touched it. Even the rolls of tape and bits of tape inside the trailer that the CSI team took as evidence and had tested failed to yield any connection to Emilia.

  “And [forensics] determined that the prints on that tape that was in a box on a table in that trailer in Boardman belonged to whom?”

  She paused, then, answering her own question, said, “Josh Fulgham! Not Emilia Carr.”

  Ben McCollum came up next. Then Judy Chandler. A witness from the Fulgham kids’ school. James Acome. She said their statements needed to be looked at closely and jurors should decide what was true and what was false. She didn’t mention what she thought was true or false or who, she thought, might have lied, but she didn’t need to do that. This type of closing was all about speculating and giving jurors an alternative way of thinking about the case.

  Interestingly, Hawthorne then moved onto the flashlight and Heather’s shoes. She had to talk about those two important pieces of evidence because it had been Emilia who brought them up while talking to police and Emilia who ultimately pointed out where they were located on the property. However, Hawthorne saw no significance in any of it because no prints or DNA leading back to Emilia had ever been found on the items.

  “And what we have is . . . Emilia having said, ‘Yeah, he gave me those shoes and just wanted me to hold on to them.’ They swabbed them. Nothing came back on the swabs.”

  After quoting Franklin Delano Roosevelt by stating how “repetition does not [transform] a lie into a truth,” Hawthorne said she brought this up because her client had given the MCSO not nine or ten interviews, but a total of eleven. And as Hawthorne went through each interview briefly, touching on bits and pieces from each one, she made the point that Emilia was often repeating back to the detectives what they had told her, lending more credence, in Hawthorne’s view, of Emilia searching for information in what they were telling her in order to parrot it back.

  “I’m telling you, it flows,” Hawthorne said at one point. “She does start picking up the stuff and feeding it back to them. She does. They are giving her information. She’s trying to get immunity. She’s asking for immunity. They’re telling her, ‘Trust us. . . . Trust us.’ That’s a lie.”

  Harkening back to Roosevelt’s radio address, Hawthorne said “the state” wanted jurors to “believe that repetition becomes the truth.”

  As for that Michelle Gustafson conversation Emilia had in which she gave gruesome details about the murder, Hawthorne claimed Emilia was only repeating what Brian Spivey had told her in order to find out what Josh had told Michelle.

  Over and over, Hawthorne blamed the police for lying to Emilia in order to make a round peg fit into a square hole. The way Hawthorne made it sound, and rightly so (because with the death penalty on the table, this attorney had to do whatever she could to save a life), the MCSO pushed and pushed until they got Emilia to say what they wanted.

  In the end, Candace Hawthorne asked jurors to pay careful attention to all of the instructions the judge was going to give them, because there would be additional ways for them to find Emilia guilty of lesser crimes if there was any doubt regarding that first-degree murder charge. After that, staying in line with quoting famous people, Hawthorne dusted off Sophocles, the ancient Greek tragedian playwright, and spoke of how he once said: “Truly, to tell lies is not honorable, but when the truth entails tremendous ruin, to speak dishonorably is pardonable.”

  CHAPTER 90

  THIS VERDICT COULD go either way, Brad King and Candace Hawthorne knew, despite what had happened in court during the trial. Lawyers often stay away from trying to project what a jury is thinking as they file into a room and start deliberations. It becomes a slippery slope of emotion if a lawyer begins to feel too self-assured. Surprises always happen injury rooms. Florida juries, especially, had a reputation for shocking people: the Trayvon Martin and Casey Anthony verdicts, to name only two, were decisions out of Florida that sent alarming ripples across the world.

  That all being said, Brad King was confident he had put on the best case he could. After all, according to Detectives Donald Buie and Brian Spivey, King kept kicking the case against Emilia back to the MCSO, saying they did not have enoug
h. That conversation inside Michelle Gustafson’s car, however, turned into the game changer. It was going to be hard for a jury to overlook what was said inside that vehicle and, thus, buy into Emilia’s claim that she was fishing for information. On that one recording, Emilia came across as too cocky and too worried about Josh and what he was saying about her to law enforcement. It would be a stretch, at best, to agree that she was trying to find out all Josh knew in order to give Buie and Spivey what they wanted.

  Judge Willard Pope read what turned into long, tedious instructions for jurors and asked that they retire, take their time and deliberate. They should talk about the case, ask each other questions and review all of the evidence.

  Late into the day on December 7, 2010, somewhere around four o’clock, two hours into the jury’s deliberations, the foreman indicated they had a question for the court.

  Emilia and the lawyers were summoned back into the courtroom.

  The jury wanted to hear a taped interview between Emilia and Spivey as they drove back to the MCSO from Boardman. There was no indication particularly what interested the jury about this interview, but the judge saw no issue with allowing them to listen.

  Once that was done, they went back into sequestration. There was some concern about the time of day and what to do: allow them to continue or call it a day and go back at it in the morning. However, only after two and a half hours—total—inside that deliberation room, the jury foreman gave word that they’d reached a verdict.

  Tomorrow wasn’t going to be necessary.

  When Brad King heard, he looked over at Rock Hooker. They both knew guilt came quick; an innocent verdict took time to hash out among jurors. Here it would seem they went into that room, talked about the case a bit, then took a vote.

  The clerk stood and read the questions on the jury’s ticket, along with the penciled-in answers: “‘Verdict, Count One. We the jury find as follows, as to the defendant in this case ... is guilty of murder in the first degree.... Verdict, Count Two. We the jury find as follows, as to the defendant in this case ... is guilty of kidnapping.’”