To Love and to Kill

by M. William Phelps

  Of particular interest, Hooker explained, was the fact that although Josh’s case met the “elements of second-degree murder,” it did not mean the state had not proven first-degree murder, too. When one looked at the evidence of Josh and Emilia talking on the phone, effectively planning and plotting to murder Heather, and then understood how the crime was carried out—lying to her and luring her into that trailer—one could only draw the conclusion (legally) that a first-degree murder had been committed.

  “These people, they talked, they talked, and then they talked and then they did it. They did it. They killed her.”

  Hooker pointed jurors in the direction of that one call where Josh and Emilia discussed the woods in the back of her mother’s house, the trailer and if Emilia’s neighbor could see back there. He read from a transcript of the call.

  Hearing this, jurors had to feel as though these two had been planning and plotting to murder Heather for weeks.

  Concluding, Hooker asked jurors to recall that it was only nine days after Josh was released from jail that Heather wound up dead and buried in the backyard of Emilia’s mother’s house.

  If there could be one criticism lodged against Hooker’s closing, it was that it might have gone on a tad too long. He took the hour allotted to him. He didn’t need it. His points were made concisely within the first fifteen minutes. By going long, a lawyer runs the risk of overselling. Hooker had stated some of the state’s facts several times and jurors were clearly moved by a lot of what he had to say, but was it all enough to convince more than half of them that the state had proven first-degree murder?

  CHAPTER 100

  TERRY LENAMON LEFT the responsibility of closing the defense’s case up to his more-than-qualified co-counsel, Tania Alavi, a strikingly attractive, dark-haired Ocala graduate from the University of Florida (1987), where she earned a Bachelor of Arts degree in criminal justice before going on to that same university’s Levin College of Law, in 1991. Alavi had been involved in several death penalty cases on various levels. She had been recommended in 2010 for a judge’s seat. Fundamentally, Alavi specialized in and understood family and federal law, both of which would help her here. Lenamon and Alavi made the perfect one-two punch working Josh’s corner, because what Josh’s case came down to—unlike many other capital murder trials (including Emilia’s) where testimony was the more relevant issue at hand and general access to a verdict—was a shoot-out between lawyers. Josh was guilty—a fact they had decided and recognized going in. The question was, however: guilty of what?

  As Alavi looked at her notes one last time before delivering her first closing thought, Lenamon looked around the courtroom and noticed several people in the gallery he hadn’t seen before.

  “It was kind of disheartening that [Brad King] had some people from his church”—which, Lenamon said, is one of those Bible Belt, conservative group of Christians, pro-death penalty—“sitting in the courtroom. You know, when something like that happens, you just shake your head and think, ‘Oh, my, what’s up with that?’”

  Slim, tall and elegant, Tania Alavi had a soothing grace about the way she spoke and presented herself. It was clear that Alavi had thought long and hard about what to say, how to shape it into a narrative and what her focus should be. She had abandoned her original opening words, she said off the bat, because of how Rock Hooker had closed. Hooker had mentioned “conduct,” Alavi told jurors as she began. But in providing jurors with an excerpt of an interview detectives conducted with Josh, Hooker had not allowed them to hear the entire context of what had been said. Effectively, Hooker had left some rather important words out of the excerpt, Alavi argued. And it was those words, Alavi said, that gave insight into who was the mastermind behind this crime and who had actually started this talk about luring Heather into the trailer.

  Alavi quoted Josh from the interview as he talked about Emilia. Josh had said, “She told me right then, ‘Josh, bring her back here later tonight.... We’ll get rid of her.’” Alavi then explained how Josh and Emilia were “having a conversation” and Josh was telling her: “I’m getting back together with Heather. You need to get your stuff and get out of the house. . . .” Then she quoted Josh again from his final confession, which the state had acknowledged was the one uncontestable source in this case that they relied on. Josh said: “And right then, she came to me and she told me, ‘Josh, bring her back here later tonight. Bring her back here late tonight. We’ll get rid of her.’ I said, ‘Emilia, get out. Get your shit and get out. [Heather and I are] going to be together, ’ and she said, ‘We’re going to be together. Bring her back here tonight and we’ll do it.’”

  From where Alavi viewed things, this was one of the most important moments of the case for the defense: Long before Josh went to jail, back when Josh had left Emilia and moved back in with Heather, shortly before Heather and Josh were married, Emilia had fired up—within Josh’s head—this idea of killing Heather.

  The date was important, Alavi argued, because that conversation between Emilia and Josh had taken place long before February 15—a date, Alavi stated, that Rock Hooker had failed to clarify with jurors during his closing. “That was a conversation where Emilia was telling Josh in December of 2008, while she didn’t get her stuff out of the house” that he was going back to Heather.

  Quite smartly, Alavi used that theme of “words,” which she’d started with, to get across several additional ideas relevant to the premise that there was one person—one mastermind behind this crime.

  Emilia Lily Carr.

  The one bell Alavi needed to stop ringing in jurors’ ears was that “I should have killed that bitch” statement Josh had made to Emilia over the phone. That was fairly devastating to an argument of “I just went along with Emilia.” It was something that needed to be addressed head-on—one of those statements jurors would retire to deliberations and focus on.

  “There is a lot of smack talk going on between all of these people,” Alavi explained, referring to the timeline wherein the statement had been made. She then mentioned how Emilia had even put a knife to Heather’s neck, threatening her, yet Heather and Emilia had remained friends after that and saw each other on several occasions. In other words, don’t take what the defendant said over the phone as gospel, or as some sort of sinister, well-thought-out plot, when all of the people in that circle talked “smack” in the same fashion, all the time.

  Next Alavi talked about what she called a “diamond” relationship—Ben, James, James’s friend, Heather, Emilia and Josh each having his or her point on that diamond, all involved in a round-and-round association that was constantly in motion during this period in question.

  “Now, what we also know [about] all these people [is that] Emilia’s having sex,” Alavi said, “with [James Acome], who is having sex with Heather also. She’s having sex with Josh. She’s been with Ben McCollum [and] you heard testimony that Emilia and Heather are even engaging in sexual activity together, having threesomes with either [another man] or with Josh.”

  It was one giant, convoluted, trashy mess of dysfunction. It was not your “typical” friendships and romantic relationships.

  Josh’s drug use came up next. Alavi talked about it at length, letting jurors know he was addicted to all sorts of pills and meth. Concluding that thought, she said: “And as jurors, you have to evaluate this case and the facts of this case in the context of where we are and who we are dealing with. Because these people, who, quite frankly, are leading dysfunctional lives, do not lead their lives the way the majority of people do.”

  It was a valid point in the scope of this case. Yet, most people did not commit ruthless murders, either.

  From there, Alavi talked about how Josh and Heather and Emilia moved in and out of various trailers and houses; and Heather finally wound up with Ben McCollum, and Josh with Emilia. The idea that when Josh wasn’t allowed bond after his first court appearance—at the time when he got on the phone with Emilia and said, “I should have killed that bitch�
�—wasn’t evidence of premeditation, Alavi argued. Not at all. It was Josh thinking out loud, referring to how Heather had made up the charge that put him in jail to begin with. He felt tricked and ridiculed. Totally betrayed. He said those words out of anger, something he had said to Heather likely many times during arguments they’d had throughout their life together: “I’ll kill you, bitch.”

  “Is that evidence?” Alvi asked, referring to the context in which she had placed Josh’s comment. It sounded convincing, the way Alavi put it.

  Only problem jurors might have with it was that Heather actually wound up dead this time. There was no changing that outcome.

  One unequivocal fact, however, which had been backed up by testimony, was that Emilia solicited James Acome and his friend one day, dangling between five hundred and seven hundred dollars in front of them, hoping to lure Heather to a place so she could “snap her neck”—and she did that all on her own, without Josh.

  During those nine days when Josh was out of jail, before Heather was murdered, Alavi told jurors, Josh had plenty of “nonconfrontational” contact with Heather. He had even brought over a packet of divorce papers for Heather to look at and sign. He saw James Acome driving his car one day, Alavi explained, and didn’t confront him and become violent, but Josh, instead, called the cops and got his car back.

  Was that the behavior of a man planning a murder?

  Alavi didn’t think so.

  Throughout that entire time, Alavi speculated, Josh was likely thinking he was going to wind up with Heather in the end because that was how it always had turned out in the past. He was used to breaking up with her and getting back together. What made this breakup so different in that respect?

  “[Detective] Buie even said himself during the course of the investigation,” Alavi said, “it’s one of the things he found out independently is that they always got back together.”

  The entire reason why Josh lured Heather to that trailer was to make her sign over custody of their kids because he feared she was preparing to take off for good. That was his only purpose. Yes, he might have been aggressive with her and spoke angrily; but his intent was never to kill her. That “idea” Josh had mentioned to Emilia over the phone: It was to get her into the trailer and make her sign that paper. The murder was all on Emilia—because Emilia knew, if nothing else, that Josh would one day wind up with Heather again. And what would she do then? She was pregnant with his child.

  Alavi read from transcripts of the interviews Emilia gave and continuously put the onus of the plot and plan to murder Heather on Emilia, using her own words as ammo. It was a smart move. Some of the evidence backed up what Alavi argued.

  As far as that dialogue between them on the phone about the wooded area around the trailer, who owned the land and if the neighbor could see the trailer from his house, Alavi clarified that by saying, “Remember . . . they didn’t need to have this conversation when he went back to dig the hole. But what was the conversation? ‘Where are we going to put her?’” Alavi paused, allowing jurors to think back for a moment to that jailhouse telephone call. Then she answered her own question, quite effectively: “Well, I thought that was already planned? Apparently not. The conversation is ‘Where are we going to put her? The railroad tracks? Some cave?’ He couldn’t even get the door open and ended up putting her steps away from the trailer.”

  Alavi talked about the instructions jurors would be given by the judge and how they needed to follow the law, despite how they felt about the case. The main point she wanted to get across here was to remind jurors that they needed to figure out what Josh was thinking before the murder and what Josh knew before the murder?

  Everything else, essentially, was conjecture.

  “If you’re thinking about [lots of] things and that is causing you to go back and forth in the slightest bit, they have not proven their case beyond reasonable doubt.”

  After about thirty minutes, Alavi indicated she was done. Confident she had said enough to raise concerns where first-degree murder was concerned, Alavi sat down.

  Terry Lenamon looked over at his co-counsel and smiled respectfully. Lenamon realized he was working with one the best defense lawyers he had ever had the opportunity to share a courtroom with.

  “She is incredible,” Lenamon said later. “It was an honor to work with Tania.”

  Both sides presented rebuttals, which came across as a “he said/she said” type of playground argument between two kids. What became confusing during this portion of the closings was which interviews each attorney had been referring to. According to Josh’s attorneys, there was only one interview jurors should take into account during deliberations: the final interview Josh gave to Buie when he admitted everything. All of those interviews that came before were a mixed bag of truths and lies.

  Disregard.

  Nonetheless, both sides finished by the end of the day and the judge gave the case to the jury, this after reading what were long-winded legal instructions both sides had been referring to during their closings.

  CHAPTER 101

  THE JURY WASN’T swayed by the defense’s argument that Josh didn’t know Heather was going to die when he lured her into that trailer. Within a few hours, Joshua Fulgham was found guilty of first-degree murder and kidnapping—the worst possible outcome for Josh at this stage of his trial.

  Josh sat stunned. In a way, he, himself, had started to believe the defense’s argument that Emilia planned the murder and he had just gone along for the ride as an innocent bystander. Yet, for the jury, it came down to those tapes of the prison calls and Josh’s voice, so convincing and layered with anger: “I should have killed that bitch. . .”. You listen to Josh talk about a “plan” he had when he got out, one he didn’t want to speak to Emilia about over the prison phone, and it is clear that he was not talking about scaring Heather or convincing her to sign a damn piece of paper turning over custody of the children to him.

  “I knew this going in,” Lenamon told me. “We pretty much decided that it was going to be fairly easy to prove intent, with all the evidence of Josh and Emilia talking. We knew this was going to be tough because of the way Heather was murdered. Anytime you have ‘heinous, atrocious and cruel’ as an aggravating factor, when the victim is clearly suffering and there is pending knowledge that death is coming, that’s a huge, huge problem for a defense.”

  Although the ultimate punishment would rest in the hands of Judge Brian Lambert, the lawyers geared up to argue their cases for life and death in front of the jury during the penalty phase: Would the jury recommend, like it had in Emilia’s case, death? Betting men would have probably put all of their money in favor of death in Josh’s case. After Emilia’s sentence, there likely wasn’t anybody in that room—save for Josh’s attorneys—who believed the jury would recommend any other sentence.

  What the defense had going for it, however, was that the jury supposedly didn’t know what Emilia’s sentence had been. Both sides had gone through a long question-and-answer process—voir dire—with prospective jurors. So the jury was now going to hear Josh’s argument for life without knowing that his co-conspirator was, at that time, sitting on death row.

  Lenamon thought about it as the day closed and he began to process how he and Alavi would go about arguing for Josh’s life.

  His first thought was: In the state’s case, Josh was obviously the villain.

  The bad guy.

  A walking volcano of rage that erupted inside that trailer.

  “Betrayal,” Lenamon said later, describing what was his second thought. “We focused on the idea that Josh was betrayed”—that and the notion of Josh not having the mental capacity, Lenamon further explained, to deal with said betrayal.

  How, though, could Lenamon and Alavi turn a villain into a victim?

  CHAPTER 102

  APRIL 11, 2012, on this day, Josh was shuffled out of the courtroom after both sides finished delivering opening statements in the penalty phase of the State of Florida v. Joshu
a Fulgham. By now, the jury had to be rather exhausted from hearing lawyers talk. After all, they had just sat and heard closings from the lawyers during the guilt/innocent phase and here they were doing it all over again, just days later.

  As they were making their way to the door, the bailiff said something to Josh regarding him mumbling under his breath. The bailiff wanted to know what, exactly, Josh had said.

  “I said, ‘If I get the death penalty out of this, I am going to kill you!’”

  On April 12, the following morning, before the day’s witnesses were summoned to testify, the judge asked Brad King—who had said he wasn’t shocked by the statement when he later heard about it, calling the behavior “nothing new” from Josh—if he wanted Josh shackled for the remainder of the proceedings.

  Before King could even answer, however, Judge Lambert said he wasn’t so much in favor of doing it and would be hesitant to allow it, “absent” any serious “concern” from King’s side.

  “I’m fine,” King said, looking over at Josh, who was calm and stoic.

  “Okay,” Judge Lambert said.

  “I mean, I would hope that they’re shaking him down before they let him come into the courtroom. . . .”

  “Yes,” Lambert verified.

  Lenamon said he would speak to Josh about the incident, but this was an “emotional proceeding” and things might be taken out of context and blown out of proportion. The stakes were high. With regard to Josh actually saying what the bailiff had claimed, Lenamon offered, “Judge, for the record, [Josh] did not remember saying that.”

  All was forgotten and the penalty phase moved forward. As testimony got under way, Lenamon and Alavi called Josh’s mother, Judy Chandler. Judy was tired and upset. She sat down and talked about a son suffering many traumas throughout his childhood; he then became a boy who caused her problems after he adopted a drug habit that spun out of control as quick as it got started. Throughout all of that, Judy said, Josh met the love of his life, Heather Strong, when they were just teenagers. From there, Josh’s life got serious.