Innocent Victims

by Whisnant, Scott;

  “That won’t happen again,” Richardson vowed.

  He needed an investigator on short notice, and he couldn’t rehire Bob Nelligar because Jack Watts, now head of the detectives, had hired him early in December 1988, to investigate break-ins, fulfilling a longtime goal of Nelligar’s. A frantic search was on for someone else, preferably someone local who knew the case. But there was no investigator to be found in Fayetteville. Les Burns, the investigator hired during the appeal, couldn’t do the everyday trial work. His concentration was on finding the killer.

  At that moment, Terrence Vincent O’Malley decided to expand his private investigation business from Jacksonville into Fayetteville.

  He belonged on a cop show. T. V. O’Malley could have played the hardened ex-cop-turned-private eye who knew a few too many good restaurants, but always managed to get it done with street smarts. As a foot patrol cop in Charlotte, he once commandeered a city bus and ordered the driver to take him to a bank robbery. He relied on body language, eye movement, and his own intuition, making a living by determining who was lying and who wasn’t. One of the leading polygraph operators in the state, O’Malley often talked his subjects into confessing before he ever strapped on the wires.

  A Fayetteville policeman who’d helped Beaver years earlier in the Spell brutality case knew about O’Malley and led him to Beaver, who led him to Richardson.

  “He seemed like a nice enough guy,” Richardson said. “And he seemed competent.” But the best part about O’Malley was that it was mid-December and Richardson didn’t have anyone else. He loaded a box full of the first trial transcript and Nelligar’s investigative notes and dumped it on O’Malley over Christmas.

  “By January fifth, I want you to be familiar with this,” he said.

  O’Malley started reading, but quickly realized he couldn’t learn the case fast enough to suit Richardson.

  “I’ve never seen anyone as driven,” O’Malley said. “There was no cup of coffee or ‘Good Morning’ when you went into the office. He was at a frantic pace, going several directions at once. Billy allowed himself to become consumed. He was aware that it happened, he made no apologies for it, and he went at it with abandon.

  “If something happened this time, it wasn’t going to be his fault.”

  O’Malley moved into a room at the law office. Richardson would walk inside each morning and hand him a list. “Billy would give me a ton of stuff to do without a priority level assigned to it,” O’Malley said. “I wasn’t sure which was most important. He’d say ‘I need this, I need this,’ and I’d drop what I was doing and do what he said.”

  After a month O’Malley thought he’d grasped the case. While Richardson drove to an interview, O’Malley offered an opinion he thought his boss would like. “You know, after reading that transcript, I just don’t understand how that jury found Tim guilty.”

  Richardson stopped the car in the street. “Well, goddamn it, they did,” he said, pounding the steering wheel.

  O’Malley didn’t bring up the first trial again. He concentrated on finding the Army witnesses who’d again be asked to provide Hennis with an alibi for the night the bank card was used. Since the first trial in 1986, they’d scattered like shrapnel to places like New Orleans, Kentucky, and Massachusetts. It wasn’t the sexiest investigative work—looking up tax records, driver’s licenses, criminal records, and phone bills for long-forgotten soldiers—but O’Malley was starting to catch on. He wasn’t hired to solve the case, but to track witnesses.

  “I didn’t feel much like an investigator,” he said.

  O’Malley found all of them except two. Kaarlo Ward, the day-room orderly, had been in a wreck days after the first trial and had vanished. O’Malley presumed Ward to be dead. He also couldn’t find Hennis’s commander, Edwin Acevedo, who was somewhere in Australia. The rest were subpoenaed and ready to come to Wilmington. O’Malley wrote letters to their bosses excusing them from their jobs.

  “That’s good work, T. V.,” his boss said.

  Richardson’s words had been slow in coming. He finally started to lean on T. V. O’Malley.

  “He tried to do everything by himself and he couldn’t,” O’Malley said. “It made him hard to live with. Finally, he realized I’d have to do some things by myself.”

  Richardson worked 16-hour days, his expectations multiplied by obsession and fear. His kids became strangers. There wasn’t much time to talk to Beaver at the office, and it wasn’t uncommon for Richardson to get home at 7 o’clock and begin eating supper, only to have Beaver call at 7:10. Once when Barbara answered and said her husband was eating, Beaver hung up without a word.

  “Losing,” said T. V. O’Malley, “was not an option.”

  Chapter Twenty-six

  A courtroom adage holds that in a retrial the state’s case stays the same and the defendant’s case gets better. Witnesses die, memories fade. The prosecutor tries to piece together his same case based on the same theory while the defense has years to answer.

  District Attorney Ed Grannis suspected he’d have trouble with the Hennis case from the moment the Supreme Court gave him a new trial. “I don’t believe another jury could be expected to do any better job than what has already been done,” he told reporters.

  Grannis’s prosecution team was gone. In the winter of 1989, Haral Carlin was in law school and William VanStory was in private practice, no longer in a position to call Hennis a baby killer.

  VanStory’s departure from the DA’s office had been less than graceful. In the months leading up to his resignation, he’d been in a fight with his girlfriend’s ex-husband, and had a speeding ticket for going 91 mph in his Corvette show up on a court docket in a neighboring county at the same time he was prosecuting a high-profile murder case there.

  A few days after he resigned, VanStory embarrassed the DA’s office further. His girlfriend took out an assault warrant on him, saying he’d grabbed her wrists and pushed her around. Grannis had to ask for an out-of-town prosecutor to avoid a conflict of interest. The charge was later dropped, though the special prosecuter acknowledged that the incident “was serious and was a problem that needed to be addressed.”

  Hennis’s new prosecutors were John Dickson and Calvin Colyer, the top two assistants in the district attorney’s office. Both were considered professional and responsible prosecutors, though they were as different in appearance and demeanor as two lawyers could be. Dickson, a short dour man with a dry wit and scruffy beard, was feisty and combative, battling defendants and their lawyers on a personal level. Colyer, a head taller than Dickson, was a stately gentleman who spoke softly and politely to everyone. Colyer was perfect for making sense of lab expert testimony; Dickson related well to the Patrick Cones of the case. Around the courthouse, they were known as “the bulldog and the surgeon.”

  The case they inherited had problems. There would be no well-dressed Margaret Tillison leading off by pointing at Hennis. Mrs. Tillison had died between the two trials. In addition, the crime prevention checklist that helped corroborate Hennis’s alibi witnesses was now available to the defense. The surprise element of Lucille Cook was gone. And Dickson knew right away that he might as well leave his slide projector in Fayetteville. The Show had been closed.

  Beaver had eliminated the argument that the slides were needed to prove premeditated murder by conceding that the crimes were first-degree murder. Dickson and Colyer were left with no argument for showing the autopsy photos. Judge Clark allowed only nine crime-scene photographs. If a medical examiner wanted to illustrate the wounds, the judge ruled, he could use a diagram with the wounds marked on it.

  The prosecutors had even lost ground with their lab witnesses. Beaver had unleashed a flurry of pretrial motions aimed at the “statistical nonsense” of the SBI lab experts, and had won several. Judge Clark ruled that Troy Hamlin was not qualified to say a foreign pubic hair was “insignificant.” Nor would Hamlin say that in three of every four of his cases, he doesn’t find the defendant’s hair.
The judge ruled that Ricky Navarro couldn’t tell the jury he failed to find a defendant’s fingerprints in 70 percent of his cases.

  But the prosecutors were not aware of their biggest problem. They’d lost track of their star witness, but Billy Richardson had been watching Patrick Cone for three years, quietly compiling a list of “incidents” he could use at a second trial.

  The first, and most useful to him, took place a month and a day after Hennis got the death penalty.

  Fayetteville Police Officer T. P. Riley, moonlighting as a security officer at Sears at Cross Creek Mall, was driving out of the parking lot after work around 9:30 P.M. when he noticed a young man peering around the corner of the First Union Bank building, one of two banks in the mall’s parking lot. The man was watching customers use the 24-hour machine. Riley saw him walk over to a group of stamp machines and fiddle with the dials while still watching the line of bank customers behind him. “He’s getting ready to rob somebody,” Riley said to himself. He parked his van and cut off his lights, watching the man through his windshield.

  The line of people cleared out. Riley watched the man approach the machine, put a card in it and punch some numbers. The machine spit the card back at him. The man tried some more numbers. Again, the machine rejected the card.

  The man took his card and walked across the parking lot, past Thalhimers department store and toward North Carolina National Bank.

  Okay, he’s leaving, Riley thought. As he drove out of the parking lot to head home, he checked his rear-view mirror one last time. The man was walking back to First Union. This isn’t right, Riley thought. He turned around, pulled back into the mall and found a sheriff’s deputy.

  “I need you to help me question this man,” Riley said.

  By then the man was heading back to NCNB. The deputy introduced himself and asked the man’s name.

  “Patrick Cone,” he said.

  “Mr. Cone,” Riley interjected, “I’m Officer T. P. Riley with the Fayetteville Police Department. Have you got any bank cards on you?”

  “Yeah, I got one, but it’s not mine. My girlfriend gave it to me. It’s a friend of my girlfriend’s.”

  Cone produced a MasterCard belonging to Miranda G. Dillard. It had expired three months earlier.

  “Do you have the code number?” Riley asked.

  “My girlfriend told me the numbers, but I can’t remember them.”

  “Who’s your girlfriend?”

  “Stephanie Richards.”

  “Where can I find her?”

  “She works at Wendy’s on McPherson Church Road. So does Miranda.”

  Riley kept the card and let Cone go. Then he found Stephanie Richards at Wendy’s, across the street from the mall. “Do you know Patrick Cone?” he asked.

  “No. I don’t know nothing about Patrick Cone,” Stephanie said.

  Riley pulled out the credit card and laid it on the counter. He showed Stephanie that he’d collected Cone’s name and address.

  “Yeah, I know him,” Stephanie said.

  “Let’s you and me go for a talk over here,” Riley said, pointing her to a booth behind the salad bar.

  “Do you know Miranda Dillard?” he asked.

  “I don’t know her. I found her pocketbook in the middle of the road over by my house.” She paused. “I got her driver’s license and Social Security card, too.”

  The next day, Riley called Miranda Dillard. She’d never heard of Patrick Cone or Stephanie Richards. She’d never worked at Wendy’s. She had gone shopping at Cross Creek Mall in March 1986, and eaten at Wendy’s afterward. She went to the rest room while she was there and after leaving, noticed her purse was gone. She went back to the rest room but didn’t find her purse.

  Riley took out a warrant for Patrick Cone’s arrest, charging him with the felony of financial transaction card fraud. A week later, he remembered why the name struck him. Billy Richardson asked him about the case the next time he saw Riley at the courthouse.

  After talking with Riley, Richardson began checking at the courthouse to see how the district attorney’s office was handling the case. He wanted to be there when Patrick Cone went to court. But after several months, it became clear there would be no trial. No one served the warrant on him.

  Seven months later, Officer Tom Bergamine of the Fayetteville Police Department was helping arrest a man on charges of stealing meat from a Kroger supermarket. While another officer handled the arrest, a bystander was raising hell about it.

  “That’s enough, sir,” Bergamine said. “Just leave the area.”

  The man backed off a little, until the officer shoved his friend in the car.

  “Yo, man, you can’t do that,” Patrick Cone said. “You ain’t gotta twist the man’s arm like that.”

  Bergamine smelled alcohol on his breath. He grabbed Cone, flung him on the car, and charged him with obstructing an officer and drunk and disruptive behavior.

  “You can’t arrest me,” Cone said.

  “Watch.”

  “No, you can’t arrest me. I’m helping you guys out.”

  Bergamine had no idea who Patrick Cone was. The Hennis trial had been over for almost a year. “Well, I don’t know about you helping me out, bub, but you’re under arrest.” Bergamine took Cone downtown to the booking room in the magistrate’s office.

  “You don’t know me?” Cone asked.

  “No. Have I ever arrested you before?”

  “You need to check with your district attorneys, man. They know me and I’m their witness.”

  “Hey, buddy, I still don’t know what the hell you’re talking about.”

  “I’m a witness in the Hennis trial.”

  “Well, good. Maybe you’ll make bond before the trial starts.”

  With that, Bergamine put Cone in the can. The case was set in District Court for April 6.

  Cone didn’t show up. Never again was he asked to appear in court on this charge. On July 24, an assistant district attorney dismissed it.

  Cone stayed out of trouble for a year before his name surfaced in another criminal case. This time he stepped forward on behalf of the state of North Carolina, again volunteering to be a witness in a major case. Cone gave a written statement to the sheriff’s department, implicating two friends in a rape case.

  “I am 23 years of age,” the statement began. “I am unemployed. Me, Gus, Tony, and JuJu and a couple more people were standing outside in the yard singing and acting crazy, as always …”

  A girl who’d been beaten by her boyfriend came running up the road wearing only a T-shirt. Pat and Gus met her and calmed her down, inviting her into her house. She was offered some pants to wear.

  While she put them on, she said, someone grabbed her, covered her mouth, and took her to the back of the house. Pat said in his statement:

  She was screaming help. I really didn’t know what was going on at first, but I felt really bad when I found out what was going on. So I went in there and got her. She was crying. I didn’t know what to do, so I hugged her and told her it would be all right so she would stop crying. She asked me to take her over to Tim and Gloria’s house so I took her there. Tim and Gloria were asleep so I then took her to Greg’s house where I knew she would be safe, and I went back to the house and cussed them out because of what happened didn’t make any sense at all.

  The girl confirmed in her statement that Pat had rescued her, crediting him with grabbing a butcher knife to protect her and offering to take her anywhere she wanted to go.

  Richardson went to talk to Tony Phillips and Vincent Taylor, the two jailed suspects. Both were furious with Patrick Cone.

  They said Pat drank constantly, whatever was handy. “You should hear what he says when he’s been drinking,” one of them said. “He makes things up.” They not only told Richardson about the drunk and disorderly incident at Kroger’s, but said Pat had been drunk as a coot the night of May 9, 1985, the night of his famous walk home.

  Richardson kept checking on the rape suspects
in jail, and they had more and more to say about Patrick Cone. Then came the rape trial.

  Patrick Cone—the hero from the victim’s own account, a man who could identify in court his friends as rapists—was never called as a witness. The DA’s office gave no reason for not calling him to the stand. Vince Taylor and Tony Phillips were found not guilty.

  Taylor and Pat reunited as drinking buddies, but Phillips never quite forgave him. Richardson kept up with both, hoping to pry from them one more nugget he could use.

  His persistence paid off. Taylor told him that a month before the second trial, Pat was drinking and driving when a Cumberland County detective stopped his ’78 Cadillac. Jack Watts remembered Pat Cone. After Cone failed a test of his coordination, Watts advised Pat to slide over and let his friend drive him home. He never asked Cone for his license. It was just as well—it had been revoked.

  Taylor later told Richardson that, as the Cadillac pulled away, Cone said, “See, I can do anything I want and get away with it.”

  “He’d drank a pint of wine and 12 beers that night,” Taylor told Richardson.

  Three weeks before the second trial was to begin, Richardson checked the courthouse computer to see what had happened to the warrant for fraudulent use of a bank card, now two and a half years old. The charge showed up on the computer. Cone had been arrested a week earlier and released on $1,000 unsecured bond. Cone had signed his name and walked out.

  “Looks like they’ve reminded him of what’s at stake,” Richardson muttered.

  Richardson had a clerk pull out the folder that holds legal papers in a case. On the outside of the shuck, on a Post-It note, someone had written “Hold For Dixon.”

  Must be talking about Dickson, Richardson thought. Inside was a note to a prosecutor in District Court: “Don’t call and fail Pat Cone. John said pull it out to one side.” The note gave the assurance that Cone would not be arrested for failing to appear in court.