Murder on Birchleaf Drive

by Steven B Epstein

  Mark Thomas personally handled Michelle’s application for coverage in November 2005. He testified Michelle’s life insurance with Prudential went into effect on February 1, 2006. The coverage on her life was $2 million, plus an additional $2 million if her death were accidental, meaning it hadn’t resulted from natural causes.

  Thomas told jurors Jason had also obtained a policy, which became effective on March 1, 2006. The application he signed on November 28, 2005, asked whether he had “smoked cigarettes, cigars, or a pipe within the last year.” Jason’s response was “no.” Thomas also testified the account had been “under investigation” by both the Department of Insurance and Prudential, and the entire $4 million under Michelle’s policy was ultimately paid, not to Jason, the designated beneficiary, but rather to Michelle’s estate.

  Curiously, Jason’s attorneys didn’t lodge a single objection to the relevance—or prejudicial effect—of Ray’s or Thomas’s testimony. Nor did they ask either witness any questions.

  • • • • •

  The most significant adjustment the prosecutors had planned for the retrial was yet to come. They intended to share with the jury details of the civil wrongful death case Linda had filed against Jason, including the judgment—signed by Judge Stephens himself—that declared Jason to be Michelle’s slayer.

  Not a word about the wrongful death case, or the slayer declaration, was uttered during the entire first trial. Following the near acquittal, the prosecution team had decided this new jury needed to know all about it.

  After Mark Thomas stepped down from the witness stand, and while the jury was outside the courtroom on a break, Cummings announced his next witness would be Lorrin Freeman, the duly elected Clerk of Superior Court of Wake County. He previewed she would be testifying about facts related to the defendant’s appearance bond, the wrongful death case, and Judge Stephens’ declaration that Jason was Michelle’s killer.

  Collins jumped to his feet. “Your Honor, we object to the entire line of questioning about the wrongful death case,” he said. He argued it would be confusing, misleading, and unduly prejudicial to his client. Rather than fleshing out this argument, though, Jason’s lawyer stated he didn’t wish to be heard any further.

  Judge Stephens had clearly anticipated this objection and had given it considerable thought. In overruling the objection, the judge stated, “The fact that the primary beneficiary elected to be defaulted in response to the wrongful death action and permitted the court to enter a judgment disqualifying him from benefiting from the death of Michelle Young … might be relevant to any number of matters that the jury has already heard and will hear and are considering, and so I do believe it’s relevant and I do believe that the probative value outweighs any prejudicial effect.”

  He told the lawyers he would provide the jurors with further instructions limiting their use of such evidence.

  When the jury returned to the courtroom, Freeman took the witness stand. Cummings first asked her how the defendant had been able to post a $900,000 bond.

  The prosecution witness testified Pat Young had issued a deed of trust to the State of North Carolina for five separate tracts of land, two in her home county, Transylvania, and three in Buncombe County, where Asheville is located.

  The combined tax value of the five tracts was more than $1.1 million. Against that value, the Clerk stated, there was less than $70,000 in mortgage debt—thus, over $1 million in equity. If Sergeant Spivey’s testimony hadn’t convinced the jury Jason had access to plenty of money for a custody battle, Freeman’s testimony left little doubt on the matter.

  The Assistant DA then shifted gears to the wrongful death case. After his first question, Collins lodged an objection, which was quickly overruled by Judge Stephens.

  Freeman explained the purpose of North Carolina’s slayer statute. She told the jury the law is intended to prevent someone who causes another person’s death from benefiting through life insurance or other sources.

  The Clerk explained Linda’s wrongful death suit sought a finding from the court that Jason was Michelle’s “slayer.” Quoting from the complaint, she stated the lawsuit had alleged, “‘In the early morning hours of November 3, 2006, Jason Young brutally murdered Michelle Young at their residence.’”

  Because there was no response to the complaint, Freeman told the jury, she, as the Clerk of Court, entered a “default” against Jason—which meant he wouldn’t be permitted to dispute the complaint’s allegations, she explained.

  Freeman told jurors that following the entry of a default, the next step in the process is for the plaintiff to move for a default judgment—which requires a hearing before a judge. A hearing on Linda’s motion for a default judgment, she testified, was held on December 5, 2008.

  Cummings then had the Clerk read aloud from the judgment entered that day, making especially sure to highlight it had been signed by none other than Judge Stephens. He asked her if the judgment specified Jason had “unlawfully killed Michelle Marie Fisher Young” within the meaning of the slayer statute. Before Klinkosum could get his objection out, Freeman responded it did.

  The jurors, who had been dutifully watching the evidence unfold for weeks, now knew the judge who had been guiding them—and who was their sole authority on the law—had ruled three years earlier that Jason killed Michelle. If they weren’t already convinced of his guilt, this new revelation certainly increased the odds they ultimately would be.

  Cummings then turned to the second default judgment, the one signed by Judge Osmond Smith. Freeman told the jury Judge Smith had entered a wrongful death judgment against Jason for more than $15 million.

  Klinkosum’s cross-examination was aimed at convincing the jury the wrongful death case had been nothing more than a money grab by greedy lawyers.

  He had Freeman focus on Michelle’s estate file, which showed that, despite Prudential paying over $4.25 million in life insurance proceeds, only $3.19 million was actually paid into the coffers of the estate.

  The Clerk acknowledged that was because more than $1 million was paid to Paul and Jack Michaels, Linda’s attorneys. Freeman also confirmed that Linda, as the executrix, received $156,000 as a commission.

  On redirect examination, Cummings asked the witness if Jack Michaels had stated in an affidavit that, after reviewing the extensive criminal files, he was of the opinion Jason had brutally murdered Michelle.

  Freeman responded Michaels had made that statement in his affidavit and, further, Judge Stephens had that affidavit before him at the time he entered his judgment. She further testified both Judge Stephens and Judge Smith had before them—in the civil file—search warrants describing the investigation and the autopsy results.

  For some reason that wasn’t very clear at the time, Klinkosum underscored these very points during his cross-examination by reading aloud from Jack Michaels’ affidavit, telling the jury Michaels had stated he had reviewed hundreds of pages of law enforcement and SBI reports prior to filing suit.

  Based on that review, Michaels stated in his affidavit, “It is my firm belief and opinion that the allegations of plaintiff’s complaint in this matter are true, including the allegation that in the early morning hours of November 3, 2006, Jason Young brutally murdered Michelle Young at their residence.”

  • • • • •

  The State had only two witnesses left to call before resting its case: Josh Dalton and Mike Schilawski. Though Dalton had testified for the defense in the first trial, Holt’s cross-examination had scored so many points she decided to call him during the State’s case in the retrial.

  His testimony was essentially the same, including the part about Jason telling him at a tailgate party he was having an affair with Money.

  This time, Holt had him include the additional detail that Michelle was also at that same tailgate, though not by their side during that discussion.

  She also asked the witness about a new topic—cigar smoking.

  Dalton testified he had never seen J
ason smoke a single cigar during their golf trips or any of the numerous times they were together.

  Schilawski’s testimony was also nearly identical to the first trial. But there was one notable difference. Cummings handed the divorce lawyer a copy of the child custody complaint he had filed on Meredith’s and Linda’s behalf, which was admitted into evidence without any objection from the defense.

  Schilawski read aloud from paragraph six: “‘In the early morning hours of November 3, 2006, the defendant brutally murdered Michelle Marie Fisher Young (Michelle) at their residence. Michelle was pregnant with defendant’s son at the time of her murder. Upon information and belief, Cassidy was in the residence at the time the defendant murdered her mother.’”

  Cummings then had the divorce lawyer read aloud from paragraph twenty: “It says,” Schilawski told jurors, “‘On December 5, 2008, a judgment was entered against the defendant in Wake County Superior Court under the caption 08 CVS 18831, which declared that the defendant “willfully and unlawfully killed” Michelle, and as a result of that judgment the defendant is barred from collecting any insurance proceeds payable on Michelle’s life or from inheriting any property from Michelle’s estate.’”

  Schilawski also testified about the temporary visitation schedule Meredith and Linda had proposed to Jason before the custody suit had ever been filed. Had he simply agreed to their request, the divorce lawyer told the jury, there never would have been a custody battle for Jason to fight—or fund.

  “And so, this idea of a full-blown custody battle and how expensive that was,” Cummings asked, “that could have been avoided if he had just signed that one document right there so that the visitation schedule could have been in written—”

  “That’s true,” the witness interrupted.

  “So this cost that’s going to be involved in all this,” the prosecutor continued, driving home his point, “that is because of his lack of agreement, isn’t it, lack of consent to what was proposed for visitation?”

  “We tried to do it the easy and the economical way,” Schilawski responded. “Yes.”

  Satisfied with that response, Cummings stated he had no further questions, which prompted Holt to stand up and announce the State had completed its presentation of evidence.

  22

  Defense Redux

  When it came time for them to put on their evidence, Bryan Collins and Mike Klinkosum found themselves in a somewhat different place than at the same juncture in the first trial.

  Though they scored many of the same points in their cross-examination of prosecution witnesses, exposing deep holes in the crime scene and forensic evidence, they needed to adjust to the prosecution team’s increased emphasis on Jason’s mindset and motive—and to the fact their client’s truthfulness from the witness stand had been seriously challenged.

  The first witness they called was yet another person who hadn’t testified at the first trial. Trooper David Dicks worked for the North Carolina State Highway Patrol in western North Carolina. He investigated the May 29, 2006, accident in which Jason’s SUV had plunged into the French Broad River.

  Because the prosecution team had implied that the vehicle’s plummet was no accident at all, Jason’s attorneys wanted the jury to hear a very different perspective.

  When Trooper Dicks arrived at the accident scene at about 8:30 a.m. that morning, Jason’s Mitsubishi Endeavor was “nose forward into the French Broad River,” he testified. Both Jason and Michelle had already been taken to the hospital.

  Collins asked the officer what he did to investigate the accident. Trooper Dicks testified he looked at the tire impressions, which showed clearly, “The vehicle had run off the roadway to the right, overcorrected, and then gone down the embankment into the river.”

  After they were released from the hospital, Jason and Michelle returned to the accident scene and spoke with the officer. In contrast to Meredith’s and Valerie Bolick’s testimony, he recounted that Michelle told him she had been wearing her seatbelt when the vehicle ran off the road. He also told the jury that Jason’s description of the accident was perfectly consistent with the physical evidence. Trooper Dicks didn’t investigate the accident further, he testified, because “there didn’t seem to be any more investigation warranted.”

  Collins asked him if he saw anything at the scene that led him to believe the accident had been caused intentionally.

  “No,” the officer answered, telling the jury the accident was a “typical wreck,” consistent with what “we see on a routine basis as a trooper in doing motor vehicle investigations.”

  • • • • •

  As in the first trial, the defense presented testimony from Pat Young, Gerald McIntyre, and Heather and Joe McCracken. During his cross-examination of McIntyre, Cummings focused on Jason’s reaction to learning of Michelle’s death—in an attempt to demonstrate that it was contrived. He asked McIntyre, “And he immediately started crying?”

  “Right. Just fell. If I hadn’t have gotten hold of him, he would have [fallen] plumb to the ground. He just broke out crying.”

  “He didn’t say anything at all—just started crying?” the prosecutor asked.

  “No, he didn’t say nothing,” McIntyre confirmed.

  Cummings also asked about the search of Pat Young’s home in February 2008.

  “They come up and looked and stomped through the place and had a couple of women with them, and they never did find anything that I know of,” McIntyre said of the law enforcement officers who turned his place upside down.

  Jason’s stepdad also described an O.J. Simpson-like moment when investigators went with Pat, search warrant in hand, to meet up with Jason. “They tried to put his shoe on his foot,” he testified. “It wouldn’t fit.”

  Cummings asked the defense witness if he ever asked his stepson about the circumstances surrounding Michelle’s death.

  “No. I didn’t ask him nothing,” he replied. “Didn’t want to know nothing. Least said about it the better off you are.”

  During Heather’s direct examination, Collins handed her a T-shaped, heavy-duty metal object and asked her to identify it. The black object was a little larger than her hand. She told the jury it was a tool one could use to break open a car window or cut a seatbelt if they became trapped in a car. The tool she was holding seemed to fit the description of what Meredith testified Michelle had purchased for Jason for Father’s Day. The prosecution had elicited that testimony from Meredith hoping the jury would conclude the Father’s Day gift was the missing murder weapon.

  Collins asked Jason’s sister how she had gotten ahold of the tool. She responded it was in the console of Michelle’s Lexus SUV when the vehicle became hers following her sister-in-law’s death. She told jurors the metal object didn’t have any blood on it. Upon Collins’ request, Judge Stephens permitted the bailiff to bring the tool to the jury box for jurors to see and handle for themselves.

  During Pat Young’s lengthy testimony—largely the same as in the first trial—Collins asked her what she recalled about Jason’s reaction when McIntyre told him that Michelle was dead. Her recollection was somewhat more nuanced than her husband’s.

  “He just, I think he said, ‘What? What? That can’t be right.’ And he just—you saw the color just drain from his face. He started just going down and I thought he was going to just fall down. He started crying. He asked about Cassidy, ‘What about Cassidy?’ And Gerald and I, of course, were on each side of him, and Gerald was, you know, we were trying to hold him up.”

  Collins also questioned the former schoolteacher about one of her visits to the Birchleaf Drive home to get it ready to sell after the murder. While at the house, Pat told the jury, she found “a humidor, I believe is what they’re called, that you put cigars in to keep them climatized, or whatever.” The defense shared this discovery to bat back the suggestion that Jason would never have been outside smoking a cigar in the Hampton Inn’s parking lot.

  The Public Defender approached the witn
ess and handed her a black and gold cylinder with a “Kwikset” label on the outside. Pat confirmed the cylinder was the humidor she found while packing up the house and explained that Kwikset was a brand named of locks sold by one of Jason’s former employers, DeWalt. She unscrewed the top at Collins’ request, looked inside, and showed the jury the cylinder was empty. Though this discovery didn’t directly support her son’s testimony that he smoked a cigar in the hotel parking lot, it did make that possibility seem a bit more plausible.

  • • • • •

  Next to take the witness stand were two of Jason’s and Michelle’s neighbors—Fay Hinsley and Cindy Beaver. Though Hinsley didn’t testify at the first trial, the two sides had stipulated to what her testimony would be and handed that stipulation to the jury. This time, the defense decided the jury needed to see and hear her live and in person. And she made quite the impression.

  Hinsley, a woman in her seventies full of vim and vigor, had lived by herself in the home directly behind 5108 Birchleaf Drive for more than twenty years. Before she even began to testify, she had the jury in stitches. As she was getting settled into her seat at the witness stand, Klinkosum told her, “We appreciate you being here.”

  Without missing a beat, she responded, “You better!” The judge, jury, lawyers, and spectators erupted in laughter.

  Hinsley said the Friday morning of the murder was her day to get her hair “fixed.” She left her home, she said, between 6:00 and 6:30 a.m. While she was driving down the street, she explained, “all of a sudden there was this little car sitting there right on the edge where the crack of the cement and the driveway connects. I mean, like it’s someone said, ‘Oh, I’m going to jump right out in front of you,’ and it caught my attention.” Though she described herself as “not a car person,” Hinsley was pretty sure the vehicle was an SUV and that it was gray. She said it was “right on the edge of the driveway, like it was ready to go, boy!”