To Love and to Kill

by M. William Phelps

  “Lily.”

  Then the questioning turned to that day in the car when Emilia and James and his buddy were taking a ride to the store. He recalled it being a time when Josh was still in jail, shortly before Heather went missing. The exact date had eluded him.

  “She needed a ride to the store to get some diapers and things,” he said.

  “All right. During this trip to the store, did an unusual conversation take place between you and Emilia?”

  “Yes.”

  SP Rock Hooker asked the witness to elaborate.

  “Basically, she offered me—said she was fixing to get her income tax, and offered me money to help her lure Heather Strong, get her drunk, so that she could snap her neck.”

  “In other words, kill Heather?”

  “Yes.”

  “And how much did she offer you?”

  “Five hundred dollars.”

  “Okay, and you said what in your deposition?” Hooker asked, making a point to clarify this amount, seeing that there had been a discrepancy.

  “I said ... I think I said seven hundred.”

  Hooker wanted to know, in this witness’s opinion, did he believe Emilia to be horsing around when she asked him to lure Heather into a death trap? He and James knew Emilia and had been friends with her since high school. They both understood when she was serious and when she was playing around.

  “She was serious,” he said.

  “And how do you know that?”

  “Because I’ve known her for over ten years. I know!”

  Hooker had additional questions and Hawthorne came in with her cross-examination, but nothing could put a damper on what this guy had said about Emilia wanting to hire him and James to “lure” Heather so she could kill her—something Emilia had tried to do, it had been well documented, but she wasn’t able to because she wasn’t strong enough.

  Concluding this first morning of testimony, the state brought in several additional witnesses to put a bow on that narrative surrounding the early days of Heather’s disappearance, including Misty Strong, the cousin who had reported Heather missing, and Beth Billings, the MCSO officer who had a gut feeling something wasn’t right and opened the investigation. Likewise, Josh’s mother, Judy Chandler, testified near the end of the morning, telling jurors all she could recall about the events that had led up to, and then following, her daughter-in-law’s disappearance.

  CHAPTER 80

  HE WALKED WITH a careful and reserved stride. He dressed nicely in a finely tailored and firmly pressed suit and tie, his gold badge prominently displayed by his belt, his gun holster strapped to his hip, his black shoes sporting a military shine. Detective Donald Buie, at that moment celebrating eleven years behind the badge at the MCSO, was the key figure in law enforcement for Brad King. Buie had put it all together and had managed to get Josh to show him where the body was buried.

  Buie spoke professionally, with respect: “yes, sir” or “no, sir.” He answered questions in an articulate manner that spoke to his precision and expertise. The man was a cop, through and through—no doubt about it. He lived and breathed this stuff. The last thing this cop would do would be to stick his neck out for a perp like Emilia Carr and make things up to put her behind bars. It just wasn’t in Buie’s DNA to go that route. And with all the evidence the man had accumulated and collected with the help of his MCSO colleagues, Buie didn’t need any outside assistance with this one. Emilia had sunk herself. She didn’t need Buie’s help. So if Hawthorne was going to go down that road after Rock Hooker got done with direct testimony, she had better listen closely to Buie’s answers and try to find another hole to fill. Buie’s reputation and his integrity were rock solid.

  Unbreakable.

  Off the bat, Buie talked Hooker through the early part of his investigation into a missing person case. He dotted i’s and crossed t’s. And it was through those initial days of the investigation, when Buie interviewed Josh and Heather’s oldest child, that several red flags popped up for this cop, indicating to him that Josh Fulgham was the last person to be with Heather. And no sooner had he gotten Josh and Emilia into the MCSO than Buie began to see holes in their stories and developed a sense of the case in the form of: They’re hiding something. Buie wasn’t trying to say he was Columbo or Matlock; he was saying that the evidence and what Josh and Emilia were saying didn’t gel. He knew they were lying to him because the facts of the case and what his two main suspects were telling him did not add up.

  With all of that laid out plainly, Hooker brought up the fact that Buie and Spivey recorded some of those interviews, which allowed the state the opportunity to enter those tapes into evidence and to play some of that material for the courtroom. The jury was also furnished with transcripts of the interviews.

  They all sat and listened to that first interview Emilia gave to Buie.

  After it played, Hooker asked Buie to “go back” and “talk about” that day when he and Spivey went to Emilia’s house with Josh.

  Buie explained that the trip took place just before that interview they had all just heard. He said Josh was in custody at that time for fraud, for using Heather’s credit card. And when they brought Josh over to Emilia’s to search for the body, Emilia could have left the house (she was there), but she chose to stay and watch what was going on.

  “He was released on February 6, 2009,” Buie told Hooker after being asked when Josh got out of jail on those assault charges.

  “And that would be how many days before we know that Heather Strong was killed?”

  “Nine days.”

  “Thank you.”

  Hawthorne walked through the various interviews with Buie and, in the end, after about a half hour of trying to find a way to explain why Emilia lied so often, she gave up because there was no other way to end what was damaging testimony to her client other than getting Buie off the stand as fast as she could.

  CHAPTER 81

  THE FOLLOWING MORNING, December 2, 2010, began as the state’s technical experts arrived to set the stage for manner of death, where the body had been found, how Heather had likely been placed in that hole and what forensic evidence CSIs had uncovered. These experts would show how it all tied into what both Josh and Emilia had said about the murder, when they were interviewed back at the MCSO.

  Susan Livoti was the manager of the MCSO’s property room. She played a pivotal role in the evidence-gathering portion of the state’s case, as well as keeping the integrity of that evidence in check. Livoti and two colleagues, she explained to Brad King, took care of all the evidence and made sure it was cataloged, packaged properly and stored from the moment it left the scene of a crime. These types of experts are often the unsung heroes of any successful prosecution and investigation. Without dedicated cops like Susan Livoti and her colleagues, evidence would lose its rightful place in the courtroom. Could anyone forget the fiasco of the OJ Simpson case when the blood evidence from Nicole’s condo was transported improperly from that scene to the police department and was ultimately contaminated? One trip-up like that in a case and the entire investigation can crumble into a verdict of not guilty.

  At the time the MCSO uncovered Heather’s remains in that makeshift grave in back of Emilia’s house, Livoti was a crime scene tech. She had gone out to the scene herself, she testified.

  Maybe more important than what Livoti had to say was what the state entered as evidence through Livoti’s testimony: a videotape of that day when they all went out to the scene after Josh pointed out where Heather was buried. This shaky video, taken by a cop and not a photographer, was eerie and poignant all at once. For those watching it, it displayed the sheer darkness and evil surrounding this case, reminding everyone that a human being had been kidnapped, tortured, murdered and then buried in a shallow grave. That horror, which can sometimes get lost during a trial, was implicit in each frame of this video.

  What made the video even more intense when played inside the courtroom was the fact that there was no sound: just the
shots of the camera from the POV of Livoti capturing the magnitude and sadness of the crime scene.

  Next, King and Livoti talked about the blanket they found covering Heather’s face and neck area. It still smelled so bad from decomposing flesh, and was in such bad condition, that King and Livoti had made the decision not to bring it into the courtroom.

  They discussed the black chair that was used as a fixture to bind and contain Heather. That, too, would be a biohazard if brought into the room, so they chose, instead, to show the jury photos of it.

  If there was one gold-standard trial rule Brad King followed quite obviously during the first two days of this trial, it was that he never kept a witness on the stand longer than necessary. That might sound obvious, but many attorneys, both defense and prosecution alike, do not follow this simple canon, especially where scientific experts are concerned. And not following it can make the difference between giving jurors just enough information and completely boring them to sleep, where they then forget most of what you intended to get across.

  After talking about those pieces of evidence, King said he had nothing further for Susan Livoti and that Hawthorne was free to take a crack.

  The only possible chance Candace Hawthorne had here was to chip away at the integrity of the paperwork surrounding bagging and tagging the evidence. Yet, as they talked through it, the idea that Susan Livoti was anything other than the ultimate professional was ludicrous. Hawthorne’s cross-examination proved (if nothing else) that the woman had followed procedure better than most. She took her job very seriously.

  After trying her best to get Livoti to admit to any mistakes—however minor—with no such luck, Hawthorne indicated she was finished.

  Dr. Barbara Wolf walked in next, sat down inside the witness stand, and prepared to talk about her findings in examining Heather Strong’s corpse inside the medical examiner’s office.

  CHAPTER 82

  THE SINGLE MOST clear fact SA Brad King was able to establish with Barbara Wolf’s direct testimony was that Heather Strong suffered and died a horribly violent death at the hands of her killer(s). In the end, Wolf’s assertion was that asphyxia killed Heather, a manner of death she had determined by examining Heather’s body and consulting later on with investigators in the case. Beyond that, Wolf offered a complete narrative of the crime scene as Heather’s body was carefully removed from that grave in back of Emilia’s house.

  For Candace Hawthorne, she made clear in her brief cross-examination of Wolf that the doctor had taken “swabbings” (as she called them) of fluid from Heather’s mouth, anus and vagina. Wolf could not obtain much in the form of forensic evidence from Heather’s fingernails, she testified, because decomposition had just about consumed Heather’s body to the point where, Wolf explained, Heather’s fingernails actually slipped off like fake nails when touched.

  The notion Hawthorne was going for here was a return to her mantra: Josh, Josh, Josh. Because when all was said and done, it was Josh’s DNA that was tied to Heather’s murder—not Hawthorne’s client, Emilia Carr.

  Brad King brought in Shannon Woodward next as his case was set to cruise control. Again digressing back to the refrain he had followed from his first witness, King was allowing the facts to speak for themselves, nothing more. Woodward had been a forensic DNA scientist for the MCSO during the course of the investigation. She was no longer with the office, but that did not impede any of her technical testimony as Woodward connected Heather through blood and hair samples to the duct tape found inside the trailer. And, once again, King followed his own lead in that after about a dozen questions, he passed the scientist along to Hawthorne, who then continued with her point that all of the evidence led back to one perp.

  Josh Fulgham.

  Next up were the lab techs responsible for analyzing the DNA and blood evidence. There were no surprises on either side here. They were on and off the stand quickly, keeping the trial not only moving along, but also focused on the bare facts and what those facts said about the defendant.

  Over the course of December 2 and 3, Mike Mongeluzzo was called by King to talk about his role in the investigation, as were Brian Spivey and Donald Buie, both for a second time.

  Mainly, King called Mongeluzzo and Spivey to reiterate for the jury the idea that Emilia’s rights were never violated. They testified under oath that she spoke to them by her own free will, waiving her right to an attorney both orally and in writing. Additionally, as their interviews progressed and Detective Donald Buie took over, it appeared more likely that Emilia was changing her story to fit any mounting evidence coming in against her.

  The weekend of December 4 and 5 came and went. On Monday, December 6, 2010, Donald Buie was back on the stand, Spivey following him. Each cop talked in more detail about the MCSO’s investigation while allowing the state to enter additional transcripts of their interviews with Emilia, as well as several videotapes of those same interviews.

  Several pivotal pieces of information that Brian Spivey provided jurors included the fact that it was Emilia who had initiated most of the contact with the MCSO. Buie and Spivey were not badgering her to come in and talk. They didn’t really need her. It had been Emilia calling them and asking if she could share additional information.

  During one of these conversations, according to what Spivey told the jurors, Emilia said, “I can put the nail in the coffin, as long as I don’t go to jail or prison.”

  That comment was made, Spivey testified, during a phone call a few days before Emilia’s arrest. During all of these phone calls, and again in person as they interviewed her, Spivey explained, Emilia continuously asked detectives for immunity in exchange for information about Heather’s murder.

  Tit for tat.

  As Spivey testified, several jurors were clearly shifting in their chairs as they heard him describe Emilia’s two-faced actions and reactions, which came across as a guilty woman trying to save her own skin by turning over more rocks, exposing herself as the second half of a conspiracy to murder Heather Strong.

  “I need to know I’m protected,” jurors heard Emilia tell Spivey during one recorded phone conversation that was played during his direct testimony. “I’m not going to say anything without immunity, because I’m going to go down with him [if I don’t have it]. I didn’t kill the girl.”

  Emilia sounded desperate.

  Anxious.

  Nervous.

  Guilty.

  And then, after Candace Hawthorne finished her very brief, inconsequential cross-examination of Buie and Spivey, as quickly as the state had begun to lay out its case against Emilia Carr just days before, SA Brad King announced the state was resting.

  They were finished.

  CHAPTER 83

  CANDACE HAWTHORNE WASTED little time. No sooner had the state rested did she motion the judge for an acquittal, for which Judge Willard Pope allowed a few minutes’ argument from each side for and against before quashing the motion like the irritating mosquito it was.

  It was a formality, essentially. Thus far, there had been nothing out of line during the trial to warrant any such request, but Candace Hawthorne had to try any avenue she could to get the jury to find her client not guilty.

  As Emilia’s defense unfolded, Hawthorne started at the beginning, calling her first defense witness, Milagro Yera, Emilia’s younger sister.

  Milagro meant “miracle” in English, Emilia’s sister explained. Before noting that Miracle was how she referred to Milagro since they’d known each other, Candace Hawthorne asked if it was okay to address the witness as such while she answered questions on the stand.

  “Yes,” Milagro “Miracle” Yera responded enthusiastically.

  Miracle was twenty-three at the time of her testimony. She was just a tiny little thing, four feet nine inches tall, which made her about five inches shorter than Emilia, she explained. They were friends, as well as sisters.

  Family.

  Tight-knit.

  They had always looked out for each other.


  As they chatted back and forth, Hawthorne walked Miracle down a path of explaining how her sister had a difficult, high-risk pregnancy that last time Emilia was carrying a child, which one might guess was the reason for Miracle’s testimony. So dangerous was that pregnancy, Hawthorne insisted in her questioning, “Did she have to restrict her movement or other things around the house?”

  “I believe so, yes,” Miracle said. “She couldn’t really lift a lot of weight at that time.”

  And there it was: the subtle reason smacking jurors across the face, explaining why Emilia was perhaps not involved at the level the prosecution had argued. How could she manhandle Heather, crack her in the head with a flashlight, chase her inside that trailer, help Josh drag her body, if she was experiencing a difficult pregnancy?

  Hawthorne merged that disagreement into the date in question, February 15, 2009. She asked Miracle if she was home that day.

  Miracle said she was.

  Prompted by Hawthorne, Miracle recalled this fact because she remembered that she was “watching the kids, helping my sister watch the kids.”

  The way they discussed this night made it sound as though it was one more in a line of family nights at home with the kids, planning future events, having old-fashioned family fun and bonding—just two sisters at home, loving and caring for the kids in their house.

  Hawthorne continued with that night, asking Miracle if she could recall anyone stopping by.

  James Acome and his friend showed up, Miracle testified, adding, “She went outside,” after Hawthorne wanted to know if Emilia invited the two men inside. “I stayed inside.” Emilia spent about thirty minutes with them and then came back into the house. Miracle believed they sat on the porch and talked.

  After they left, Emilia stayed up for another half hour and went to bed, Miracle explained.

  “And was she there in the morning when you woke up?” Hawthorne asked.

  “Yes.”

  “Miracle, thank you very much.”