Innocent Victims

by Whisnant, Scott;

  To close out his case, Dickson wanted to show the jurors the exhibits, including the crime-scene photos that had made it into evidence. There would be no slow, silent handing of exhibits to the jurors one-by-one. Judge Clark said the prosecutor could place all the exhibits on a table and the jurors could walk down to look if they wished.

  The process took nine minutes, 51 fewer than were spent passing autopsy photos at the first trial. One juror didn’t wish to look at the macabre collection, so she didn’t have to.

  “Is there anything further from the state?” Judge Clark asked. Dickson stood. The lawyers braced. Hurry up and say something.

  “Your Honor, at this time the state would rest.”

  Beaver and Richardson leaned back. That’s it, Richardson thought. That’s all they have.

  Gary Eastburn approached Bob and Marylou Hennis in the lobby. “No matter what happens, I’d like for us to be friends,” he said.

  Chapter Twenty-eight

  Billy Richardson began with the same Army defense he put on at the first trial, trying to lull the state into thinking his case would be a repeat. His surprises would come later. He had documents the prosecutors had never seen, witnesses they’d never heard of, and strategies they didn’t understand. But his best surprise was sitting right there in the courtroom.

  The Army witnesses were simply a phase of the trial he had to get through. Though they were three years wiser and were supported by the crime prevention checklist, they hadn’t helped before and Bob Hennis couldn’t understand why his lawyers had started their defense again with them. After a dozen of them took the stand, he approached Richardson.

  “If we don’t do something to grab the jury’s attention, they’re going to have their minds made up before we get to our best evidence,” Bob told him.

  “Don’t worry, Bob. I’ve got a plan.”

  “Why don’t we put up Sean Buckner or one of our better witnesses right away?”

  “Not ready for that. I’m leading up to that.”

  “Well, I want to see something now.”

  Richardson had wanted to move right into the weather witnesses and continue replaying the first trial, but to appease Bob, he called T. P. Riley and Tom Bergamine, the Fayetteville police officers who’d charged Patrick Cone with using a stolen credit card and drunk and disorderly behavior. The state fought to keep both off the stand, arguing outside the jury’s presence that Patrick Cone’s bad acts had nothing to do with the case against Tim Hennis.

  “The whole purpose,” Richardson argued, “is for me to be able to show the jury that they have a strong case against this man and they’re ignoring it because they need him to testify in this case.… He knows that. He’s gone around making comments to his friends that he can get away with anything that he wants.”

  Judge Clark wanted to hear what both officers would say before deciding if they could testify. He heard T. P. Riley and ruled he could testify about what he saw Patrick Cone doing at the bank machine. Then he listened as Bergamine gave his version of the drunk and disorderly charge.

  “To your knowledge,” Richardson asked the officer, “Patrick Cone has never, ever appeared in court on this charge, has he?”

  “Not that I’m aware of,” Bergamine said.

  “That would be my questioning,” Richardson told the judge.

  “You offer it for what purpose?” Judge Clark asked.

  “Your Honor, I’m offering it for the purpose, again, to show bias. Here is a charge that he has not yet come to justice on.”

  The idea of “coming to justice” on a misdemeanor drunk and disorderly charge amused the state’s prosecutors.

  “They can laugh all they want,” Richardson told Judge Clark, “but the case is strong against him, and they are not even bothering to prosecute him for it. I think we are absolutely entitled, and I want it on the record that they are laughing.”

  With the jury back in the courtroom, Riley testified that he watched Cone hide behind the bank, wait for a line of people to leave, put a card in the machine, and twice punch in numbers. Bergamine followed him, and no one on the jury laughed.

  The assault on Cone’s character continued. Chuckie Dove, a Merita Bread delivery man for the Summer Hill area, said that in the months before the murders he’d seen Cone three or four times a week, hanging out in convenience stores in the wee hours.

  “Could you tell the jury what, if anything, you observed about Patrick Cone each and every time you saw him?” Richardson asked.

  “Every time I have seen him, he has always been drunk, in my opinion.”

  Colyer objected, saying Dove was not capable of giving such an opinion.

  “Sustained,” Judge Clark said. “He has to lay some foundation for it.”

  “Mr. Dove, tell the jury what you observed about Mr. Cone each and every time you saw him.”

  “Loud talking, cussing, staggering around.”

  “From that observation, did you form an opinion as to his condition?”

  Colyer objected again. This time he was overruled.

  “Alcohol on his breath,” Dove continued. “Coming up to the truck and wanting me to give him a loaf of bread or sweet cake.”

  “Okay. What was your opinion as to his condition when you saw him?”

  “He was always drunk.”

  “I have nothing further.”

  The judge motioned to the state’s table.

  “No questions, Your Honor,” Colyer said.

  Richardson brought back the weather professor from N.C. State, who painstakingly repeated his long report for the night of May 9—cloudy, foggy, and rainy and not what Patrick Cone had testified. But during an overnight break in his testimony, Judge Clark called an indefinite recess. His wife’s health had been declining as the trial wore on, and he wanted to be at her side.

  “Billy, we’ve got a mistrial if we want it,” Beaver said after a few days.

  “Do we want that?” Richardson asked. “The longer the jury’s away from the state’s case, the better.”

  Dottie Clark’s condition worsened. After two weeks, Judge Clark notified the state court’s office that he couldn’t go on with the trial. Judge Craig Ellis of Laurinburg, 40 miles below Fayetteville, was offered as a substitute. Both sides agreed on the mild-mannered judge and the trial continued Monday, April 10, when the jurors were greeted with Judge Ellis telling them Dottie Clark had died.

  Richardson called the weather professor back to the stand and the case moved forward from there. It had been 19 days since Lucille Cook testified about her bank transaction and 26 days since Patrick Cone described his walk home.

  The next day, the lawyers decided the time was right to change the course of the trial. The witness everyone expected to hear from the first time was ready to take the stand—at a time when no one expected it.

  Before the jury entered the courtroom, Beaver stood up. “May I approach, Your Honor?”

  He handed Judge Ellis a motion to suppress Tim Hennis’s convictions for bouncing checks in Minnesota. He argued that Hennis was never represented by a lawyer when he pleaded guilty and, because Hennis was denied a constitutional right, those convictions shouldn’t be used against him in trial.

  Beaver discussed a 404b motion he had filed before the trial. He reminded Judge Ellis that he’d asked the state to turn over any evidence of bad acts or motive to be used against Hennis, and Dickson and Colyer had not responded to the request. Beaver read into the record evidence that was not admissible: “… specific instances of conduct relating to ‘sexual relationship or proclivities, the bearing of illegitimate children, the use of drugs or alcohol.’ These are the types of things which our court had held is not admissible on cross-examination, and I just felt that it would be necessary that I brief the Court on this.”

  “Anything from the state?” Judge Ellis asked.

  “We appreciate the brief,” Dickson smartly replied.

  The jury was led into the room.

  “Your Honor,” B
eaver said. “We will call Timothy Hennis to the stand.”

  For months, Tim Hennis had dwelled on this moment. He’d heard what people had said about him—that he was cold, aloof, and afraid to testify. An alternate juror from the first trial had told Richardson that Hennis’s failure to take the stand was among the most damning pieces of evidence. “People said things like, ‘If I was charged with a crime like that, there’d be no way you could keep me off the stand,’” the juror said.

  Hennis knew he had to get on the stand this time, and his lawyers quickly discovered they had a different client on their hands. Three years on Death Row had humbled him.

  Two weeks before the trial, Richardson and O’Malley showed up at the New Hanover County jail with a video camera to put Hennis through a dry run.

  “Okay, Tim. Tell us what you did May ninth.”

  “What do you want to know about it?”

  Hennis still had a ways to go. He waved his hands as he spoke, huge paws that only reinforced how big and powerful he was.

  “What do you think, T. V.?” Richardson asked on the way out.

  “Um, not bad. His body English is good. He’s not holding back or withholding. He sat on the edge of the chair, and that’s good. That means he’s into it. The guilty ones won’t try to help you that much. But you should do something about those hands.”

  “I think he can do it,” Richardson said.

  Hennis still didn’t think he needed coaching. As far as he was concerned, he hadn’t acted that poorly in the first trial. Beaver worked with him some more anyway, asking him to keep his hands still and drag out his answers.

  “Let me tell you something,” Beaver told Tim the morning he would testify. “You can’t win this case for yourself, but you can damn sure lose it.”

  Beaver wanted to call Tim first thing in the morning, finish up in about 45 minutes, and stick Dickson with cross-examination without preparing overnight or during lunch. His timing had worked out right. The rest would be up to Tim.

  As soon as he heard his lawyer call his name, Hennis rose from his chair, reminding himself of Beaver’s instructions. Keep those hands still. Answer in long sentences. He walked up to the stand, put his right hand on the Bible, and turned to face Linda Priest, the clerk who read his guilty verdicts three years before.

  “Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?”

  “I do.”

  “Please be seated.”

  Hennis lumbered up to the witness chair. He looked big. Billy Richardson closed his eyes tight and prayed.

  “Would you state your name, please?” Beaver asked.

  “Timothy Baily Hennis.”

  “Mr. Hennis, did you kill Mrs. Eastburn and her children?”

  Hennis turned to face the jury. “No, I did not.”

  “Did you hear that, Jack Watts?” he wanted to scream. “Did you hear that, VanStory? I didn’t to it. I just said it in front of God and everybody else. I’m innocent.”

  For the first time in public, Hennis discussed his visit to Katie Eastburn’s to pick up the dog. Tim said he first went to the wrong house by mistake, then found the Eastburn home.

  “Where did you park your car?” Beaver asked.

  “I parked my car at the end of their driveway.”

  “What did you do then?”

  “I then proceeded to get out of my car with a dog chain in my pocket in case everything went fine and I was able to get the dog. I walked up to the carport door and rang or knocked on the door, I can’t remember which.”

  “Did Mrs. Eastburn come to the door?” Beaver asked.

  “Yes, sir, she did.”

  “What occurred then?”

  “She invited me inside to see the dog and talk to me.”

  “Keep going.”

  “After she invited me inside, she invited me into the kitchen area, where they had a kitchen table and some chairs. I sat in one chair and she sat in another. And the dog was right there. I petted the dog and looked at the dog. We talked about the dog. We just made some other small talk about our families, my family and her family.”

  Gary Eastburn sat in the front row, listening to the accused murderer talk about chatting with his wife. It was galling. He won’t look me in the eye, Gary thought.

  “Did you see any children at that time?”

  “No, sir, I did not. She had told me that she had just finished putting her children to bed. She didn’t want them to be awake or up and around if the dog did leave the house.”

  “Go ahead.”

  “After we talked for a while, she seemed quite pleased with myself and what I had told her about my family and happy that the dog would have a good home. So then, in the meantime, the dog had gone into the—I don’t know, I guess I would call it a dining room-living room area that was connected or something and laid down in the doorway.

  “So I went in and put the chain on the dog and then brought the dog back out to the kitchen and carport door and proceeded on to my car. Mrs. Eastburn followed me out and watched me get in the car with the dog and drive off.”

  “Approximately how long were you in the Summer Hill neighborhood at that time that evening?”

  “All together, maybe 30, 40 minutes, I believe.”

  “Did you have occasion to see other people in the neighborhood that spring evening?”

  “There were other people out doing whatever they do around their house. Besides the lady whose house that I accidentally stopped at, that was about it.”

  “After departing with the dog, did you ever return to that residence again?”

  “No, sir, I did not.”

  “Did you ever see Mrs. Eastburn again?”

  “No, sir, I did not.”

  Beaver and Tim hit a rhythm, sailing through the trip to Selma, Friday night CQ duty, the backyard fire. Hennis explained the several routes he took to go to work—a discourse on Fayetteville geography that flew right over the Wilmington jurors’ heads, but a harmless excuse to have Hennis prattle on and look like he was trying to help.

  Beaver had Hennis take his May 9 phone bill to the jury. The murder suspect bounded down from the stand and stood inches away from the jurors, pointing to where he tried to call Angela at 9:05 the night of the murders.

  Good, Tim, Beaver thought. Make sure you get close to the women. Show them you’re not a beast.

  Beaver finished with him around 10:30, right in the middle of the morning session. Dickson had to begin cross-examination.

  “What kind of dog did you own when you moved, sir?”

  “A long-haired Spitz, white.”

  “And when you say ‘long-haired,’ can you describe the length of that hair, sir?”

  “A German short-haired pointer, sir, has very close cropped hair, something like your beard. A long-haired Spitz would have hair like your head hair, very long.”

  Richardson winced. Easy, Tim. Don’t be comparing his hair to a dog’s.

  Dickson switched the subject to Nancy Maeser. “And I believe you testified earlier that you had a romantic relationship with her?”

  “For a very short time, yes, sir. I would say a month in length or maybe two months.”

  “You were romantic enough that you were talking about getting married at one point?”

  “I don’t recall, sir.”

  “You don’t recall whether or not you talked to her about getting married?”

  “No, sir.”

  “You don’t know if you did or didn’t?”

  “I said I don’t recall, sir.”

  Hennis didn’t like Dickson and was sometimes curt with his answers. But Dickson was no VanStory. He could deal with Dickson.

  “Do you recall in March of 1985 going to Ms. Maeser’s house at about 3:30 in the morning?” Dickson asked.

  Beaver objected and asked to be heard. Judge Ellis sent away the jurors, who were weary of having to leave the courtroom so often. Beaver argued that Dickson’s line of questioning should h
ave been turned over before the trial to comply with his 404b motion.

  Dickson and Colyer thought it ludicrous that the state would have to turn over material for the second trial that the defense was aware of in the first trial. Beaver responded that the purpose of the 404b motion was to find out what the state would dump on Hennis if he testified. “I made a decision based upon the state’s reaction to that, and now the state is wanting to forget that order ever existed and just go forward. I don’t think that is fair, and I don’t think it should be allowed.”

  Judge Ellis had no choice but to agree. The jury would not hear about the prior visits to Nancy Maeser’s. Dickson moved on to something else.

  “Kathryn Eastburn was an attractive woman, wasn’t she, Mr. Hennis?”

  Boy that’s a loaded one, Hennis thought. It’ll look bad if I say she was attractive. But her husband’s right there on the front row. How do I answer that one?

  “It depends, sir. It depends on what you find attractive.”

  “Do you think she was an attractive woman, Mr. Hennis?”

  “She was a nice-looking woman, sir. Yes, sir.”

  “You left Nancy’s Maeser’s house on Thursday, May ninth, and went to the Eastburn home, didn’t you, Mr. Hennis?”

  “No, sir. I did not.”

  “Your wife had left you?”

  “My wife went to her parents’, yes, sir, for the weekend.”

  “Nancy Maeser had rejected you?”

  “Excuse me, sir. I visited a friend. I don’t know what you’re talking about.”

  “You went to the Eastburn residence and tried to come on to Mrs. Eastburn?”

  “No, sir. I did not.”

  “You killed her and her two children?”

  “No, sir. I did not.”

  “Other than yourself, Mr. Hennis, is there anybody who can say where you were and that you were at home after 9:05 on May ninth, 1985, sir?”

  “No, sir. There is not.”

  “I have no further questions.”

  Tim had done just what he and the lawyers had practiced. He’d looked at the jury and kept cool, even when Dickson tried to provoke him at the end. He sat down, relieved it was over. His parents were proud. Attaboy, Tim.

  Beaver and Richardson both nodded as he sat down, barely able to conceal their glee. “That was good, Tim,” Adele said.