Innocent Victims

by Whisnant, Scott;

  His last bank witness was Angie Popplewell, a customer who’d used her card two minutes after the stolen card had been used that Friday night. She was a brief witness jammed at the end of a long day, but her 10 minutes on the stand revealed the most about the source of Lucille Cook’s memory.

  Ms. Popplewell recalled a visit from Detective Jack Watts a few weeks after the murders. “He came to the house and asked us had we used our 24-hour card that evening,” she said. “We told him yes. He wanted to know had we seen anyone there. I told him no, that I hadn’t seen anyone.

  “He told me that we would just about had to have seen somebody, because whoever used that card used it a minute before we did. He said he would be a big man, blond hair, big nose, wearing BDUs, and driving a white Chevy Chevette.”

  “After he made that response to you, what did you say?” Richardson asked.

  “I told him no, I didn’t see anyone.”

  “During the course of the interview, were you shown pictures?”

  “Uh-huh. There were several pictures of different people. They were 8 by 10s. He asked me did I recognize anyone. I recognized Timothy Hennis, but I told him it was because I had seen him on TV and in the papers.”

  “Could you describe to the jury how the detective approached you in your mind?”

  “He was pushy. He was very pushy. He said we would have had to have seen someone, is what he told me.”

  Chapter Thirty-one

  Richardson called out a name new to the prosecutors. A wiry thirty-three-year-old mother of two rose slowly from the courtroom’s back pew and walked toward the witness stand, clinging to the hope that someone would tell her to stop, this wouldn’t be necessary, and she could go home. But no one came to her rescue.

  “Would you state your name for the jury and the court?” Richardson began.

  “Charlotte Kirby.”

  “Ms. Kirby, you’re nervous, aren’t you?”

  “Very.” She was nearly in tears.

  C’mon Charlotte. You can do it. T. V. O’Malley was rooting from the back of the courtroom. Charlotte Kirby was all his. He’d talked to hundreds of crooks and criminals, liars and good guys and had come to know the difference. To him, Charlotte Kirby was one of the good guys.

  Getting her to the witness stand had been his finest moment as an investigator. Early in the case, Billy Richardson had included talking to her as one of a long list of chores. “Find the newspaper carrier,” the note said. O’Malley asked him why.

  “She saw a van out there. We need to find out what she’ll say,” Richardson told him.

  Richardson had found the Raleigh News and Observer carrier three years before at her husband’s junkyard. All she’d told him then was that the weather was lousy the night of the murders and she’d seen a light-colored van parked below the Eastburns’ house. Charlotte kept her head down and shifted from side to side, a language that Richardson read as “just leave me alone.”

  So Richardson did just that. But he wondered why she’d remember the weather a year later. The question troubled him as he drove off.

  O’Malley learned that Charlotte still worked at her husband’s junkyard. He and Richardson went to see her three weeks before the second trial started. “Pay attention to her, T. V.,” Richardson said. “I want to know what your instincts tell you.”

  They found George Kirby, Charlotte’s husband. “She’ll be here in a while,” George said. He paused, looking over the lawyer and investigator, all dressed up to visit a junkyard. “What do you want with her?” he asked.

  “She might be able to help our case,” Richardson told him.

  “What makes you think she’s got something to do with it? What’s she supposed to have done?”

  Richardson tried to stall George Kirby the best he could. Charlotte’s husband made it clear he didn’t want them around his wife. The pauses were becoming uncomfortable.

  “When did you say Charlotte was getting back?”

  Finally, she came winding down the dirt road leading to the junkyard, past tall weeds, twisted heaps of metal, and barking dogs.

  “Can we talk to you a minute?” Richardson asked. Charlotte dropped her head. Not this again, Richardson thought.

  “Can you tell us what you saw out there that night?”

  Charlotte looked at her husband. She looked at Richardson and thought about it. Then she looked back at her husband.

  “What do you want to know?”

  She told the same story she had in 1986. The weather was lousy and she’d seen a light-colored van parked two houses below the Eastburns’. Her presentation was also the same. She shifted uncomfortably, glancing toward her husband after every question.

  “T. V., what do you think?” Richardson asked as they drove off.

  “She knows more than what she said.”

  For the next two months, O’Malley plotted when to confront Charlotte Kirby again. He wasn’t going to call her—too easy for her to get rid of him. He wanted to see how she reacted in person. Nor was he going to visit her when he thought George Kirby would be around. The key to finding out whatever was bothering Charlotte Kirby was separating her from her husband.

  O’Malley circled the road in front of the junkyard trying to catch Charlotte alone. It was getting late in the game. The trial had been on hold two weeks because of the illness of Judge Clark’s wife, and in another week it would be over. He called to set up an interview.

  Another junkyard worker answered and told him Charlotte was out back. O’Malley drove around to the back of the junkyard, hoping he’d find Charlotte alone. Instead, he found George Kirby dismantling cars. O’Malley was still figuring out what he should do when Charlotte drove up.

  “Do you mind if we go up the street and get a cup of coffee and sit down and talk?” he asked her. He had no idea if that would work, but it was worth a try.

  Charlotte looked at her husband, who was trying to finish the job he’d started.

  “Can I borrow her a few minutes?” O’Malley asked.

  George Kirby shrugged. What the hell. If she wanted to go, she could go. Charlotte rode with O’Malley up to the Quick Stop, where she sat in his front seat while he bought her a Coke.

  “It’s like this, Charlotte,” O’Malley started. “I know how scared you must be. But how would you like it if George could be executed and somebody knew something and didn’t say anything? Wouldn’t that make you mad? We’re talking about a man’s life here.”

  Charlotte stopped and looked O’Malley squarely in the eye. “Did you say Hennis could get executed?”

  “Well, they put him on Death Row the first time.”

  Charlotte Kirby could live with Hennis going to jail, but she couldn’t live with his execution. She started to talk.

  Richardson told Charlotte to keep her voice up. He wanted every juror to hear.

  “Directing your attention to the early morning hours of May the tenth, 1985, do you recall whether or not you were delivering papers for the News and Observer at that time?” he asked.

  “Yes, I was.”

  “And did you have an occasion to be out on Summer Hill Road on May the tenth, 1985?”

  “Yes, sir.”

  “About what time was it that you arrived at the Summer Hill Road area?”

  “One forty-five.”

  “Could you tell the jury what the weather was like at that time?”

  “It was very foggy and misty.”

  “As a result of that, what were you doing?”

  “Driving cautiously.”

  “Are you familiar with the Eastburn residence at that time?”

  “The house and location, yes, because I had gone past it. But it never meant anything to me.”

  “Until a few days after?”

  “After.”

  “On the tenth, this particular morning, could you tell the jury what, if anything, you noticed unusual about the Eastburn residence as you approached it?”

  “A light-colored van sitting outside, a
nd I noticed it because I had to veer around it to continue on my route.”

  “And as a result of noticing the van, did you have an occasion to look up in the yard?”

  “Yes, I did.”

  “Would you tell the jury what you saw up in the yard?”

  “A person.” Her voice shook.

  “And where was he in proximity to the house?”

  “He’s coming down the front of the house.”

  Charlotte said she slowed to get a look at him. It was dark. The man was small, about five-foot-seven. He seemed to have something over his back.

  “What did he do?” Richardson asked.

  “He went to the van as if he was going to get in the van, and then he didn’t. He brushed along the van and continued going.”

  “And did he proceed down Summer Hill Road?”

  “Yes, he did.”

  “Toward Yadkin Road?”

  “Yes.”

  “What did you do at that point?”

  “Continued on my route. I came out of Summer Hill, went into Cottonade, made my home deliveries in Cottonade, and came back out and made a left on Yadkin to head away from Fort Bragg.”

  “At that time did you see this person on Yadkin Road?”

  “Yes.”

  “What is the lighting condition on Yadkin Road?”

  “It is well lit.”

  “It is a lot better than Summer Hill Road?”

  “A lot better.”

  “At that time could you get a better look at this person?”

  “Yes.”

  “Could you describe the person for the jury?”

  “About five-seven, medium build. He had dirty blond hair and it wasn’t kept up. There was no style. It was just there. It was just hair.”

  “Was it longer than a military haircut?”

  “Yes. It was much longer than a military haircut.”

  “Was he wearing anything else other than carrying a bag?”

  “He had on a hat.”

  “Anything else?”

  “Blue jeans and a lightweight jacket.”

  O’Malley beamed in the back of the courtroom. “Way to go, Charlotte,” he said under his breath. He couldn’t have been prouder. His witness captivated the courtroom.

  “Later on in that week did you have an occasion to learn that Tim Hennis had been arrested?” Richardson asked.

  “Yes, I did.”

  “Could you tell the jury about that?”

  “I bowl on Thursday mornings. And I had gone to the bowling alley and seen it in a newspaper. I had discussed it with a very dear friend of mine.”

  “Who is that friend?”

  “Judy Tolbert.”

  “What did you tell Judy at that time?”

  “I looked at the paper and they said the arrest and everything. I told Judy they had made a terrible mistake. He could not have done it.”

  “Did she ask you why?”

  “Yes.”

  “What did you tell her?”

  “Exactly the same thing that I just said. I described him, and I told her that I had seen the man, but I had been afraid that he had seen me, too.”

  “What did Judy ask you to do at that time?”

  “To come forth and tell somebody, to talk to somebody.”

  “And I take it that you are absolutely satisfied in your mind that Tim Hennis is not the person you saw?”

  “No. Positive.”

  A week later, Charlotte and Judy bowled again. Charlotte’s attitude had changed.

  “Why was that?” Richardson asked.

  “Because I had received a phone call.”

  “Was the phone call from a man?”

  “Yes.”

  “Could you tell me what the man said?”

  Dickson and Colyer objected. They fought to keep Charlotte Kirby from repeating that phone call, saying it was inadmissible as hearsay. Richardson argued he needed the testimony to show why she didn’t come forward and to keep the prosecutors from accusing her of “seeing ghosts in the night.”

  Beaver presented a brief to the judge, citing a state supreme court opinion that reversed a case in which a judge wouldn’t allow similar testimony. The trial judge who had made that error was Craig Ellis.

  “Based on my understanding of that case, I’ll overrule the objection,” Judge Ellis said.

  Richardson turned back to the witness. “What did the man say to you,” he asked.

  “He told me that he lived up the street and he was coming down to see me.”

  The jurors paused a moment. Where have we heard that before? The light came on for some. Others would be reminded in the jury room. Gary Eastburn had testified that Katie received a harassing call shortly after he left for Alabama. The man had said, “Mrs. Eastburn, I live around the corner. I’m coming to see you.”

  “Ms. Kirby, later on did you receive a series of phone calls?”

  “Yes, I did.”

  “Was it the same person?”

  “Yes, it was.”

  “What did he tell you at those times?”

  “If I answered the phone, he would ask me if my husband was at home. I would hang up.” Charlotte said the man would call back and say he was coming over.

  “Did he tell you anything with regard to your children?”

  “He told me that he knew where they went to school and who their playmates were and where they played after school.”

  She told the jury she’d been afraid to tell Richardson about the man the first time he asked.

  “Why are you here now?”

  “Because I thought if I didn’t say anything, that Mr. Hennis would spend some time in jail. The man who did it would come forth. And it hasn’t happened that way. I can’t take it anymore. I just—I guess I feel the guilt. I feel the hell that he has got right now. I can’t do it anymore.”

  “You’re absolutely convinced that the person you saw that night is not Tim?”

  “I’m positive.”

  “That’s all I have.”

  Dickson asked her where she lived. Richardson shot out of his chair.

  “Your Honor, does she have to answer that?” he asked.

  Charlotte closed her eyes. “God, please don’t let him be in this courtroom,” she prayed.

  She’d spent four years living in fear. Every time the phone rang, she squirmed. If her husband wasn’t there, she didn’t answer. The junkyard lost business because of it. She changed her phone number once, but she and George used their home as the junkyard’s office. Their home number had to be listed.

  She could still hear his words in those early phone calls: “I know where your kids go to school and I know where they play. If you want them safe, you better keep your mouth shut.”

  Another time he asked Charlotte if she had a water bed, because “I’m going to come over and we’re going to try it.” Charlotte Kirby couldn’t imagine how the man knew about her water bed. She didn’t doubt he knew more. So she didn’t tell. Not her husband, not her children, and not the cops.

  Sometimes she stared at the telephone in her home. All I’ve got to do is pick it up, call the cops, and not even give them my name, she thought. Just pick it up. Pick it up and dial.

  She couldn’t do it. Within a couple of weeks of Hennis’s arrest, the man called when she was at home alone.

  “I’m coming over to see you,” he said.

  Charlotte fled to her neighbor’s, leaving the screen door ajar. She waited there for sometime. Then her neighbor grabbed a gun and headed back to her house to wait with her for the man.

  The screen door was no longer ajar. Someone had been inside.

  Charlotte stopped being the wife and mother her family knew. She withdrew to her room with no desire to help with her children’s homework or pay attention to her husband. Her friends noticed the change from a happy-go-lucky young mother to a nervous and tense woman who was aging fast. Her children weren’t allowed to leave the house if she could help it. There was no Little League baseball o
r Girl Scouts.

  Hennis remained in jail.

  “This is terrible,” Charlotte Kirby told herself. “I could’ve stopped this from happening, and I can’t do it.”

  At night she prayed the same prayer: “Please make something happen without me having to be involved.”

  When she heard Hennis had been found guilty, she nearly had a breakdown. Her doctor prescribed tranquilizers.

  When Richardson and O’Malley came around three years later, she panicked until she heard the words “death penalty.”

  “I can prevent this,” she told herself. “He could’ve been with his wife and little girl all this time. I’ve taken that away from him.”

  She knelt by her bed the night before testifying. “God, if something’s gonna happen, let it happen now. Because I can’t go on like this.”

  Judge Ellis ruled that she didn’t have to give her address in open court. Dickson proceeded with cross-examination, attacking her on why she didn’t report what she’d seen.

  Judy Tolbert, Charlotte’s bowling teammate, was the last defense witness. She testified that she remembered the morning after Hennis’s arrest.

  “I believe at the time there was a picture in the paper of Mr. Hennis,” she testified. “We were discussing the case when she walked in. She noticed what we were talking about. She said, ‘That’s not the person that I saw.’ She said, ‘I saw somebody there.’ She said, ‘I was out delivering papers, and I saw somebody there. It was not this man.’”

  Richardson rested his case, leaving Dickson to try to restore what was left of his case. He brought back Nancy Maeser, who still wondered why she was considered a state’s witness, to testify Tim Hennis was in a good mood at her apartment, not depressed as he had said. Dickson brought back Glenwood McLaurin, the motorcycle cop who would testify that Hennis definitely did not ask any questions after McLaurin pulled him on a traffic stop. Hennis had said he did ask.

  Dickson brought back Detective Jack Watts, who would add a last-minute twist to the case. He’d testify that Tim Hennis had told him that he made arrangements to pay $10 to Katie Eastburn a week later for the dog, a statement he hadn’t brought up in either trial.

  The rebuttal witnesses gathered in the courthouse’s law library. Even John Raupach was summoned by the state, though Dickson decided against using him. Raupach was no longer willing to cooperate with either side. The detective, former girlfriend, motorcycle cop, and college student passed the time together, waiting to be called to the stand.