Before He Wakes (42 page)

Evenson had no more questions, and Cotter asked for a bench conference. It was only four-thirty, but things had moved along quicker than Cotter had thought. He had no more witnesses.

In response to a question from the judge, Cotter said that he might, or might not, have more, but he didn’t want to make that decision until the following day.

Overnight, Cotter decided that he had to do at least two more things before resting his case.

First he wanted to attempt to plant doubt in the jurors’ minds about Barbara’s forgeries, and he had only one way of doing that. He called SBI handwriting expert Durward Matheny back to the stand to show that Larry Ford’s will was authentic. If she had killed both husbands in such similar ways, wouldn’t she have forged Larry’s will as well?

Under Cotter’s questioning, Matheny noted that Larry’s will was dated 1975 but the only certified signatures of Larry’s that he had to compare with the one on the will were prior to 1960. Still, his conclusion was favorable to Barbara.

“Based on those signatures, I said there was a degree of belief that he was the author of that signature.”

Next Cotter had to deal with a problem he had seen developing as Evenson had cross-examined the witnesses who said that the voice on the audiotape was not Russ’s. He realized that on rebuttal the prosecutors were going to ask the judge to let the jurors hear the unplayed portions of the tape, and if he did—and it seemed likely that he would—it would appear that Cotter had been trying to keep damaging information hidden. He decided to cut the state off before it could make its move and introduce the remainder of the tape himself. To set it up, he called a surprising witness: Doris Stager.

“Were you and Russ very close?” he asked.

“Very close.”

“Did he confide in you?”

“Yes, sir. Even as a child, I was the one that always took him to his ball games, picked him up, made him study, go over multiplication tables, went to school with him.

“His daddy told him several things. One was if you get a spanking in school, when you get home you’re going to get another one, and for years later, I did not know that my son had gotten a spanking.

“My son came to me. We were that close. My son’s makeup and my makeup were more alike. The little things didn’t bother us; we could work the little things out. And then when the big things came, that bothered. My daughter’s temperament is more like her father.”

Cotter had listened patiently as she had nervously gushed out her answer. “So he would confide in you?” he said, jumping in. “That was my question.”

“I’m sorry. He would confide in me before he would anyone else.”

Had she helped him at one time to get a post office box?

“I gave him the money. I suggested it.”

Then Cotter asked a surprising question. Had Russ ever made a statement to her about finding Barbara’s car at county stadium?

He had, Doris acknowledged.

Had he mentioned trying to borrow money and being refused?

That, too.

“That’s all the questions I have,” Cotter said. “Thank you, ma’am.”

Evenson was taken aback by Cotter’s question about the incident at the stadium. Cotter had to have a reason for bringing up a matter so detrimental to his client, and that reason only could be that he intended to try to let the jurors hear the unplayed portion of the tape to try to make it look as if the state had been trying to hide something, leaving the jurors to wonder perhaps if there was more that they still hadn’t heard. Still, he had to seize the opening Cotter had handed him.

“Well, he has asked you about it. What did he tell you about the situation with the car, coming upon a car?”

“He told me that he came by county stadium and his car was sitting up there and he discovered Barbara and another man was in the car and when he drove up, the man got out of there in a hurry. And I can add something that I don’t think I’m supposed to say anything prejudicial that he then said.”

“Just hold it right there,” Evenson said, going on to ask how the situation had come about that Russ had gone to the bank for a loan that he couldn’t get.

Doris told about all the bills Russ had discovered, bills that he thought had been paid. “Russ told me he had found them hidden under a chair in his family room. That was on Falkirk. And he said that morning he was sitting there in the chair crying and Barbara came down there and said, ‘You’re spying on me,’ and turned around and went back upstairs.”

She went on to tell the jurors about the family gathering she had organized to deal with the problem, and how when Russ and Barbara had gone to the bank for a bill-consolidation loan, the loan officer had asked Barbara if she had been Barbara Ford.

Cotter objected, and the judge sustained.

“Did they get the loan?” Evenson asked.

“No, sir.”

Cotter again called Mike Robertson, the SBI audio expert, to the stand and asked if there had been more on the tape than had been played, confirming Evenson’s suspicion.

That was the case, Robertson acknowledged.

Cotter then moved that the part of the tape the jurors hadn’t heard be played as well.

“I’m not inclined to do that,” the judge told him after sending the jury out. “I’m inclined to order Mr. Robertson to play the entire tape. State?”

“Well, if he wants the tape to be played, he has the right to ask it to be played,” Evenson asked. “I question his motivation. I’m not going to put any ideas in his head, but he’s trying to telegraph to the jury something that really isn’t what happened.”

“I assure Mr. Evenson he will not put any ideas in my head,” Cotter snapped.

Evenson said that it would be fine with the state if the entire tape were played, but he would object if only the unplayed parts were played.

The judge ruled that the whole tape could be played, but Cotter said that if the part already played were replayed, it would be over his objection. A long discussion and bench conferences ensued. Finally the judge granted Cotter’s request to play the previously unplayed parts of Russ’s voice.

After those parts were played for the jury, Cotter called Buchanan back to the stand and carried him through all of the things Barbara had told him in his interviews. He also brought out the
National Guard Guide to Family Readiness
that Buchanan had seized from Barbara’s house and got him to read from the section on preparing wills and planning estates, attempting to show that Barbara had simply followed the advice given there.

Finally, Cotter got back to the tape.

“There’s another voice on that tape that people can identify, is there not?”

“Not to my knowledge.”

“You don’t know?”

“No, sir.”

“You really don’t know?”

“I do not know.”

Evenson got Buchanan to again go over the part of his interview with Barbara in which he had questioned her about the insurance benefits she would receive from Russ’s death.

“But does she make any reference to the $50,000 term policy that was taken out by mail one year prior?”

“No, sir.”

After Buchanan had stepped down, the judge called a fifteen-minute morning recess. “Call your next witness,” he said after reconvening court.

“That’s the evidence for the defendant,” Cotter said.

“The defense rests?”

It was 11:10
A.M
., May 16.

“That’s right.”

Although reporters and other spectators had speculated—and hoped—that Barbara might take the stand in her own defense, that had never really been a consideration for Cotter. He knew that the state had evidence of sexual affairs, lying, mishandling money. If Barbara took the stand, the prosecutors could question her about all of that, and if she denied it, they could bring in rebuttal witnesses. That would be devastating. Cotter couldn’t even put up witnesses to say that Barbara was not the type of person who would commit murder without opening up the character issue. Cotter had felt severely restricted and was frustrated by it, he later said, yet he had no other choice.

“Rebuttal evidence for the state?” the judge asked.

Evenson called Russ’s old friend Harry Welch back to the stand and Cotter asked to be heard.

Once again he renewed his motion to dismiss the charges. That denied, he objected to Welch being allowed to testify, claiming there was nothing that his additional testimony could rebut. It would corroborate what was on the tape that the jury hadn’t heard when Welch had testified the first time, Evenson argued, and the judge allowed the testimony.

Evenson took Welch back through the meeting at Shoney’s with Russ when he had told him that Barbara wasn’t working at the radio station, as Russ had thought, and hadn’t been for months.

“He got very emotional and teary-eyed,” Welch said, “and he asked me, he said, ‘Well, what has she been doing?’ and I told him I did not know.”

Evenson showed Welch the promissory note that Barbara had signed agreeing to pay back money she had been advanced against commissions she never earned, and he identified it.

Cotter had only one question: “And this occurred in 1982?”

“Yes, sir.”

“That’s the evidence,” Evenson said.

“The state rests?”

“Yes, sir.”

“Further evidence for the defendant?”

“No, Your Honor.”

“Defense rests?”

“That’s correct.”

It was 11:29. The judge again asked the jurors to leave, and after denying Cotter’s renewed motion to dismiss the charges, he conferred with the lawyers about the order for the afternoon. Final arguments would begin at one-thirty. The state would have the first and last. The defense would offer a single one between.

With the case now resting on the final arguments, reporters and others who had sat through the whole trial thought that Cotter had done little damage to the state’s powerful case. Even Cotter himself looked worried.

But one person remained sublimely confident that the state’s case would fail. No matter what the jurors had seen and heard, Barbara simply couldn’t believe that they would think that she was a murderer.

33

Ron Stephens began the state’s final arguments by telling the jurors that this was a tragic case and that they had to be totally objective in judging it, basing their decision solely on the evidence. It was not, he reminded them, a personality contest between lawyers.

“Mr. Cotter may contend to you that this is a conspiracy on the part of the state and police officers against Barbara Stager,” he said. “I contend to you that you are the sole finders of facts in this case.”

They should look closely, he reminded them, at the physical evidence, the more than one hundred exhibits that had been offered for their examination.

The pistol that killed Russ, he said, ejected its shell to the right and rear, but where had the shell been? Under Russ’s pillow—with the pistol nearby.

“A staged situation,” he said. “Physical evidence doesn’t lie. Does not lie. Staged situation.”

Then there was motive, he said. The state didn’t have to show motive to prove murder, but he and Evenson had taken that extra step to show just why Russ had died. “We would contend that Barbara Stager tried to solve her money problems … by the death of Russ Stager. One hundred and sixty-five thousand cash alone just from life insurance. This is the lady who said, ‘Well, I guess I’ll just have to learn to live with it and go on about my life.’ ”

Why had the state brought the death of Barbara’s first husband into this case? “To show intent,” he said. “A plan, a scheme, and to show lack of accident.” The state did not have to prove that she had killed Larry, too, he said, but simply had to show the similarities in the two deaths to demonstrate intent.

“You make your own assessment about what happened in the death of Larry Ford in 1978,” he said, but he left no doubt of his own conviction.

“Randolph County just blew it,” he said, “botched it, and maybe y’all’ll decide that Barbara Stager hoped that Durham County was about to do the same thing.”

Consider Deputy Allen’s investigation of Larry’s murder, Stephens said. “Decides it’s an accident and he is back on patrol, forty-five minutes, cleared this one up, didn’t talk to anyone around there, nothing, pretty much accepted the word of Barbara Stager.”

After the hand wipings led to the body being exhumed, he said, “They decide, well, he must have dropped the gun, case closed and that’s it.”

Yet Larry had been shot straight on, he reminded. “He would have to be laying down on top of the gun trying to pick it up at the time it hit the floor for it to be anywhere close. But, hey, closed case, hey, no problem.

“Larry bled to death,” he went on to note. “There was no effort to keep him from bleeding to death. Just let him bleed to death while she called mama.”

And just look at all the similarities between the deaths of Larry and Russ. Could they all be truly coincidental?

He picked up the pistol that had been the instrument of Russ’s death. “Do you know what that is?” he asked, pointing out the curving steel that protruded from beneath the gun. “That is a trigger guard.” He held the pistol out sideways, demonstrating. “If it’s laying down, I would contend you have to go to a lot of trouble to get that finger inside that trigger guard and around that trigger to be able to pull it for four and a half pounds’ worth to shoot somebody with it, because that’s what that trigger guard is all about.”