Blood Games (62 page)

“Members of the jury, with regard to File No. 89-CRS-3448, which was a charge relating to the offense alleged to be conspiracy to commit murder, your foreman has returned a verdict which reads as follows: ‘We, the jury, unanimously find the defendant James Bartlett Upchurch, III, to be guilty of felonious conspiracy as charged.’ Was this your verdict, so say you all?”

Bart’s right hand went to his mouth at the word
guilty.
He paled noticeably. His head dropped. Behind him, his mother began sobbing and reached to touch him. Tears welled in Bart’s eyes and the judge droned on, charge to charge, each time saying the dreaded word,
guilty.
And each time it was said, Bart’s head dropped lower, lower, until it almost rested on his chest. He braced himself and sat upright as his mother reached to hug him. He patted the back of her head with his hand.

When the last charge had been read, that of first-degree murder, Frank Johnston requested that the jurors be polled on that charge. Each answered yes, that was their verdict, each still unwilling to look toward Bart.

As Joanne cried softly and Bart fought back his own tears to regain his composure, the business of the court was briskly carried forth. The attorneys were summoned to the bench for a brief conference. Afterward, the judge explained that the jurors, under North Carolina law, must next ascertain Bart’s punishment, life in prison, or death in the gas chamber.

Another hearing would be held before the jurors decided punishment and a problem had arisen that would prevent them from considering the matter the following day. A psychologist who had examined Bart was on vacation in the Caribbean and could not get back to testify until sometime Thursday. The hearing would have to be put off until Friday, an extra day for Bart and his family to wonder if the jurors would allow him life.

Two extra guards had been assigned to the courtroom this day, and they came close around Bart as he was led from the courtroom to the holding cell, trailed by his family and reporters. His grandmother, Carolyn, made her way to the room and hugged him. “I love you,” she told him. A reporter crowded in to tell Bart’s family that she was sorry about the outcome.

Later, Joanne would say that this was the most horrible day of her life.

“It’s the most helpless I have ever been in my whole life. I’ll do anything I can for my kids, I don’t care what it is. You always respond to your children’s needs. But there was nothing I could do for him. It was the most helpless, uncontrolled feeling. I wanted to hold him. I wanted to hug him. I wanted to see his face. I didn’t want him to cry.”

The officers allowed her to hug him for a few minutes and she clung to him, unwilling to let go, crying uncontrollably.

“He kept saying, ‘Mom, please don’t cry. Everything will be all right.’”

But it wouldn’t be all right, not ever again, and she knew it.

Finally, the officers stepped in and led Bart away, leaving his family huddled, helpless, watching him go.

Joanne wouldn’t leave until she had the clothes that Bart was wearing that day, some little piece of him to hold onto. Jim and Carolyn went with her to the jail to get the clothes, and afterward they walked her to her car, Joanne crying all the way, she and Carolyn holding to one another in support. Carolyn was worried about Joanne facing that long drive home to Virginia alone, but Joanne insisted that she would be all right, that she would compose herself before she got home to the children.

This was Joanne’s birthday, but she had put it out of mind. She arrived home to find that Emory, Carrie, and Alex had baked a cake, bought her presents, and inflated balloons.

“I just broke down,” she said later.

Jim and his mother drove back to Caswell County that night. Along the way, they stopped at a McDonald’s for hamburgers and coffee. While they ate, Carolyn had the strange feeling that everybody was looking at them. Could they have been on the TV news that night, she wondered, or was it just that she felt that everybody who came into contact with them now could sense the shame that had been visited upon her family?

48

The first witness at the sentencing hearing Friday morning was Weldon Slayton, Bart’s high school English teacher Slayton never had been as close to Bart as he had to Neal, or as close as he had been to Emory, Bart’s younger brother. It was Emory who had called him the day before and asked him to testify for Bart, and Slayton had made the long drive to Elizabeth City. Wayland Sermons put him on as the first witness so that he still would have time to get back to school for a few classes after testifying.

Slayton told of getting to know Bart through his classes for the gifted and talented.

“Was he a capable student?” Sermons asked.

“Oh, yes, very capable.”

“And did he achieve well in your class?”

“Yes.”

“Did he ever exhibit any violent or aggressive behavior?”

“Never.”

Slayton went on to recite Bart’s activities, grades, and accomplishments in school, his school records being entered into evidence.

Sermons also asked him about Dungeons and Dragons. Slayton said that he knew that Bart and several other students played the game during high school.

Mitchell Norton seized on Dungeons and Dragons in his cross-examination.

“Isn’t the game set in a medieval time period?”

“In some versions, yes.”

“Use of clubs and swords and daggers and things of this nature?”

“Yes.”

“And one of the objects of the game is to gain treasure, isn’t it?”

“Yes.”

“And in the course of pursuing this goal, isn’t it true that the characters use swords and weapons to attack and slay either dragons or other people?”

“As far as I know, yes.”

“And of course, Mr. Upchurch was a frequent player of the game, was he not?”

“Yes”

“Did you ever hear him referred to as the ‘dungeon master’?”

“Well, when students play the game, one is selected as the dungeon master who makes the decisions for the others and directs the game. And he was at times the dungeon master, yes.”

“And wouldn’t you say then, Mr. Slayton, that the game helps to develop aggressive and violent tendencies?”

“I am not expert on that psychological evaluation, so I don’t know.”

Next to take the stand was Brad Fisher of Chapel Hill, a forensic psychologist. He had first examined Bart in November, and had talked with him again the night before, after flying in from his vacation. A Harvard graduate, Fisher had evaluated thousands of people charged with crimes and had testified in criminal trials in forty states.

Fisher said that he had administered several tests to Bart, including tests for intelligence, brain damage, neurological problems, and personality disorders, in addition to interviewing him in jail for several hours about his family and his past.

“I did not find any evidence of what is called psychotic thinking or behavior, which would be a person who is not in touch with reality. I did not find any evidence of neurological brain deficit or organic brain damage. In other words, there’s not a brain tumor, brain damage of any sort. There’s no major mood disorder, such as manic depression or anything of that sort. So in those major categories—and I think I’ve covered the primary mood or thinking disorders—he didn’t have any.”

Neither did he find any violent tendencies or any history of violence prior to the crime or after it, he said. Nor was there any sign of repressed rage or any other psychological problem that might hold down aggression.

His analysis of Bart’s method of dealing with his current situation was simple: “At the moment everything is pushed down. He has a lot of denial going on. It made the interview particularly hard both last night and before because he, to some extent, is aware that he will be dealing with this, but the thinking and feelings are powerful to the point that he ensures his survival by not thinking about it He holds it at bay. He can intellectually talk about it, but he doesn’t. There’s some other projectoral material that starts speaking to the deep anxiety he has about how this will affect his family and the shame on his family and the like, but his basic procedure at the moment is to keep that at bay. And he is not capable of dealing with it. And so that’s what he’s doing.”

Norton reiterated Fisher’s findings on cross-examination.

“Dr. Fisher, as I understand, you found nothing organically wrong with him, no brain tumor, no brain damage?”

“That’s correct.”

“No psychotic thinking, nothing wrong with him from that standpoint, no brain damage, you said, no psychosis, I think was your answer.”

“Right. His intelligence is normal. And he doesn’t have what’s called mood disorder, manic depression. He does have a lot of depression, but nothing that was qualified—”

Norton cut him off. “Certainly knows the difference between right and wrong?”

“He does.”

“He knew it was wrong to kill Lieth Von Stein?”

Johnston objected, and Watts overruled him.

“Didn’t he?”

“Yes.”

“And he knows that it’s wrong to kill, period. He knows that now, knew it then, didn’t he?”

“Yes.”

Joanne took the stand to tell about Bart being an acolyte, about his close relationship with his brother and sisters, his lack of violent behavior.

“As far as I can tell, he’s always been happy, good-natured,” she said.

When Joanne had come off the stand, the judge asked the jury to step back to the jury room so that some business could be attended outside their hearing. Sermons wanted to call a witness to which the prosecution objected: Bonnie Von Stein.

During the trial, Bonnie had been staying at the same motel as Jim and his girlfriend, Kathy, and they had chatted several times. During one conversation Bonnie had said something that Jim found of particular interest, and he had told Sermons about it. Sermons had asked Bonnie if she would mind saying the same thing from the stand and she had agreed. The judge wanted to hear what Sermons intended to ask her as well as her answers, before he allowed her to appear before the jury.

Sermons got right to the point.

“Mrs. Von Stein, is it your desire to see the defendant James Bartlett Upchurch put to death?”

“No.”

“You have a general objection to the death penalty, is that correct?”

“Yes.”

“I believe you’ve previously indicated to me that there’s a reason. It will not change anything, is that correct?”

“Yes.”

“By that, what do you mean?”

“I mean that I just simply don’t believe that taking another life could make amends to the loss of Lieth.”

“Thank you very much, ma’am.”

Norton asked her, “You are opposed to the death penalty under any circumstances?”

“Yes, sir.”

“And that’s a feeling that you’ve had for, I take it, for a long time, Mrs. Von Stein.”

“Yes.”

“Of course, you understand what the law is in the State of North Carolina, do you not?”

“Yes.”

“And you understand that those laws have to be obeyed?”

“Yes.”

The lawyers argued long and tediously after Bonnie’s testimony about whether it should be allowed. In the end, the judge ruled that it would be constitutionally unacceptable to allow the testimony, saying that it would “invite the jury to use passion and emotion” in determining the sentence. Later, Jim thanked Bonnie for her effort. “I thought it took guts,” he said.

There would not be time for final arguments and a jury charge on Friday, and Judge Watts recessed court for the weekend, sending the trial into a fifth week.

Mitchell Norton was first to argue before the jury Monday morning.

“What I am about to talk with you about this morning is not a pleasant task. It’s not a task that I take lightly. I know that it’s not a pleasant task for you. It’s a question of law, a question of duty, a question of responsibility. It’s a question in some respects of conscience. It’s something that has to be done.”

He pointed out that there were but two possibilities.

“One is the ultimate punishment of death. The other is life imprisonment, whatever that means. And who knows?”

“Objection,” said Sermons.

“Sustained.”

The jury would have to choose between aggravating factors and mitigating factors in determining their sentence, Norton reminded them, and he maintained that the aggravating factors were clearly there.

One was that the murder was committed in the course of a burglary. No question of that one, he said. Another was the crime was committed for pecuniary gain.

“Here, again, the evidence is uncontradicted. James Upchurch didn’t even know Lieth Von Stein. He entered into this plan for the expectation of money and fast cars and quick fixes and easy living. It wasn’t a situation where Von Stein had done anything to him, had wronged him in any way. A cold, calculated, pitiless, conscienceless act for money.”

A third aggravating factor was whether the murder was part of a course of conduct of other crimes of violence. The beating of Bonnie was clear evidence of that, Norton said.