Blood Games (65 page)

“I might point out one other thing that we haven’t mentioned regarding Chris and activities that have to do with his psychological state. It has to do with the fact that this so-called plan to get immediate money and satisfaction, that not long prior to this, Chris and his mother and father had a discussion regarding the wills the family had written. He, in fact, observed them writing wills, being involved in that, and asked them why they were doing that. His mother discussed with him what was in the will, and that he basically would not receive any benefit, even with their death, until he was age thirty-five, fifteen years from now. In his state of mind preparing for this activity, those conversations were totally ignored, totally repressed. He had no concept because, obviously, the other plans to utilize this money, as they were discussing at the time, were not possible, which he well knew. But psychologically that got totally erased.”

Could anything be done to help Chris in the future?

“Chris, throughout his life, has developed a lifestyle of denial, of compartmentalizing things, pigeonholing things, and not dealing with them. Otherwise, he would become acutely anxious, acutely depressed. He’s had periods of acute depression when he’s got close to his feelings with dealing with this issue. He’s also been aware and discussed that he is knowledgeable about his psychological makeup of not dealing with his real feelings and has requested that he wants therapy so that he can learn how to deal with himself so that his feelings and his intellect are on the same wavelength, which has not been the case.

“In attempts to deal with how his mother would accept his behaviors and how she would deal with what he did, this brought up some of the suicidal ideation that at some point, if his mother did not accept this, that he had plans that he would go commit suicide. Part of his activity during the time that I saw him, which created some anxiety on my part, and I think on your part when I relayed this to you, was that Chris would tell other people about his participation and his responsibility.”

This was something that had amazed John Taylor and Lewis Young when they learned about it. While Chris was in the hospital for two and a half weeks, he told three young women patients about his part in the murder. Later, he told his closest friend in Winston-Salem and the young woman from Appalachian State University whom he had been dating. Yet not one of these people had gone to the police to report that Chris had told them about his role in the murder.

“He did this,” Dr. Royal now said, “as an attempt to see how they would accept him, as if somehow if they accepted him, maybe his mother would accept him.”

Royal went on to say that he had talked to both Chris and his mother after Chris had finally told his mother of his role on December 27, the day the plea agreement was worked out.

“Chris was greatly relieved that he was able to tell not only his mother but his sister and other people that were important to him,” Royal said. “He described it as having a great weight lifted off his shoulders. And he felt much better about himself that he could function.”

Had therapy helped Chris so far? Osteen asked.

“It’s been beneficial,” Royal said. In addition to the therapy, Chris was taking some medication and had returned to work to keep himself busy. “I think a primary cause of his feeling better has been his being able to discuss this and resolve this with his family, primarily his mother. I think he needs continued treatment. He’s got a lot that needs to be worked on.”

Could Chris ultimately contribute to society?

“Yes. Chris and I have talked about this a lot. I think he’s a good candidate and has motivation to continue his education, which I think he can do in prison. He’s got a lot of interests. I think he’s got some insight into what’s going on with him.”

On cross-examination, Mitchell Norton ascertained that Chris had no organic brain damage, that he knew the difference between right and wrong, both now and at the time the murder was committed.

“Nothing unusual about anyone in his situation charged with murder being depressed or being anxious, was there, Dr. Royal?”

“No.”

The judge wanted to know if Chris’s LSD use had caused him to lose his former personality.

“I did not come to find any basis that he had.”

The judge declared a fifteen-minute recess after Royal’s testimony, and when it was over, Osteen called to the stand Chris’s grandmother, Polly Bates, a tiny, white-haired, sweet-faced woman whose husband had been killed in a woodcutting accident only a few weeks earlier. Now she was about to lose her grandson to prison.

“Were you close to Chris when he was growing up?” Osteen asked.

“Oh, yes. He spent a lot of time at the house with me and his grandfather, he and Angela both, while his mother worked and other times too.”

“Did you and Chris’s grandfather help Chris as he was growing up after his father left?”

“Yes sir. We kept him while his mother worked, and we fed them, and sometimes her job would take her out of town, and we would keep them with us overnight. And we just loved them like they were our own children.”

“Mrs. Bates, I assume that up until this incident occurred, everything was fine with you and Chris, that it was a grandson-grandmother relationship?”

“Yes, we’ve always been close.”

“Knowing what the situation is with Chris now, how do you feel about your relationship with him now and what you expect it to be while he is in prison?”

“Well, that hasn’t changed. We love Chris. He’s a big part of our life and we’ll stand behind him one hundred percent and do anything we can to help him.”

“And you will stand behind him with your love as a grandmother?”

“Yes, I will. I want to see our family reunited some day.”

Just as Mrs. Bates was leaving the stand, a bailiff came into the courtroom and caught Judge Watts’s attention.

“Gentlemen, let me ask you to step aside, please,” the judge said to Osteen, Vosburgh, and Chris. “The jury is ready.”

51

Bart was led back into the courtroom by sheriff’s deputies. His parents quickly took seats behind him at the defense table. The judge called the attorneys to the bench as the somber jurors filed back in.

Wayland Sermons cast an eye toward the jurors as they began to take their seats. Throughout the trial he had been watching one woman for reactions, his bellwether for what the jury might be thinking. His heart sank when he saw that she was looking at the floor and wouldn’t even glance toward Bart and his family. Jim Upchurch saw that two of the women jurors appeared to have been crying and he knew that his hope that Bart’s life might be spared would not be fulfilled.

When the attorneys had gone back to their stations, the judge turned to the foreman.

“Have you agreed upon your verdict as to the issues and recommendation as to punishment, sir?”

“Yes, sir.”

The forms had been completed, the foreman said, and he handed them to the bailiff, who delivered them to the judge.

The judge told the jury that he would read the forms on each of the four issues and after each ask if that was their verdict, as he had done the week before. Each must answer yes or raise a hand to disagree.

On issue number one, whether any aggravating factor had been found, the judge intoned, “Your foreman has returned a verdict of yes. Was this your verdict, so say you all?” The jury agreed that all three aggravating factors were present.

On issue number two, mitigating factors, the jury agreed that Bart’s age, his drug and alcohol usage, his Dungeons and Dragons playing, and the fact that he had two fellow conspirators all were mitigating factors. His high intelligence, his parents’ divorce, his relationship with his family, his church experience, his lack of violent tendencies before and after the murder, and his adjustment to incarceration were found not to be mitigating circumstances.

On the crucial third issue, whether the mitigating factors were insufficient to outweigh the aggravating factors, the vote was yes.

Bart’s hand again went to his mouth but in a pensive manner, not in the way he had grabbed his mouth when the guilty verdict was announced, as if he were holding back a scream.

On the fourth issue, whether the aggravating circumstances were sufficient for imposition of the death penalty, the answer again was yes.

“With regard to your recommendation as to punishment, your foreman has returned a verdict which reads as follows,” the judge said. “‘We the jury unanimously recommend that the defendant, James Bartlett Upchurch III, be sentenced to death.’ Was this your verdict, so say you all?”

All agreed, but some women on the jury seemed to be holding back tears.

Fighting back her own tears, Joanne reached for her son, who seemed unsurprised by the verdict. “I love you,” she said. “I love you, too,” he replied. “I’ve got to go check on the girls,” she said, and suddenly she was gone, hurriedly leaving the courtroom. Her daughters were home alone and she was afraid that reporters might call the house. She didn’t want them learning about their brother’s fate that way.

As the judge had read the final verdict, Wayland Sermons’ head had sunk to the defense table, his forehead resting on his hands. He looked grief-stricken when he raised his head a few moments later and turned to Bart. “I’m sorry,” he said.

By law, Judge Watts was required to poll the jury. Each rose when his or her name was called to answer yes, their verdict was death.

“Members of the jury,” the judge said, “I am not permitted by law to comment upon your verdict. I do not presume to do so. I am permitted, however, to thank you for your consideration. And I’m satisfied it was careful and prayerful consideration that you gave this case. This is not a pleasant matter for anyone. It’s not a pleasant matter for you, for me, for anyone in this courtroom, but we appreciate your conscientiousness in this matter.”

The judge proposed to delay sentencing another day, but Johnston and Sermons requested that he go ahead with it, despite the late hour.

After the jury had gone, Sermons filed several motions for dismissal, which were quickly denied. Keith Mason submitted copies of Bart’s criminal record for consideration. Lawyers for both sides took up several other sentencing matters before Judge Watts turned to Bart.

“Prior to imposing punishment against you, Mr. Upchurch, I’m required to give you a chance to speak in your own behalf, sir. You are not required to say anything. I can’t compel you to say anything I will not hold it against you certainly if you elect not to say anything. Neither will I hold it against you if you elect to say something. It’s your decision. At this time I should be happy to hear from you.”

“Yes, Your Honor,” Bart said. He had been thinking for a long time about what he would do and say should this moment come, but he had mentioned it to nobody.

“All right, sir, if you will stand, I will be happy to hear anything you want to tell me about this matter.”

“Well, first off,” Bart said, sticking his hands in his pockets, “I want to thank my attorneys. They have done a remarkable job. And that’s got my utmost respect. I want to thank you, Your Honor. You obviously have gone a long ways to keep this trial from becoming any more of a circus than it already is. You know, I respect the trouble that the jury has gone through to deliver their verdict. However I am appalled and shocked at their verdict.

“I find it utterly amazing that the testimony of two confessed murderers would be enough to convict anybody to death. I am forced to believe that I am merely being convicted simply by the assumption of guilt by association. I think the state’s withholding Mr. Henderson’s statement has substantially impaired our ability to prepare a defense. Forty-eight hours’ notice is simply not enough time to prepare to cross-examine somebody.

“I am innocent. You know, it may be that nobody will believe me, or will ever believe me now, but due to the burden that has been imposed upon my family by this trial and due to the fact that I don’t believe that Lieth Von Stein’s life was another person’s for the taking, I do not believe that my life is another person’s for the taking.

“I intend to take my own life by fasting. I am not going to eat. My life is not somebody else’s to take. I am an innocent man. And maybe by doing this, I remove some of the burden from my family. Even if I got off of Death Row, the rest of my life in prison is not something I want to face up to. I am choosing to take my life in this manner to prove that I am not doing this out of depression or despair.

“It’s just a decision I am making in lieu of the horrible things I’ve seen done to my family and friends over this. I think that this has been a terrible miscarriage of justice. And if justice is surely blind, I think that Mr. Henderson and Mr. Pritchard gave her a set of loaded scales in this one. I would hope that maybe the state would, or somebody would, at least honor my request and not hook me up to an IV and force-feed me to keep me alive until such time as the state sees fit to kill me. I am not a cow to be fattened for slaughter. I am innocent. And I would like to die innocent with as much honor and dignity as I can scrape together, Your Honor.”

“Thank you, sir,” said the judge.

Later, Bart said that he felt a sense of release and satisfaction as he sat down after making his statement. He had thrown the dice and lost, but he would allow no one else to take him out of the adventure.