Dark and Bloody Ground (44 page)

Smith testified that he had been an inmate at the Orange County jail in Orlando when Benny Hodge was brought there and placed in an adjacent cell. Hodge, Smith claimed, had almost immediately begun talking about the crimes for which he had been arrested. Among other details, Hodge had bragged about stabbing Tammy Acker “several times"—possibly thirteen. Smith also said that Hodge had described piling the money from the robbery on top of his bed at the condominium and making love on it with his girlfriend.

Lester believed Smith to be a liar, a typical inmate trying to get his own sentence reduced by disclosing, in this instance fabricating, information supposedly learned from another inmate. Whether authorities had put Smith up to his testimony, or whether he had made up his story from reading the newspapers or listening to another inmate—possibly Bartley?—Lester could not figure out. But, to begin with, the idea that a man such as Benny Hodge, who had survived nine years at Brushy Mountain, knew well the consequences of blabbing to other inmates, and was by nature so closemouthed that he would hardly talk to his own lawyer—that such a man would begin shooting off his mouth the moment he was arrested was preposterous.

Lester was unconvinced by Smith’s written statement for additional reasons. Smith had originally spoken to two FBI agents on
August 30, 1985, while he and Hodge were still in the jail together. His written statement, however, was not witnessed and notarized until September 27. To Lester, as to Dale Mitchell, the statement looked fake: the syntax was fairly regular and grammatical, but there were numerous misspellings ("durning,” “outher,” “docktor,” “togeather,” and so on) of simple words, while words commonly misspelled by the semiliterate were correct ("proceeded,” “officials,” “committed"). Some of the information seemed overspecified. Would Hodge conceivably have given this man Pat Mason’s phone number? Would Smith have remembered it to write it down a month later?

Lester let Mitchell hammer away at the curious misspellings, the time elapsed between Smith’s first contact with the FBI and the notarizing of the statement, and the matter of the phone number. Smith testified that he had jotted notes down on an envelope, from which the statement had been composed later. Unable to make much headway with this line of questioning, Mitchell began to introduce material relating to Smith’s long arrest record. Smith denied having been convicted of distributing dangerous drugs to a minor. Craft accused Mitchell of distorting Smith’s record.

“Your Honor, please,” Lester interjected. “That gentleman, Mr. Smith, said he had never hurt anybody. If giving dangerous drugs to a minor doesn’t hurt anybody, then what does?”

“The record doesn’t say that,” Craft nearly shouted.

“Well, I can read it!” Lester shot back. “That’s what I read, and I want to hear this man in chambers!”

“That’s fine with me!” Craft said.

“And I’ll loan you my glasses,” Lester said, taking off his reading spectacles and holding them out.

In chambers, the defense attorneys had to back down. Smith’s record was full of arrests, but most of the charges had been dismissed or reduced to misdemeanors. Judge Hogg ruled that it was enough that the witness had admitted to having been convicted of a felony.

“I want an apology from Mr. Burns,” Craft said.

“You owe me one and I owe you one,” Lester said, without indicating what Craft’s offense may have been, “so we’re even.”

Back in court, Lester took over the cross-examination and asked whether the handwriting at the top left-hand corner of the first page of Smith’s statement was his own—the part indicating the date and time. Smith said he had written it.

“Have you been in the United States Army?” Lester asked him.

“No.”

“Have you been a policeman?”

“No.”

“How did you happen to write out ‘2300’ hours? Most folks would have put that as 11:00
P.M.
”

“In the jail where I was confined that’s how they referred to time.”

When Lester showed Smith the page, the witness admitted he had not written out the time and the date. That was someone else’s handwriting.

“Why didn’t you tell the jury that when I first asked you?” Lester asked and, addressing the jury, added in an exasperated aside, “He wouldn’t tell the truth if you kept him here all day.”

After the furious objections this remark brought from Craft, Lester continued to do what he could to portray Smith as a liar. Asking the witness to repeat his name, Lester asked:

“Didn’t you like the name your Mommy and Daddy gave you?”

“That was the name they gave me.”

“Do you know a Steven Tim Stokes?”

“Yes, I do.”

“Who is he?”

“That’s the name I used when I ran away from home.”

“You were sixteen when you hit the road?”

“Fifteen.”

“You got as far as the jail. Now, I want you to tell the ladies and gentlemen of the jury when and why you decided to change your name to John Gibbs.”

“That was another time when I was arrested.”

“Why don’t you tell them why you got tired of John Gibbs, Tim Steven Stokes, Lawrence Anthony Smith and Tony Smith, and changed your name to Kenneth Moron and Kenneth Michael Moron?” Lester put heavy stress on the first syllable of the last name. Smith admitted that it was another of his aliases.

“Well,” Lester sighed, “here is Kenneth
Moron.
You liked Moron a lot, didn’t you? When did you decide to change your name to Tony Sparks? Can you think of any other names you’ve changed to?”

“No, I believe you’ve gotten them all.”

“That’s enough. I have no further questions, Your Honor.”

*    *    *

The question of whether Sherry Hodge and Carol Epperson would be called as witnesses was not settled until after Smith left the stand, when Judge Hogg ruled that spousal immunity and the Fifth Amendment precluded their being called; they were then permitted to observe the rest of the trial as spectators. From what she learned about Smith’s testimony, Sherry was incensed. Benny insisted he had never met Smith in his life, she told Ben Gish and others who would listen. And Smith’s allegation that Benny had told of making love on the pile of money was pure crap. Why, the only money the FBI had found in any of the beds had been a fifty-dollar bill, and that was in Roger and Carol’s. If people got their kicks listening to that sort of garbage, let them.

Sherry was in court to hear Rebecca Hannah Bartley, who waived spousal immunity, say that everyone in the gang had been on drugs, except for Sherry, who was pleased by that statement but by nothing else in Becky’s testimony. She was there to tell the truth, Becky insisted, as Mitchell and Lester tried to portray her as a woman out to save herself and her husband at the expense of the other defendants. There were some inconsistencies between this testimony and Becky’s earlier statements to the FBI and to Mike Caudill. She had been frightened when first interviewed, Becky said, and not under oath. Now she admitted seeing all that money dumped out on the floor and helping to shred and dispose of the clothing after the murder and robbery. She had not been promised immunity, she insisted, but she acknowledged hoping that her testimony would help her and her husband. Donnie had told her when they had first met about having been an informant for the police, but she claimed to know nothing about his history of turning state’s evidence in other cases. When Mitchell tried to get her to admit having seen blood on one of Donnie’s shoes after the Acker murder—information that presumably came to Mitchell from his client, Hodge—she denied this.

Lester treated Becky with a degree of gentleness and courtesy. She had just turned eighteen; she came across as nothing more than a misguided kid; she was not charged with anything. He decided to hold his fire, knowing that Epperson’s and Hodge’s lives depended on whether Bartley could be made to crack.

Clean-shaven, boyish, polite, dressed in jacket and open shirt, Donnie Bartley took the stand the next morning, June 17. His future, while
not bright, was at least assured. His lawyer, Ned Pillersdorf of Lexington, who was being paid by the state, had succeeded in securing from the government a promise that, in return for his testimony, Bartley would not face the death penalty. Beyond that, there were no deals.

James Wiley Craft’s strategy was clear from the start when, after asking Bartley his name, he inquired of the witness his weight and height. He had gained about twenty pounds since his arrest, Bartley said; he now weighed about one-sixty-eight.

“Would you care,” Craft asked him, “to step out of the witness box, out in front of His Honor here, and take your coat off?”

Judge Hogg overruled the defense objections to this disrobing, and Bartley stood before the jury in his shirtsleeves, a healthy-looking specimen but a small, slight one. Craft let the witness display himself without comment, but the unstated hypothesis was obvious. Could a little man such as this one have been able to inflict such terrible damage on Tammy Acker? Could he have run a knife all the way through her at least twice, and penetrated deep within her organs more often than that? The unvoiced answer was meant to be no, the killer must have been a big powerful man, a weightlifter, Benny Hodge.

Lester and Mitchell had anticipated this strategy when they had asked Rebecca Hannah Bartley whether it wasn’t true that her husband also lifted weights. She had admitted as much but downplayed it, saying that Donnie had only occasionally worked out with Benny, who was the serious lifter. Becky had also said that when she had told Mike Caudill, during her first interview with him, that Benny Hodge had a “sweet” personality and had been “like a big brother” to her, she had been confused, unreliable, trying to protect everyone, and not under oath.

Donnie’s and Benny’s relative strengths aside, Lester was convinced that either one of them was capable of having inflicted the wounds on Tammy Acker. From what Lester understood of the forensic aspects of the matter, the strength of whoever was flailing away with that knife was, if not irrelevant, not the determining factor in relation to the depth of the wounds. Technically, it was the
speed
of the knife as it was plunged downward that determined the degree of penetration—the speed together with the kinetic response of the tissue, which when hit set up a ripple effect that actually eased penetration rather than resisting it. As to the speed itself, the principle of physics involved was known to most baseball fans: the speed of the
bat as it meets the ball means more than the strength of the hitter in determining how far the ball will go; the batter must be strong enough to sweep the bat and to follow through after the hit; but a small player with fast hands will hit the ball farther than a big player with slow hands. Of course, a big player with fast hands will hit the ball farther than a small player.

Lester had the option of bringing in a forensic pathologist to testify, as Lester privately phrased the matter, that “a child could have done it.” But would the jury comprehend this sort of technical argument? Even if they did, might it not prove counterproductive, coming across as nit-picking and a trivializing of Tammy’s death? At most it proved only that Bartley could have done the stabbing, not that he actually had done it. The risk of further alienating the jury did not seem worth it.

Bartley admitted under Craft’s questioning that he had been the one to carry Tammy back to her bedroom and tie her up. As for how it was decided who would kill her, Bartley quoted Epperson as having said to Benny, “Which one do you want, Brother?” and quoted Benny as having replied, “I’ll take the girl.” Benny then went to the bedroom, Bartley said.

Bartley described how the telephone had rung as he was trying to strangle Dr. Acker. At that point Benny, Bartley claimed, ran in from the bedroom saying, “She’s not dead.” Craft asked Bartley to repeat this.

“He said, ‘She’s not dead.’ Then Roger walked away from me ... and pulled out a drawer and tossed Benny the knife. By that time, Roger said, The doctor is dead.’ I looked at him myself. Benny came out from behind us and picked up a pillowcase and a suitcase full of money, and we jumped in the back seat and Roger drove us out.”

Craft asked whether, after they had left Fleming-Neon and were driving down the road, there was any discussion among themselves as to what had happened at the Acker house. Bartley said there was. They had gone over whether they were sure that the old man and the girl were dead:

“Roger told Benny that he knew the doctor was dead. He had looked at him himself. He said, well, I know the girl is dead because the knife went all the way through to the floor.”

“Who made the statement about the doctor?” Craft asked.

“Roger.”

“And who made the statement about the girl?”

“Benny.”

After hearing Bartley describe these events again, Danny Webb was more than ever convinced that this was the more or less true version. Their haste in leaving was the key to Hodge’s homicidal frenzy. Even if Bartley had ended up with blood on his shoe, as someone had alleged, it could have been the doctor’s blood. Frank Fleming, however, held to his different view.

Bartley’s testimony had been more precise as to Benny’s involvement than was the statement Bartley had given previously to Mike Caudill: the reference to the reason Benny was sure the girl was dead was, among other less crucial elements, not in the statement Caudill had recorded. Thinking they might have found an opening, Lester and Mitchell now demanded to see the full text and notes of the original FBI interview with Bartley. If they could find further omissions and inconsistencies there, Bartley’s credibility could be seriously shaken.

Rod Kincaid, who was in the courtroom and prepared for this turn of events, quickly produced all materials relating to Bartley’s original confession. To their disappointment, Lester and Mitchell soon realized that virtually everything Bartley was now saying was contained in Kincaid’s original notes and summary. Bartley’s only point of vulnerability seemed to be that he could not remember whether Epperson had handed, tossed, or thrown the knife to Benny down the hallway. When he began cross-examining, Mitchell bore in on this and on the curious suggestion that Benny, supposedly after first trying to kill the girl, had said, “She’s not dead,” after which Roger gave him the knife.