To Love and to Kill (33 page)

CHAPTER 99

BEFORE GOING INTO
court that next morning, Josh approached Lenamon. The defendant pulled his attorney aside for a chat. Josh had only heard about Lenamon's track record and celebrity status shortly before Lenamon came on board. Josh was still having trust issues, wondering if his case was in the best hands possible.

“You sold me out,” Josh accused Lenamon.

“Josh . . . what are you talking about?”

Josh explained that when he got back to his cell after the opening statements the previous evening, several guards had chastised Lenamon for telling jurors that Josh was a killer. Why did he do that? Why admit Josh was a killer when he didn't have to? Josh was now worried the jury would only see guilt written on his face when they looked at him.

“The guards,” Josh explained, “they told me to watch out for you. They're saying things about you, man.”

“Just trust me, Josh,” Lenamon said. “That's all I ask. Look, we're on the same page here.”

From that moment forward, Lenamon said, “Josh trusted me completely and allowed me to do my job.”

The first day of the trial was a mirror image of Emilia's. The state called the same set of witnesses to talk about an unfolding missing person case that had begun with a phone call from Misty Strong: Brenda Smith, James Acome, Misty, Beth Billings, Ben McCollum and several MCSO deputies, all of whom explained how Heather was there one day, working, going about her life, having trouble with Josh and then—
poof !
—she was gone the next. And the more everyone thought about the circumstances of Heather's life, Josh Fulgham came to mind as the person most responsible for her disappearance.

As Detective Donald Buie testified, the jury viewed a videotape of Josh's confession. It was a profound testament in the entirety of the honesty presented. Here was Josh, broken and obviously feeling the weight of what he had done, explaining to investigators how he and Emilia lured his wife into that trailer, ganged up on her and, after chastising and beating her, placed a bag over her head and suffocated the mother of two to death. Josh had described horrible, gruesome images.

The confession Josh gave backed up what Lenamon had told jurors during his opening. If one viewed this interview/confession objectively, Josh clearly told the story of Emilia being the hammer, Josh the one holding it, waiting for the right moment to strike. There was even an exchange between Josh and his mother, Judy Chandler, at the end of the interview that had been recorded. After Josh gave it all up to Buie, the detective allowed him to call home. The conversation depicted a confused man taking full responsibility of his actions.

“I need to talk to you, Momma,” Josh said.

“You need a lawyer?”

“No, I don't need to talk to a lawyer, Momma. I'm guilty. . . . I done it, Momma. I didn't do it by myself. . . . I just got sick of it, Momma. I wanted my babies. I don't expect you to take that responsibility of raising them, either.”

“What?”

Josh was crying. “I said I don't
expect
you to take that responsibility of
raising
them. I just wanted them, Momma. That's the only reason I did it. It wasn't even that, Momma. . . . You know ... I told you she was leaving and going to Mississippi and I had you draw that paper up for me, but she wasn't leaving, Momma. I lied to you. She wasn't going nowhere.”

“What?”

“I
lied
to you. . . . But it ain't going to matter, Momma. They got evidence and everything else, so it don't matter. I did it. I needed to get it off of me.”

“I love you.”

“I know you do, Momma. But I'm sorry. You didn't raise me to do shit like that. It's not your fault.... I didn't do it alone. . . .”

That conversation was something Lenamon seized upon: Josh's constant and consistent tale of not being the aggressor, but the muscle, was key here. Yes, he took part in the murder, but it was Emilia right there by his side, egging him on, facilitating it all. And now Josh was remorseful; he was sorry for what he had done.

As murder trials go, this one was brief—just a few days of testimony and both sides indicated they were done. Each witness had testified almost identically in both trials. There were no bombshells or surprises. Josh did not take the stand. Emilia wasn't called. The facts were presented, and each lawyer relied on his and her opening and closing remarks to send whatever message was necessary to jurors.

Once again, Rock Hooker delivered the closing for the state—a true masterpiece of composed style and elegance of presenting facts. Hooker began by stating one simplistic, utterly chilling detail that could not be denied or impeached: “He buried his wife in his pregnant girlfriend's backyard.”

That one line painted Josh as a cold, callous killer, getting rid of a problem in the most horrendous way imaginable. One could almost hear the jurors thinking, as anybody in the gallery probably was, too:
Why not just divorce her and move on? Why did you have to
kill
her?

Hooker, a true expert at taking the words of a defendant and using them against him in the most effective ways, quoted Josh from one of his confessions: “‘I was still sitting on her and I could feel her getting weak and then she was gone.'”

The guy was talking about the mother of his children.

Hooker then focused on making sure the jurors were not persuaded by carefully chosen words, catchy turns of phrase or the twisting of the truth. The job they had in front of them was to “determine the facts,” Hooker restated plainly.

Nothing more.

Nothing less.

Look at the facts.

And those facts, Hooker added, “have been proven beyond a reasonable doubt.”

Quite heartfelt and emotional, Hooker reminded jurors why the trial was taking place to begin with: “Let me be clear, we're here because Heather Strong is dead and because she was murdered and buried in Emilia Carr's backyard.
That
is why we are here.”

The one thing Hooker and King had relied on during both trials was the jury's intellect and common sense. In murder trials especially, juries share a common bond, an intense connection translating into them taking their jobs, collectively, very seriously. It's one of the reasons why each individual is chosen during that rigorous, often tedious voir dire process. It was that line of thought that Hooker tapped into when he said, “One thing the judge is going to tell you, and sometimes jurors chuckle when they hear this ... the judge is going to tell you . . . that you're allowed to
use
your common sense.”

Hooker pointed out that Josh, same as Emilia, had lied more often than not. Yet, there were certain fleeting moments within those lies for Josh that remained constant. When he finally admitted to the murder, he went back and corrected the record where he needed to.

The special prosecutor then went through a timeline of the case, before bringing up a PowerPoint presentation to explain the differences between first-degree and second-degree murder, and how Josh's case fit into the first-degree column. He talked about the “two ways in which a person may be convicted of murder in the first degree,” saying one was “premeditated murder” and the other “felony murder.”

“Heather Strong is dead.... There is a written agreement that the body found in the hole is actually Heather Strong ... so that's proven. The second one was that the death was caused by a criminal act of Joshua Fulgham, or Heather Strong was killed by a person other than Joshua Fulgham, but both Joshua Fulgham and the person who killed Heather Strong were principals in the commission of first-degree premeditated murder.”

Hooker explained what he meant: “Killing with premeditation is killing after consciously deciding to do so. Decision must be present in the mind at the time of the killing.”

Simple logic:
I am going to kill you
.

The premeditation could take place seconds before the murder.

“The law does not affix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing . . . ,” Hooker made clear. “But it must be long enough to allow reflection by the defendant.”

The other part, he explained, involved committing a felony in the due course of committing a murder. In this case, Hooker told jurors, “Heather Strong is dead. The death occurred as a consequence of and while Joshua Fulgham was engaged in the commission of kidnapping.”

When placed into the context of such an honest, straightforward argument, well presented by a seasoned prosecutor, these charges seemed to fit Josh's case as though he'd written them himself.

Of particular interest, Hooker explained, was the fact that although Josh's case met the “elements of second-degree murder,” it did not mean the state had not proven first-degree murder, too. When one looked at the evidence of Josh and Emilia talking on the phone, effectively planning and plotting to murder Heather, and then understood how the crime was carried out—lying to her and luring her into that trailer—one could only draw the conclusion (legally) that a first-degree murder had been committed.

“These people, they talked, they talked, and then they talked and then they
did
it. They did it. They
killed
her.”

Hooker pointed jurors in the direction of that one call where Josh and Emilia discussed the woods in the back of her mother's house, the trailer and if Emilia's neighbor could see back there. He read from a transcript of the call.

Hearing this, jurors had to feel as though these two had been planning and plotting to murder Heather for weeks.

Concluding, Hooker asked jurors to recall that it was only nine days after Josh was released from jail that Heather wound up dead and buried in the backyard of Emilia's mother's house.

If there could be one criticism lodged against Hooker's closing, it was that it might have gone on a tad too long. He took the hour allotted to him. He didn't need it. His points were made concisely within the first fifteen minutes. By going long, a lawyer runs the risk of overselling. Hooker had stated some of the state's facts several times and jurors were clearly moved by a lot of what he had to say, but was it all enough to convince more than half of them that the state had proven first-degree murder?

CHAPTER 100

TERRY LENAMON LEFT
the responsibility of closing the defense's case up to his more-than-qualified co-counsel, Tania Alavi, a strikingly attractive, dark-haired Ocala graduate from the University of Florida (1987), where she earned a Bachelor of Arts degree in criminal justice before going on to that same university's Levin College of Law, in 1991. Alavi had been involved in several death penalty cases on various levels. She had been recommended in 2010 for a judge's seat. Fundamentally, Alavi specialized in and understood family and federal law, both of which would help her here. Lenamon and Alavi made the perfect one-two punch working Josh's corner, because what Josh's case came down to—unlike many other capital murder trials (including Emilia's) where testimony was the more relevant issue at hand and general access to a verdict—was a shoot-out between lawyers. Josh was guilty—a fact they had decided and recognized going in. The question was, however: guilty of what?

As Alavi looked at her notes one last time before delivering her first closing thought, Lenamon looked around the courtroom and noticed several people in the gallery he hadn't seen before.

“It was kind of disheartening that [Brad King] had some people from his church”—which, Lenamon said, is one of those Bible Belt, conservative group of Christians, pro-death penalty—“sitting in the courtroom. You know, when something like that happens, you just shake your head and think, ‘Oh, my, what's up with that?'”

Slim, tall and elegant, Tania Alavi had a soothing grace about the way she spoke and presented herself. It was clear that Alavi had thought long and hard about what to say, how to shape it into a narrative and what her focus should be. She had abandoned her original opening words, she said off the bat, because of how Rock Hooker had closed. Hooker had mentioned “conduct,” Alavi told jurors as she began. But in providing jurors with an excerpt of an interview detectives conducted with Josh, Hooker had not allowed them to hear the entire context of what had been said. Effectively, Hooker had left some rather important words out of the excerpt, Alavi argued. And it was those
words,
Alavi said, that gave insight into who was the mastermind behind this crime and who had actually started this talk about luring Heather into the trailer.

Alavi quoted Josh from the interview as he talked about Emilia. Josh had said, “She told me right then, ‘Josh, bring her back here later tonight.... We'll get rid of her.'” Alavi then explained how Josh and Emilia were “having a conversation” and Josh was telling her: “I'm getting back together with Heather. You need to get your stuff and get out of the house. . . .” Then she quoted Josh again from his final confession, which the state had acknowledged was the one uncontestable source in this case that they relied on. Josh said: “And right then, she came to me and she told me, ‘Josh, bring her back here later tonight. Bring her back here late tonight. We'll get rid of her.' I said, ‘Emilia, get out. Get your shit and get out. [Heather and I are] going to be together, ' and she said, ‘
We're
going to be together. Bring her back here tonight and we'll do it.'”

From where Alavi viewed things, this was one of the most important moments of the case for the defense: Long before Josh went to jail, back when Josh had left Emilia and moved back in with Heather, shortly before Heather and Josh were married, Emilia had fired up—within Josh's head—this idea of killing Heather.

The date was important, Alavi argued, because that conversation between Emilia and Josh had taken place long before February 15—a date, Alavi stated, that Rock Hooker had failed to clarify with jurors during his closing. “That was a conversation where Emilia was telling Josh in
December
of
2008,
while she didn't get her stuff out of the house” that he was going back to Heather.

Quite smartly, Alavi used that theme of “words,” which she'd started with, to get across several additional ideas relevant to the premise that there was one person—one mastermind behind this crime.

The one bell Alavi needed to stop ringing in jurors' ears was that
“I should have killed that bitch”
statement Josh had made to Emilia over the phone. That was fairly devastating to an argument of
“I just went along with Emilia.”
It was something that needed to be addressed head-on—one of those statements jurors would retire to deliberations and focus on.

“There is a lot of smack talk going on between all of these people,” Alavi explained, referring to the timeline wherein the statement had been made. She then mentioned how Emilia had even put a knife to Heather's neck, threatening her, yet Heather and Emilia had remained friends after that and saw each other on several occasions. In other words, don't take what the defendant said over the phone as gospel, or as some sort of sinister, well-thought-out plot, when all of the people in that circle talked “smack” in the same fashion, all the time.

Next Alavi talked about what she called a “diamond” relationship—Ben, James, James's friend, Heather, Emilia and Josh each having his or her point on that diamond, all involved in a round-and-round association that was constantly in motion during this period in question.

“Now, what we also know [about] all these people [is that] Emilia's having sex,” Alavi said, “with [James Acome], who is having sex with Heather also. She's having sex with Josh. She's been with Ben McCollum [and] you heard testimony that Emilia and Heather are even engaging in sexual activity together, having threesomes with either [another man] or with Josh.”

It was one giant, convoluted, trashy mess of dysfunction. It was not your “typical” friendships and romantic relationships.

Josh's drug use came up next. Alavi talked about it at length, letting jurors know he was addicted to all sorts of pills and meth. Concluding that thought, she said: “And as jurors, you have to evaluate this case and the facts of this case in the
context
of where we are and who we are dealing with. Because these people, who, quite frankly, are leading dysfunctional lives, do
not
lead their lives the way the majority of people do.”

It was a valid point in the scope of this case. Yet, most people did not commit ruthless murders, either.

From there, Alavi talked about how Josh and Heather and Emilia moved in and out of various trailers and houses; and Heather finally wound up with Ben McCollum, and Josh with Emilia. The idea that when Josh wasn't allowed bond after his first court appearance—at the time when he got on the phone with Emilia and said, “I should have killed that bitch”—wasn't evidence of premeditation, Alavi argued. Not at all. It was Josh thinking out loud, referring to how Heather had made up the charge that put him in jail to begin with. He felt tricked and ridiculed. Totally betrayed. He said those words out of anger, something he had said to Heather likely many times during arguments they'd had throughout their life together:
“I'll kill you
,
bitch.”

“Is that evidence?” Alvi asked, referring to the context in which she had placed Josh's comment. It sounded convincing, the way Alavi put it.

Only problem jurors might have with it was that Heather actually wound up dead this time. There was no changing that outcome.

One unequivocal fact, however, which had been backed up by testimony, was that Emilia solicited James Acome and his friend one day, dangling between five hundred and seven hundred dollars in front of them, hoping to lure Heather to a place so she could “snap her neck”—and she did that all on her own, without Josh.

During those nine days when Josh was out of jail, before Heather was murdered, Alavi told jurors, Josh had plenty of “nonconfrontational” contact with Heather. He had even brought over a packet of divorce papers for Heather to look at and sign. He saw James Acome driving his car one day, Alavi explained, and didn't confront him and become violent, but Josh, instead, called the cops and got his car back.

Was that the behavior of a man planning a murder?

Alavi didn't think so.

Throughout that entire time, Alavi speculated, Josh was likely thinking he was going to wind up with Heather in the end because that was how it always had turned out in the past. He was used to breaking up with her and getting back together. What made this breakup so different in that respect?

“[Detective] Buie even said himself during the course of the investigation,” Alavi said, “it's one of the things he found out independently is that they
always
got back together.”

The entire reason why Josh lured Heather to that trailer was to make her sign over custody of their kids because he feared she was preparing to take off for good. That was his only purpose. Yes, he might have been aggressive with her and spoke angrily; but his
intent
was never to kill her. That “idea” Josh had mentioned to Emilia over the phone: It was to get her into the trailer and make her sign that paper. The murder was all on Emilia—because Emilia knew, if nothing else, that Josh would one day wind up with Heather again. And what would she do then? She was pregnant with his child.

Alavi read from transcripts of the interviews Emilia gave and continuously put the onus of the plot and plan to murder Heather on Emilia, using her own words as ammo. It was a smart move. Some of the evidence backed up what Alavi argued.

As far as that dialogue between them on the phone about the wooded area around the trailer, who owned the land and if the neighbor could see the trailer from his house, Alavi clarified that by saying, “Remember . . . they
didn't
need to have this conversation when he went back to dig the hole. But what
was
the conversation? ‘Where are we going to put her?'” Alavi paused, allowing jurors to think back for a moment to that jailhouse telephone call. Then she answered her own question, quite effectively: “Well, I thought that was already planned? Apparently not. The conversation is ‘Where are we going to put her? The railroad tracks? Some cave?' He couldn't even get the door open and ended up putting her steps away from the trailer.”

Alavi talked about the instructions jurors would be given by the judge and how they needed to follow the law, despite how they
felt
about the case. The main point she wanted to get across here was to remind jurors that they needed to figure out what Josh was thinking
before
the murder and what Josh
knew
before the murder?

Everything else, essentially, was conjecture.

“If you're thinking about [lots of] things and that is causing you to go back and forth in the slightest bit, they have not proven their case beyond reasonable doubt.”

After about thirty minutes, Alavi indicated she was done. Confident she had said enough to raise concerns where first-degree murder was concerned, Alavi sat down.

Terry Lenamon looked over at his co-counsel and smiled respectfully. Lenamon realized he was working with one the best defense lawyers he had ever had the opportunity to share a courtroom with.

“She is incredible,” Lenamon said later. “It was an honor to work with Tania.”

Both sides presented rebuttals, which came across as a “he said/she said” type of playground argument between two kids. What became confusing during this portion of the closings was which interviews each attorney had been referring to. According to Josh's attorneys, there was only one interview jurors should take into account during deliberations: the final interview Josh gave to Buie when he admitted everything. All of those interviews that came before were a mixed bag of truths and lies.

Disregard.

Nonetheless, both sides finished by the end of the day and the judge gave the case to the jury, this after reading what were long-winded legal instructions both sides had been referring to during their closings.