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IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR MARION COUNTY

STATE OF FLORIDA Plaintiff, vs. JOSHUA FULGHAM(A), Defendant. -----------------------------------------------------------PROCEEDINGS: BEFORE: JURY TRIAL EXCERPT STATE'S OPENING-PENALTY PHASE Honorable Brian D. Lambert Circuit Judge Fifth Judicial Circuit, In and For Marion County, Florida CONSTANCE MILLER, RPR Stenographic Court Reporter Notary Public State of Florida at Large April 17, 2012 9:00 a.m. Courtroom 2D Marion County Judicial Center Ocala, Florida CASE NO. 09-CF-1253-A-Y

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A P P E A R A N C E S: BRAD KING, ESQUIRE State Attorney ROCK HOOKER, ESQUIRE Assistant State Attorney 110 Northwest First Avenue Ocala, Florida 34475 APPEARING ON BEHALF OF STATE OF FLORIDA

6 7 8 9 10 11 12 13 APPEARING ON BEHALF OF DEFENDANT 14 15 16 17 18 19 20 21 22 23 24 25 JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411 ALSO PRESENT: Kathleen O'Shea, Defense Mitigation Specialist TANIA ALAVI, ESQUIRE OF: Alavi, Bird & Pozzuto, P.A. 108 North Magnolia Avenue Sixth Floor Ocala, FL 34475 TERENCE M. LENAMON, ESQUIRE MELISSA ORTIZ, ESQUIRE STUART L. HARTSTONE, ESQUIRE New World Tower 100 N. Biscayne Blvd. Suite 3070 Miami, FL 33132

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I N D E X Opening Statement by Mr. King. . . . . . . . . . . . .4 CERTIFICATE OF REPORTER. . . . . . . . . . . . . . . .34 - - - - -

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April 17, 2012 * MR. KING: * Thank you. *

9:00 a.m.

Ladies and gentlemen, as we begin this process of looking at all of the factors that the law says applies to your decision, I expect that you recognize the gravity of the process that you're about to embark on. Rarely does our society ask of its citizens -MR. LENAMON: THE COURT: (Sidebar.) THE COURT: it off. Pete, how do you turn this off? How did Turn Objection. Motion.

Come on up.

All right, that's ineffective.

anything change since nobody else used this courtroom since last time? We're not doing that, it's ridiculous. All right. Go ahead. Judge, my objection is it's

MR. LENAMON: argumentative. opinion.

It also is indicative of personal

This case is so serious and so, so secluded

that this is the reason why he chose to seek this particular situation. It's putting the jury in a I move for

position to act inconsistent with the law. a mistrial. THE COURT: Denied.

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(Sidebar concluded.) THE COURT: MR. KING: Go ahead. Rarely does society ask its citizens to

participate in something such as this, unless perhaps you're a soldier going to war, maybe in the realm of in your own personal life, a relative has given you the power to decide -MR. LENAMON: THE COURT: MR. KING: Objection. Improper argument.

Overruled. So this is something new probably for And you

most of you, to sit in judgment of this kind.

need to understand that there are rules that apply to this process that the Judge, just like in the guilt phase, he's going to tell you at the end of this process, here are the rules that you are to apply to what you hear. And those rules are designed to ensure

that Mr. Fulgham gets an individualized sentencing from you. Your role will be to look at aggravating factors and mitigating factors. And then what you will do is

evaluate the significance of those two sets of factors to resolve in your own mind what is appropriate in this case. And those factors you're going to hear are

completely different than the elements of the crime that you discussed earlier. And the Judge will tell

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you that aggravating factors that I expect he will tell you that apply to this case, the evidence that we tend to show to you in this regard are going to be towards three different areas. One of them, frankly, I think you will see is already proved. And that is that this murder occurred

during the course and commission of the crime of kidnapping, and for that purpose, we will actually introduce back into evidence the Judge's, what is called a judgment of guilt, based upon your verdict that you returned last week. So that will be one piece

of the proof that we're going to show to you. One of the proofs that I think you should know from the very beginning that you're not going to hear about at all is what Emilia Carr's sentence was. Because that's legally not relevant to what you do, so nobody will present that evidence to you. Your verdict

has to be based upon the aggravators and the mitigators that apply to Joshua Fulgham. Now, I expect in the course of this trial, you will hear a whole lot more evidence from witnesses and documents from the Defense, from Mr. Fulgham's attorneys, than you will from us. Because this process

includes looking at Mr. Fulgham's entire life, from the time he was born all the way through to the time that JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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he committed the murder.

You get to evaluate his life

circumstance to determine what mitigation comes from that. And you will, in essence, then weigh that

against the aggravation. So those things that you heard about in the voir dire part of the trial; the brain damage, the fact that he may have abused drugs, the sexual or physical abuse that he endured as a child with poor parenting and his sister, who engaged him in inappropriate sexual activity. Those things you're going to hear about.

You'll also hear, I expect, from four different experts that are called psychologist, neuro psychologist, psychiatrist, to talk about different aspects of his life. And you need to listen to that. Listen to hear

where they got the information that they're relying on, the value of that information and listen to see how it was applied in this case. And then what you'll do is you'll take that and weigh it against two other aggravating circumstances. One of them is called cold, calculated and premeditated. And the Judge will tell you that that

aspect, that aggravating factor is beyond just the premeditated that you may have discussed in returning your verdict. premeditation. It's more than just simple It goes to show a conceived, thought

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out, organized plan with the purpose being the death of Heather Strong. Frankly, most of that evidence you have already heard and the Judge is going to tell you that you can rely, when you go back to look at these aggravating factors, on all the evidence that's already been presented to you. That is a part of the body of the And you get

law of the facts that you get to consider.

to look at that again but in the context now of was it really cold and calculated, planned out before the murder occurred. And like I said, most of that

evidence you're going to hear. The other part, the other aggravating circumstance that you will be allowed to consider is an aggravating circumstance that is called heinous, atrocious and cruel. And that circumstance looks at the state of

mind of Heather Strong as she was being suffocated to death in that dark trailer that night. Now, there will be additional proof in that regard because since it is directed, that aggravator is directed at two things; her state of mind and his consciouslessness and pitilessness in actually committing the murder. MR. LENAMON: THE COURT: Objection. Argument, Judge.

Overruled.

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MR. KING:

Now the extra proof of those facts that

you will hear is that Heather Strong's fear of Joshua Fulgham was suggest -MR. LENAMON: THE COURT: MR. KING: Objection. Pretrial motions.

Overruled consistent with my ruling. You will hear another set of phone

calls that were recorded at the county jail during the time that he was first in jail on the aggravated assault charge in January. And you already heard some

of those calls that indicated that he had told Heather he was sorry for having hit her in the past and abused her in the past. But what you're going to hear on

these phone calls, is the effect that that had on her. MR. LENAMON: THE COURT: ruling. MR. KING: What you're going to hear her say on Objection. Pretrial motion.

Overruled consistent with my earlier

January the six when he starts calling her wanting her to get him out of jail, her response, if I get you out of jail, you're going to kill me. MR. LENAMON: THE COURT: MR. KING: time. Objection. Pretrial motions.

Overruled. And it's not just once but it's over

He calls her and says what you thinking about, I'm just thinking about how

words to that effect.

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you're going to f-ing kill me if you get out of jail. MR. LENAMON: THE COURT: MR. KING: Objection. Pretrial motions.

Overruled. And that evidence goes to what was in

her mind when she was h it in the head and taped to the chair. That time, those last moments of her life, what

she was thinking and what he was doing without regard to the emotional impact that it was having on her at that time. And then you're going to weigh his life

from beginning to end against her death in that chair in the -MR. LENAMON: THE COURT: MR. KING: Objection. Improper argument.

Overruled. Thank you. Judge, can we come sidebar? I have

MR. LENAMON: a motion. THE COURT:

Yes, sir.

Is there any way they can turn that down or something? Is there any way they can turn that down? Judge, I'm moving for a mistrial -I can't hear.

MR. LENAMON:

THE COURT REPORTER: MR. KING: THE COURT:

Wait, she can't hear, I can't hear. Okay. Go ahead.

MR. LENAMON:

I'm moving for a mistrial based on That's incorrect

the last comment of the prosecutor.

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statement of the law.

When he says you're going to

weigh my client's life against her client's (sic) death, that's incorrect, it's prejudicial and it's inflammatory. I'm moving for a mistrial. All right. Denied.

THE COURT: MS. ALAVI:

Your Honor, may I have a moment to set

up the courtroom? THE COURT: MS. ALAVI: THE COURT: MS. ALAVI: Yes, ma'am. Court's permission, Your Honor. Yes, ma'am. Go ahead. I think it's pretty

Good morning.

safe to say that this case has been and will continue to be for this week very emotionally, mentally grueling for you, perhaps for some of you even physically grueling. And one thing I want you all to make sure

that you know is that we understand your verdict, we accept your verdict and we absolutely, absolutely respect it. So the question now becomes, how did Josh go from sitting in this seat right here to sitting in that seat over there? In fact, Josh is very lucky that he made

it to this seat right here because when his mother was pregnant with him she was not married to his father. She was married to Larry Fulgham. In 1980 Judy becomes pregnant with Josh from an JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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affair that she has with a man by the name of Kenneth Cooper. While she's pregnant, Larry Fulgham is just In fact,

beating the hell out of her every single day.

she had lived -- been married to Larry Fulgham for 14 years and that's what did to her on a continuous, consistent, constant basis. And when he found out by

ransacking Judy's house while she was working full time, sole support of the family, when he found out that she was pregnant by ransacking the house and going underneath her mattress and finding the papers that said that she was pregnant, he said I'm going to kill that bastard baby. And the way that he was going to

try and accomplish that was to smack her and hit her and punch her and punch her till she was down on the floor kicking her in the stomach over and over and over again while he was inside of her. In fact, one time Judy will tell you, that Josh was in his playpen playing, but then he began to cry and cry and sob while right in front of him in the playpen Larry's giving her a nice, brutal, savage beating. Ironically, Larry's the same man who taught Josh how to fish, taught him how to ride dirt bikes and things of that nature. And all of that happened in

between the drunken violent rages that Larry was JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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having.

So from the very getgo on August 16th of 1981,

the lines between love, hate, rage, anger, were at best blurred in Josh's eyes. Now, why is all of that important? The

legislature has created mitigating factors for you to consider. Those mitigating factors, you will be told,

are anything in Josh's life which include anything in Judy's life. Anything in Josh's life. This includes

anything that it involved any kind of trauma, any circumstance whatsoever. So I'm going to ask you to

please be patient, with us as we take you on this 20-year journey of his life because really, you are making the ultimate decision here. And I say that

because the legislature mandates that Judge Lambert is to give your decision and your recommendation great weight. The legislature has given you the ability to recommend life regardless of whether the aggravators outweigh the mitigators in this case. absolutely given you that ability. They have

And the way they

have given you that ability, and this was discussed a little bit in jury selection. No matter what, no

matter what, you are neither compelled nor required to recommend a sentence of death. Never, ever, the Judge

will tell you, are you required or compelled to JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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recommend a sentence of death. Now, Mr. Lenamon asked you in jury selection would it be enough if you convict Josh of first-degree murder? Would that be enough for you to recommend a And you all basically gave the same And what

sentence of death?

answer or else you wouldn't be sitting here.

I mean by basically gave the same answer, you all said you would want to know more, you would want to hear more. And that's why we're here. This is a very You go back to

individualized decision for all of you.

the deliberation room, you deliberate together but the decisions you make on the factors in this case are extremely, extremely individualized. The weight that

Ms. Schacherer gives a certain mitigator may be different that the weight Mr. Reed gives a mitigator. The weight Ms. Sower gives a mitigator may be different than the weight that Mr. George gives a mitigator. Your consideration of these things can be different, they do not have to be the same, it is very individual. It seems like during the course of the trial last week we really focused on about seven months leading up to Heather's death and it seems that that's what brought us all here together. And what really brought

us all here together, that you're going to find out, is the 28 years that preceded Heather's death. JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411 We're

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hopeful that when you get a vivid picture of that, you will see that his life is worth saving. A life without

the possibility of parole whatsoever, where he wakes up every day and rethinks his life. And that is a life I told you that started on August 16th of 1981. Josh was born in Grady,

Mississippi, you heard Ms. Chandler on the stand before, very, very small town. You'll hear throughout

her testimony that there was movement from Grady to Walthall, back to Brady, to Clarkson, to Jackson, back to Clarkson. All of these are very, very, very small

towns within close proximity of one another. You will also hear that the main industry there was just about everybody worked in the factories until the factors sort of died off or moved overseas and then meth became a big industry there. Josh was the fourth child born to Judy out of five. Judy had three children; Karen, Michelle and And then in 1981, she had

Rhonda with Larry Fulgham.

Josh, who was a son of Kenneth Cooper, who never acknowledged Josh as his son. Later on, Judy had,

about nine years after Josh, she had Amber Chandler when she was married to her third husband, Gary Chandler, and we'll talk about that in a few minutes. All of these men that Judy married were very, very JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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abusive.

When Judy was pregnant with Josh, the town

doctor basically was the person who saw all the people who were pregnant, the kids, whoever. very good prenatal care. She didn't get

In fact, you'll hear her tell

you that her own father was extremely, extremely abusive and it just carried on right over into Judy. She really thought she was taking care of Josh because she was taking some vitamins and things of that sort when she was pregnant, which she wasn't. Never sought

any medical attention or anything for the beatings that she took from Larry. Larry's idea of working was selling drugs, selling marijuana in front of the children, doing drugs in front of the children and drinking in front of the children and Judy was the sole support of the entire family. You will hear about several head injuries that were sustained by Josh. One came when he was five or

six months old and Judy came home from work, five or six month old when Judy came over from work and he had a big knot on his head and Larry told her that he fell off the patio walking in his walker, that's how he got it. After that, she never left Josh alone with Larry Josh went -- Josh went then after that to stay

again.

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and who watched him for about five years. However, while he was at his Aunt Margaret's house, he ate some rat poison and had to be taken to the hospital to have his stomach pumped. Now, when

Josh was two, he sustained another head injury from a car accident, where his head went into the windshield while his cousin was driving. In 1984, at the age of three, Josh has tonsilitis and it goes untreated for two years. And you might

think, oh, tonsilitis, but what happened here, is that once again, Judy takes Josh to the town doctor, Dr. Osbourne and he goes oh, he just has a sore throat. This guess on for two years trying to treat him with antibiotics to the point where he goes to the hospital and has to have them taken out, and they tell Judy that it's possible that he could have suffocated and died had that not happened at the time that it did. I'm going to -- also, while Josh had this problem going on, he could not swallow his food, he really couldn't eat, he lost tons of weight. And at that time

Judy's husband, when Josh would throw up, he would try to have Josh eat his vomit. Now, soon thereafter, after marrying Larry in 1970, in 1984 they get a divorce, or 1985, somewhere in that time period. So when Josh's four or five, Judy

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matters Jimmy Patridge, kind of use the cliche' a mean 'ole drunk. That's exactly what he was. He didn't In fact, he

only beat on Judy, he beat on the kids.

would even -- Josh was deathly afraid of masks, anything that had a mask; any kind of Halloween costume, anything like that. And Jimmy Patridge would

have his friends come over and they would all terrorize Josh by putting masks on and chasing him around the house knowing that he was afraid of that. At this time, also, Josh is spending lots and lots of time with his cousin Leslie. in that little box. That's Josh and Leslie

So, what's important about that,

is in between these time periods here, 1988, Josh's sister, who's six years older than he is, Rhonda, she starts repeatedly molesting Josh and Leslie. And when

I say repeatedly molesting Josh and Leslie, she would make them touch her breasts, she would make them perform oral sex on her. She would make them attempt This went on for years.

to have sex with one another.

Judy will tell you that Rhonda really became a problem in some other respects as well. Her father,

Larry, had moved to Kentucky at some point and she went to Kentucky when she was about 12 years old to visit him for the summer. When she came back she was getting

in just inordinate amounts of trouble; stealing, doing JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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drugs.

In fact, at one point doing drugs so badly one

night, that Judy had to go to the hospital where Rhonda was and Rhonda almost died on that evening. Rhonda's been in rehab, she's been in different juvenile homes. At one point she actually ran off.

She was 14 and she ran off with a 26-year-old married man and Judy had to track her down and find her. And

these are all the things that Josh is seeing in his life, including his older sister, who's also older than Rhonda, Karen, having been married and been with various men who beat her so badly to the point where she was beaten so badly with a bat that she too had to go to the hospital, and this is the environment that Josh is around. In 1989, Josh sustains another head injury in a car accident and hits his head, either on the dash or windshield area. Now his mom didn't take him to the

hospital because she was the sole support of the family. And apparently if you had so many absences at

your job, you were going to get fired, so she went to work. There were several, several times in post 1988,

because I told you that this abuse by Rhonda went on for years, that Rhonda was left alone with Josh. Now, Josh made it to the third grade and then when he went into the fourth grade he was held back, and JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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even when he went into the fifth grade after he repeated fourth he was then held back in fifth grade. In 1990, his grandmother passes away, someone that he was very close with to the point where he wouldn't even go up to her casket and wouldn't talk to anybody. In 1991, Judy is now already divorced from Jimmy Patridge and she now marries Gary Chandler, who's also constantly drinking and abusing. In 1993, Josh begins using marijuana and alcohol. And at this point he's about 12 years old. out of school before he was 13. He dropped

Judy tried to home

school him and she, herself only went to the eighth grade. Also, at this time in 1993, now Josh and Amber, who was the daughter from Gary Chandler, are the only two that are left in the home. Josh has dropped out of

school, his Uncle Charlie has a heart attack and Josh stays home, stays home helping taking care of his Uncle Charlie. Now in 1994, '95 area when he's 13 and 14, he still has a relationship, somewhat, with Larry Fulgham, because that he that's only the person he'd ever known as a dad so to speak. Well, Larry's remarried so

Josh's stepmother constantly, and her kids, were constantly taunting Josh, very verbally abusive to him. JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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And they would tell Josh that his real dad should be taking care of him. talking about. Josh had no idea what they were

He found out because of their taunting

that his real dad was Kenneth Cooper. So he tries to get and talk to Mr. Cooper, finds him. Mr. Cooper actually worked with Josh's mom at the When he went to go see Mr. Cooper,

furniture factory.

I think he asked him for some money because he said his mom had been supporting him long enough and asked him for some cash. And if Mr. Cooper gave him a few

dollars and said leave me alone, don't come back, I don't want anything to do with you. Now Judy tried to put Josh back in school in the seventh grade, and yet again, sustained another head injury when a boy at school busted his head with a stick and he ended up leaving school at that time. Not soon after that, his mother -- keep in mind, he's about 14 years old now. use the car. His mother allows him to

He rolls it and sustains yet another head

injury with no medical attention. Again, in 1995, he busts his head open on a four wheeler, no medical attention. He then gets a Blazer

when he's 14, has an accident in that and totals the Blazer. In 1997, Josh meets Heather Strong. JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411 He met her at

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the Traceway which was the only restaurant in town. And shortly thereafter Heather moves in with Josh and Judy. And she moves in with Josh and Judy in part

because she had been molested by a family friend. Josh tries to go back to school again. He's

supposed to be in sixth or seventh grade because of where he left off, they think he's too big, they say they want to put him in ninth. weeks. In 1999, Josh starts using methamphetamine, quickly becomes addicted; he would snort it, shoot it, smoke it and Judy and Heather knew about this, because Josh came to Judy one day and asked her for money. she wouldn't give it to him. And That lasts for only two

And he said he needed the

money or the drug people were going to hurt him and his family. At that time, Judy will tell you she saw

changes in Josh again. And I think it's important during the course as we go through this week, that you understand his drug use and his subsequent addictions. You will hear from one

of the experts that that use and abuse of the drugs was a predictable pattern for him. You will hear that Josh

has chronic post-traumatic stress disorder and the expert will explain all that to you, which started from childhood. And I believe that that expert will also

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tell you that Josh's incessant use of these drugs were an attempt by him to numb this pain and the abuse that he was going through and the constant traumatic memories that he had. November 25th of 2000, McKenzie was born. hear Judy tell you how ecstatic Josh was. didn't want to hut put her down. be away from her. You'll

How he

He couldn't stand to

He just like you heard a million

times in the first phase of the trial, he just absolutely adored and loved her. But at that time Josh

was working on a river boat in Mississippi and so he would be away from the family for at least a month at a time. So one of his friends had a great idea that,

hey, you can be near your family and your daughter all the time, because what you can do is you can cook meth and you can sell meth and that's how you can make your money, and so that's exactly when did. In fact, the

sister Rhonda's still around at this time and he's fronting her drugs as well. Now you'll hear in 2001, that Heather started using as well and McKenzie was spending more and more of her time at her Grandma Judy's house. And the

relationship, I think you'll hear between Josh and Heather, had become a little bit different. Rhonda and

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together.

And at one point around that time period, as

you'll see under 2001, Josh sustains yet another blow to the head, this time from Heather with a cinder block. And as we've seen, and as we've shown, it's

probably safe to say that neither of them have been model parents or faithful partners. In 2002, they're both working together actually making government -- building government housing out of trailers. Josh fails a drug screen and they split up.

Heather goes and lives back her mother, Josh is still doing drugs. And it doesn't get any better, in terms

of him doing drugs, when his Aunt Margaret passes away. The one who had been watching him for five years. So in 2003, Judy moves to Florida, and before she comes here though she puts Josh in rehab. Heather and Heather goes and gets him. Judy to Florida. He calls

Josh follows

And when he gets to Florida, he

becomes addicted to pills and you heard some testimony about that in the first phase of the trial. Now Heather's pregnant at this time again with another son, who's name is Brady. once again. Josh, he is static

He knew he had to change but really And

couldn't and Brady is adopted by another family. Judy will tell you that she's fairly aware of the

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two from the time they moved here in 2003 until the time of Heather's death. And we're going to talk about

this a little bit more and you heard some about this in the first phase of the trial, but between 2005 and 2008, Heather is repeatedly returning to Mississippi with McKenzie before Zack's born and when Zack's born with both of them. On November first of 2006 Zack is born. And

you'll hear from Judy that it's fairly apparent that he's having some type of a learning disability. Now Heather goes back to Mississippi one time before Zack is born and you'll hear Judy tell you that had something to do with Emilia Carr and Jamie Acome. And you heard that Judy did not like Emilia Carr at all, and I can tell you that she absolutely did not like Jamie Acome at all. Heather comes back from

Mississippi at that time and they move in with Judy for about a month or two. While they're there, while Judy

and Josh are -- I'm sorry, while Josh and Heather are living with Judy, Emilia and Jamie come over to the house. And when they leave, Judy tells Josh no more.

I do not want those two people at my house anymore. So Josh and Heather move to South Shore Fish Camp. That's when Jacob comes, I think you heard a little bit about that. That's Heather Strong's brother who came

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and each of them got jobs for him.

An argument happens

between Josh and Heather about Jacob and Heather ends up leaving again with Jacob and going back to Mississippi. She comes back about after a week and in 2007 is when Josh actually began seeing Emilia Carr. A couple

of months after that starts happening, Heather again packs up a car in October of 2007 and she goes back to Mississippi. This time she calls Josh when she gets

there and for him to come as well. He goes back and Judy goes and visits Christmastime 2007 and then in March 2008 they come back. You will hear that there were other times when

Heather would tell Josh she was going to take the kids and go to Mississippi. And Judy had overheard this

happen because at one point Josh and Heather were so conflicted with one another, that the only way they would talk to one another is three-way through Judy so Judy was on the phone. When Heather would tell Josh that she was going to take the kids to Mississippi, she would remind him at times and say, and do you want what happened to me to happen to McKenzie, referring back to the time when she moved in with Judy and Josh in Mississippi because she had been molested by a family friend. JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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Now one thing is important to know about when Josh starts seeing Emilia Carr, or to know about Emilia Carr. You will hear from at least one of the experts

in this case, you will hear what it's based on and how they know, that Emilia Carr's IQ is 125, which is in the superior intelligence range. You will hear that

Josh's IQ is 81, which is in the borderline, very low intelligent range. Which means that 90 percent of the You'll hear

population is more intelligent than Josh.

testimony about those two, a comparison of those two IQ scores an why they're important. Now in 2008, a lot of this goes back to the trial from last week. In 2008, around August, Heather starts McKenzie wants to live with Judy

seeing Ben McCollum.

at that time and you'll hear Judy talk about that. Josh moves in with Emilia and there's non-stop bickering back and forth between Josh and Heather at this time and the three-way calls go actually all the way through December, the three-way calls that I referenced earlier with Judy on the line as well. And then in September of 2008, Heather hits Josh in the head again. So the volatility is continuing

between the both of them. In November of 2008 -- well, both McKenzie's and Zack's birthdays as you can see are in November. JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411 When

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it's Zack's birthday in November of 2008 and Heather is still with Ben McCollum, Josh is not allowed to see Zack on his birthday and you'll hear Judy talk a little bit about that. McKenzie's birthday is also in November and after at first not wanting, not wanting Josh to see McKenzie, Heather then agrees to let Josh see her. Josh goes

over there and you'll hear that sitting in the doorway, and Judy's there too, Judy sees what happens. Josh

goes over there, Ben McCollum is sitting on his door step with a shotgun in one hand and a beer in the nother. And when Josh goes leave, he's crying,

McKenzie's crying grabbing his legs, not wanting him to go, she wants to be with him. On December 26th, as we all know, Heather and Josh get married and that comes after, as you've heard, Heather and Josh getting back together, Josh kicking Emilia out of their house and Heather leaving Ben. Judy will tell you that she did not want these two to get married but Josh had ordered a cake. Michelle,

Josh's sister, had given Heather a wedding dress to wear and they wanted to go through with it. And Judy

will tell you that things seemed to be okay between that time and January sixth when he went to jail on the aggravated assault charge. Judy had the kids most the

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time, she was seeing them as well. So on January sixth, Josh gets arrested and his mom's going to see him in the jail and Emilia calls his mother and she says I want to go with you to the jail to see him. Reluctantly, she takes Emilia with her and

after that visit, she tells Emilia I don't want you to see her anymore. He's married to Heather, I don't want So Emilia, who probably isn't

you to see him anymore.

too happy about that, she calls Heather and she tells Heather, hey, Judy's gonna to cut off your power, she's gonna to set you up with drugs. Heather calls the law

enforcement, law enforcement calls Judy, Judy has no idea what's going on, and that was something that Emilia did at that time to cause conflict between them. Now, also during that time period while Josh is in jail, Judy runs into Heather near the State Attorney's Office here at the courthouse because Judy is going to try to get in touch with Josh's lawyer at the time. And at that time Heather's already with Jamie Acome. Judy will tell you that even though Heather appeared very thin and sort of a little withdrawn when she was with Ben McCollum, she appeared to be even more so when she was with Jamie Acome. When she ran into Heather near the State Attorney's Office, the kids were with Heather and the JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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kids really wanted to go with Judy and was screaming for Judy. So Heather allowed the kids to go with Judy,

and pretty much from then on Judy had the kids pretty consistently, at least every weekend Heather was taking the kids over there. Josh gets out of jail on February sixth of 2009, and he has the kids and takes the kids over to his mother's house. When it's time to take the kids back

to Heather, McKenzie starts screaming and grabbing his legs like she has before because she didn't want to go. She was crying, she was screaming, Josh doesn't know what's wrong and he's wondering if something happened. And you heard the testimony about Jamie Acome and the 14 year old. McKenzie doesn't say anything, Josh takes That's what Josh is thinking about is

her back home.

oh, Jamie Acome's there and how about the 14 year old? Then you know from last week, that Jamie Acome was driving Josh's car around. And so Josh sees that, And then

calls the authorities, he gets his car back.

you know that Heather, couple days after that happened, Heather won't let him have the kids because she's mad about the car. And then she says, and Judy will tell She's taking the kids and going

you, she heard this. to Mississippi.

You know what happened to me is going

to happen to McKenzie. JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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So he doesn't get the kids, he doesn't see them. Instead he starts popping pills, chasing them with alcohol and you heard some of that during the first part of the trial. He goes to Emilia's house, it's on

Friday, I believe, and this continues into Sunday morning, which is February 15th. On the 15th he gets a call from his sister, Michelle, because as you heard before, Heather wanted to know if Michelle or Judy could take the kids because there was no school the next day, some sort of President's Day. Josh was irritated because, of

course, he wanted the kids for the weekend but she wouldn't give the kids to him, and now she's calling for Michelle and Judy to watch them. So he calls her back at the Petro and that's when he finds out that the kids are alone with Jamie, which you heard from Jamie Acome's testimony. sort of sends Josh into a panic. You heard that

She says well, you

took the car and I'm taking the kids and I'm going to Mississippi. So Josh goes and tells his mom that and

that's where that custody letter comes from and you're going to hear Judy talk about the custody letter. She's going to tell you that everything that was in that letter were her own words and why she told Josh if you're going back to Mississippi, you need something in JOY HAYES COURT REPORTING BUS(352)726-4451 FAX(352)726-9411

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writing.

And she'll explain to you why she put each of

those sentences in there that she suggested to Josh. Of course, you heard about what really can only be said about the horrible circumstances of Heather's death. And on -- in March of '09, you know Josh was There are custody proceedings going on about Judy does not get

arrested.

the case, you heard all about that. custody.

Significantly, what happens after that that you also heard is Josh attempted to commit suicide while he was in the jail which proceeded a request to talk to Detective Buie. in the case. We know, not only from what you heard just even on March 21st and 26th statements from Josh, but we know based on what Detective Buie told you that he independently found out, that there was really no question that he loved what he kept calling those two little babies, that he loved his children. And it is Then he confesses to his involvement

the 28 years that preceded all of this with seven head injuries, lots of drugs as they relate to the post-traumatic stress disorder issues, the sexual abuse that he endured, the physical abuse that he endured as well as that he saw being committed on members of his family. With all of that and you will hear from the

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experts, significantly, significantly has an impact in this case. And based on that and everything that you will have before you, we are asking that you decide that his life is worth saving and then in any event, you know the law is that you are never compelled, nor required, to recommend the sentence of death. Sentence him to

life and let him think about his life every morning when he wakes up. THE COURT: Thank you.

Thank you, Counsel.

(Court in recess for lunch.) (Continued to Volume 2.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF FLORIDA COUNTY OF MARION

C E R T I F I C A T E

I, CONSTANCE MILLER, Stenographic Court Reporter and Notary Public, State of Florida at Large, do hereby certify that I was authorized to and did stenographically report the foregoing proceedings taken in the case of STATE OF FLORIDA vs. JOSHUA FULGHAM, Case Number 42-2009-1253-Y, and that the foregoing pages, one through 33, inclusive, constitute a true and correct record of the proceedings to the best of my ability. I FURTHER CERTIFY that I am not a relative or employee or attorney or counsel of any of the parties hereto, nor a relative or employee of such attorney or counsel, nor am I financially interested in the action. WITNESS MY HAND this 10th day of May, 2012 at Ocala, Marion County, Florida.

______________________________ CONSTANCE MILLER Stenographic Court Reporter State of Florida at Large

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