1

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

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, vs. JOSHUA FULGHAM, Defendant. --------------------------x EXCERPT OF PROCEEDINGS DEFENSE'S CLOSING ARGUMENT AND STATE'S REBUTTAL CLOSING ARGUMENT CASE NO.: 2009-CF-1253

PROCEEDINGS: BEFORE: DATE: LOCATION:

JURY TRIAL CIRCUIT JUDGE BRIAN D. LAMBERT April 12, 2012

Marion County Courthouse
110 Northwest 1st Avenue Ocala, Florida 34475 Shannon Carlton, RPR Stenographic Reporter Notary Public State of Florida at Large

REPORTER:

_____________________________________________________ JOY HAYES COURT REPORTING Official Court Reporters 407 Courthouse Square Inverness, Florida 34450 Bus:(352)726-4451 _____________________________________________________

2

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

APPEARANCES: ON BEHALF OF THE PLAINTIFF: BRADLEY KING, ESQUIRE ROCK HOOKER, ESQUIRE Office of the State Attorney 110 Northwest 1st Avenue Suite 5000 Ocala, Florida 34475 ON BEHALF OF THE DEFENDANT: TERENCE M. LENAMON, ESQUIRE Lenamon Law, PLLC 100 North Biscayne Boulevard Suite 3070 Miami, Florida 33132 TANIA Z. ALAVI, ESQUIRE Alavi, Bird & Pozzuto, P.A. 108 North Magnolia Avenue 6th Floor Ocala, Florida 34475 ALSO PRESENT: Stuart Hartstone, Esquire Melissa Ortiz, Esquire Kathleen O'Shea, Mitigation Specialist Lenamon Law, PLLC

3

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

(The following is an excerpt of these proceedings:) * * * * * MS. ALAVI: THE COURT: MS. ALAVI: With the Court's permission? Yes. You know, when I was thinking

about what I was going to say to you this afternoon, I was really going to start my closing argument one way and now because of the last clip that you listened to, I'm now forced to start it another way. The last clip you heard Mr. Hooker play for you, and remember, he said when he talked to you we can look at conduct. also look at words. But, you know, we can

The problem is he doesn't

want you to hear all th words because the last clip he played for you, this is what you heard: And she told me, and this is talking about Emilia Carr, "She told me right then, Josh, bring her back here later tonight. late tonight. Bring her back here And that's

We'll get rid of her."

all he played for you.

But that -- that

conversation he had with Emilia Carr was when he kicked her out of the house in December of 2008 and got back with Heather. If you look at the entire conversation on that

4

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

DVD, and you are welcome, this is the 3/26 statement. You are welcome, as the judge will

tell you, to go back and look at whatever evidence you want, see it again, listening to it again. You will see that they are having a conversation. He's telling her, I'm getting back together with Heather. You need to get your stuff and get out

of the house. And Josh says, "I went out that Sunday morning to feed my dog and I took Heather and the kids with me." Buie says, "To your mama's house." And he goes, "Uh-huh." fish camp." Buie says, "Okay." And Josh says, "I took Heather and the kids so Emilia would see for sure and when I got over there she hadn't packed nothing. She just sat No, to my house at the

back in her chair like I own this mother fucker. I said, What are you doing? This is my home.

"And she went -- she had Heather so upset Heather was wanting right then to leave the kids there and just go stay wherever she could until she could figure out something else to do because she didn't think Emilia was going to let us be

5

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

together. "I said, Baby, go get in the car. Go get in

the car, put the kids back in their seats, and get in the car and we're going to go back to the motel. I said, We still got tonight until Emilia, by tomorrow morning, I want you

tomorrow.

out of this house. "And right then she came to me and she told me right then, Josh, bring her back here later tonight. Bring her back here late tonight. I said, Emilia, get out. We'll

get rid of her.

Get

your shit and get out.

We're going to be together Bring

and she said -- we're going to be together. her back here tonight and we'll do it.

"I didn't want to do it and I took Heather back to that motel and we talked and I told her I wanted to marry her. Got married like a week --

the day after Christmas we got married." So that conversation he played for you wasn't in relation to February 15th like he wants you to think it is. That was a conversation where Emilia

was telling Josh in December of 2008 while she didn't get her stuff out of the house, Bring Heather back here. Mr. King told you in jury selection that we

6

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

want you to get a cohesive picture of what happened in this case and as best as I can I'm going to try to do that. convoluted facts. You've heard a lot of

You've heard a lot of people

involved in this small town. Let me take you back to some other words that were said. And, again, I'm not really focusing on

any of the statements that were given prior to March 21st of 2009 because we all know and conceded that the majority of those contained lies. 26th. You heard Josh tell Detective Buie, "When she came clean with me and she said that she had sex with Jamie three nights after he went to jail in our house -- in our house on our couch and just about every other night -- after the gloating by Emilia -- he said, "I lost it. then. It just hit me hard. I didn't care So I'm going to focus on the 21st and the

It hit me real hard."

Because remember, Heather had denied it when Josh was in jail and he was asking her about it. And consider this as well, which is unrefuted and uncontradicted in the statements. And by the

way, if you remember, this statement on the 26th is something that the state is also relying on.

7

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

And in that statement Buie tells Josh, All right. This is it, I don't want to come back here and have this back and forth, any more statements and that sort of thing. 26th. And so another fact that's unrefuted is when Josh and Emilia walk into the trailer and Josh finally is looking around like he's looking for the money. You heard this a hundred times during She's looking around He tells him that on the

the course of this trial.

like she's looking for money and then he says, Heather, we've got to talk. She says, Hell no, She bolts and

she tries to leave, he grabs her.

he says, Fuck it, I'm going to let her go. Now, the state, of course, and we can also see why, no one's denying that there are things that were said in this case or things that were done in this case that would lead someone to believe that this was premeditated. For example, the state said -- the state talked about the statement on the phone by Josh to Emilia -- and we'll talk about some of these as I go -- that I should have killed the bitch. talked about the woods. He talked about a He

conversation between Josh and Emilia, Are we down

8

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

with what we talked about. But one thing that's important to understand in the context of this case, and I think it's very important that, you know, and I'll just call it normal, for lack of a better term, in normal society, this isn't how people are operating. Oh,

I'm going to hold a knife to you and then, ha-ha, it's all over and we're all going to be friends. No. People normally wouldn't be friends in a

situation like that. There is a lot of smack talk going on between all of these people who are, and I put this -this up here to show you different places -- who are moving around from place to place to place. Here's where Jamie Acome was living. Here's the

McCollum residence which we know at some point Heather was living at. Here's the Carr residence.

Here's another place where Heather Strong was living at one time with Jamie Acome, planning at some other time maybe with Josh. Here's another place where Josh and Emilia were living. And just to remember, when you saw

the house in the videos, or the pictures, this Carr residence was green. When the pictures were

taken it had been painted white.

9

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

This is where Heather worked and this is Ms. Chandler's home where off and on Heather and Josh had both lived at. And people are moving

from place to place in a very small period of time. You've seen sort of a circle that has been set up during opening statements. of like a diamond. I've made it kind

You have Emilia Carr who has I'm not sure You

some relationship with Jamie Acome. when it was.

Sort of an off and on thing.

have Jamie Acome who in January of '09 while Josh was in jail has a relationship with Heather Strong. We know Heather Strong had a relationship with Ben McCollum between July of '08 and December of '08. Now she wanted to go back to him nine days

after she got married to Josh on January 5th and then on January 6th Josh gets put in jail. Josh and Heather have been dating for about 11 years. Married December 26th of '08, have two

kids, McKenzie, eight, and Zack who is two or three. And Emilia Carr and Josh have some sort of

relationship, intimate, from September of '08 through February of '09, although he kicked her out and gets married to Heather prior -- prior to

10

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

that in December of '08. Now, what we also know is that all these people, Emilia's having sex at some point with Jamie who is having sex with Heather also. having sex with Josh, she's been with Ben McCollum. These two, you heard testimony that She's

Emilia and Heather are even engaging in sexual activity together having threesomes with either Jamie Acome or with Josh. Now, we've got at some point probably all of these people we heard with the exception of Ben McCollum who are going to jail. point. She goes at some

You heard Jamie Acome make reference to

the fact that Jason Lockshaw had just gotten out of prison. Jamie's currently pending charges and

he's been arrested before and convicted as you heard. Heather has Josh arrested for the aggravated assault in January of 2008 which you heard on the phone calls were not true and were later dropped. Josh, you heard had Heather arrested for a domestic situation as well. And, in fact, you

heard that both of them had injunctions against one another. At some point Josh and Heather had

injunctions against one another.

11

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

You also heard that some of these people are using drugs and/or alcohol. You know, you heard

some testimony from Ms. Chandler that when the factories were kind of dying down in Mississippi, meth started to become a big thing there. Then

Josh and Heather followed her here in 2003 and you heard testimony that he was smoking pot, doing pain medication. I think around the time of this I think

incident Lortabs, Percocets, Flexeril. those are all of them.

Now, you know that when this relationship between Heather and Josh, on again, off again obviously, when it's off again, he's going to her. But he's always coming back to her. When it's off

again, she's going to Ben McCollum or in January going to Jamie Acome. 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. Now, in 2008, we talked about this a little bit, but Heather leaves Josh for Ben McCollum. So

Josh gets with Emilia again and, you know, he had

12

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

been with her prior to that as well.

Heather gets

Josh arrested, Ben gets her a lawyer, and she gets out of jail. She goes back to Josh in December. wants to leave Ben and go back to Josh. Says she So Josh

kicks Emilia, who's pregnant with his kid, out of the house. And you heard already, of course, that She

Emilia didn't want to get out of the house. had other plans. They get married on December 26th.

January 5th Heather says, I'm still in love with Ben McCollum. That's January 5th. January 6th He goes

she lodges an acquisition against Josh. to jail.

So obviously the volatility here is

continuing. Josh goes to first appearance on January 7th. And you heard from Detective Buie what first appearance is. The judge gives him no bond. That

means he's not going to get out. there for 31 days. calls Heather.

He has to stay He also

And he calls Emilia.

You heard that.

He calls Emilia right after first appearance. And what does he say to Emilia? think about this. We logically

Like Mr. Hooker told you and

like the judge is going to tell you, you don't

13

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

check your common sense at the courtroom door.

He

says when he gets no bond at the first appearance for something, of course, we found out was not true, but he says, I should have killed the bitch. Now, is that evidence of premeditation to do something later or is he talking about the offense for which he wrongfully got put in jail? While he's in jail Heather hooks up with Jamie Acome, who you heard when I questioned him finally, Jamie admits happened because he wanted to get back at Josh. He has sex as you find out later with Heather that day, every day thereafter just about. she denies that. But

But Heather denies that on the Meanwhile, Heather, Jamie,

phone from the jail.

and Emilia are hanging out with one another and Emilia and Heather are babysitting for one another and they're socializing with one another which is crazy, but not for these people. Not for where we are and who we're dealing with which is crazy given the fact that while Josh is in jail, and remember, there were -- weren't any phone calls about Josh telling Emilia to do this or to plan this knife incident or anything like that. He finds out from Heather that this

14

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

stuff happened.

It's crazy that they're hanging

out with one another when Emilia grabs Heather's hair, wraps it around her arm and holds a knife to her. And then the next thing that happens as you've heard, she basically contracts -- tries to contract with Jamie and Jason Lockshaw to pay them money to kill Heather. doesn't happen either. And, of course, that Somehow, Emilia ends up And you heard that

getting duped out of $150.

there were some 300 phone calls and the phone calls that you heard is Heather telling Josh that Emilia did these things. Now, Josh gets out on February 6th when the charges are dropped. Heather somewhat. He's still irritated with

In fact, he goes -- now, here's

some evidence that he was trying to be non-confrontational with her. He goes and he gets

divorce papers which you've seen a picture of. He gets that packet. evidence. Nobody kept it for

They kept all these other things for

evidence, but nobody kept that for evidence to see what he had filled out inside there so you could see it for yourself to see what his allegations were inside there, but we know he got that because

15

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

he was going to try to go about this that way. What else shows he was trying to be non-confrontational? Around the same time he did

that between February 16th, he's getting law enforcement to come get his car back from Jamie because he don't want any confrontation. Although, we know from everything we've seen in his mind, he's thinking, Hey, maybe we're still going to get back together because what always happens? They always end up back together. And

Buie even said himself during the course of the investigation it's one of the things he found out independently is that they always get back together. Now, remember, Josh also knows at this time that Jamie Acome is having sex with a 14-year-old girl, which of course, he's not happy about. Nobody would be happy about having an eight-year-old daughter. to get rid of Jamie. skeptical about that. So on February 15th while Heather's at work she calls Michelle, Josh's sister. she call Michelle? Now, why does Josh Heather says she's going

Josh is still a little bit

She doesn't call Josh.

could watch the kids.

In fact, you heard that the

16

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

weekend prior he wasn't even allowed to see the kids at all. So she calls Josh's sister and she

asks Josh's sister if she can baby sit because apparently now the kids are with Jamie and she's at work. Michelle calls Josh and tells him that and, of course, like any parent who thinks that their wife is dating a sex offender who has now left the kids alone with this person, he thinks what in the world? So what does he do? He goes home to his

mom's house and he calls Heather and they get into it a little bit where she says, once again, I'm taking the kids and I'm going to Mississippi. Now, we know independently from other evidence that it is true that she has done that enumerable times. She has taken the kids and she's gone to So he asks his mom to type up this

Mississippi.

letter, which we've all seen, giving him custody of the kids. He knows the kids are with Jamie.

He knows Heather's told him that, I'm going back to Mississippi and I'm taking the kids. Now, around the time he has his mom do that, he talks to Emilia on the phone and says, Remember that time we talked about the whole Ben was with Heather at some bar and Zack was acting up and I

17

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

called her and she said she was coming home. That's the incident he was referring to. And he

asked her if she remembered what they talked about before. But remember, that incident that happened was way back before, sometime between July and probably November it would have had to of been of 2008 when that happened. Pre-marriage and

pre-arrest of Josh for that aggravated assault charge. So under the guise of stealing money, which is $1,700, and I guess that was the figure because as you heard, Emilia was getting $1,700 or paid $1,700 for Josh's lawyer to help him out on the aggravated assault charges. So under the guise of

stealing this money, Heather agrees to go with Josh to Emilia's trailer. Josh wants Heather to sign the custody letter. He said that many times during his interview. He

thought he could scare her into signing the letter because he wouldn't have thrown -- she wouldn't have thrown Emilia in jail because she didn't last time and the reason she didn't last time is because Emilia was pregnant. even more pregnant now. So he figured she's

She's not going to do

18

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

that. So as I understand before they go in, he finally tells her he wants to talk. I don't want to talk. She says, No,

She starts to go and he And Heather breaks

grabs her and in walks Emilia.

free, he says, Fuck it, I'm letting her go, and Emilia hits her with a flashlight. Now, remember these two statements on March 21st and March 26th. Those statements

happen because Josh sends an inmate request form requesting to speak with Detective Buie and it happens on the 21st. If you recall that he tried

to commit suicide this morning, he's feeling guilty, he calls Buie, he goes over there and they have some discussion about it. On the 26th he sends another inmate request form. Now this is after he's found that they have

taken the kids from his mother and he's very concerned about that. And you saw that in the And he tells Buie, I'm Tells him he's worried

3/26 statement as well. guilty, I let it happen.

about his two little babies. And you've heard him say that phrase a lot: My two little babies and where will they go. So

much so he makes sure he gets no bond so hopefully

19

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

his mother can get those kids back.

Of course we

know by March 26th that those kids were taken away. Taken to be adopted and that's why Josh

calls Buie again. Now, what about Emilia? Well, remember what I

read to you at the beginning when I got up here. She feels some betrayal. Why does she feel it?

Because she's been kicked out of the house so he can, once again, get back with Heather which he's done to Emilia before. So he gets back with

Heather and they get married and Emilia, who is pregnant, gets tossed out of the house. What else did you hear on the tape that was going on in the trailer? When Heather says I'll

leave you alone, I'll leave you guys alone, and Emilia says, You won't leave us alone. leave us alone. today. You won't

You got in the car with him

You came -- you came with him here today.

And what do we know from that day as far as Josh is concerned? DVD. "I left and went back to mama's with the kids. That little bit of time I been there talking to her, you know, and on the phone to Petro. When And this is all from the 3/26

she called that day she mentioned taking the kids

20

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

and going back to Mississippi because I had done took the car from her. Her job didn't pay that

much -- that much money for her to pay her bills with. When she told me she slept with that guy three days in a row when I was in jail, that hit me. That hit me hard. That hit me really hard."

And Buie says, "Let me ask you something, so if she wouldn't have told you that, do you think you would have went as far as you went or do you think you would end up, you know, changing your mind right then and there and not doing -- not killing her?" Josh: to. "I don't think I would have been able

I honestly don't think I would have been able And Emilia told me she didn't even Because she kept I think when I

to kill her.

think I'd go through with it.

calling me on the phone at mom's.

called her she was like, What are you doing, because she knows how Heather is. She knows.

And see, Emilia had been telling me all the time when I was locked up when I'd call her she told me she slept with Jamie. And I asked Heather

on the phone and she said, Josh, you know me better than that. You know me better than that.

21

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

I wouldn't do that." Buie: Josh: "She kept denying it?" "And then that night when I -- and I

told her, when I told her, I sat down and I want to ask you some questions. I said, Right now is

the time to be honest, did you sleep with him? Josh, no, I didn't. "Well, Emilia was already in there and Emilia hit her with the flashlight. That didn't knock

her out and she was sitting on the chair and I said, Did you sleep with him, Heather? said no. kids. And she

Man, I said, Heather, I swear on my

I said, Heather, be honest with me, did you

sleep with him. "She said, Yep, I did Josh. I slept with him

that night and pretty well every other night that he came to the house. lost it, man. She came clean with me. I

I'm really the only person she's

ever been with, man. And then he says, When it came out of her mouth, when she told me, it hit me hard, it hit me hard." And he says this again later in the 3/26

statement that even they are asking you to rely on. "It hit me hard when it come out of her mouth

22

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

that night.

I honestly don't think I could have I don't think I could have I've never been that

went through with it.

got that mad with Heather. mad with Heather." "Okay."

"It just pushed the envelope because, you know, whenever she went to stay with Ben, she told me she wouldn't do nothing but stay there. even told me that. Ben

And Heather called me and told

me one day, she called and she said, Josh, I'm going to tell you something she said before it even happened. this guy. there." "She said I feel like I owe you that. And she She said I'm fixing to get with

It was like her fourth day living

didn't owe me nothing because I screwed around on that girl so many damn times, she didn't kill me. And she called me, she told me, I'm fixing to get with this guy. It bothered me, but it didn't

bother me that bad like when she told me she slept with Jamie in our house on our couch." So you heard about what happened in that trailer. And nobody is really disputing the fact

he wraps her legs, Emilia puts the bag on, she held the nose and all those sorts of things. Now,

23

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

what happens after that's done?

The next morning

before work, Josh puts a shovel in his car so that after work he can go dig a hole. right? Brilliant,

Your plan doesn't include having dug a

hole prior to going there to do this? Not only that, but this plan includes leaving her there, leaving her there in the trailer for not just one day like it was supposed to be, but two days on the chance that somebody might go in there. We know that her family -- that Emilia's You heard

family was home when this happened. that testimony.

You heard that independent of the

statement that Buie found. And that makes a whole lot of sense. Let's

just do it steps away from where your family is in the house. Not only that, now they didn't -- I

asked Sue Livoti when she was on the stand and she said she didn't get any pictures of the surrounding houses, but you heard that there were other homes. They just got a picture of that one

that was actually right there where the neighbors lived, right there closest to the trailer. Now, when Josh finally did go back and dig the hole, what was the conversation between he and Emilia? Remember Mr. Hooker referencing the call

24

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

about the woods?

They didn't need to have this

conversation when he went back to dig the hole, but what was the conversation? to put her? Well, I thought that was already planned. Apparently not. The conversation is where are we The railroad tracks, some cave. Where are we going

going to put her?

He couldn't even get the door open and ended up putting her steps away from the trailer. And knowing that, of course, puts the other conversation about I should have killed the bitch in context as well because you know that that relates to being arrested the night before for the aggravated assault and not to something later on in the future. Now, Mr. Hooker says, Well, Josh confessed to premeditated murder. Well, let me suggest this:

Buie and Spivey tell Josh you confessed to premeditated murder, you know that. Now, who are

the law enforcement officers who know the laws? Spivey and Buie. lawn care. Not this guy. This guy's in

Not the legal profession.

He's not like you people are going to be in a little while here being handed a set of jury instructions on what the law is regarding

25

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

premeditation or principal.

That's like when

somebody says, Oh, my house got robbed last night. And, you know, most people don't know your house can't get robbed. Only the person can get robbed. And why do people

Your house gets burglarized.

go, Oh, I got assaulted last night when somebody gets hit? assault. But people don't know that because they're not in the legal profession. He's not sitting in that That's a battery. That's not an

room with Buie with a set of jury instructions saying, oh, depraved mind, oh, premeditation. That's not what he's doing. That's what you all

are here for, to look at the law as the judge gives it to you and that you're given in your packet. He actually even follows it up by saying,

This is what I did and I let it happen. Now, I'm going to give you the whole reasonable doubt instruction. The whole issue And, you

here is his intent, his true intent.

know, before I get into the reasonable doubt instruction, let me read you -- let me read you this principal instruction that Mr. Hooker talked about. Because when he put the first-degree murder

26

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

instruction up here it said the death was caused by the criminal act of Joshua Fulgham or Heather Strong was killed by a person other than Joshua Fulgham and both were principals in the commission. Now, to be a principal, the defendant

has to have a conscious intent that the criminal act be done. And I'm not talking about the act of murder because we've already said that what he has done is second-degree murder. I'm talking about the

criminal act of first-degree murder or felony murder. The intent still has to be there. The

conscious intent still has to be there and that's the instruction that the judge will give you. Okay. start here. So can we all see? All right. So I'll

Whenever the words reasonable doubt

are used you must consider the following. Mr. Hooker only pointed out this part to you: A

reasonable doubt is not a mere, possible doubt, speculative, imaginary or forced doubt. Such a

doubt must not influence you to return a verdict of not guilty if you have an abiding conviction. On the other hand, if after carefully considering, comparing, and weighing all the evidence there is not an abiding conviction of

27

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

guilt, and I'm talking about guilt of first-degree murder, then the charge of first-degree murder is not proved beyond every reasonable doubt and you must find the defendant not guilty of first-degree murder because the doubt is reasonable. I'm sorry. If after considering and comparing

and weighing all the evidence there is not an abiding conviction of guilt or if having a conviction, it is one which is not stable, but one which wavers and vacillates, goes back and forth, and there's no degree as to how much it goes back and forth. If it goes back and forth at all on any issue, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty. guilty. And I'm not talking completely not

I'm talking of first-degree murder

because the doubt is reasonable. It is to the evidence introduced in this trial and to it alone that you are to look for that proof. And another interesting point. A

reasonable doubt as to guilt of the defendant may arise from the evidence, conflicts in the evidence, or the lack of evidence. If you have a

reasonable doubt as to first-degree murder, you

28

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

should find the defendant not guilty.

If you have

no reasonable doubt, you should find the defendant guilty. Now, what evidence do you have that in his mind truly, conscious, because that's what the principal instruction says, it was not premeditated? 1. 2. I lost it. That time I lost it.

Fuck it, I'm letting her go. He knew that on those

Now, what did he know?

prior instances with Emilia there was no followthrough. And these I kind of touched on. I

can kind of group them -- okay.

So this is around

8:00 p.m. where there's other houses with neighbors and we know for sure her family is home. Not beforehand, but the next day, shovel. days later buried. hole was not dug. No plan for that. And also not before -- the Talk about where to bury her. And with that I'll couple that Two

with just outside the trailer door. Now, interestingly, the state wants to say that during the calls that Josh had with Emilia and Heather from the jail when he was in in January that he's really being -- duping Heather on those phone calls and what he's telling Emilia

29

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

is really the things that you should believe, not the things that he's telling Heather. Because he's telling Heather, Maybe when I get out we can get this, there's this three bedroom, it's got this, we'll move in together. of stuff they were taking about. love you. All kinds

I love you, I

I think three phone calls you heard

with a bunch of I loves you in there and these two talking all nice and sweet to each other. Then you hear these other phone calls with Emilia. Well, ask yourselves why wouldn't he be

nice to Emilia and not annoy her and irritate her when she's the one who's paying the lawyer to try to get him out of jail because no one else was helping him? You heard no other evidence that Now, his mom was

anybody else was helping him.

going to the lawyer, but Emilia was paying the money. in. I know this is very messy, the letter. would he type up that custody letter? need it to get Heather there. going there to steal money. letter? For her. Why And but for her, he was definitely staying

He didn't

She thinks they're

Why does he need the What else do we

He doesn't.

know that he was doing or that he did that I

30

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

mentioned earlier?

There's evidence that he was

trying to be non-confrontational with her. And the reason why I write those things up there, maybe there's -- you all took notes. Maybe

there is some things I haven't written on there that you thought of or can think of. But my point

is is that if any of these, even one of them cause you to waver and vacillate a millimeter, and that's the law because they have to prove their charge, every element including intent beyond and to the exclusion of every single solitarily reasonable doubt. And if they don't, if you're thinking, Well, that phone call or, well, this incident, or I don't know, it sounds like, you know. I mean,

this is -- it's tough for all of you, very tough. And if you're thinking that and you're going, Well, yeah, but I mean wouldn't you dig the hole before? If you're thinking about those things and

that is causing you to go back and forth in the slightest bit, they have not proven their case beyond reasonable doubt. Now, that all goes to premeditation. And

Mr. Hooker said there's another way he can prove to you first-degree murder and that's using felony

31

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

murder.

In order for Josh to be convicted of

felony murder, they must, the state must prove kidnapping beyond a reasonable doubt. Now, let me tell you why this is not kidnapping. by threat. Joshua Fulgham forcibly, secretly, or Let's stop there for a minute. He did

not forcibly, he did not secretly, and he did not by threat. Now, did -- was what he did okay?

Absolutely not. But legally when you walk through those doors you have to go by the legal definition of the elements of the crime. He duped her into going

there, he lied to her, and it does not say duped or lied in order to get her to go. law. You may not like it. That is the

It may sound

ridiculous, but that is absolutely the law. Confine, abduct, or imprison Heather Strong against her will. Well, in order for it to be

confinement or imprisonment, it must not be slight, inconsequential or merely incidental to the felony. Well, what was it if it wasn't incidental to a murder being committed? want you to think. Because that's what they The

I mean, it was a murder.

issue is whether it's first or second.

Of course

32

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

it was incidental to the murder. Must not be of the kind inherent in the nature of the felony. Well, it's necessarily so here

because if that's their theory, I mean, that's why he took her there. the murder. And must have some significance independent -and this is and. All three of these must exist. It must have some It's inherent in the nature of

Not one, not A or B or C.

significance independent of the felony in that it makes the felony substantially easier of commission or substantially lessens the risk of detention. Must have some significance independent of the felony. What significance did him taking her None. And

there have independent of the murder?

what actually do we say he's guilty of?

We don't

say he's not guilty of something related to that. What he's guilty of is false imprisonment. That's the highest thing they have proven based on the elements I just showed you in kidnapping. The highest thing they have proven is He

this because of the word "restrained". absolutely restrained her.

Now, in fact, as we talked about a minute ago,

33

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

or as I talked about a minute ago, when you watch the -- one of the videos, Buie and Spivey who are the ones who know the law, say you falsely imprisoned her. Even their thoughts is it was

false imprisonment. So he's guilty of the lesser included offense of false imprisonment as to the kidnapping. not guilty of the kidnapping because of the elements that I went through with you and therefore he's not guilty of felony murder. And He's

we've already gone through why he's not guilty of first-degree murder based on premeditation. You know, Buie said it himself during trial. Mr. Lenamon asked him during this trial and by the way this is -MR. HOOKER: MS. ALAVI: MR. HOOKER: MS. ALAVI: MR. HOOKER: MS. ALAVI: Page and date and line, please? April 10th, Page 21, Line 23. April 10th. And this was a time when -Page 21, Volume 1 or Volume 2? Two, Line 24. And this was a time

when Mr. Lenamon was saying, So he's kind of giving you half truths and they're talking about the half truths and so forth. And Mr. Lenamon

makes it clear, I want to talk to you about the

34

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

truth.

And Buie talks about how there's some

independent evidence that corroborated each of these truths that Mr. Lenamon's asking him about. And based on his investigation, he answered these questions. Mr. Lenamon says, "And at the time of the murder -MR. HOOKER: talking about. MS. ALAVI: MR. HOOKER: MS. ALAVI: says: "And at the time of the murder, that even though Heather had lied to him when he initially went to jail and told him that she was not sleeping with Jamie, that on the night of the murder and moments before the murder she told him that she was sleeping with Jamie and that's what caused him to flip. Buie: Is that correct?" I'm still not finding what you're Volume 2 you said? April 10th, Volume 2. Correct. Page 21, Line 24. Mr. Lenamon

"Yes, sir." That's what caused him to Even Buie knows

That was correct. flip. I lost it.

I lost it.

based on other corroborative evidence and investigation that that was the case. He is

35

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

guilty of second-degree murder, he is guilty of false imprisonment. time. THE COURT: MR. HOOKER: THE COURT: Thank you, Counsel. I notice -Hang on. Counsel, go ahead with Thank you. I appreciate your

rebuttal closing argument when you're ready. MR. HOOKER: Thank you, Judge. What she said

changes nothing about the arguments that I made. You might have seen I stepped out for less than a minute. Mr. King wrote down everything she said

during that minute. What she did was she wrote the first four things on her board. Nothing she said changes any

of the arguments that I made as to the premeditated murder, the felony murder, and the kidnapping with the exception of one possible thing. She said in my last snippet when they were

-- when Emilia said, Bring her back here tonight, that was when Carr was getting thrown out of the house in mid-December. I don't think I misspoke then, but if I did misspeak, then correct me, and I'm correcting myself now and I would hope you would correct me in your deliberations. This is in the middle of

36

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

the December of 2009.

And, yes, Joshua was

throwing Emilia Carr out so he could get back with Heather. What it is is it's another time that they talked. It was talk about killing Heather. There

was time also where they were going to frame Ben for the murder. carry it out. Neither of those times did they

I understand that, I get it, but

what we're talking about is two months later, the arguments I made. They didn't talk about it and actually do it but one time and that was on February 15th. They

clearly talked about it, they clearly planned it, they clearly carried it out. February 15th. When Heather tried to run down that hallway after she decided she knew what was up, she tried to run and get away, he says that's the time Emilia Carr came in the back door and he says he grabbed her and she broke loose and he decided not to chase her. That's what he said. They killed her on

He said she ran into Emilia Carr in that dark hallway. He said Emilia Carr hit her with the After that he actually assisted.

flashlight.

March 26th he said she's still conscious, he's the

37

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

one that grabs her, he's the one that confines her, he abducts her, he imprisons her in the chair and he sits on her and holds her during the killing process. That is premeditated murder and

that is felony murder. It would not have happened without him. Emilia Carr was not going to hold Heather Strong down pregnant and put her in that chair and duct tape her by herself and kill her by herself. was not going to happen. There's plenty of time for the necessary reflection by the defendant and it's obvious that he did so if you listen to everything that he said to get that premeditated intent even after they're in the trailer, even after she tries to run. Plenty of time. It's clearly kidnapping. clearly proven. The third element is It

He was definitely -- he

definitely had the intent to terrorize her or commit bodily harm. The third element above what Look at the elements They've been proven.

a false imprisonment was. and consider our argument.

And the comment that she attributed to Buie about that's what caused him to flip, that's what he said, that's what the defendant said. Again,

38

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

that's the defendant saying that to Buie. Buie said it's true, that that's what the defendant said. Consider his conduct and

Now,

everything else I told you. I have two more quick video clips, neither one of them are long, I would just like you to consider. MS. ALAVI: myself? THE COURT: MR. HOOKER: extent. Yes, ma'am, certainly. And these are related to some Your Honor, may I reposition

This is prom the 3/21 statement.

(Recorded interview played for the jury:) BUIE: How long has this been planned? Man, to be honest with you, about --

FULGHAM:

shit that night it didn't get planned until that evening, but a long time ago Emilia came to the house one night when Heather was gone to the bar. Heather went out one night and I kept the kids. It's been a long time ago. BUIE: So y'all planned this a long time ago? Not that night. We didn't plan it

FULGHAM:

that night a long time ago, but a long time ago Emilia came over to the house and Heather went out. She went to the bar and met with Ben

39

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

McCollum and I called the bar and told her to come on because my little boy, Zack, was wanting -- I don't know what happened, but he was cutting up on me. I called her and said, Come home, Zack is going crazy. settled down. bit. Maybe you can come home and get him She said, I'll be there in a little

About two and a half hours goes by and she So I called the bar and I

still doesn't show up.

found out she was at Ben McCollum's house. And Emilia was talking about her being gone then. You know, I said, Well, she come back here

we might as well get rid of her and tell everybody that Ben done it. (Conclusion) MR. HOOKER: That night didn't get planned Then he said about

until that evening he said.

the previous time they planned it and they were going to blame it on Ben. That's a clear Back in time they

admission to premeditation.

were thinking about it, including the admission he had planned it that night of the killing. The next one. (Recorded interview played for the jury:) FULGHAM: So I left. I told her when he gets

40

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

his shit out of here you call me back. and went back to mama's with the kids.

So I left But that

would have been the time me (unintelligible) talking to her. You know, and on the phone at

Petro when she called, she mentioned taking the kids and going back to Mississippi because I even took the car from her. Her job didn't pay that

much money for her to pay her bills with. BUIE: By herself? By herself. She didn't like living

FULGHAM:

with him because he was trying to take over and shit. Me and her pretty well concluded we weren't So, you know, she was talking

going to get along.

about taking the kids and going back to Mississippi. So I took that in my head and I went home and I told mama, I said, Mama, listen, I'm going to give Heather 500 bucks and she's going to go back to Mississippi and leave the kids with me until she can get her self straightened. BUIE: You knew right then what your plan was.

You already orchestrated your plan? FULGHAM: I called Emilia -- before I even

told my mama I called Emilia and I said, You remember that night that Heather went out, went

41

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

out with Ben and me and you -- she didn't go out to go out with Ben. Ben that night. I said, You remember that night when we talked about? She said yeah. I said, You still think She said, I She went to the bar and met

about that?

She said, We can do it.

told you because I know he was one of those about getting rid of her before I got out. and I knew that from Heather. BUIE: From Heather or Emilia? Yeah, Heather knew that. Yeah, She put a I knew that

FULGHAM:

Heather knew that because Emilia tried. knife to her throat, man.

And I -- I'm glad Jamie

was there to stop it that night. So Emilia said I done told you I got a place for her. I got all this yard back here. It's in

the woods, so okay. later.

I said, I'll call you back

So then I told mama that Heather was going to leave and go back to Mississippi and let me have the kids. I said, I need you to print up a paper

for me on the computer, mama, saying I'm going to keep the kids until she gets her self straightened out. She can come see them and call, whatever.

She just can't leave and take them out of state

42

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

because I didn't want mama to know the crazy shit was going to happen. So mom printed out that for

me and I even my mom said that wasn't her signature on there. (Conclusion.) MR. HOOKER: premeditating. do it. Again, clear intent. Clearly We can Even mama knew.

There's no doubt about it.

Got all this yard back here.

Got all this

yard back here.

And then he calls his mom to

carry through and he did something else knowing that they were going to get Heather in that backyard and that's where she wound up right in that backyard, buried. You can't try to split the hairs after this, especially after you duct tape her to the chair and kill her and bury her right where you're planning to do it. It's clear that's what they

were talking about and it's clear that that's what they did. My grandmother used to say he talked the talk and he walked the walk and he is clearly guilty of first-degree murder and kidnapping as charged in the indictment. Thank you.

* * * * *

43

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

(This concludes this excerpt.)

44

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

REPORTER'S CERTIFICATE WITH ACKNOWLEDGMENT STATE OF FLORIDA COUNTY OF MARION I, Shannon Carlton, RPR, certify that I was authorized to and did stenographically report the foregoing proceedings; and that the transcript is a true and complete record of the requested excerpt of my stenographic notes I FURTHER CERTIFY that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorneys for counsel connected with the action, nor am I financially interested in the action. DATED this 12th day of April, 2012.

________ Shannon Carlton, RPR Notary Public-State of Florida My Commission No. EE127661 Expires: 09/18/2015

Sign up to vote on this title
UsefulNot useful