“No. No, it was not.”
“Four days after Russ died?”
“No,” Smith said adamantly.
“Are you absolutely sure of that?”
“I’m positive.”
“And isn’t it a fact that these names,” he indicated the witnesses, Barbara’s mother, brother and sister-in-law, “already appeared on this will?”
“No, they were not. There were no names on that will and no one else was there. It was us.”
As Smith came down from the stand, Barbara turned toward her family, silently mouthing, “Can you believe that?”
29
Judge Allen had been alerted that a crucial point in the trial would be coming after lunch Wednesday, the third day of testimony, and when court reconvened, he called the attorneys to the bench for a brief conference, then asked the jury to leave the courtroom.
The prosecution wanted to introduce the evidence about Larry Ford, which had been mentioned earlier before the jury by Rick Buchanan.
“And you object?” the judge said to Cotter.
“Yes.”
The judge decided to hear some of the testimony without the presence of the jury before allowing arguments about the admission of the evidence, and Robert Perry, one of the emergency medical technicians who had answered Barbara’s call for help more than eleven years earlier, came to the stand.
He told of arriving at the house that night and Barbara meeting him at the kitchen door and saying, “He’s upstairs. He has been shot and I think he’s dead.” Larry Ford was on the bed, he said, and he hurried to examine him.
“What was his condition?” Evenson asked.
“Well, you could tell from the looks of the skin that he was already dead.”
After Perry had related what Barbara had told him about the shooting, Evenson brought out the photos taken of Larry and the room that night and got Perry to identify them. When describing the photo that showed the pistol clip on the bed, Perry said, “We turned the cover back and the clip was under the covers, as if he had been covered up. The clip was under the covers with him.”
Perry told of calling his supervisor, Eddie Hoover. Asked why, he said, “It showed the possibilities of being suspicious.”
Evenson asked about Barbara’s reactions that night.
“She wasn’t overly concerned,” Perry said. “It seemed like she should be more upset in the situation.”
Barbara’s attitude was one reason he had become suspicious, Perry said. Another was the pistol.
“My wife owns a .25. It won’t fire with the clip out of the gun, and I didn’t expect that gun to fire with the clip out either. The clip being out of the gun and under the blanket, it just didn’t ring true.”
Had he discussed his suspicions with anyone? Evenson asked.
Only with his partner, Jim Owen. “Me and Jim, after we left the scene, discussed that things just didn’t go together.”
Cotter’s first question was whether Perry had made any notes about the call that night.
Only the notations on the official records about the times he had responded, arrived and left the scene, Perry said.
“So you didn’t write anything down other than the fact that you responded?”
“No. Some calls stick with you and that one did.”
Quizzed about Barbara’s demeanor, Perry responded, “Demeanor?”
“Yeah. How did she act?”
“Matter-of-factly, and you expect anybody in that situation to be very upset.”
Did she cry, show any remorse, any signs of being upset at all? Cotter wanted to know.
“I don’t really remember her being upset. Her demeanor didn’t fit the situation.”
“She didn’t cry at all?”
“No.”
How much of Larry’s body was covered when Perry entered the room? Cotter wanted to know.
“About to the nipple line,” Perry said.
“So it did not cover the wound?”
“I’m not real sure about covering the wound or not.”
“Any damage to any of the bedsheets?”
“No. We checked that.”
“No indication that the bullet went through any of the bedclothes?”
“No.”
“Did you see the wound before removing the bed-clothes?”
“I can’t exactly remember.”
“So, actually, you don’t know where those covers were, do you?”
“It has been a long time,” Perry said, then remembered. “It was above the wound.”
“How do you remember that?”
“Because of the indication of blood on the comer of the blanket.”
Perry acknowledged that he and others who had been at Barbara’s house that night had returned there with Durham County authorities to go over the details of the shooting.
When had that been? Cotter asked. After Barbara’s indictment?
“I don’t remember if it was at that time or not,” Perry said, “but they indicated that the Durham case depended on the Randolph case.”
“Who told you that?”
“I’m not real sure,” Perry said, and Cotter had no more questions for him.
“All right,” the judge said to Cotter. “And you object to this coming before the jury?”
“Absolutely.”
“I will hear counsel on both sides,” Allen said.
Cotter had his argument ready. “The state is trying to show she killed her first husband,” he said. “It’s what they want to show you, and it’s what they want to show the jury.”
That evidence, he claimed, was irrelevant, prejudicial and had no probative value.
Evenson’s argument was more telling. He brought up nineteenth-century jurist John Henry Wigmore to defend his position.
“The argument here is purely from the point of view of the doctrine of chances, the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result.”
He quoted from a ruling by Wigmore:
If A while hunting with B hears the bullet from B’s gun whistling past his head, he is willing to accept B’s bad aim or B’s accidental tripping as a conceivable explanation. But if shortly afterwards the same thing happens again, and if on the third occasion A receives B’s bullet in his body, the immediate inference (i.e., as a probability, perhaps not a certainty) is that B shot at A deliberately; because the chances of an inadvertent shooting on three successive similar occasions are extremely small.
“Your Honor, also we have prepared a list of similarities in this case,” he said, handing up the list that he had collected over the months. The similarities numbered thirty-four and were listed in two columns, one marked “Ford,” the other “Stager.”
After Evenson went through the similarities, he acknowledged that while the evidence of Larry’s death was prejudicial, the probative value of it outweighed the prejudice.
Finally, Judge Allen ruled that the evidence would be prejudicial but not unfairly so, and its probative value would outweigh any prejudice.
“After considering this matter, the Court does conclude that this evidence should be allowed for the purpose of showing any proof of intent, any plan, any preparation or the absence of accident in the shooting of Mr. Stager, and over the strong objections of the defendant, the Court is going to rule that it can be admitted.”
Evenson brought Robert Perry back, and went through his earlier testimony for the jury. Perry also told of going back downstairs to tell Barbara that Larry was dead and to ask her what had happened. “She said something to the effect that he had bought the gun for her protection,” he said.
He went on to tell of calling his supervisor, Eddie Hoover, to the scene, and of Hoover asking him and his partner, Jim Owen, to help bag Larry’s hands so they would be protected for gunshot residue tests.
“When was it that you were interviewed about what happened in that particular room?” Evenson asked, hoping to emphasize how inadequate the Randolph County investigation had been.
“The first time was approximately six to nine months ago,” Perry said.
“The very first time?” Evenson asked incredulously.
“Yes, sir.”
Perry’s partner that night, Jim Owen, told of meeting Barbara at the carport door. “And she was, you know, wasn’t exactly very upset about the whole situation,” he said. “That’s what stuck in my mind.
“I recollect her saying to us that he had shot hisself cleaning the gun and that she was pretty sure, thought he was dead.”
“Is this before you even went to see him?”
“This was before Robert and I went upstairs.”
Owen went on to tell of examining Larry, turning him over to look for an exit wound, finding the clip under the cover.
“The whole situation was just very unusual,” he said.
Later, at home, Owen told the jury, he talked with his wife about what had happened that night and drew a diagram of the room where Larry had died.
“The whole situation just bothered me a lot, and I felt like something should have been done,” he said. “Mrs. Ford’s reaction bothered me quite a bit.”
“You were concerned about what you saw that evening?” Cotter asked when his turn came.
Owen nodded.
“Is that correct?”
“Yes, sir.”
“Did you not write any notes down?”
“Excuse me?”
“You did not write any notes down?”
“I did at the time.”
“You did write notes?” Cotter seemed surprised.
“Yes, sir.”
Where were they? Cotter wanted to know, but Owen said that he had not been able to find them. They were on the back of the diagram he had drawn while talking with his wife.
Had he told Deputy Larry Allen, the first officer on the scene, about his concerns? Cotter asked.
“No, sir. I assumed that the sheriff’s department would do their job.”
“And did Mr. Allen not do his job?”
“I don’t know. I know that another gentleman had taken over, a detective.”
“Did he do his job?”
“I think not.”
When court opened on Thursday morning, the state called Larry Allen. He told of spending ten minutes in the room with Larry’s body before going downstairs to talk with Barbara and one of her neighbors.
“She told me she had been watching a movie on TV. I can’t remember the name of it.
Having Your Baby
, or something.” He went on to give Barbara’s version of the evening.
“She said she heard a noise like a lamp fell off of a table or something. She went to the bedroom and looked and she saw her husband bleeding on the bed and appeared he had been shot.”
Eddie Hoover, the former director of Randolph County’s emergency services, now a police officer, would prove to be a more significant witness. First he told of being taken to see Larry’s body by Jim Owen. “On the way, Owen said he had doubts that it was a suicide,” Hoover said.
He told of taking measurements and filling out a medical examiner’s worksheet. Then Evenson asked if he knew which way the shell casing ejected from the pistol with which Larry had been shot.
“Do you know anything about weapons?” Evenson asked him.
“Not that much,” he said, going on to tell of helping Allen look for the empty shell casing.
First they searched the bed, but it wasn’t there. “We moved things around and more or less disarranged the room.” Then Allen put a shell into the gun and ejected it, he said. The shell went to the right and back.
After more searching, the empty casing was found on the floor between some tennis shoes, Hoover said, and he pointed out the location on the room diagram.
“At that point, we all looked at each other in amazement,” he said, because if Larry had fired the shot that killed him, the shell shouldn’t have been there.
After Hoover told of taping plastic bags around Larry’s hands so gunshot residue tests could be performed to determine if Larry had fired the weapon, Evenson asked, “Was any such test done on Barbara Ford at the scene?”
“I can’t recall any, no.”
Next, Larry’s mother, Doris Ford, walked resolutely to the stand.
She had arrived at her son’s house that night at the same time as Barbara’s parents, who had come from Durham, a much greater distance, she said. “Both sets of parents went in about the same time and we went into the living room. Her parents were one on each side of her and we were just so upset and you really just walk around. You don’t know whether to go in the kitchen, upstairs or … we were just upset.”
She talked of her son’s funeral. “He was buried—would you believe the name of the church has left me …”
“Is it Cedarcrest?” Evenson offered.
That was it, she said, and she told of coming back to the house after returning to the grave to see the flowers and of Barbara beginning to give Larry’s clothing away. As she told about the clothing, Doris shook with sobs.
“You had two grandsons by Larry, did you not?” Evenson asked.
“Right.”
“When is the last time you saw in person, Barbara Ford, Barbara Stager?”