Cruel Doubt (37 page)

“Yes.”

“White shirt?”

“I don't remember what color shirt, light-colored shirt.”

“All right, now, Ms. Von Stein, have you ever seen Mr. Upchurch in a dark room with the drapes drawn and all the lights turned out except some light filtering in from a side door?”

“Not that I know of.”

“Have you ever seen him dressed head to toe in dark clothing?”

“Not to my knowledge.”

“Do you think that if you dressed him in dark clothing and put him in a dark room, it would be more difficult for you to identify James Upchurch?”

“I believe it would be more difficult.”

“Do you think if you took your glasses off in a dark room and he was dressed in dark clothing, it would be even
more
difficult for you to identify him, Ms. Von Stein?”

“I think it would be impossible.”

“And if, Ms. Von Stein, you were laying down on the floor, looking up at a subject dressed head to toe in some dark clothing in a dark room, with the lights off, do you feel like that would make it even
more
difficult for you to identify James Upchurch?”

“Yes.”

“Furthermore, if you were laying on the floor having been struck in the head, your husband screaming, awakened from a deep sleep, and observed a person in dark clothing head to toe, a dark room, drapes drawn, light filtering through a side door, do you feel like that would make it even
more
difficult to observe or to identify James Upchurch?”

“Yes.”

“The times that you saw James Upchurch in the courtroom, Ms. Von Stein, did he ever have a baseball bat, club, or stick or anything raised up over your head?”

“No.”

“And if you were laying on the floor, having been struck several times in the head, bleeding from the chest, hearing your husband scream at the top of his voice several times, blood gushing from your chest in a dark room, the defendant dressed head to toe in black or some dark clothing, light filtering through some side door, do you feel like that would make it even
more
difficult for you to identify James Upchurch, or whoever else was in the room?”

“Objection. Same question.”

“Overruled.”

“Yes.”

“Now, you've said that the individual that you saw appeared to be broad-shouldered and appeared to have no neck.” He spoke so slowly, so ponderously, that Bonnie seriously questioned if any of the jurors would be able to remember the first part of his question by the time he finally reached the last.

“If you were laying on the floor, looking up, having been struck in the head several times, bleeding from the chest, hearing your husband scream at the top of his voice, and awakened from a deep sleep, saw an individual dressed in dark clothing head to toe, something over his face, drapes drawn, dark light filtering through a side door, a bat or stick somewhere in his hands, with hands raised up over his head”—and here Mitchell Norton clasped his hands above his head, as Wade Smith had done in his office while Bonnie had lain on the floor—“hands raised over the head in this manner with the bat, as you've described it, what happens to the shoulders and to the neck?”

“Objection.”

“Overruled.”

“Yours,” Bonnie said, “just appear to blend together.”

* * *

Then it was Wayland Sermons's turn again.

“Mr. Henderson caused you to be frightened, is that correct?”

“Yes.”

“And Mr. Upchurch did not cause you to feel frightened in any way, did he?”

“No.”

* * *

And then Mitchell Norton: “But again, Ms. Von Stein, the circumstances that he just asked you about, you were not laying on the floor?”

“Objection.”

“Sustained. I think we've been over that.”

“The truth of the matter is, you can't say who was in there!” Norton said.

“Objection to that.”

“Overruled.”

“I cannot identify any particular person,” Bonnie said softly. “I wish I could.”

 

34

There was testimony from one of the first officers at the scene. He said that from the first moment he saw Lieth, he'd noticed that the dead man's blood had already begun to “jell.” This implied a time of death considerably earlier than that suggested by the time of Bonnie's phone call.

Then John Taylor took the stand and remained there for what seemed an interminable day and a half. Mitchell Norton plodded so slowly through his direct examination of Taylor that at one point, out of the district attorney's hearing, Judge Watts called Keith Mason aside and said, “Can't you get Mitchell to go a little faster?”

“Judge,” Mason said, “I'm trying to, but he's just a good ol' boy from Sampson County and he's talkin' as fast as he can.”

* * *

With Page Hudson, the tall, deep-voiced, and extremely authoritative pathologist who had conducted the autopsy, Norton might actually have spoken a bit too quickly—or at least asked one question too many.

He and Lewis Young had spent much time with Dr. Hudson prior to trial. The pathologist was the only truly expert witness Norton had, and the district attorney wanted to use him to maximum advantage.

Most of the testimony was straightforward and not subject to conflicting interpretation. Six different head wounds had caused tearing of the scalp, and in some instances, fractures of the skull. Yes, a baseball bat could have caused them.

There had been eight stab wounds: one in the left chest, one high on the right side of the back, and six clustered together lower on the left side of the back. Yes, these could have been caused by the hunting knife found at the fire scene. The wounds to the back would not have proved fatal, or even brought about “immediate incapacitation.” The stab wound to the chest, however, had penetrated the heart and by itself would have caused death within a very few minutes.

The only troublesome question for Mitchell Norton concerned the undigested food in Lieth's stomach, which suggested an earlier time of death than was compatible with the version of events Norton was presenting. But he'd gone over this with Dr. Hudson in advance and had studied the autopsy report, and he thought he could introduce and then dispose of the subject in such a way as not to cause the jury undue concern.

He first asked if tests had been performed that would have indicated the presence of alcohol in the blood.

Dr. Hudson said yes, but that none had been detected.

“Did you also check the contents of the stomach?”

“I did.”

“What did you find?”

“I found a rather large quantity of food, rather undigested rice, and a meat which I thought was most likely chicken.”

Norton asked the question he knew he had to, because if he didn't, Sermons or Johnston surely would. Had there been anything unusual about the stomach contents?

“Just the fact that it was undigested was remarkable,” Dr. Hudson said. “It looked like rice that had been eaten within the previous hour or so.”

“Assuming that Mr. Von Stein had eaten around eight to nine o'clock, and that the attack occurred somewhere around four in the morning, is there anything unusual in that?” He knew the answer, but he also knew what his next question would be, and most importantly, the one after that.

“Yes. In my opinion, very unusual. I would have expected it to be fairly well digested. I would have expected it to have left the stomach in that period of time.”

Norton asked if Dr. Hudson had any explanation for why the rice was still in such an undigested state if Lieth had lived until approximately four
A
.
M
.

“For the most part,” the pathologist replied, “those two facts are incompatible.”

But here, on the basis of the autopsy report and his pretrial interview with Dr. Hudson, Mitchell Norton proposed to resolve the apparent contradiction. What about stress? Norton asked. Lieth had been under a lot of stress. Might that have slowed his digestion? In his report, Dr. Hudson had written, “Severe stress can effectively paralyze or ‘freeze' the digestion for many hours.” They had talked about this ahead of time.

“It is true,” Dr. Hudson said, “that under severe stress, particularly severe emotional stress, digestion may simply stop for hours. But it takes a rather considerable stress.”

“Concern about family?” Norton asked. “Concern about financial things? Would they create the kind of stress you are referring to?” Norton was confident that Dr. Hudson's affirmative answer would lay the entire issue to rest. The jury already knew about family stress and the pressures caused by newfound wealth. When Dr. Hudson said that these would be enough to freeze the digestive process in its tracks, the question of the rice would be resolved.

“I would not think so,” Page Hudson said.

Later, Mitchell Norton would say this answer “dropped like a hammer on my head.” In all the talk about stress, he'd just assumed that they'd been talking about the same kind: day-to-day, run-of-the-mill stress caused by work or family problems. But he hadn't gone far enough in pretrial preparation. He hadn't allowed for the possibility that to Page Hudson stress meant something different and quite a bit more specific.

“In my experience,” Dr. Hudson continued, and the jury knew all about Dr. Hudson's experience because Mitchell Norton had made much of it in his introductory questions, “and from what's written in the medical literature, that sort of relatively low-level stress would not slow the digestion to the point that it's scarcely affected in six hours, or whatever the period was.”

Norton was too stunned even to try to interrupt. When Dr. Hudson completed his answer, Norton said he had no further questions.

Frank Johnston was on his feet almost immediately. Later, he would say, “This was the first time I'd had a State's witness, in a major criminal case, be on my side. It looked to me like the medical evidence completely overruled what the State was saying happened.” He wanted to be sure that even the dullest of the jurors got the point.

“Would you say,” he asked, “that it's
very
unlikely for someone to have eaten a dinner of chicken and rice at eight or eight-thirty, and for that meal not to have been completely digested and passed out of the stomach by three or four in the morning?”

“In my opinion, it's very unlikely.” The finding was, Dr. Hudson said, “consistent with an earlier death.” He added that “ordinarily, I would have expected the material in his stomach to have pretty well all cleared out and been into the small intestine within an hour or two.”

An hour or two!
Johnston could scarcely believe his good fortune.

And it continued to get better. In the four thousand autopsies he'd personally done, Page Hudson said, he couldn't recall “any at all where stress stopped digestive activity to the point where even some simply digested material like rice doesn't get changed more than this was.”

All that Mitchell Norton could salvage on his redirect examination was to establish that Dr. Hudson had never met Lieth Von Stein and had no direct knowledge of his personality or emotional makeup.

It wasn't much.
An hour or two!
If Page Hudson was right, and there was no one in that Pasquotank County courtroom about to argue the point with the state's first chief medical examiner, then Lieth Von Stein would have been dead by midnight. Now Upchurch's defenders had expert testimony to go with the officer's eyewitness report of the “jelled” blood.

If the jury accepted that finding, there was no way James Upchurch could be convicted. Not only would Lieth have been dead for hours before Bonnie had made her call to police, but according to the testimony that both Chris Pritchard and Neal Henderson would give, Upchurch and Henderson hadn't even left the NC State campus until well after eleven
P
.
M
.

* * *

As Page Hudson strode confidently from the courtroom, Bill Osteen, who had just arrived in Elizabeth City because his client was scheduled to testify next, introduced himself and asked a question that had not been asked while Dr. Hudson was on the stand.

Osteen wondered if, in Dr. Hudson's expert opinion, the injuries inflicted on Lieth and Bonnie were more suggestive of two assailants than one.

Yes, the pathologist said, they certainly were. And he would have said so had anyone asked.

* * *

Chris took the stand the next day. He told the tale of his academic decline and fall, which resulted in a 1.3 grade point average his first semester at NC State, and “nonexistent” grades the second semester. He acknowledged that his poor performance had made Lieth “ill.”

He described meeting Henderson and Upchurch for the first time after responding to a flier posted to attract Dungeons & Dragons enthusiasts.

Suddenly, he found himself presented with a chance to talk about his favorite subject, and he was quick to seize it. He said Dungeons & Dragons was a “role-playing game, where a person or group of people get together, create their own little world, so to speak, and have what is known as characters. Now, these characters would be people that you want to be, or people that you would like to be. You could be thirteen years old and be a fire fighter, or you could be a soldier or you could be a knight.”

The game, he said, was “set on the swords and sorcery theme. It would be equivalent to medieval times, but it is actually set on an entirely different planet.” He was off now, doing his Dungeons & Dragons riff right there in court. He talked of “bards, magic users, thieves, fighters.” He said, “Those are the general classes. There are subclasses. Subclass of fighters would be—”

But there Judge Watts brought his flight of fantasy to a halt, sustaining an objection on grounds of relevance.

Regarding the murder, Chris said the plot was conceived “about five days prior to July the twenty-fifth,” when he'd asked Upchurch his “patricide” question at the Golden Corral. He said he'd told Upchurch that his parents had “about five million dollars between them.”

Even before that, he said, “we were discussing what we were going to do if we got rich, or after we graduated from high school—I mean, from college. Daniel wanted to be a writer, and I wanted to be a writer, and James wanted his own restaurant. I said, ‘Well, if something should happen to my parents, then I could set James up in his restaurant. We can all three live in a big house in north Raleigh, a real classy section of Raleigh, and have a real nice stereo; and you know, everybody would have nice cars, something like that.' ”

Yes, he said, during this discussion they'd all been drinking beer and smoking marijuana, and no, he was not serious about it at the time. It was, he said, “just daydreaming.”

But then, he admitted, it got serious. He told the same story he'd told in Vosburgh's office: the further plans, the trip to steal the key, the Sominex powder, Upchurch waiting for him in the shack.

“Had you and James talked about what would happen to your sister, Angela?” Norton asked.

“We had discussed it. James said something to the effect of, ‘Well what about your sister?' And I said, ‘Well, if she is there, then I guess her, too. But if she's not, that's fine, too.' ”

“What was your reaction to that talk about going to get a machete?” Norton asked.

“I said, ‘Aren't the Army surplus stores closed?' First of all, you know, I wanted it to be painless. But the Army surplus stores were closed.”

Then he described buying the hunting knife instead, telling Upchurch he'd have to find a driver with a license, meeting Neal Henderson, and drawing the map.

“What was the purpose of killing your parents?” Norton asked. “What were you going to get out of it?”

“A large inheritance.”

“And had you talked with James about that?”

“Yes, sir, I told him I would give him a car and fifty thousand dollars.” He added that Henderson was to get $50,000 and a Ferrari. Not a bad deal for Henderson, some thought: getting a payoff equal to that of the killer for doing no more than driving the car. But Norton didn't want the focus to be on Henderson.

“The initial plan,” he asked, “whose thought was that?”

“I brought up the idea of killing my parents.”

“After that, what part did James Upchurch play?”

“He was an equal in the planning in that he came up with some ideas. I came up with some ideas. You know, it was an equal thing. I mean, neither one of us sat there and talked the other one's ears off.”

He said he'd drawn the dogs on the map “so that when James went to the house, he wouldn't accidentally get a dog to barking, because it might have woken up my parents or the neighbors.” They had determined that the killing should take place at around two
A
.
M
., “because my parents usually went to sleep around eleven or twelve, and at two o'clock they would be pretty deeply in sleep.” He said he'd pointed out the best spot for Upchurch to be dropped off, so he could make his way to the back of Chris's house, moving mostly through trees instead of around other houses.

On Sunday night, he'd gone to Wildflour, he said, and had drunk “a lot of beer” and eaten pizza. At eleven
P
.
M
., he'd been in his room with his roommate, Vince Hamrick. Upchurch stopped by.

“He said that he was going to go do some homework. I said, ‘Well, good luck.' And that was it.”

Through all of this, Chris seemed composed, even detached. Later, he said, “I took so much of that medication to calm me down that I almost went to sleep twice on the witness stand.”

And neither Bonnie nor Angela—who had chosen to leave school to hear her brother's testimony, though she had not been present for her mother's—displayed any signs of emotion.

“Now, Chris,” Norton asked for the second time, “why did you do it?”