Then No One Can Have Her (27 page)

In January 2010, Steve's frustration with his situation could be heard in his calls with Renee and Charlotte as he complained about a recent news report. The prosecution wanted to admit evidence against him relating to the cat-killing incident, a sex addiction and his alleged unethical behavior as a broker—all of which he summed up as “character assassination.”

“I am pretty angry,” he told Renee and Charlotte on January 8. “I just feel like I am being raped.”

“The only thing that they have as true is that you had relationships with other women, and that happens,” Charlotte said.

“But Mom did, too,” Steve said.

“Mom did, too. They didn't even include that. They put blinders on. Left stuff out.”

“They take this man who's never lifted a hand against anyone his whole life, I mean, the only physical violence I ever entered into is roughhousing with my friends and my brothers when I was growing up,” Steve said. “I have never even been in a fight.... And they take this man who is an impeccable, incredibly ethical businessman, incredibly successful, because his clients trust him, and they accuse him of murder. And then, when that doesn't look like it's going to work, they accuse him of being a sex addict, of killing animals, you know, killing other people's pets.”

Charlotte said the prosecution seemed to be “grasping for absolutely anything they can to make people believe that you are somehow this awful guy. They're bringing things up like you killing the neighbor cat, because it attacked our cat, like, eight times.... It is disgusting.”

“I will come back from this,” Steve said. “When this is over, Mom will still be gone.... I am horrifically victimized here.”

 

 

Renee's already troubled relationship with Steve was crumbling under his months of manipulation, the pressures of the upcoming trial, repeated questioning by investigators and her nagging conscience. Bolstered by a grant of immunity from Judge Lindberg, she finally agreed to tell investigators where Steve's getaway bag was hidden.

Renee felt relieved to get this off her chest. She also felt justified that Steve's family wouldn't get angry with her for talking about this, because the investigators had already learned about the bag by listening to the recorded jail calls, not because she had confessed to it proactively.

“In the scheme of things, that bag didn't seem like a big deal to me,” she said later. “However, I was not being forthright with the detectives that I knew about it or why it was there.... I don't like keeping secrets and I didn't like being dishonest. I'm not proud of myself for having done that. But by the time it came out, it was a relief to talk about it. I started to see the ways in which Steve had put me at risk, or I had allowed myself to be put at risk by Steve, and I was starting to be angry.”

On April 9, 2010, Renee and her attorney, John Napper, agreed to meet with prosecutor Joe Butner and investigators at the county attorney's office. Renee told them that Steve had hidden the bag, which contained clothing, cash and supplies he would need to flee the country, near the Hassayampa golf course before his arrest. Knowing their jail calls were being recorded, they subsequently talked about the bag using code words such as “treasure.”

Steve had been “all over the map” in terms of escape destinations, including Mexico and a “few wilderness areas,” such as one close to the border in Texas, she said. She was going to stay behind, because she still had a son and a grandson living nearby.

“So he was going to take off and leave you,” Butner said.

“So be it, his loss,” she replied.

But Steve never seemed serious about fleeing, she said. One day he said he was going to retrieve the bag. Another day he discussed putting more money into it. The two of them went back to get it during the summer of 2008, but after rummaging through it, he zipped it back up and decided to leave it there.

Steve called her from jail in April 2009, the month she moved into his town house, while she was walking her dog in the area, and tried to help her find it. She and Charlotte were barely scraping by, and she thought they could use the money in the bag—only she couldn't locate it. She moved out of Steve's town house that September.

By the time she spoke to investigators about the bag in April 2010, she said she was fairly certain it was no longer there, but she agreed to take them to the area and try to help them find it.

That same day Renee led a group of eight, including Lieutenant Dave Rhodes, Commander Scott Mascher and investigator Mike Sechez, to the Hassayampa fitness center parking lot. Confused and having to retrace her steps at times, Renee led them past the eighth hole, looking for an opening near the tee-off area. She wandered off the fairway, down a steep drop to a creek bed, searching for a familiar spot in the tall, thin grass behind some granite boulders, where she thought Steve had hidden the bag.

When Sechez walked west of the trail, where Renee was standing, he spotted something that looked like a black plastic trash bag under a clump of bushes. Pulling the branches aside, he uncovered a deteriorated trash bag, partially wrapped around a blue sports bag. The blue bag, marked
DeMocker,
contained several pieces of clothing, a pair of shoes, a flashlight, a couple of hats and a Samsung flip phone with a Verizon logo, the last of which was wrapped in a clear plastic bag.

 

 

As the investigation continued, Detective Sy Ray, a cell phone expert with Gilbert Police Department's Criminal Apprehensive Team, tracked the cell phone towers that Jim Knapp's phone used when he made the seven fifty-eight call to check his voice mail on the night of the murder.

As Ray later testified, the signal pinged off a tower near Ann Saxerud's house—specifically tower 431 by Verde Lane. The call Jim made to Carol's cell phone at 9:37
P.M
. from Bridle Path pinged off a different tower, 462. This, Ray said, showed that Jim's phone was not within three miles of Carol's house when she was killed. Ray acknowledged, however, that he could not tell where Jim's phone was between his 7:58 and 9:37
P.M
. calls.

Ray also analyzed Steve's cell phone use over the course of a month in 2008, deeming the long period of time that Steve's cell phone was powered off the night of the murder “irregular and outside the normal pattern seen.”

Discounting Steve's trips out of state, the only other time his phone was turned off overnight was June 27, Ray said, when his phone was in the Scottsdale-Phoenix area. Ray also determined that on the night of the murder when Steve turned his phone back on, the signal pinged off the cell tower that was considered his “home tower,” in the primary area where he made most of his calls, not near the area where he said he parked his car for the bike ride.

Based on my training and experience, this would be unusual given the late hour and complications reportedly encountered by Mr. DeMocker,
Ray wrote in his report.

 

 

Looking for outside expert analysis, sheriff's detectives sent a CD of their crime scene photos, featuring the suspected killer's shoe prints, to the FBI in Quantico, Virginia.

In the fall of 2009, Eric Gilkerson, an FBI forensic examiner and shoe print expert, had conducted a search through two databases that catalogued photos of shoe soles by brand, trying to identify one with a pattern that could have made the prints. The first database contained twenty thousand to twenty-five thousand different images; the second database contained fifteen thousand to twenty thousand, with some overlap between the two.

Gilkerson got a hit in the FBI's internal database for the sole pattern—what he described as arrows in a “stair-type design” on the heel, arrows in the toe area, and a “line with a slight curve or circle” at the toe—in a La Sportiva model. Manually scrolling through the database, he found that La Sportiva made a model with that same pattern called the Ultranord. A subsequent search found that the Imogene and the Pikes Peak had that same pattern.

“There were no other shoes in . . . our databases that could have made this impression other than these La Sportiva shoes that are illustrated here,” Gilkerson testified later, although he acknowledged that all he could say in court was that a comparison with shoes sent from the manufacturer showed that they “could have made” those prints. Without a flaw or identifying characteristics, he couldn't make a more definitive statement.

Going through Steve's bank records, sheriff 's investigators spent days checking to see if he'd used his debit or VISA cards, which he used to make most purchases, to buy any La Sportiva shoes. And bingo.

They found that he'd ordered two pairs of running shoes from his friend Gareth Richards, the owner of an online sporting good business in Denver known as Outdoor Prolink. In early 2010, investigators contacted Gareth, who had been one of Steve's poker buddies and an adventure education instructor at Prescott College during the 1990s.

Gareth described La Sportiva as “probably the best mountaineering, backpacking shoe company in the world.” By going through Prolink, which offers outdoor professionals password-protected access to discounts, Steve got a significant deal and paid about half the regular price, which came to a total of $101, including shipping, for the two pairs. While these shoes were not specifically made for use with a mountain bike, Gareth said a person could wear them while riding a bicycle.

Steve purchased the shoes on April 22, 2006, and had them shipped to his UBS office four days later. One model was called the Pikes Peak, a trail running shoe with trademarked FriXion rubber, designed to stick to and grip surfaces. The other, also a trail running shoe, was called the Raja. Each model had a completely different pattern on the sole.

Investigators purchased a pair of each to compare them to the suspect's tracks behind the house at Bridle Path. Asked to do additional analysis, Gilkerson reported back that the tread pattern of the Pikes Peak model could have made the murder suspect's tracks behind the house. The Rajas could not.

Further investigation showed that nearly 8,600 pairs of men's shoes with that pattern had been sold in North America (or were being warehoused) by the day of the murder. That included 3,800 pairs of the Pikes Peak, only 349 of which were sold in Steve's size. About a third as many women's shoes were sold with that same pattern.

Detectives were never able to find the missing pair of Pikes Peak shoes, and they never asked Steve about them during their interviews with him. But he later told his own attorneys that he generally went through a lot of running shoes; they usually lasted only six months before he donated them to charity or threw them away.

“He has no recollection of that pair of shoes,” defense investigator Rich Robertson said later.

However, when investigators went back and examined the photos of Steve's closet more closely, they noticed that the compartment above the pair of Rajas contained only a shoe box, but no shoes. It was this compartment, they speculated, where Steve likely had stored the missing pair of La Sportiva Pikes Peaks.

As prosecutors later pointed out, Steve “was a meticulous, neat man.”

In April 2010, detectives also sent Carol's Adidas running shoes to Gilkerson, asking if they could have made the “three
Z
's” pattern depicted in the photos of the other shoe prints behind her house. He concluded that her shoe print was “similar in design” and “could have made the impression.”

But because of “limited detail” and a lack of “sufficient identifying characteristics”—such as a cut, defect or rock stuck in the bottom of the shoe that could be matched to the area where the shoe prints were found—he said he couldn't make a more definitive identification. And because he wasn't sent a casting of the print or photos that had a size scale, he also couldn't match the size of the actual shoe with the impression.

 

 

Continuing to look for the murder weapon, volunteers and dive teams from Pima and Yavapai Counties used imaging and radar systems in the lake surrounding the Hassayampa golf course, in Granite Basin and in other Prescott area waterways. But all they found was a muddy right-handed club, apparently thrown into the muck by a frustrated golfer.

With jury selection scheduled to begin in early May, the tensions surrounding the case escalated as hyperbolic accusations flew in every direction—attorney against attorney, the defense against County Attorney Sheila Polk, and the prosecution against Judge Lindberg.

Alleging bias against the state's case and a lack of impartiality by Lindberg, prosecutor Joe Butner asked for a meeting in the judge's chambers, requesting that he recuse himself from the case.

Lindberg granted the meeting on April 2. He restated his previous comments from an in-chambers meeting on March 30, in which he'd said that as part of the state's case in chief he wasn't going to allow the state to bring up Steve's multiple affairs, his use of the HGH injections or the FINRA complaints against him. However, Lindberg had said those elements could be used as evidence in the penalty phase if the case reached that point.

“And you made the comment ‘I don't believe we are going to get there,'” Butner said, alleging that this remark showed a clear bias against the state's case.

“I don't think I said that,” Lindberg said. “I think I said, ‘I am not sure we are going to get to that.'”

The judge had already struck down two death penalty aggravators—allegations that the murder was “cold and calculating” and that Steve killed Carol to prevent her from going back to court to reopen the divorce and from reporting him to the IRS for tax fraud.

But even as he found probable cause to support three others, Lindberg still asked if the state planned to continue to evaluate its overall death penalty allegation. And this worried the prosecution.

“I was really, really concerned that you have, at least to some extent, made up your mind in this case, that you have prejudged the case to some extent, that you are no longer impartial and that you have some bias,” Butner said.

Defense attorneys John Sears and Larry Hammond said they didn't remember the comment precisely, but Hammond said he didn't regard it as a prejudgment or it would have stuck in his mind. Because the comment was made in an off-the-record conversation, no transcript existed to check. The meeting had been held in chambers for fear of prejudicing the jury pool with media coverage.

“I don't believe that there is a reason for me to recuse from the case at this point, so I am going to deny the request,” Lindberg said, adding that if the state wanted to put this issue on the record, “or do something else, please do.”

Butner said he would have to do so, and promptly filed a motion for a change of judge, alleging that Lindberg had shown “favoritism” toward the defendant and an apparent surrender of his “independent judgment.” All parties agreed to suspend trial proceedings until a different judge could resolve the issue.

After a short break, during which Lindberg contacted Judge Robert Brutinel to confirm that he could hear the motion immediately in his courtroom, Hammond said he wanted to put his concerns on the record, too.

“We think this motion is filed in bad faith,” he said. “We think it is filed for inappropriate reasons having to do with the state's position in this case. We think it is nothing short of outrageous.” And Lindberg, he said, shouldn't be selecting the judge who would hear the state's motion.

Nonetheless, the parties moved into Brutinel's courtroom, where Butner countered for the record that filing his motion was done in good faith, not to delay the trial. “I have never, ever filed a motion like this before,” he said.

At this point Judge Brutinel had to put Judge Lindberg under oath to testify about his alleged comment. Butner was allowed to question Lindberg and the defense attorneys about how Lindberg's statement should be characterized, after which the defense attorneys were allowed to cross-examine each other.

With a whole day of motions pending and the trial looming a month ahead, taking time out for this hearing made for quite a bizarre legal scene.

Taking the stand, Lindberg denied any concerns that there was a lack of evidence to support a death penalty allegation, saying he was only trying to ensure that both sides were moving forward “with a diligence that I think is required . . . where the state has asked me for that ultimate sanction.”

Brutinel ruled that Lindberg should be allowed to continue on the case. Lindberg admitted this was his first death case, but he said he wasn't morally opposed to imposing this ultimate sanction.

A week later he struck down two of the three remaining death penalty aggravators as a sanction against the state for the late disclosure of evidence the state planned to present at trial. That left only one: murder with the expectation of receiving something of pecuniary value. Meaning, in other words, for financial gain.

 

 

As the attorneys continued to debate which witnesses could present testimony at trial, Jana Johnson was called for a hearing on May 26. Jana was the only witness who claimed to have seen a man on a bicycle in Carol's neighborhood on the evening of the murder. Her testimony showed how a person's memory can change over time, can be inexact or even faulty and, when vulnerable to change via suggestions by either side, can be thrown out altogether.

Jana, a homemaker who lived on the 2300 block of West Glenshandra Drive, had worked with police in the past to report license plate numbers related to odd goings-on in a neighborhood park bathroom.

During an interview with detectives in late September 2008, she said she'd been sewing on the afternoon of the murder when she caught a five-second glimpse of a male bicyclist with a similar build as her husband—tall, slender and fit at six-one and 170 pounds.

She didn't see the man's face, but she remembered his hair being short, and his bike tires being fat and wide, not thin like a racing bike, more like a mountain bike. He was wearing blue jeans, a short-sleeved shirt and a backpack. And he was pedaling unusually fast for the neighborhood, “like he was on a mission.”

He was pedaling from the direction of Williamson Valley Road—heading west to east—toward the end of Glenshandra, where the detectives later found the bike tracks they said were consistent with Steve's. The bike was “a normal boy's bike,” she said, with a bar across it.

In 2008, she originally said she saw the man between 2 and 5
P.M
., but by the time she testified a year and a half later, she'd expanded the time frame to 1:30 to 6:30
P.M
. She also said she remembered that the sun was starting to go down, and that it could have been closer to seven-thirty or even “eightish” at night. (Records show that the sun actually set at seven forty-six that evening.) She blamed her confusion during her earlier statements to being “rattled” by detectives questioning her.

Defense investigator Rich Robertson interviewed her at her home in May 2010, just a couple of weeks before the hearing, and returned the next day with photos. Jana Johnson then talked to prosecutor Joe Butner by phone and again during a visit to his office.

When she talked to Robertson, she said the man could have been younger—college age or older—with long dark hair flying in the wind. She acknowledged that the detectives had never shown her any photos of Steve or his bike. After seeing photos of Steve in the newspaper, she said, she didn't remember the bicyclist having gray hair.

During the hearing Jana was clearly confused about what she actually saw after being interviewed repeatedly by both sides. She acknowledged that some of her recollections had changed accordingly, and were now at odds. By this point, she couldn't remember details about the man's hair or whether he was young or older.

“Now you're saying you just don't know what you remember?” defense attorney John Sears asked.

“Well, no,” she said. “Because at the beginning when I talked to the detective, I told him that [the bicyclist] had short hair, right in the first one, and then when I talked to you again, it was long hair. So I—I guess I am confused, I don't know.”

Sears argued that Jana was not only confused, she also wasn't able to connect Steve or his bike to what she saw that day, and her testimony should be precluded at trial.

Arguing against the defense's motion, Butner said Jana was “pushed around during the interview process,” after the defense conducted an “ambush interview” in which she was “led down the garden path” to make contrary statements to what she'd said before.

Nonetheless, he said, her testimony still bolstered the state's theory that Steve parked his car across Williamson Valley Road, rode his bike to the Glenshandra trailhead, where he lifted it over the fence, hiked toward Carol's house, rested the bike in some bushes, then hiked the rest of the way, killed Carol and rode his bike back to his car.

“We believe we are missing things from the homicide scene that could have been carried away in a backpack,” Butner said. “We also think our killer probably either brought attire with him or her, or . . . took attire away, so to speak.... A backpack could have been used for that. And that is the approximate time of day when the killer would have arrived.”

The judge conceded that the evidence was relevant in that Jana Johnson saw a man riding a bike that day in the same area where detectives found bike tracks and shoe prints. However, agreeing with the defense that Jana's testimony could mislead and confuse the jury, he granted the defense motion to preclude it.

 

 

On August 19, 2010, Detective John McDormett received in his mailbox a one-page typed anonymous letter, dated August 16, that read:
On the night of the murder of Carol Kennedy, Steven DeMocker wore a disguise that included dark blue overalls and a long, disheveled gray-haired wig with matted hair just above shoulder length.
The letter was signed:
A concerned citizen.