The state rested its capital murder case Thursday against the man who killed seven elderly patients and a nurse at Pinelake nursing home two years ago.

Robert Kenneth Stewart, then 45, was after his wife, according to the state’s theory of the case. Wanda Stewart (now Neal) had left him two weeks before. She testified earlier this week.

He could face the death penalty if convicted of any one of the eight counts of first-degree murder in the March 29, 2009, shooting rampage at the Carthage nursing home.

Stewart’s trial started July 11 in Albemarle to pick a jury because of pretrial publicity. With 12 jurors and four alternates finally chosen, the trial moved to Carthage for opening statements Monday, Aug. 1. Jurors are bused in from Stanly County each day and sequestered while in Carthage.

Defense attorneys Jonathan Megerian and Franklin Wells contend Stewart killed those people but that he is not legally guilty because the prescription drugs he was taking had him in a parasomniac state, in effect sleepwalking and unaware of his actions. They say that to this day their client has no memory of those events ans that his actions were involuntary, like an automaton.

Trial resumed Thursday morning with a psychologist who gave tests to the defendant returning to the witness stand. Dr. LaVonne Fox gave up on an MMPI2 battery when she saw indicators that the test was not valid.

Fox again and again tried to say why she considered the MMOI2 test to be invalid. Megerian repeatedly asked about various ones of the over 500 questions in that test, but Fox said she didn’t know all those questions. She had based her conclusion on inconsistencies between the first and second parts of that test.

Two sheriff’s detectives completed the state’s witnesses. Lt. Bill Mackey described an unprecedented crime scene at Pinelake. It was unlike any other he’d ever had to deal with.

“We had to investigate a crime scene while taking care of patients,” Mackey said. “This was a crime scene different from any we normally have to do.”

In a crime scene you have to interview everybody that was there, make sure they are not a crime victim also. Mackey asked the regular medical staff to continue working, other to go to a room to be interviewed. Carthage Chief Chris McKenzie asked the sheriff's office to take over the investigation, except for SBI agents who handle officer-involved shootings.

“Mrs. Stewart was upset, blamed herself for what happened,” Mackey said.

At once, Megerian was on his feet, objecting strenuously to this testimony which he said contradicted everything said before under oath, and which was, he said, untrue.

Senior Resident Superior Court Judge James M. Webb sustained his objection.

Mackey next described a two hour interview with Wanda Stewart (Neal) he taped Mar. 31. The detective went over other steps taken in the days following the shootings as part of his investigation.

He’d met with Cynthia Brewer at her residence on Jesse Phillips Road outside Robbins. Mackey identified a copy of the statement she’d signed afterwards, and read it to the jury after Webb warned them to take it solely for corroborations of Brewer’s testimony on the stand and not “for the truth of the matter.”

Brewer, in her statement, described Stewart as never seeming “to be sociable.

“He would not look at me or speak to me in passing,” Brewer said in her statement. “I did receive a phone call Thursday the 26th about 10 minutes after midnight. He said he had Wanda’s dog and cat and they needed to come get it. Robert spoke in an agitated voice. He demanded I get them to come over to his house. He said she’d left him. Robert said this in a very sarcastic voice as to degrade her action.”

This is the last time.

“Then Robert came back in a very firm voice and said, ‘This is the last time, the last time she is going to do this.’ Then, he turned around again and said, ‘This is the last time she is going to do this.’ He said this several times. Ten minutes later he called back and said, ‘No matter what they said, or the gossip across the woods, I did think a lot of your husband and Curt.’ I told Robert I was OK, it didn’t matter. He said, ‘It is finished; I am through.’ Robert told me this several times and then hung up. Robert did not call back.”

Other statements, read into evidence for corroboration, echoed almost to the very word testimony witnesses had already given on the stand.

More physical evidence was received: buckshot removed from bodies, blood vials sent for testing – Strickland checks a list as he goes through the red-taped brown manila envelopes and paper bags. Jurors watch his careful, methodical checking.

“Your Honor, I believe that would cover the evidence that has not been previously introduced,” Strickland said.

There is no objection from the defense.

Webb received the items of evidence, and allowed Strickland to publish to the jury items not so far shown them directly. As he gathered the items, Webb sent the jury out for their afternoon break.

Jurors examine the guns

Among items passed from juror to juror are the two weapons Stewart fired that day: the .22 rifle, and the long-barreled 12 gauge shotgun that killed so many people.

Some examined the guns with practiced eyes, as if they themselves were hunters. Others simply pass them on with hardly more than a glance. Behind them, family members of the slain press handkerchiefs to their eyes and sob, or put their heads down. Every sight of that shotgun hits hard.

Late Tuesday and most of Wednesday jurors heard terrified voices calling 911 from Pinelake, and viewed more pictures of the bodies of murder victims including that of nurse Jerry Avant – long considered a hero for saving others before losing his own life.

The 911 calls poured in so fast the two on duty struggled to keep up, one summoning emergency help and the other dispatching the only Carthage policeman on duty that Sunday morning, Justin Garner – then calling for backup while staying in touch with Garner.

Prosecutor Peter Strickland played recordings of those calls.

“There is a man here at Pinelake in Carthage with a gun, shooting!” the first caller says, then hangs up. Numerous calls flood in. “Somebody up here shooting — nursing home! Yes! Yes! They are up here shooting! I heard gunshots!”

These are frightened people. Some are nearly shouting. Others whisper, as if fearful they will be heard.

“There is someone up here shooting – he is a white man with a long shotgun!” a terrified woman says, her voice trembling with frightened urgency. “I am going out that window! I’m calling my momma to come get me!”

“Oh, my God!! He is coming!” another says. “Hello? Hello? Which way’s he going? (apparently to someone nearby – then, back to 911:) He’s got a shotgun!”

“He is inside the building (whispering) – he is actually shooting in the rooms. Oh, God, please! He is in the building. Oh, God.”

Each telephone line has its own track on the center’s computerized recording system, and is time-stamped as part of that record though it does not show up audibly. Jurors went home to Stanly County with the sound of those terrified voices in their minds.

The following day, Wednesday, Dr. Thomas Clark, a state medical examiner testified about three autopsies. He told the court all three victims were killed with a shotgun.

John Goldston had been shot from close range – two feet or less, and Bessie Hedrick from “at least six feet away” according to Clark’s testimony. Photographs of both victims brought audible sobs and gasps of grief from family and friends sitting in the courtroom behind the jury.

Robert Kenneth Stewart killed both elderly residents of Pinelake Health and Rehabilitation Center in Carthage along with half a dozen others on Mar. 29, 2009. He’s on trial for eight first-degree murders and could die by lethal injection if found guilty of even one count.

Clark showed the jury pictures of Goldston, Hedrick, and another victim Jesse Musser, during his testimony Wednesday morning. Stewart shot Musser in the back just outside the Alzheimer’s unit where he was waiting in his wheelchair to visit his wife there. The gun barrel was close to Musser when Stewart pulled the trigger, based on the pattern where the buckshot hit his body.

One photo was particularly disturbing. It showed just the removed heart of the man, almost unrecognizable – just a red, bloody mass of tissue

“The heart has been shredded, I did not open it,” Clark said. “You are seeing the inside of the heart.”

In each case Clark shows how holes in clothing the three wore at the time of death correspond to their deadly wounds. Musser’s red plaid shirt has “a defect” in its back that exactly fits the wound in this back that killed him, Clark said.

Hedrick and Goldston were 78 years old when killed, and Musser was 88 based on death certificates, according to testimony.

Following the mid-morning break, a second pathologist took the stand. Dr. Maryanne Gaffney-Kraft had come from Georgia where she now works for the Georgia Bureau of Investigation. She’d done the post-mortem on nurse Jerry Avant.

Stewart shot Avant three times, twice from a distance, she said. Then he came closer and fired his shotgun again close up directly at Avant where he would have lain on the floor in broken window glass by an exit door.

Of the first two shots, one hit him in the back, the other in the hip.

“The first two shots would have incapacitated him and allowed someone to get close to him,” she said. “Most likely the third shotgun wound was from less than two feet.”

His right kidney was struck and damaged; his liver was struck, according to the autopsy.

“The transverse bowel was struck causing septic shock,” she said. “Perforations to the diaphragm would interfere with breathing. Multiple bone fractures caused pain and hemorrhage.”

She could tell those first two shots were from farther away – six feet or more – because the buckshot separated. Separation of those pellets was consistent with at least six feet or greater, she said.

Avant would not have lost consciousness immediately; that would come later from loss of blood. The organs shot struck were important, but the damage to them would not cause immediate death.

“It would have been from 15 to 30 minutes before he would have lost consciousness,” she said. “You would have to have enough blood loss for him to lose consciousness.”

Avant was hurting badly.

“This would have been extremely painful,” she said. “Fracturing of a bone of the leg, multiple holes, would have been definitely perceived pain. Internal blood does hurt. Problems with breathing would have been extremely painful. It would have been a progression of symptoms from pain, then breathing, and ultimately unconsciousness from the internal bleeding.”

The post-mortem showed Stewart first shot the nurse in the back from six or more feet away, then went up to him where he lay and shot him again. Those buckshot pellets went through his left thigh and out the other side. Three of them hit his right thigh, where one pellet fractured the largest bone in the body: the femur, or upper right leg bone.

“The cause of death for Mr. Avant would have been multiple shotgun wounds,” she said.

The next medical witness was to take the trial in a different direction. Dr. LaVonne Fox is a senior psychologist at Central Regional Hospital – formerly Dorothea Dix Hospital – and does evaluations for state and federal courts and other evaluative studies. She did a number of tests on the defendant.

Megerian fought to keep her off the stand, claiming the defense had not been notified of her examinations of Stewart or had the opportunity to be present as required by a previous order of the court.

“We filed a motion – and an order was entered in February for us to be notified and have the opportunity to be present,” the defense attorney said. “Our client was evaluated on June 14, June 21, and June 22; and we were not notified until after they were over.”

Another doctor had done assessments and did notify the defense, and they had been present for those sessions.

“From Dr. Fox we received no notice at all; we had to be told about it,” Megerian said. “Whenever we were notified, we were there. My motion is to exclude Dr. Fox’s testimony as not in accordance with the order.”

Senior Resident Superior Court Judge James M. Webb asked if the defense wanted to present any evidence in support of that motion. Breaking the silence that followed, Webb had a suggestion.

“You could call Dr. Fox,” the judge said. Megerian took him up on it. She was sworn and took the stand. Megerian showed her a copy of Webb’s Feb. 8 order required defense counsel be notified and allowed to observe any assessment or questioning. She said she’d never seen such an order.

“This is not an order I ever read before,” she said. “I received a request from Dr. Wolff to perform an evaluation.”

“Did no one tell you there was an order?” Megerian asked.

“I was aware defense attorneys were present (at Wolff’s sessions with Stewart),” she said. “I asked Mr. Gibson and Dr. Wolff if I should go forward, and was told to … I was shown an order that did not stipulate defense had to be present. I was not aware.”

“Well that would explain why you did not notify us,” Megerian said. “That’s all the questions I have for Dr. Fox.”

Webb asked to see a copy of the order Megerian showed Fox.

“All right; exhibit 17 is an order entered the 8th day of February by this court and captioned Order Allowing Defense Counsel to be Present at Questioning of the Defendant,” Webb said, reading the order and making notes with a red pen, then ruling. “The defense motion to exclude Dr. Fox from testifying for failure to comply with the Feb. 8 order of this court is denied. Court reserves the right to impose sanctions on the offending party or parties.”

Fox testified that her testing of the defendant showed some indication of exaggeration, but little or no problem with delayed memory. Results from the Minnesota Multiphasic Personality Inventory (MMPI) were not clear enough for her to rely on them, she said.

“There was some inconsistency of response,” she said. “On the second section he was able to respond correctly to some of the more difficult items, but not easier ones. That resulted in an invalid finding. It causes concern with other tests, because you are not sure results will be valid.”

There was no indication of malingering, based on tests that screen for faking.

“The next test is a screening test,” she said. “Mr. Stewart’s result on that test was in the normative range, indicating he was giving adequate effort. If his score is below someone just guessing, that raises some concerns.”

That wasn’t the case with Stewart.

“He didn’t come up to be malingering, but he didn’t come up very well?” said Megerian. “He did well on the easy question and poorly on the more difficult?”

No, not the case – just the opposite.

“He did well on easy questions, but then scored well on some of the harder questions, so the results were inconsistent,” she said. “It didn’t show he was not malingering; that was my interpretation. There are different types of malingering. If a person is trying hard, not exaggerating, making a best effort – we would not call them a malingerer. Many times people will minimize their level of difficulty. Someone with a psychotic disorder who does not want to appear crazy would minimize symptoms, hiding a serious mental disease.”

He asked if there was some form of malingering with a person giving best effort to give honest answers.

“A person can not respond honestly for a variety of reasons,” she said. “Maybe the voices tell them not to. I don’t think it is a simple answer.”

Megerian asked if another doctor had scored the MMPI as well as she. She said that doctor used a different scoring system that she didn’t understand, so she didn’t use it.

“MMPI has validity indicators that tell us a test-takers approach to the test, can tell us if a subject approached the first half in the same way as the back half,” she said. “I had several concerns: he did respond inconsistently, responded differently to the back half of the test. Indications of honesty were right at the cut-off; there were some symptoms of exaggeration. I felt the test should not be interpreted.”

She thought about giving the MMPI again, but there are difficulties when asking someone to retake a test. That can cause problems in the test as well. One test showed some problems, so she felt she needed another measure.

“There was a problem with the MMPI based on the results,” she said. “I do recall reviewing some of Dr. Hilkey’s tests, as I stated earlier. Each test is separate, has its own validity scales. Some tests do a better job. The MMPI2 does an excellent job. You may exaggerate on the MMPI and it is invalid. On another test, if you exaggerate it may be scorable. If there is symptom exaggeration, you need to be careful which test you administer. There are many tests that I would not administer if there are validity indicators on the MMPI.”

Megerian asked if she was aware of warnings about behavior on Ambien.

“You have never heard about the side-effects of Ambien with respect to parasomnias?” he asked. “Do you know what the side-effects are?”

No, sir, she says. She doesn’t. She does no therapy.

“So you know nothing about medication?” Megerian asked. “You are a licensed clinical psychologist and you know nothing about selective serotonin reuptake inhibiters, know nothing about parasomnias or parasomniac behaviors?”

She said she’s not an expert on Ambien, on the literature in that area.

“You’ve read about it in psychology journals, don’t you?” he asked.

“I do not know,” she said.

Psychological and psychiatric, as well as toxicological evidence will be part and parcel of the defense case. It is expected to begin Monday.