State Rests Case in Stewart Trial
The state rested its capital murder case Thursday against the man who killed seven elderly residents and a nurse at a Carthage nursing home two years ago.
Robert Kenneth Stewart, then 45, was after his wife when he went to Pinelake Health and Rehabilitation on March 29, 2009, according to the state's theory of the case. Wanda Stewart (now Neal) had left him two weeks before. She testified earlier this week.
The defense will begin presenting its case Monday and is expected to take until Wednesday. Prosecutors say it will take them another day to offer rebuttal evidence.
Stewart could face the death penalty if convicted of any one of the eight counts of first-degree murder.
The trial started July 11 in Albemarle with jury selection because of pretrial publicity. With 12 jurors and four alternates finally chosen, the trial moved to Carthage for opening statements 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 was not in control of his actions that morning because of the prescription drugs he was taking, including the sleep aid Ambien, which had him in a parasomniac state, in effect sleepwalking and unaware of his actions. They say Stewart has no memory of those events. They say he is legally not guilty because his actions were involuntary, like an automaton.
On Thursday morning, a psychologist who gave mental tests to Stewart returned to the witness stand to complete testimony begun Wednesday afternoon.
Two sheriff's detectives completed the state's witnesses. Lt. Bill Mackie described an unprecedented crime scene at Pinelake. He said it was unlike any other he had ever had to deal with.
"We had to investigate a crime scene while taking care of patients," Mackie 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."
He said Carthage Chief Chris McKenzie asked the Sheriff's Office to take over the investigation, except for State Bureau of Investigation agents who handle officer-involved shootings. Carthage police officer Justin Garner ended the rampage when he shot Stewart in a hallway only after he was struck by a blast from from Stewart's shotgun.
"Mrs. Stewart was upset, blamed herself for what happened," Mackie said.
Megerian quickly objected to this testimony, which he said contradicted everything said before under oath and was untrue.
Superior Court Judge James Webb sustained the objection.
Mackie described a two-hour taped interview with Neal that was conducted March 31, 2009. He went over other steps taken in the days following the shootings as part of his investigation.
He said he met with Cynthia Brewer at her residence on Jesse Phillips Road outside Robbins. Mackie identified a copy of the statement she had signed afterward, and read it to the jury after Webb warned them to take it solely for corroboration 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.
"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 presented, including buckshot removed from bodies and blood vials sent for testing. Assistant District Attorney Peter Strickland checked a list as he went through the red-taped brown manila envelopes and paper bags.
Among items passed to members of the jury were the two weapons Stewart fired that day: the .22-caliber rifle and the long-barreled 12-gauge shotgun.
Some examined the guns closely, while others simply passed them on with hardly more than a glance. Behind them, family members of the victims pressed handkerchiefs to their eyes and sobbed or put their heads down.
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.
Dr. LaVonne Fox, a senior psychologist at Central Regional Hospital - formerly Dorothea Dix Hospital - began testifying Wednesday aftenoon about evaluations she conducted on Stewart.
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," Megerian 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, he said.
Webb asked if the defense wanted to present any evidence in support of that motion. Breaking the silence that followed, Webb suggested Megerian call Fox to the stand and question her.
Megerian took him up on it. She was sworn in and took the stand. Megerian showed her a copy of Webb's Feb. 8 order requiring 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."
Webb denied the defense motion to exclude Fox from testifying for failure to comply with the Feb. 8 order.
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?" Megerian said. "He did well on the easy question and poorly on the more difficult?"
Fox said it was 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 cannot 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 her. Fox said that doctor used a different scoring system that she didn't understand, so she didn't use it.
She said 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.
Megerian asked if she was aware of warnings about behavior on Ambien.
"You have never heard about the sideeffects of Ambien with respect to parasomnias?" he asked. "Do you know what the sideffects are?"
"No, sir," she said.
"So you know nothing about medication?" Megerian asked. "You are a licensed clinical psychologist and you know nothing about selective serotonin reuptake inhibitors, know nothing about parasomnias or parasomniac behaviors?"
She said she' was not an expert on Ambien.
"You've read about it in psychology journals, didn't you?" he asked.
"I do not know," she said.
Also on Wednesday, Dr. Thomas Clark, a state medical examiner, testified about three autopsies.
He said 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.
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.
"The heart has been shredded – I did not open it," Clark said, showing a photograph of it. "You are seeing the inside of the heart."
Hedrick and Goldston were 78 years old, and Musser was 88, based on death certificates, according to testimony.
A second pathologist, Dr. Maryanne Gaffney-Kraft - who now works for the Georgia Bureau of Investigation - testified about the autopsy she performed 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, and 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.
Avant would not have lost consciousness immediately - that would come later from the loss of blood. The organs 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."
911 Calls Played
Late Tuesday, jurors heard terrified voices calling 911 from Pinelake, and viewed more pictures of the bodies of murder victims, including that of 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!"
Some callers are nearly shouting, while others whisper.
"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."
Contact John Chappell at firstname.lastname@example.org.
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