Third Alternate Selected Wednesday Morning in Stewart Trial

A third alternate juror had met with approval Wednesday morning. The court began looking for one more juror before the trial moves back to Carthage for opening arguments and the first witnesses.

Three of the four required alternate jurors had now been selected in the trial of Robert Kenneth Stewart, who admits shooting and killing eight people in a Carthage nursing home two years ago.

The court still needed to find one more alternate juror acceptable to both sides before the trial could move to Carthage. Jury selection was now in its third week.

Senior Resident Superior Court Judge James M. Webb denied a defense change of venue motion based on pretrial publicity but ruled jurors would come from Stanly County and be bused to Moore County.

Twelve jurors and three alternates are waiting for the phone call to report back to the Albemarle courthouse, but their wait is longer than many thought. Because this trial could be lengthy, Webb called for four alternates - those who hear all the evidence, but only join the jury and deliberate if circumstances require replacement of any regular jurors.

Jurors can be challenged “for cause” when their answers show strong preferences either for life or death sentences.

All complete questionnaires that give lawyers on both sides some idea of where they stand. It is essential to seat jurors who can return decisions based only on what they hear and see in court.

One after another fails that test.

"I don't think it's for me to decide if somebody lives or dies," one man said. "It's a call I wouldn't want to have to make."

Webb and attorneys have had a tough time getting candidates to use what the legal profession calls "the magic words" - either that their views "would substantially interfere" with a death sentence or with giving a life sentence to somebody convicted of willful, deliberate first-degree murder.

Stewart faces eight capital charges of first-degree murder, two charges of attempted first-degree murder and a host of lesser charges stemming from a March 29, 2009, shotgun rampage through Pinelake Health and Rehabilitation Center. Some of the elderly victims he shot and killed were in wheelchairs.

His deadly spree ended when Justin Garner - the only Carthage police officer on duty that Sunday morning - confronted him in a nursing home hallway. During an exchange of gunfire, Garner shot Stewart in the chest, but not before shotgun pellets struck his leg.

Defense attorneys Jonathan Megerian and Franklin Wells admit Stewart killed seven elderly patients and a nurse and wounded two others. But they contend he is not legally responsible, based on mental health grounds. They say he was not in control of actions because of the drugs he was taking. They want the jury to find Stewart not guilty.

Prosecutors Peter Strickland and Tiffany Bartholomew are asking for the death penalty and will show the jury nightmarish photographs of bloody bodies from pictures taken at the scene and during autopsies. Both sides warn jurors about these images, asking whether they can stand to look at them as jury duty will require.

"I've worked in health care for 11 years," one nurse said. "I've seen a lot."

She said she was well familiar with drugs like Ambien and Lexapro, which the attorneys say will play some part in the case. At one time, she'd considered entering psychiatric nursing. The defense used one of its three remaining "peremptory" challenges to keep her from being an alternate.

Each side received a limited number of those challenges, which they can use to keep people off the panel without saying why.

One problem, is that many have made up their minds about capital punishment - either they don't like it and would never recommend death or they see it as the only just penalty for what Megerian frequently describes as "willful, intended, meant-to-do-it, intentional, planned ahead of time, cold-blooded murder."

He said he is counting on a not guilty verdict. But he tells jurors "if I lose the case" he wants them all to understand that they only get to the second, punishment phase if they do convict Stewart on one or more "cool-state-of-mind" premeditated murders.

At that point, he said he wants jurors that start that phase presuming a life sentence is the right penalty for first-degree murder - or murders.

Strickland has pretty much followed the same path as he leads off questioning with new candidates, giving examples of the sort of thing that would aggravate a first-degree conviction to the capital level.

"I'll say this, that under the law of North Carolina, the death penalty is the appropriate punishment for some - but not all - first-degree murder," Strickland tells potential jurors. "The state would have to prove some aggravating circumstance that would make this worse.

"The state has to prove beyond a reasonable doubt to all 12 jurors that there is some aggravating circumstance that would apply. If you and other jurors found the defendant guilty of some first-degree murder charge - and we are at that second phase, the sentencing phase - could you return a sentence of life in prison even if you had convicted the defendant of first-degree murder?"

The language is awkward, but the attorneys have to use it. The process is complicated by the fact that most appear to think death the presumed sentence for killing on purpose, whether they oppose capital punishment or applaud it.

Once the full jury with alternates has been chosen and the trial is moved to Carthage, attorneys expect it will take about six weeks to try.

Contact John Chappell at jfchappell@gmail.com.