Final Arguments in Pinelake Trial
Jurors heard final arguments Thursday in the trial of the man who killed eight people in a Carthage nursing home two years ago.
The issue before the jury is not so much that Robert Stewart used a shotgun to kill seven elderly nursing home residents on that Sunday morning, March 29, 2009, but what made him do it.
The state has held all along he was a wrathful husband after his estranged wife, who worked at Pinelake Health and Rehabili-tation Center. Wanda Neal — then Stewart — was his ultimate target, and he killed the others while roaming the center in search of her.
“He goes to Pinelake that day, and that’s what he goes there to do,” Assistant District Attorney Tiffany Bartholomew said. “You heard how he hooked two holsters, looped his belt through them — how he put a .22 revolver in one and a .38 in the other. That morning, he took a .22 rifle and a 12-gauge shotgun from his gun safe. (She held up the olive drab bag from the evidence table.) He was probably sitting at his kitchen table loading this bag; there were cartridges all over that table.”
She labeled as “distractions” defense contentions that Stewart was acting automatically, as if sleepwalking, from the result of taking too much of the sleeping medicine Ambien and acting unconsciously, then getting amnesia.
“The defense wants to distract you, talk about Ambien,” she said. “Dr. Mason did a search, but nothing came back that anybody ever shot anybody. All this after the defendant had been on Ambien for two years with no problems.
“We know what the defendant remembered that day. He told officer Garner he was the only shooter. He knew which car he drove that day. He remembered what rifle he brought and where he put it.”
Those who saw Stewart repeatedly racking his shotgun and shooting over and over again never described him as being anything like a sleepwalker, according to the prosecution. The state must prove beyond a reasonable doubt that Stewart was in control of his actions and acted intentionally, with malice and deliberation.
“It is clear he did have intent,” Bartholomew said. “He goes to where Wanda is working, and he goes there armed with four weapons. Four. He wasn’t just there to kill one person. He is selective in his targets. When he picks a target, he hits that target.
“The defendant had plenty of opportunities to stop. He didn’t stop after he shot Wanda’s car. He went into that building. He didn’t stop until he shot eight people, until he was stopped by officer Garner.”
Carthage police officer Justin Garner was the only policeman on duty that morning. Dispatched by a 911 operator, he raced to the center and entered alone. He and Stewart faced each other down a long hall as the gunman reloaded, ignoring Garner’s shouted orders to drop his weapon.
Both fired, and both were hit. With Stewart on the floor, moaning from a chest wound, Garner handcuffed him despite his own leg wound from the shotgun.
Bartholomew showed the jury photos of each victim as they’d been found that day.
“The defendant didn’t care about them at all,” she said. “They were nothing to the defendant. His mission was to go there that day to hurt a lot of people. Beyond a reasonable doubt is not a mathematical certainty like two plus two. Use your common sense in this case.
“This trial has been a long road. The judge is going to tell you exactly what the state has to prove, that the defendant acted with malice and intent. He brought four weapons and shot 10 people. That is intent to kill, ladies and gentlemen of the jury. You heard how the defendant went there with a fixed purpose and didn’t stop until he was stopped.
“The evidence points to one verdict and one verdict only. What he is, is a murderer, a callous, vicious and hateful man who walked into Pinelake and killed eight innocent people.”
Reading from the list of charges, she asked for a guilty verdict on each one — from first-degree murder to shooting into an occupied dwelling.
Granting that Stewart committed horrific acts against innocent, helpless people that day, defense attorney Jonathan Megerian said he didn’t like having to deal with the photos of victims’ bodies.
“These people didn’t deserve this,” he said. “They were sitting there waiting to be wheeled into the sunshine. I don’t like having to deal with these. You understand that. It would be crazy to pretend these people were not innocent victims of a terrible act. I am not here to tell you Robert didn’t go striding down corridors of the nursing home with a bag of shells and a shotgun.”
Megerian said Stewart racked the gun several times, saying that is the sound the victims heard that day. Then he moved to the medical evidence and the diagnosis that Stewart had suffered all his life from a near-psychotic mental condition, borderline personality disorder.
He said that Stewart’s wife’s leaving got him off balance, and he could not get it back.
“This guy who is prone to aggressive behavior from his mental illness won’t leave Wanda alone — the phone is finally off the hook, and he calls three preachers,” he said. “He knows three preachers, and he calls them all. He knows the thoughts he’s had. We know them too, because he wrote them down. ‘Last and Final Days’ — he’s going to Appomattox to end it all. He changed his mind: ‘I thought about taking some people with me, but I won’t do that.’ Tells Dr. Corvin he thought about it, but wouldn’t do it.”
Nobody really can ever know how the drugs Stewart took — Ambien, Lexapro, Xanax and others — affected his brain, he said.
“What happened that Sunday morning is obviously very important,” Megerian said. “For four, maybe five minutes Robert Stewart was prowling that nursing home. We don’t know what was going on in his mind. Dr. Wolfe is willing to say it may be psychogenic amnesia. No psychologist, no psychiatrist believes he is making up the memory deficit. Everyone says he’s not malingering. So you’ve got a guy who killed these people. He is served warrants that morning for killing eight people, and he doesn’t know why.”
Megerian said Stewart still does not remember what happened. But, he said, anybody with common sense should know a 47-year-old man who’s never been in trouble in his life doesn’t do something like this, not normally.
“Last of all, nobody is saying what happened was not an absolute horror,” Megerian said. “There are people sitting in this courtroom who have suffered tremendously. I am not trying to hide from it or avoid it. I never have.
“Robert did not understand what was going on or what he was doing when he committed eight senseless murders. I think the first common sense response you hear when you say ‘a guy walked down to a nursing home and killed eight people he never met before’ is, that’s crazy.”
Making the final case for the state, Assistant District Attorney Peter Strickland began by thanking jurors for their attention during the long course of this trial.
“On Sunday — that Sunday morning — the defendant created a man-made hell-storm, his bullets creating destruction,” he said. He got this claymore mine bag, left the instructions on his kitchen table. He loaded it with shot. We know he had No. 4, No. 6 buckshot, a lot of 12-gauge shotgun rounds. He put a large number of .22-caliber bullets in his left pocket. He put a speed-loader with .38 caliber bullets in his right pocket. He put his keys in that pocket. He loaded two holsters (holding them up) on his belt. In the left holster, he put the .22 handgun he was known to carry around a lot of the time. He put the .38 handgun in his right holster. At that point he got the .22 rifle with two magazines.
“He got the 12-gauge shotgun. With those four firearms, he got in his black Jeep Cherokee and drove 20 minutes down Glendon Carthage Road to Pinelake and turned left into the parking lot.
“He got in there and parked in the second row behind and to the left of his wife’s PT Cruiser. Depending on the evidence you believe, at some point he got the .22 caliber rifle out with one magazine already in it. He shot the back window out, shot side windows out. Shot the right back side at least four times. Four bullet holes. In fact, as he is shooting the PT Cruiser, he shoots the headrest three times. Three times projectiles go through the headrest (holding it up).”
That, he said, illustrates the wish he later described to the psychiatrist.
“He told Dr. Corvin he had thoughts of shooting her head off,” he said. “He shoots the headrest. As he is shooting, he runs out of bullets, drops the magazine out, reloads. Unfortunately Michael Cotten drives up. He shoots Cotten’s truck, not one, not two, not three, but four times.
“One hits Cotten, who goes inside thinking, ‘Oh, I’m going to be shot again.’ But the other magazine is empty by that time. What does he do? He puts the rifle on top of the car (shows photo) and gets the shotgun out. It is loaded with three rounds, or he loads it right then, and carries it ‘port arms’ military style.”
Strickland described Stewart calmly walking in the front entrance past a sign that says no guns, and held up a picture of the sign.
“He sees Mrs. De Kler, and shoots her — with malice, premeditation and deliberation,” Strickland said. “The defendant shoots, comes toward the nurses’ station toward where his wife works. She’d told him about the people, how much she loves them. He sees Lillian Dunn and shoots her with malice, premeditation and deliberation.”
Strickland followed the path Stewart took that morning, naming each victim, each time saying they were shot with malice, premeditation and deliberation — required elements of first-degree murder the state must prove.
“He is looking for Wanda,” Strickland said. “He can’t find Wanda, so he is going to shoot others she loved and took care of.”
Strickland made a point of Stewart having seemingly no compassion or thought for the harm he had done even if he was only told of it later.
“Not one time did he ever ask how anyone else was doing there at the hospital,” he said. “In talking about the cocktail of medication, Wanda took the same medication some days after, Ambien and Lexapro, caused her to be a little slow, a little fuzzy. Wanda, knowing what her husband had done, and feeling the responsibility, went two years and then took as many as she could with alcohol, but she got the help.
“The medication is not what caused this. Disorder is not what caused this. The specific intent, target, was Wanda, the love he’d lost. He was out to hurt her. He had no mental defect. He knew what he was doing. He was out to make Wanda suffer for not loving him anymore.”
He asked the jury to find Stewart guilty of eight counts of first-degree murder — naming each murder victim — and guilty of all the other charges.
Jurors will return Friday morning at 9 a.m. to hear the judge’s instruction on the law and begin deliberation.
On Wednesday, Webb ruled that prosecutors would have to prove to jurors that Stewart was in control of his actions when he killed eight people at the nursing home despite the presence of a drug in his system.
Alternatively, an instruction on voluntary intoxication could hold him responsible if jurors find he knowingly overdosed or disobeyed medical instructions for using the drug.
Evidence put on during the trial by Strickland and Bartholomew had included test results from blood drawn almost 10 hours after Stewart committed the murders, which was the basis for Webb’s ruling.
Among drugs found in his system later were small amounts of the anti-depressant Lexapro and the antihistamine Benadryl, a trace of the anti-anxiety drug Xanax and 31 nanograms per milliliter of the sleeping aide zolpidem, widely sold under the trade name Ambien.
Megerian and Wells contended throughout the trial that Stewart was not criminally responsible because he allegedly acted as an automaton, unaware and not in conscious control of his actions. That state resulted from large quantities of zolpidem in his system, according to testimony from Dr. George Colvin, a forensic psychiatrist.
What has come to be called the “Ambien defense” has been offered in a growing number of criminal cases with varying success. Like alcohol and other drugs, responsibility for unconscious actions while on that hypnotic medication can depend on whether an accused consumed Ambien voluntarily or excessively or in disregard of medical instructions.
Warnings on its label say too much can lead to unconscious but complicated activity such as preparing meals or driving a car followed by an amnesiac reaction. Stewart claims he remembers nothing from that Sunday morning until he found himself handcuffed to a hospital bed.
As far as jury instructions go, the defense prevailed in their position that, because prosecutors introduced blood test evidence, the state would have to show those drugs — particularly Ambien — did not keep Stewart from controlling what he did.
They contend it did, and that their client acted in a drug-induced sleepwalking-like state, unconscious and acting automatically rather than willfully with deliberation and intent.
A charge conference that began Tuesday afternoon and concluded midday Wednesday laid out instructions Webb will give jurors this morning just before they enter the jury room to deliberate. Each of the charges on which Stewart was indicted requires appropriate instruction by the court as to the law.
During the conference, Webb considered each charge of the indictments and instructions relating to them, with objections by each side sometimes allowed and sometimes denied. Megerian objected to pattern instruction saying “unless you are satisfied the defendant was not guilty by reason of unconsciousness...” but Webb said the court was satisfied that the pattern satisfied Megerian’s concern.
Webb denied a defense request to include voluntary and involuntary manslaughter on the verdict sheet and in instructions as lesser included offenses to first- and second-degree murder.
After “second-degree murder” the court will modify that pattern to add the “insanity defense” pattern instruction. No objection to that change came from either side.
Webb said the defense had asked for a certain paragraph of instruction they’d supplied to the court. Wells described it as “in addition or in lieu of” the pattern diminished capacity instruction.
“Drug use ‘not a legal excuse for crime’ will be included,” Webb said. “The defense requests are denied at this time.”
Megerian asked if the insanity instruction will say “mental defect” and not “mental disease.” Webb said the court will use “defect.”
At the time Webb overruled state objections to instruction on automatism to say the court would include a version of the pattern instruction putting the burden on the state to prove Stewart conscious at the time, Bartholomew objected.
“You don’t get to automatism if intoxication was voluntary,” she said, citing a number of cases. “You don’t get to that at all if you get to involuntary intoxication.”
Webb overruled her objection.
Contact John Chappell at email@example.com.
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