Before He Wakes (43 page)

He reached for the safety, fumbling to push it to show how difficult it was to take off, so that the weapon would fire. As many witnesses had testified, Russ was very safety-conscious, he noted. Would he really sleep with a loaded pistol under the pillow with the safety off?

Finally, he said, give close attention to the tape in which Russ told about his concerns about Barbara only three days before his death. And that was Russ’s voice, he said, no doubt about it, no matter what Barbara’s witnesses had said.

“They could not accept that that was Russ Stager’s voice if they watched Russ Stager make the tape, because you think about it. If you accepted that that was Russ Stager’s voice, then you would also have to accept that Barbara Stager, this mother, this daughter, this sister, this sister-in-law, this friend, this neighbor, is a cold-blooded murderer, and that is a fact that some people will not and just cannot accept.

“Does it not amaze you that this woman who sat in this courtroom, who has cried off and on during the course of this last week and a half, that this woman shed so few tears for the two men in her life that said until death do us part?

“She’s guilty of first-degree murder,” he said, and returned to his place at the prosecution table, leaving the floor to William Cotter.

“Mr. Stephens ended with that tape and I guess I will start with that tape,” Cotter said, after thanking the jurors for their service and attentiveness. He reminded them of how the tape supposedly had been found, and just as Stephens and Evenson had suspected, he tried to make the jurors believe the tape was a planted fake.

“I can’t believe that Mr. Evans had anything to do with that tape, but maybe Mr. Evans was not the one who was supposed to find it during Christmas vacation when students would not be in school.

“It’s a mysterious thing, and when you play it, you don’t know what people are going to say. You get mighty nervous.”

Yet everybody he had played it for, nine or ten people, had immediately said that it wasn’t Russ, and the jurors had heard from all of them.

“Do you think Bryan Stager was lying?” Cotter asked. “Well, he has reason to lie. That’s his mother that’s on trial for her life. I suppose if you’re ever going to lie, that might be the one time, but he’s also talking about his father and he also clearly said that’s not his father’s voice.

“Why would Carol Galloway lie? She knew Russ Stager first. She knew him better.”

It was only natural, he said, that Russ’s parents would say that it was his voice. “They want it to be his voice. They want Barbara Stager to be guilty of killing him because-they honestly think she killed him. They are emotionally involved in it.”

Acknowledging that some of the information on the tape, could be verified, Cotter noted that it was he who had made that information available to the jury. “They played you the parts they wanted to play and they had no more evidence. They rested. I said, ‘Okay, let’s play the rest of the tape.’ ”

It was he, he said, who had put Doris Stager on the stand to say that she knew about not getting the loan, knew about the man at the stadium. Noting that the audio equipment was set up in the courtroom, Cotter said that the state no doubt would play the tape again in Evenson’s final argument.

“Probably be helpful,” he said, but the tape “just doesn’t fit. It doesn’t make sense that he would make a tape three days before he died.”

He got the transcript and read the part in which Russ had wondered about Larry’s death.

“It doesn’t even sound like a normal way to speak. If he is wondering and worrying and concerned about that, why didn’t he tell somebody? Why did he go home and sleep in a room with five loaded pistols?”

Then, almost as if he suspected the jurors might be thinking that he was grabbing at straws, he said, “Ladies and gentlemen, I can’t tell you that a lot of this makes sense, because a lot of this does not make sense. It’s not his voice.”

Why hadn’t the state put up others to swear that it was his voice? he asked. The EMT who knew him, the school secretary, the National Guard members?

“They are required to put on good solid evidence. Where are all of those people that were familiar with Russell Stager? Where are the rest of the coaches, the teachers? This is a serious case. Don’t you think if they had these people who could say, yeah, that’s his voice, they would be up here?

“I don’t know. I just don’t know about this tape. I think that tape is more problematic than anything else about this case. I think it’s more problematic than where the cartridge was under the pillow.”

Which brought him to the physical evidence and Barbara’s version of what had happened. “Nothing she has said or nothing she has demonstrated is inconsistent with any of the physical evidence.”

He picked up the pistol from the evidence table. “I assume she had the gun like this,” he said, holding it out as Barbara had shown on the tape. “You could do this or this or that,” he said, turning the pistol, “or this, and come up like that.

“If it’s coming out of the bed like this, then that cartridge could have come out and just as easy hit her or that nightshirt or something and bounced back just as easily as it could have gone over her shoulder. Now if she were staging it, she wouldn’t put the cartridge under the pillow, because that doesn’t make sense. She could have knocked that cartridge with her knee when she was coming back to the bed to Russ.”

As to the angle of the shot, Cotter said, Russ’s head might have been deeper into the pillow, at a different angle than Barbara had shown the officers in the videotaping. “Barbara didn’t know where Russ’s head was at,” he said. “The lights were out, she had no glasses. Nothing inconsistent about it.”

About the location of the gun on the bed, Cotter said, “She dropped the gun and what happened to the gun after that, I don’t know.”

Having disposed of this matter, Cotter met the issue of Larry’s death head-on.

“One of the ways they want to convince you that she killed Russ Stager is by taking something that happened ten years before, which there is no evidence of. If circumstantial evidence is so important, why didn’t they take it and charge her in the death of Larry Ford? They want to give you bits and pieces and say, by the way, folks, really what are the odds of a woman whose husband is accidentally shot by a small handgun, a .25, ten years later having a second husband shot by a small handgun, a .25?

“Well, at first, your impression of that might not be very good. There’s another way of looking at it, and the other way is if you flip a coin and nine times it comes up heads, the tenth time, the odds of it coming up heads are still fifty percent. Another way to look at it is, what are the odds of a person whose first husband dies of an accidental gunshot wound and then marries a person who is a member of a unit of the National Guard pistol team, who is a pistol aficionado, just nuts about having guns around? Well, actually, the odds are better because she’s in a pool with men who have an excessive interest in handguns and it’s more likely than the average person that her husband would die of an accidental gunshot wound.”

The state wanted the jurors to believe the investigation of Larry’s death was botched, he said, yet they wanted them to accept that the handwipe tests showing that Larry hadn’t fired the gun that killed him were accurate.

“They can’t have it both ways,” he said. “Is this a sloppy investigation, or is it not? I don’t know what Detective Buheller did. It was such a sloppy investigation he might not have done the right thing. Yet they say this part was well done.”

Evenson had made a big deal, he said, out of all the similarities, yet there weren’t as many as there might seem.

“Again, if they have any evidence that she killed Larry Ford, their duty is to charge her and she has never been charged. It’s not fair. It’s just flat not fair for you to convict Barbara Stager of murder because of anything that took place concerning Larry Ford.”

He did know, however, that he had to answer the question: How could Larry have dropped the gun and still have been shot at a straight angle?

“If it fell and he was reaching for it, then it could have very easily gone off like that. That was a malfunction of the gun. That gun was not supposed to hit the floor and go off. Mr. Bishop acknowledged that was a malfunction. If the gun will malfunction twice at six feet, it will malfunction sometimes at two, three, four, five feet. The fact that it didn’t when he dropped it doesn’t mean anything. It’s pure speculation, because we don’t know.”

Barbara, Cotter reminded, was not required to prove her innocence; she was presumed innocent, and the state had to prove her guilt beyond a reasonable doubt.

“Ladies and gentlemen, if you vote for first-degree murder, then you must decide that the state has proved to you beyond a reasonable doubt, then the only two possible punishments are life in prison and the death penalty. That’s it. There is no option and you would decide that.”

Don’t be swayed by any other juror’s position, he pleaded. “If you’re not convinced beyond a reasonable doubt, it’s your duty—and you said you would do your duty, that’s why you’re on the jury—to vote for not guilty.”

34

A big easel was set up before the jury box. On it was a thick pad of oversized newsprint on which Eric Evenson had written key points to explain and emphasize the case he had spent so long developing.

“Ladies and gentlemen,” he began, “there has been a tremendous amount of evidence presented in this case and just because there has been doesn’t mean it’s a complicated case. As a matter of fact, it’s not. It’s a very simple case, and for that reason I want to highlight some things that you have heard and maybe didn’t catch…. Maybe as all the documentary evidence was going by, you said to yourself, well, there does seem to be something there and it doesn’t seem to be absolutely legitimate, but I’m not sure how it all fits together. So these are some highlights that maybe will help you get a grasp on what’s going on in this case.

“The first thing I decided to put up here on this chart is on January 10, 1987. I think this is significant.”

That was the date, as the chart showed, that both Russ and Barbara had mailed in applications for $50,000 in term life insurance.

“Three days after that, as you will recall—this is all unrefuted, it’s not refuted on cross examination—Barbara Stager goes to First Union Bank in Durham. She’s alone.”

That was when she got a loan for $3,000 to pay off a First Advance account and, supposedly, a relative.

“She tells Teresa Long, don’t send any bills or notices to my house, there’s someone there that I don’t want to know about this loan. Now, who’s she talking about? Is she talking about Jason? Is she talking about Bryan? Absolutely not. You know who she’s talking about. She’s talking about Russ Stager.”

This, he noted, was a ninety-day note. On April 13, she would have to pay back $3,123.

Three weeks later, Barbara and Russ go to the same bank and borrow $4,500 to buy a truck for Bryan, this to be paid back in forty-two monthly payments. Their monthly payments increase.

On April 13, Evenson pointed out on his chart, Barbara returned to the bank, unable to pay the ninety-day note. She paid the interest and rolled it over for another ninety days. Russ still did not know. On July 13, the note is due again, and once more she can’t pay. She not only wants to roll the note over again, she wants to borrow more money. Moreover, the bank discovers that she had broken her verbal agreement not to use her First Advance card, which already has more debt. She is allowed to roll over the original note but is denied additional money.

Three weeks pass, Evenson shows on his charts, and Barbara goes to another bank, Wachovia at Duke University Medical Center. She borrows $5,000, saying she needs it to pay off a ninety-day note and to pay college tuition for her son. She must repay it in forty-two payments of $144.62.

“Do you think that Russ Stager really knew about this loan when the reason for this loan was to pay off the ninety-day note? I would submit to you that he didn’t know because she’s alone on this one.”

But the ninety-day note was not paid, and on October 13, it was due again. “So where does she go?” Evenson asked. Back to Wachovia, where she already owes $5,000 in addition to the earlier note. This time, she wants $10,000 to pay off both loans, buy braces for Jason and pay for a study trip to Europe.

“Did she tell the bank the truth that time?” Evenson asked. “She’s alone on this one. She says, ‘Look, can I take it home and get my husband’s signature?’ ” She returned with the note signed, Evenson pointed out, the block checked to take out life insurance on Russ, plus the application for the lien on Russ’s Blazer, which would provide the collateral, it too bearing Russ’s signature, later to be found a forgery.

After the two earlier loans were paid, Evenson told the jurors, Barbara now had an extra $1,175. But she also had payments of $303.98 per month for forty-two months to be deducted from her checking account.

Russ doesn’t know about this, Evenson pointed out, and her salary is not enough to make these payments. But despite all the money she has received from banks in recent months, her account is empty. The automatic payment bounces when the first payment comes due on November twenty-eighth.

“So how is she going to pay this money? How is she going to pay it without Russ Stager knowing about it? … So what does Mrs. Peterson do? My goodness, you loan somebody $10,000 and they miss their very first payment. She gets on the phone and Barbara says, ‘That’s okay. I’ll get it paid. I’ll get it paid.’