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IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUITIN AND FOR MARION COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff, CASE NO.: 2009-CF-1253

vs.

JOSHUA FULGHAM,

Defendant.--------------------------x

EXCERPT OF PROCEEDINGS

STATE'S CLOSING ARGUMENT

PROCEEDINGS: JURY TRIAL

BEFORE: CIRCUIT JUDGE BRIAN D. LAMBERT

DATE: April 12, 2012

LOCATION: Marion County Courthouse110 Northwest 1st AvenueOcala, Florida 34475

REPORTER: Shannon Carlton, RPRStenographic ReporterNotary PublicState of Florida at Large

_____________________________________________________

JOY HAYES COURT REPORTINGOfficial Court Reporters407 Courthouse Square

Inverness, Florida 34450Bus:(352)726-4451

_____________________________________________________

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APPEARANCES:

ON BEHALF OF THE PLAINTIFF:BRADLEY KING, ESQUIREROCK HOOKER, ESQUIREOffice of the State Attorney110 Northwest 1st AvenueSuite 5000Ocala, Florida 34475

ON BEHALF OF THE DEFENDANT:TERENCE M. LENAMON, ESQUIRELenamon Law, PLLC100 North Biscayne BoulevardSuite 3070Miami, Florida 33132

TANIA Z. ALAVI, ESQUIREAlavi, Bird & Pozzuto, P.A.108 North Magnolia Avenue6th FloorOcala, Florida 34475

ALSO PRESENT:

Stuart Hartstone, EsquireMelissa Ortiz, EsquireKathleen O'Shea, Mitigation SpecialistLenamon Law, PLLC

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(The following is an excerpt of these proceedings:)

* * * * *

MR. HOOKER: Thank you, Judge. May I please

the Court?

THE COURT: Yes, sir, go ahead.

MR. HOOKER: Counsel? He buried his wife in

his pregnant girlfriend's backyard. It's the case

of the husband and the pregnant girlfriend who

decided to kill the wife and bury the wife in the

girlfriend's backyard. As you heard him say, I

was still sitting on her and I could feel her

getting weak and then she was gone.

I should take a moment, ladies and gentlemen,

and thank you for your service thus far. It's

been since the beginning of last week. You've

been here now for nine business days. The State

of Florida appreciates the attention you've given

to the case and your ability to serve.

The case will be placed into your hands soon

for deliberations and I want to remind you what

the attorneys have said during the trial is not

evidence. What we say in the closing arguments is

not evidence.

The evidence in this case comes from the

witness stand in the form of sworn testimony and

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in the form of physical exhibits that you've seen

admitted and that you will get to look at and see

again more closely in deliberations. Some of them

you have not had a chance to really look at, but

you will get a better chance.

The law forms how we're allowed to present our

case and how we're allowed to question the

witnesses and it funnels us towards proving the

elements of the charges of each -- the elements of

each of the charges in the case. And there are

two charges: First-degree murder and kidnapping.

Your job is going to be to determine the

facts. The facts that have been proven beyond a

reasonable doubt. The judge will be giving you

all the law that applies to this case and you take

the facts as you see them having been proven and

you apply the law and you will have your verdict.

I know you've been told, and I'll remind you,

when the judge reads you the law at the end of the

case, you don't have to try to memorize it or

write it all down because you're going to be able

to get a packet of what he has read to you to take

back to review in your deliberations.

THE COURT: Each of you will get a package.

Go ahead.

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MR. HOOKER: Each?

THE COURT: Yeah, one for each of them.

MR. HOOKER: We're here for one reason. Let

me be clear, we're here because Heather Strong is

dead because she was murdered and buried in Emilia

Carr's backyard. That is why we are here.

You've heard the defendant's statements to

police. You've heard a lot of them. There's a

stack of DVDs over here and CDs. You've heard the

migration of what he had to say from the beginning

at his residence, the audio at his residence,

until that last DVD statement that he gave to

Detective Buie on March 26th, two days after his

arrest. And you've heard the statements he made

over the telephone from the jail.

As I stated earlier, you're going to get a

chance to review even those items if you would

like. You may have to come back into the

courtroom. You may have to ask to come back into

the courtroom to listen to or watch any of those.

I think that's how that would probably work, but

you may decide that you do not need to do that and

why? Because you will have the collective memory

of the 12 of you who deliberate.

All 12 of you sat and listened, all 12 of you

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heard it, the audios, all 12 of you watched the

DVDs and you all read along with the transcripts

if you wanted to, and your collective memories can

be shared in deliberations. That's a part of what

happens in deliberations. So you may not need to

come back here and see anything, but it's possible

for you to do that.

Your main job is going to be to determine what

weight you will give certain evidence, what weight

you will give certain testimony that you've heard.

And you should evaluate a witness's credibility in

part in light of the other evidence in the case,

I'm suggesting. And you should evaluate the

defendant's statements in light of other evidence

in the case.

The judge is going to tell you that you're not

supposed -- allowed to have sympathy for either of

the parties on either side. And that is the law.

You're supposed to detach yourself from that and

evaluate the evidence without the influence of the

sympathy. He'll read that instruction and you'll

get to look at it again.

In those instructions you'll find a lot of

help to help you in your deliberations. So if

you're worried about it right now, you might calm

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down to the extent that you will know you're going

to have something else to look at when you get

back there to help you proceed. The first thing

you'll probably do is pick a foreperson to lead

your discussions.

The state has the burden of proof in this case

as every criminal case. We accepted the burden of

having to prove the case and the standard for the

burden of proof in a criminal case, and in this

case, is beyond a reasonable doubt. I think

you've already heard it once. It's a long

instruction. It's like half or three-quarters of

a page. It tells you what a reasonable doubt is

and what a reasonable doubt is not.

And because that is our burden and because we

have to prove our case beyond a reasonable doubt,

I ask how in the world could you decide whether

we've met our burden unless you understand what a

reasonable doubt is or what a reasonable doubt is

not? In that regard, I ask you to please look at

the instruction. Please understand it before you

decide whether or not the state has met its

burden. Please understand what our burden is and

what it's not.

One thing that the judge is going to tell you,

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and sometimes jurors chuckle when they hear this,

all of the voir dire that you had and the opening

statements, all the seriousness of this matter,

the judge is going to tell you like he has to tell

you, that you're allowed to use your common sense.

Each of you came in here with life

experiences, summation of which results in your

having common sense. The judge is actually going

to instruct you that you're allowed to use your

common sense in your deliberations. I ask you to

do that. Don't go back there as robots. Go back

there understanding who you are and talk -- get

back there and talk about that with everyone else.

I know we've been through a timeline a couple

of times in this case, but I want to do it one

more time and I might be adding a couple more

dates. What you know for certain in this case is

that from around June of '08 to December of '08

Heather was where? Living with Ben McCollum until

about the middle of December I think the testimony

was.

And Heather leaves Ben to get back together

with Josh in the middle of December. And remember

who's living with the defendant at that time?

Emilia. The defendant kicks Emilia out and they

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get back together and they get married on

December 26th. I think that 11 days later he gets

arrested. January 6th he's put in jail. He's

arrested for the shotgun case.

What happens then? Phone calls start from

Joshua Fulgham. Because nobody can call into the

jail, so all the calls are outgoing calls. He

calls Heather, he calls Emilia. And what's really

going on there? What's really going on there is

he's manipulating Heather and he's insighting

Emilia Carr.

February 6th he gets out of jail. Five days

later on the 11th, Heather, Heather goes to Sparr

Elementary where McKenzie's in school and she

signs an emergency contact form on February 11th

adding Jamie Acome as a pick up person. Four days

later Heather's buried in Emilia's backyard, his

pregnant girlfriend's backyard.

Two days after that, Joshua Fulgham, the

defendant, is with his mother at Reddick-Collier.

Goal accomplished, he's got the kids. He's

registering McKenzie at the new school

Reddick-collier where she would be living now at

the new address. She won't be living with Heather

in that other district. She will now be living

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with Judy Chandler and Joshua Fulgham in the

Reddick-Collier district.

February 24th, the defendant goes back to

Reddick-Collier. And what does he do then? He

signs another emergency contact form. And what

does he do this time? He puts Emilia Carr, his

pregnant girlfriend, as a contact person and a

person who can pick up the kids.

That same day, Misty Strong, February 24th,

calls law enforcement in Marion County and reports

Heather missing. And that's nine days after she's

buried. Misty Strong knows she's missing. She

can't find her. She's already made a couple

calls, talked to the manager of Petro, and then

she calls the sheriff's department.

Beth Billings, a deputy at the sheriff's

office, begins a search, investigation, a missing

person's search for Heather Strong. March 17th is

when Detective Buie gets the case. Two days later

we're excavating a body in Emilia Carr's backyard.

March 24th both defendants are arrested for

first-degree murder and kidnapping.

Now, during this time frame in March, from

March 18th when Buie and Spivey go to the

defendant's residence until March 26th, for a

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period of eight days, the defendant is giving

statements.

Now, it's hard to even try to count the number

of lies that Joshua Fulgham told in that migration

of statements up through March 26th. But you

should think and talk about that fact in your

deliberations of why he did that and how that

happened and why he kept changing his story.

I need to show you some of the instructions.

I'm not -- I'm showing you certain instructions

that I believe that Judge Lambert is going to give

you and I believe that they are word for word what

he will be giving you, but if there is anything

that I show you that is different, then of course

what the judge shows you is what you consider.

But I believe them to be one in the same.

I have a small PowerPoint presentation of some

of the instructions, and I don't want to stress

that these are the most important instructions,

but these are the ones I would like to talk to you

about. Can everybody see that? All right. The

first one is a first-degree murder jury

instruction that you will be given in this case.

Can you see that?

THE JUROR: Can you pull it closer, please?

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MR. HOOKER: A little bit closer. Let me see

what we can do here. How far can I go, Mr. King?

Okay. All right. So what we have here is

first is murder, first-degree. The judge is going

to tell you in this instruction that there are two

ways a person may be convicted of murder in the

first degree and you've heard it before and you

might not have understood it or caught it.

There's two ways. One is premedicated

first-degree murder. The other is felony

first-degree murder. If you find either one of

them has been proven, you would check on the

verdict form first-degree murder has been proven.

Does not have to be both of them proven. Either

one of them.

And it says there are two ways in which a

person may be convicted of murder in the first

degree. One is known as premeditated murder and

the other is known as felony murder. And this

instruction is only about premeditated murder. A

couple slides later you'll see felony murder.

Heather Strong is dead. We've stipulated to

that. There is a written agreement that the body

found in the hole is actually Heather Strong. You

could ID her from seeing her, but we've agreed

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that that's her. That's Heather Strong. So

that's proven.

The second one was the death was caused by a

criminal act of Joshua Fulgham or, or Heather

Strong was killed by a person other than Joshua

Fulgham, but both Joshua Fulgham and the person

who killed Heather Strong were principals in the

commission of first-degree premeditated murder.

And three there is a premeditated killing of

Heather Strong.

A word there you probably wonder what does it

mean is the word "principal". Right here

(indicating). Well, there is an instruction for

that a little bit later and you'll see what it is.

There's a definition for killing with

premeditation. And this slide is important for

you to understand for you to determine whether or

not the state's met its burden of proofing

premeditated murder because this defines killing

with premeditation, a phrase in the main

instruction.

Killing with premeditation is killing after

consciously deciding to do so. Decision must be

present in the mind at the time of the killing.

The law does not affix the exact period of time

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that must pass between the formation of the

premeditated intent to kill and the killing, but

it must be long enough to allow reflection by the

defendant. The premeditated intent to kill must

be formed before the killing.

A question of premeditation is a question of

fact to be determined by you from the evidence.

There's sufficient proof of premeditation if the

circumstances of the killing and the conduct, the

conduct of the accused, convince you beyond a

reasonable doubt of the existence of the

premeditation. I ask you to go back and be sure

and talk about that.

And I'm going to talk about different theories

that you can take in this case on whether there's

premeditation given the evidence that you've heard

and the testimony that you've heard and the

evidence that you saw.

This is important, too. The intent with which

an act is done is an operation of the mind. It's

hard to crawl into someone's head and read what

their intent is. Hence this, the intent with

which an act is done is an operation of the mind,

and therefore, is not always capable of direct and

positive proof. It may be established by

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circumstantial evidence like any other fact in a

case. Think about that, please, when you're back

there.

Now, we have felony murder. This is the

second way that first-degree murder can be proven.

So if you found that it was premeditated murder,

you pick the top choice on the verdict form. If

you decide that it wasn't premeditated murder, but

that it is felony murder and that it's been proven

felony murder, you pick the top choice on the

verdict form for first-degree murder.

This is felony murder, the second way to prove

it. Heather Strong is dead. The death occurred

as a consequence of and while Joshua Fulgham was

engaged in the commission of kidnapping. Joshua

Fulgham was a person who actually killed Heather

Strong. Or, again, Heather Strong was killed by a

person other than Joshua Fulgham, but both Joshua

Fulgham and the person who killed Heather Strong

were principals in the commission of kidnapping.

In order to convict a first-degree felony

murder it's not necessary for the state to prove

that the defendant had a premeditated design or

intent to kill and there are reasons. There's two

theories on which first-degree murder can be

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proven because sometimes when there's multiple

people, you might not be able to prove which one

actually did a particular killing. So if it

happens during the course of kidnapping, for

instance, it's felony murder.

Second-degree murder. The instruction is

here. You may decide when you go back and you

begin your deliberations that a central issue in

your deliberations is going to be whether or not

the defendant is guilty of second-degree murder or

first-degree murder. You may decide that after

you start deliberating.

And if you do, you need to consider this,

right after this there's an instruction where the

judge is going to tell you that you should pick

the highest crime that is proven. You should pick

the highest crime that is proven in your

deliberations.

I agree, Joshua Fulgham meets the elements of

second-degree murder. That does not mean that he

does not also -- that we have not also proven the

elements of first-degree murder, both ways,

premeditated and felony murder.

One interesting thing here is an act is

imminently dangerous to another and demonstrating

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a depraved mind. This is the definition of the

term higher in the instruction. But look at that,

look at No. 3. Is of such a nature that the act

itself indicates an indifference to human life.

I suggest to you there's far more in this case

than an indifference to human life. I'm going to

argue to you later that there's both premeditation

and felony murder in this case that's been proven.

Look at that instruction close and even if you

believe that he is guilty of that, consider

whether he is guilty also of a higher crime. And

if he is, you check that on the verdict form.

Here's the elements of the crime of

kidnapping.

1. Joshua Fulgham forcibly, secretly, or by

threat confined, abducted, or imprisoned Heather

Strong against her will.

We're going to talk about the facts in the

case which prove those elements. Joshua Fulgham

had no lawful authority. Of course he did not.

Joshua Fulgham acted with intent to inflict bodily

harm upon or to terrorize the victim.

And then it tells you in order to be

kidnapping and there's three things you need to

look at closely. I'll argue to you later that

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they're all three met and this is actually clearly

a kidnapping under the elements that the state had

to prove in the state of Florida in this case.

And if it is a kidnapping, and if during the

course of the commission of the kidnapping Heather

Strong was killed, then he is guilty of felony

murder.

So you have to understand this instruction and

these elements and decide whether these elements

have been proven before you can decide whether you

believe that felony murder has been proven.

False imprisonment is a lesser included

offense to kidnapping. It's a lesser. So if you

found false imprisonment, then it wouldn't be

felony murder. To be felony murder it has to be

kidnapping. Count 2 in the indictment is

kidnapping. You have to find him guilty of the

kidnapping for it to be felony murder.

What's different? One and two. Look, look at

one, forcibly by threat, confined, imprisoned, or

restrained, etc., etc. Had no lawful authority.

Back up. Exactly the same elements except in

kidnapping we have No. 3 added and we'll go

forward again.

False imprisonment. There's no three. One

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and two are the same. So for it to be false

imprisonment, you would have to believe he didn't

act with the intent to inflict bodily harm upon

Heather or to terrorize her and I submit to you

that he did both. He intended to do both. He

planned beforehand to do both and he did. More

argument on that later.

Here's a principal instruction. If the

defendant helped another person or persons commit

a crime, the defendant is the principal and must

be treated as if he had one all the things the

other person or persons did if he had a conscious

intent that the criminal act be done; the

defendant did some act or said some word which was

intended to and which did excite, cause,

encourage, assist or advise the other person or

persons actually committing the crime. Like sit

on Heather's lap so she could be taped down -

Assist.

And the reasonable doubt instruction. This is

just part of it. You need to read the entire

instruction, of course, and learn what it is and

what it is not like I said earlier. Reasonable

doubt is not a mere, possible, speculative,

imaginary or forced doubt. And you'll get the

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entire instruction. I just ask again that you

review it, you learn it, and you understand it

before you decide whether we have met the burden

that it places upon us.

And here's the verdict form that I told -- the

verdict instruction, 3.12, that I told you about.

If you return a verdict of guilty, it should be

for the highest offense which has been proven

beyond a reasonable doubt. That's where you find

that buried in that instruction. It's there,

you'll see it, be aware of it.

The verdict forms. The top form is the

highest -- the top choice A is the highest level

offense, murder in the first-degree. On Count 2

the highest offense is A, defendant is guilty of

kidnapping. That's all the instructions I'm going

to show you. There's a lot more. I ask you to

look at all of them and be aware of all of them in

your deliberations.

Okay. The plan to kill Heather started up

again when she was at the bar with Ben and then

she had gone to Ben's house. And at the very end

of my closing, I'm going to show you a little

snippet, a video clip, where he's talking about

it. He actually talks about it two different

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statements you may recall.

And what were they going to do? Who was

making the plan? The same person that made the

plan with him on February 15th - Emilia Carr.

Joshua Fulgham and Emilia Carr were talking about

and planning on killing Heather, getting rid of

her.

And what were they going to do? They were

going to get rid of her and they were going to

blame Ben. They were going to blame Ben McCollum.

They were going to frame Ben McCollum for

Heather's murder. They actually discussed this.

These people, they talked, they talked, and

then they talked and then they did it. They did

it. They killed her. They talked about doing it

more than once. You're going to get to hear about

all of those -- most of those different times here

in this closing.

But then he gets married to her on

December 26th and then he gets put in jail and

he's angry and being angry and having your kids

taken away from you, that's a reason to

premeditate a killing. It doesn't just have to

be, Well, he's angry and he's betrayed, so it's

only second-degree murder. It's only ill will,

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hatred, and spite. It's only second-degree

murder. That's all it is.

Anger and betrayal. Likely a motive to cause

him to premeditate the killing of Heather, but you

will find no where in the jury instruction where

we have to prove motive. The state does not have

to prove motive. I showed you the elements of the

both of the offenses. It didn't say anything

about motive. Judge Lambert, you won't hear him

tell you that we have to prove motive. But that's

likely why he did it.

When he gets put in jail and he's angry, I've

already talked about the calls that were made from

the jail. I just want to read a very short

portion of what you've heard in the jail calls.

On January 7th he says to Emilia Carr, and this is

the day after he's arrested.

This is at 10:54 a.m. from January 7th, Joshua

Fulgham talking to Emilia Carr, and he says, "Oh,

my God, I should have killed that bitch. Oh, my

God, Emilia, I can't do this. I can't stay here

this long. I cannot stay here this long. That's

30-something more days. I can't do it."

MR. LENAMON: Objection, Judge. Pretrial

motion.

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THE COURT: Okay. Objection's overruled.

MR. HOOKER: But he did it. He stayed there

that 30 days. He got angry. He didn't like to be

in that jail. He was claustrophobic, too, in the

jail if you recall his statements.

Now, ordinarily under those circumstances you

might say to yourself, Well, just talking and not

doing, but viewed in light of all the other

evidence in this case and everything else that you

have learned in this case from the testimony, you

may decide that that has a little bit more

emphasize, a little bit more relevance than it

might ordinarily have because he did get out and

nine days later he did kill her. He did actually

assist in the killing of Heather Strong.

One more phone call that I'd like to read you

was on January 20th, 1919, hours. That's

7:19 p.m. And Joshua Fulgham says to Emilia Carr

on the phone from the jail: "Is there people

living in the house back there?"

Emilia says, "Where? Next door?"

Joshua says, "Yeah."

Emilia Carr says, "Yeah."

MR. LENAMON: Objection. Pretrial motion.

THE COURT: Objection's overruled.

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MR. HOOKER: Joshua Fulgham says, "They do?"

Emilia, "Uh-huh."

Joshua: "Well, listen, it's pretty woody in

between their house and your mama's right by where

your old trailer is."

Emilia says, "Yeah, I know."

Josh says, "It is?"

Emilia, "Yeah."

Josh says, "They can't see out through there?"

Emilia, "Huh-huh."

Joshua, "Okay. Okay."

Emilia says, "Why?"

Joshua, "Oh, I'm just wondering, baby. I was

just wondering."

Emilia says, "Okay."

Joshua says, "I was just wondering. But

anyway, anyway, I've been in jail and I've been

thinking a lot."

He's been thinking a lot. And guess what

happens nine days after he gets out of jail? This

is exactly where they take her at nighttime and

kill her and bury her after they planned to do it

that day during the day before they got there.

And I'm going to show you another little video

clip where he admits he premeditated the killing

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that day. You're going to see it and decide for

yourself. And those calls, again, you heard the

full version of those calls and he's manipulating

Heather and he's turning right around on the phone

and he's insighting Carr. She wasn't doing that.

He was. He's insighting her to do what they

ultimately did.

And on February 15th, nine days after he gets

out of jail, he calls Carr and asks her if she's

down with what they talked about. She says yes.

And they talk about how they're going to lure

Heather to Carr's property to that trailer where

she was buried, where he took us to, where he

showed us she was buried. Actually, how they're

going to lure her to her grave, to her grave site.

And on the day she dies, this is interesting,

he tells different people different things for

different reasons. What does he tell Jamie Acome?

He talks to Jamie Acome and tells him to get out,

him and Heather are getting back together.

He didn't tell Jamie Acome that Heather was

going to Mississippi. If he had told Jamie that

Heather was going to Mississippi, Jamie was living

with her, he liked her, he might have decided that

he wanted to talk to her before she went to find

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out about this. How come she didn't say anything

to him? He couldn't say that. He might want to

go with her to Mississippi, Jamie might. But he

said no, he said, We're getting back together, get

your stuff and get out.

And he's already talked to -- there's a

reasonable inference here that he's already talked

to Heather at the Petro. He already knows that

she's planning to take her kids and go back to

Mississippi because he took her car back from her

and now she doesn't have a ride. She has to

depend on Jamie Acome so now she's going to go

back to Mississippi with the kids. She doesn't

make enough money to have a car and she doesn't

have a car to go to work and stuff.

Next he tells his mom something different for

a different reason. He tells Judy Chandler that

Heather's going to Mississippi without the kids.

But then what does he do? It's very clear in his

statements. He talked about it for two or three

pages.

When he goes with Heather and the kids on

February 15th to his mother's house and leaves his

kids there with his sister and he's leaving he

sees his mother. She's just coming back. And

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it's very clear in his statements because it's

talked about more than once. She wants to say

good-bye to Heather and he says, No, we're in a

hurry. We got to go.

Now, he couldn't let his mother talk to

Heather because Heather's not going to the bus

station in Gainesville. Heather is headed for her

grave. And he admits to you on tape that that is

the case. At that time he knows that already.

Heather is headed to her grave.

Tell mom to do this custody paper, tell mom

Heather's leaving to go to Mississippi, not taking

the kids, so I need the custody paper. He admits

later that he lied to his mom. He clearly admits

later that he lied to his mom to get her to do

that because he didn't want her to know that this

crazy shit was about to happen. That is all

evidence of premeditation.

He clearly intended and premeditated with

Emilia Carr this plan to get her to that trailer

at night and to kill her and to bury her on that

property. And, again, I'm going to show you

another video clip before this case is over and

you'll agree possibly that he does exactly what I

just said, he's planning it.

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And then he tells Heather something different

for a different reason. He tells Heather that

Emilia Carr has money in this trailer that he can

steal and he wants her to go with him to get it

and what they're going to do with it is buy

another car and then Heather's going to be able to

have the car. It's going to resolve the immediate

problem that they have.

She's reluctant to go with him, but ultimately

she trusts him. She trusted him. This man right

here (indicated). Heather Strong trusted him.

When Joshua Fulgham told Heather that Emilia Carr

was with her uncle in Dunnellon or cousin in

Dunnellon she said okay. And that's when she

agreed to go over. She went over there and they

did their car. He explained how they backed it in

and hid it and went back to the trailer.

At this point I don't think that it's

reasonable for anybody to think that Heather was

ever coming off that property alive, given

everything that was said and everything that was

known, everything that he specifically admitted.

The second her foot hit that ground when she

stepped out of that car, she was not leaving that

property alive. He was going to solve his problem

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that night, right there, and he did.

But just for a minute for purposes of

argument, just assume that none of that existed.

Assume that he was not planning on killing Heather

at the time they arrived at the Carr property,

which I submit to you he clearly did plan it and

he clearly executed the plan. Executed Heather.

But assume for a minute that that

premeditation didn't exist, what we talked about

so far. Then ask yourself whether a premeditated

intent to kill, that reflection that was mentioned

earlier in the jury instruction, developed during

the process of killing her? And I submit to you

that it clearly did.

This was not a death like a gunshot wound to

the head or a sword to the heart. This was a

process of killing, of confining, abducting,

imprisoning Heather Strong in that trailer that

had no power at night in that chair with the

intent to commit bodily harm on her, whatever the

exact language was, or to terrorize her.

Now, at one point he said he took her back

there to scare her. You don't take somebody back

there under those circumstances in that trailer at

that time after talking to Emilia Carr the way he

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did to scare her. You take her back there to

terrorize her. Those are all of the elements of

kidnapping, the felony murder route, to the

highest possible offense proven.

Her death and his reflection on her death

during the killing process during his active

participation in her death clearly shows that he

formed the necessary premeditated intent to kill

after they got to the trailer, after they started

the process of killing.

She was hit with the flashlight by Emilia

Carr. He says, he says Emilia Carr hit Heather

with the flashlight. He admits that he grabbed

her and he put her in the chair. First he said

she was unconscious, but later he said she was

alive and still fighting.

And all this process was going on through the

flashlight not working and trying to put batteries

in another flashlight and using their lighters in

this trailer that you saw pictures of. And it's

described as being cluttered and you can see that

it's cluttered. There's a little pathway, there's

a little narrow hallway. It was a tunnel. What

it was is it was a tunnel of death for Heather

Strong is what it was.

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Claustrophobic? Damn right claustrophobic.

Three people in that little space being confined

the way she was being confined after she was

abducted and imprisoned with a bag over her head

and tape around the bag so she couldn't breathe.

Claustrophobic, terror, committing bodily harm.

All of the elements are clear there.

But talking about premeditation. During this

process he had plenty of time according to the law

to reflect, plenty of time to develop the

premeditation. And there's that instruction that

I read to you and I ask you to think about it and

read it again and ask yourself even if all of

those other things were not premeditation, did he

develop it at the time?

We can't crawl inside his head at that point

for his intent. We can look at his conduct and

his conduct was clear. He was sitting on

Heather's lap. He was sitting on her lap and he

was pressing against her and he was helping

restrain her at that point to get her duct taped

and then he stayed there still sitting on her

until he felt her getting weak and then she was

gone. Actively assisted in her death. And during

that point of time, he knew that she was going to

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die and he decided to keep doing it. It's a

process and premeditation there also.

He admits that after they got finished with

trying to fix the flashlight they got a candle.

He said Emilia got it somewhere from around there

he assumes. He says there's a lot of stuff in

that trailer. Anyway, she got it and she put it

on top of the refrigerator.

This is like a horror movie. Think about

this: She was still alive and she was fighting.

She got the tape off of her mouth one time and he

sat on her until she took her last breath and she

begged and she pleaded and she said, I'm

claustrophobic during this process.

And he said, I'm claustrophobic, too. I was

in that jail for 31 days in that little room in

that jail. What is he thinking there while this

is going on? That goes to his intent. That goes

to his premeditation. That goes to the terror

element in the kidnapping.

They used an entire roll of duct tape. How

long does that take? He said they were in there

20 to 25 minutes is what he said. As to the

actual holding her nose part which he says, which

he says, he, he says Carr did that while he sat on

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her tiny little self is what he said, while he sat

on her tiny little self.

There, again, the principal instruction. Read

the principal instruction. It does not matter,

and I'm talking about principal instruction as it

goes to first-degree premeditated murder now, he

meets the definition of a principal as it relates

to first-degree premeditated murder under those

facts. So he would be guilty as a principal under

first-degree premeditated murder.

Even though you might believe that Emilia Carr

was the one who taped the bag around her neck and

even though you might believe that Emilia Carr is

the one that held her nose, he's clearly

responsible for Carr holding her nose, if that's

what happened. We know one thing, she's dead from

suffocation. We know that from the medical

examiner.

And I think I've talked about it, but the

other theory, the other way to prove it, the

second theory is there's a consequence of and

during the course of the kidnapping. I think I've

covered it, but one thing you might think about is

the physical evidence that exists which proves

that she was forcibly confined or imprisoned.

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The bruise under the scalp that the medical

examiner told you about. That's physical

evidence. The broken window in that tunnel, that

hallway. You can look at the pictures and see for

yourself whether it looks like a tunnel. She went

back when she got hit he said. Her hand hit the

window. Well, the window's broken. We know that.

That's physical evidence. You will see the photos

of it in the photo notebook in your deliberations.

By the way, I want to sure you understood, all

the photos that you saw on the television are

available to you, all of them are, in the photo

notebook that the state put in. So you wouldn't

have to come back in here to see the 24 photos.

You can look at eight by tens of each photo under

each witness's name. Under Shelby Roberts' name

in the photo notebook is all her pictures, etc.,

and the other witnesses.

The defendant -- more physical evidence. The

defendant admitted that he held her down in the

chair until her last breath. Duct tape was found

on her at the autopsy. Tends to corroborate what

he says. She had duct tape on her at the autopsy.

Duct tape was on her when she was taken out of the

grave. There's fingerprints on the duct tape from

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the trailer, one fingerprint. And whose is it?

It's Joshua Fulgham's. DNA on the duct tape?

Heather's DNA.

Now, I just have a quick -- I think it will be

relatively quick. I could have just gone straight

forward, couldn't I? Here we go. It takes a

minute to come back alive.

Kidnapping. I've already talked about all of

these I believe. I'm going to stand over here so

everybody can see. Let's see them all on the

television. Kidnapping, first felony, forcibly

secretly, secretly. Getting her there under the

false pretenses, luring her there with the money

or by threat, confine, abduct or imprison Heather.

1. The jail call. We talked about it, the

woods behind the house.

2. The phone call to Emilia Carr on the day

that he decided to kill her to ask her if she's

down with that. And they talk about, yeah, and

they plan it, how they're going to use the money

to do it.

3. They lured her to the trailer with the

promises of the money.

They restrained her in the chair and confined,

abducted, or imprisoned her and her hair was found

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on that chair. The chair right over there

(indicating). Duct tape was used.

Now, next over, with intent to inflict bodily

harm upon or to terrorize Heather. First, it's

dark outside, there's no power. Joshua Fulgham

takes her there when she trusts him to take her

there. She tries to get away. She's hit in the

head with a flashlight. They use the flashlight

and a candle and she's still alive when the candle

was used.

He was still sitting on her. She's duct taped

to the chair, the plastic bag over her head, she

was claustrophobic, she was trying to talk through

the tape. He could feel her getting weak, her

little bitty self. She couldn't fight. I held

her.

Premeditation. Previous plan with Emilia to

murder Heather we've talked about. Started

planning again while in the jail. Mom thought

Heather was going to Mississippi. The school

custody letter. He used his mother to help him

with his plan. He needed that letter after

Heather was dead. He needed that letter. Why not

let mom say good-bye to Heather in the driveway?

Because he could not.

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Lured her to the trailer, the promise of

money. Already told Emilia he was bringing

Heather on the phone. She says, I'll come out

there a little bit after you get there. I'll

watch and when you get there I'll wait a little

while. I'll come out there. Sitting on her to

help suffocate her. Claustrophobic again. He

admits that he's confessing to premeditated

murder. I'll show you that video clip.

Things that corroborate what he said. He took

us to the burial site. It's in his girlfriend's

backyard. The thumbprint and Heather's DNA on the

duct tape. Hit in the head with a flashlight.

Found broken flashlight. That's what the medical

examiner's testimony has corroborated. Window was

broken.

The arm on the chair was broken. Remember how

he told you, he leaned over to the chair and said,

I think her -- I think we taped her to one side of

the chair because I think the right arm, I think

it arm was broke on the chair. Remember he said

that? You can clearly see in the photos and you

can clearly see right here, right arm is broken on

the chair, and that's why they duct taped her to

the arm. He showed us. He demonstrated it. He

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knew that because he was there and he participated

actively in the killing of Heather Strong.

She had only socks on and that was true.

Medical examiner told you that. Buried in the

same clothes described by the defendant she was

wearing on that day, February 15th, the shirt and

jeans. The shirt looks a lot different after it

was underground for a month. Dr. Wolf explained

to you why, the body grease.

He put a board over Heather in the hole.

There was a board over Heather in the hole. Her

face was covered with a blanket. He told us all

these things and these things are true. He

described the duffel bag that she was put in.

He said he was angry and he knew that he -- we

know that he was angry at being put in jail for 30

days. He apologized to his mother and said, I

needed to get this off me. You didn't raise me to

do stuff like that. There's another frame with

all of them.

Now, I have, it's only about ten minutes I

believe. I'm trying to add it up. It's short

video clips that I'd like to play for you. The

first one -- I did the same thing again, thank

you. I call it the description of the trailer

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scene. This is from the March 21, 2009, CD No. 1.

(Recorded interview played for the jury:)

FULGHAM: Yeah, in that trailer and I want her

to help me get it. I want her to watch out, help

me find. I told her wasn't nobody there, you

ain't got nothing to worry about. I just want to

get it and go.

BUIE: Okay.

FULGHAM: So we went there, I backed the car

down to the other side of that van, where that big

brown van, I backed to the other side of it.

BUIE: Okay.

FULGHAM: We got out and we went back there in

that trailer.

BUIE: Who walked in first?

FULGHAM: I held the door open, she went in.

BUIE: Was it dark?

FULGHAM: Yeah, there's no power out there.

We was striking our cigarette lighters. Heather

had one I had one.

BUIE: Okay.

FULGHAM: We were striking our lighters and I

told her, I said, I know that money's on this

table somewhere.

BUIE: So you all walked in, you made a left,

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you went down that hallway to the kitchen area?

FULGHAM: Yes, sir.

BUIE: Okay.

FULGHAM: So she started flipping around on

the table and I was on this side of the table, she

was on this side of it. Then she come around over

there and started to help me look like I knew

where I was looking.

BUIE: Right.

FULGHAM: Then I turned around and said,

Heather, sit down, we need to talk. She said,

What? I said, Sit down, we need to talk. About

that time, that back door popped open. When I

told Heather, Heather went, Hell no. That ain't

what I came here for. Emilia come in the back

door. Emilia like, Shh. Heather said, No, hell

no. I'm out of here.

BUIE: What did she have? I mean, how was she

able to get down the hallway? I mean, it was

dark. Did she have a lighter striking it?

FULGHAM: She had a lighter in her hand. She

started down the hallway. I tried to grab her.

She went -- when I -- I grabbed my arms around her

like that right there, she cut loose of me and

walked on. I was like, Fuck it. I'm going to let

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her go.

Well, about that time when she got, I don't

know how far apart they were from each other, but

she was walking down the hall back towards the

back door and I heard (indicating noise) and then

I heard glass. Heather's hand went back and she

came down on the ground. Like I say, I don't know

exactly where it cut her, if it even cut her. I

know her hand hit the glass.

BUIE: Okay.

FULGHAM: And it knocked it out, I do know

that.

BUIE: Okay.

FULGHAM: She came back. I grabbed her up and

put her in that chair over there.

BUIE: Okay.

FULGHAM: And that's when I told Emilia, I'm

fixin' to go to jail. She said, No, you're not.

She said, Just help me do something and get the

hell out of here.

BUIE: Okay.

FULGHAM: Because she knew I had to get back

home to mom because mama had the kids.

BUIE: Okay.

FULGHAM: And mom thought I was just taking

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Heather to the bus station because that's what I

told mama.

BUIE: Okay.

FULGHAM: So I helped her tape her to the

chair.

BUIE: Where did the tape come from?

FULGHAM: Emilia had it somewhere. I don't

know where she got it. It was out there in that

trailer house. I don't know exactly where. She

grabbed it from somewhere in that trailer house.

BUIE: Okay.

FULGHAM: She came out with a flashlight when

she came up. She brought a flashlight when she

came out there.

BUIE: I thought she had a lighter, too?

FULGHAM: Not Emilia. Just me and Heather was

the only ones with lighters.

BUIE: Okay. Because I asked you what did

Emilia come in and you said --

FULGHAM: I thought you asked me what Heather

go out the hall with. I'm sorry. I swear I

thought that's what you asked me.

BUIE: That's why we --

FULGHAM: Emilia come in and Emilia had a

flashlight.

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BUIE: Okay.

FULGHAM: She had a flashlight.

BUIE: What color was the flashlight?

FULGHAM: Man, I can't even be honest with you

and tell you.

BUIE: Was it a store bought flashlight, one

of them rubber, plastic ones, or was it like one

of those flashlights that we have, those big mag

lights, metal flashlight?

FULGHAM: I think it was metal. I don't know

if it was one of those mag lights, but it was a

metal light.

BUIE: Okay. And she hit her over the head,

knocked her out?

FULGHAM: And fell back, and when she fell

back, her hand took out that glass. I swear to

you, I thought you said --

BUIE: That's fine.

FULGHAM: -- Heather go down the hallway.

BUIE: Josh, that's --

FULGHAM: I'm not making shit up.

BUIE: Okay. That's fine.

FULGHAM: But Emilia come in with a lighter.

Not a lighter, a light. Me and Heather was the

ones in there with the lighters.

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BUIE: You put her in the chair. Who picked

her up and put her in the chair?

FULGHAM: I did.

BUIE: How did you pick her up?

FULGHAM: (Indicating.)

BUIE: With her arms like that. So she's like

this when she --

FULGHAM: She was sitting all the way back in

the chair like this right here (indicating).

BUIE: Okay. Who grabbed the tape?

FULGHAM: Emilia did.

BUIE: Who started wrapping her?

FULGHAM: Emilia started wrapping her up here

through the thing and I run it around the bottom

of her legs.

BUIE: Okay. Did anybody tear small pieces of

tape off?

FULGHAM: I didn't tear no small pieces. Like

I said, I just wrapped it around her legs and we

got her stable to the chair to where she wouldn't

move and she was still out because she wasn't

saying shit. Emilia did her mouth in case she

came to.

BUIE: With duct tape?

FULGHAM: Yes, sir.

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(Conclusion.)

MR. HOOKER: There you have evidence of

premeditation. Even after he says he let her go,

he's the one that still grabbed her, put her in

the chair, and sat on her and helped tape her

feet. He taped her feet. Through all of this

process, she was being kidnapped under the

elements.

And he was reflecting. He knew what was

happening. He actively assisted in killing her.

But he lied there because he said she was

unconscious because he doesn't want to think about

or talk about what actually happened. She was

awake the whole time and fighting. He doesn't

tell us that until later.

That was the longest one. The others are much

shorter. This is called -- this is what I call,

How he sat on her. It's also from March 21st, the

second DVD.

(Recorded interview played for the jury:)

FULGHAM: Just sitting on her legs.

SPIVEY: Did she scratch you?

FULGHAM: No.

SPIVEY: Was she screaming?

FULGHAM: (Shakes head.)

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BUIE: She got to be doing something. Her

hands are open. Her hands is not like this on the

chair. Her arms are like this, so she got to be

--

FULGHAM: I'll tell you, her hands was like

that.

BUIE: So are you saying that she was tied on

one side?

FULGHAM: I think so --

MR. HOOKER: Wait a minute.

FULGHAM: Just sitting on her legs.

SPIVEY: Did she scratch you?

FULGHAM: No.

SPIVEY: Was she screaming?

FULGHAM: (Shakes head.)

BUIE: She got to be doing something. Her

hands are open. Her hands is not like this on the

chair. Her arms are like this, so she got to be

--

FULGHAM: I'll tell you, her hands was like

that.

BUIE: So are you saying that she was tied on

one side?

FULGHAM: I think so because was one side of

that chair broken? I can't remember, but I swear

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to you, I think it was like that right there is

how she was.

BUIE: So her hands in front of you? She

wasn't trying to grab you?

FULGHAM: No, she couldn't. She couldn't

move.

SPIVEY: Were you sitting on her hands?

FULGHAM: No, I was sitting on her legs.

SPIVEY: I know on her legs, but --

FULGHAM: I was kind of like if that was her

legs, I was kind of leaning against her.

BUIE: So you leaned up against her like this

right here? Show me. I don't mind could you

sitting on me. I don't mind at all. She's

sitting in this chair, she's tied up, her hands

like this, show me exactly -- and you up on her

like this.

FULGHAM: Like that right there (indicating).

BUIE: So you compressing her against her

chest and Emilia is compressing her against her

face or nose. So you got pressure on her chest.

You're pushing on her chest, constricting her

airway and Emilia is behind her doing the same

thing around her head? She's fighting. You got

to understand, this girl is fighting for her life.

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FULGHAM: But she couldn't move because I was

on her.

BUIE: And then she goes out?

FULGHAM: Emilia checked her pulse and told me

she was gone.

SPIVEY: What was the sound she made?

FULGHAM: Just like a gurgling in her throat.

SPIVEY: And after that she never made another

sound, never made another move?

FULGHAM: (Shakes head.)

(Conclusion.)

MR. HOOKER: Time to reflect while he was

actively helping kill her. Definitely confined,

abducted, imprisoned. Definitely terrorized and

committed bodily harm upon her. Claustrophobic?

Of course she was claustrophobic.

This one is when he calls his mom on

March 21st, second CD.

(Recorded phone call played for the jury:)

FULGHAM: Because I won't be back. I need to

talk to you, mama. I want to talk to you. No, I

don't need to talk to a lawyer, mama. I'm guilty.

No, I don't. I'm guilty. I done it, mama. I

didn't do it by myself. I didn't do it by myself,

I didn't do it by myself, but I done it. I just

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got sick of it, mama. I wanted my babies. I

don't expect you to take that responsibility of

raising them either. I said I don't expect you to

take that responsibility of raising them. I just

wanted them, mama. That's the only reason I did

it. It wasn't even that, mama. It really wasn't

even that. You know, I had had -- I told you she

was leaving and going to Mississippi and I had you

draw that paper up for me, but I -- she wasn't

leaving, mama. I lied to you. She wasn't leaving

going no where. I lied to you. Huh? Yeah, but

it ain't going to matter, mama. They got evidence

and everything else, so it don't matter. I did

it. I needed to get it off of me. I know you do,

mama. But I'm sorry, you didn't raise me to do

shit like that. It's not your fault. I know you

did. I'm sorry. Mama, I needed to get it off my

shoulders. I did it and it was wrong, but I

didn't do it alone and I didn't leave the one who

was with me out either.

(Conclusion)

MR. HOOKER: He's clearly -- he clearly has

premeditated the murder. He lied to his mom to

get help in him premeditating and getting away

with and benefiting from the premeditated murder

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of Heather Strong. This is the letter. He used

it. He used it two -- he used it I believe the

same day he buried her because he killed her on

February 15th. He was down there at the school

with McKenzie transferring her over to

Reddick-Collier on the 17th.

He finally admitted on March 26th, the last

statement, that he had come home from work the day

after, Monday which would be the 16th, and that he

had to work late and he didn't bury her that day

he finally admitted. He buried her the next day,

the 17th, the same day he went with McKenzie to

Reddick-Collier.

"I lied to you, mama. I had you draw up that

paper. She wasn't leaving mama. I lied to you.

She wasn't going no where." Premeditation. He

took her to those woods knowing she wasn't going

nowhere else.

This one's called the description of the

murder from the March 26th.

(Recorded interview played for the jury:)

FULGHAM: Emilia taped her up. She got her

hands taped up, I did her feet down at the bottom.

I did them with the tape. Emilia wrapped tape

around her mouth before she even put the bag over

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her. Well, Heather somehow or another got the

tape loose from her mouth and got it down on her

neck, so Emilia put more. She used a whole roll

of duct tape. Not just on her mouth, but

everywhere else. Around her up here. She put

more around her mouth and then that's when she put

the bag over her head. Then when she put the bag

over her head, she taped it around the neck to

where it was solid on her and she had her around

her neck. She was trying to snap her neck. She

had one -- this hand right here was coming over

her hear over her nose.

BUIE: And where were you?

FULGHAM: I was still sitting on her.

BUIE: (Inaudible).

FULGHAM: And once I knew that Heather had got

weak, I could tell she was getting weak because

she was just like, then nothing. One time she

pushed the chair back while Emilia was still

behind her. She pushed the chair back and I think

that's when she took her last breath.

(Conclusion.)

MR. HOOKER: He confined, he abducted, and

terrorized her. Kidnap's proven. During the

course of the commission of that kidnapping she

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was killed. Felony murder, first-degree murder

verdict.

He reflected. Regardless of whether he wanted

to admit to it on tape, he was reflecting. He

knew she was dying, he knew what he was doing, he

was guilty of premeditated murder also from what

you just saw right there himself and as a

principal.

This is March 26th.

(Recorded interview played for the jury:)

FULGHAM: And I heard her make a gurgling

noise in her throat or something.

BUIE: Then what happened?

FULGHAM: That's when I cut the tape loose

from her feet.

BUIE: You use a knife or something or just

pulled it loose?

FULGHAM: Pulled it loose, pulled it loose,

and then I -- yeah, we pulled it loose. We didn't

use no knife.

BUIE: At which point did y'all have the time

to light the candle?

FULGHAM: The flashlight. Emilia had the

flashlight and the battery, the one she hit her in

the head with, the battery went dead or something

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and when that battery went out in it, there was no

more light. She tried to put the batteries in a

couple more lights and they wouldn't work.

BUIE: So it was jet black in there then,

right?

FULGHAM: Except for my cigarette lighter. I

was striking it.

BUIE: Was she in the chair then? She was

already duct taped and everything. Was she dead

then?

FULGHAM: When the candle got lit?

BUIE: Yeah.

FULGHAM: No.

BUIE: Okay.

FULGHAM: She wasn't dead yet.

BUIE: So y'all were fighting in the dark?

FULGHAM: For most part and then Emilia got

that candle. I don't know where it came from and

I don't know what she done with it, but she had

lit it and set it -- set it right on top of where

that refrigerator is in there.

BUIE: Right.

FULGHAM: That's where the candle got sit when

it was lit.

BUIE: Then y'all, after she -- she died, you

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guys took the tape off of her?

FULGHAM: And I pulled her out on the floor,

pulled her hair back out of her face, and seen her

eyes.

BUIE: Was her eyes open?

FULGHAM: They were like...

BUIE: Halfway.

(Conclusion.)

MR. HOOKER: And the last one.

FULGHAM: And right then she came to and told

me right then. I bring her back here later.

Bring her back late tonight. We'll get rid of

her.

MR. HOOKER: Bring her back here late tonight

and we'll get rid of her. And what did they do?

That was from the March 26th statement. They

brought her back there at night and they got rid

of her.

I will be able to talk to you one more time

after the defense gives their closing. Thank you

very much.

* * * * *

(This concludes this excerpt.)

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REPORTER'S CERTIFICATE WITH ACKNOWLEDGMENT

STATE OF FLORIDACOUNTY OF MARION

I, Shannon Carlton, RPR, certify that I was

authorized to and did stenographically report the

foregoing proceedings; and that the transcript is a

true and complete record of the requested excerpt of

my stenographic notes

I FURTHER CERTIFY that I am not a relative,

employee, attorney, or counsel of any of the parties,

nor am I a relative or employee of any of the

parties' attorneys for counsel connected with the

action, nor am I financially interested in the

action.

DATED this 12th day of April, 2012.

________Shannon Carlton, RPRNotary Public-State of FloridaMy Commission No. EE127661Expires: 09/18/2015