07/09/07 — Officials question sentence in death

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Officials question sentence in death

By Lee Williams
Published in News on July 9, 2007 1:46 PM

Wayne County sheriff's officials are questioning a jury's June decision in the fatal shooting of a Dudley man in 2006.

Andre Todd, 19, of Myrtle Place, Dudley, was acquitted June 28 on one count of first-degree murder, but convicted on one count of discharging a weapon into an occupied property.

Todd was accused of fatally shooting Jarrett Garner, 21, of Old Mount Olive Highway, Dudley, on Jan. 3, 2006, during an argument over $20 and a cell phone.

"They were playing at first and then their patience ran short and their attitudes flew," Wayne County Sheriff's Chief Investigator Capt. Tom Effler said.

Garner, a passenger in a tan Nissan Maxima, was shot once in the right leg at about 6:30 p.m. on Colonel Warrick Drive. A bullet from Todd's .357 Magnum severed a major artery and within minutes, Garner was dead. He died before he reached the hospital, officials said.

After listening to testimony from several witnesses including Todd, who admitted to shooting Garner on the witness stand, the jury acquitted Todd of Garner's murder, but convicted him of shooting into the Nissan.

It took the jury about three hours to make their decision. During their deliberations, the jury asked two questions.

Wayne County Superior Court Judge Jack Jenkins who presided over the murder trial answered both of them. The jurors then asked for a dictionary. That request was denied.

"The jury first asked a question about the instructions on first-degree and second-degree murder, and he read it to them," Effler said. "A little while later, they asked him for a copy. He gave them a copy of all the instructions that he gave to the jury. The third time, they asked for a dictionary, and they were denied."

After receiving the verdict, Jenkins ordered Todd to spend 25 to 39 months in prison for shooting into the occupied vehicle. He received credit for 534 days in jail. Todd also was ordered to pay $4,668.72 restitution to Garner's family.

Wayne County Assistant District Attorneys Paige Rouse and Claud Ferguson prosecuted the state's case. Defense attorney Charles Gurley represented Todd.

Wayne County Sheriff Carey Winders said he is not sure why the jury did not return a guilty verdict.

"I don't know what the jury didn't understand about the instructions the judge gave," Winders said. "The directions were very clear that if you find him guilty of shooting into an occupied vehicle and the shooting led to the death of the victim, you must find him guilty of first-degree murder."

Effler said the verdict was a shock.

"I've been involved in a lot of trials and I've seen a few surprises, but when a man gets on the stand and confesses to shooting a man who died minutes later, it's hard to see why he wasn't convicted of first- or second-degree murder," he said.

On the witness stand, Todd explained the events that led up to the shooting. He told the jurors that he was a drug dealer and he was on the street because it was the third of the month and the welfare checks were in, which meant he would make a lot of money that day.

He also told the jurors that he remembered the day vividly because he had $1,500 in one pocket and $16 in another pocket. He told jurors that he and Garner were arguing at the time of the shooting.

"He claims Garner reached for the door like he was going to get out, and he went ahead and shot him in the leg because he knew if he got out it might have been worse," Effler said. "According to the medical examiner's office, it severed his femoral artery. He bled out before he got to the hospital."

Effler said North Carolina law is clear. A person can be charged with murder if they shoot into an occupied building or car and the incident leads to someone's death.

"Discharging a firearm into an occupied property including a house, vehicle or building, constitutes a felony in which a deadly weapon is used, thereby supporting a felony murder conviction if death results," Effler said quoting a state law book verbatim.

Effler said the jury had this information.

Even if the murder was not intentional, the state would still proceed with the murder charge, he said.

"The fact that the killing was accidental is no defense if it was committed in the course of one of the named felonies, and our felony is shooting into an occupied vehicle," Effler said. "The state is not required to prove malice under the felony murder theory because malice is implied from the underlying felony or the use of a deadly weapon."