Jury selection begins Wednesday in the Rayquan Borum murder trial with prosecutors riding an early wave of procedural victories.
On Tuesday, Superior Court Judge Greg Hayes ruled that video of Borum’s interrogation by Charlotte-Mecklenburg police — in which the Charlotte man admitted firing a gun two years ago near where demonstrator Justin Carr was fatally shot — may be used against him at his upcoming trial.
Later, Hayes also restricted Borum’s defense team from referring to other possible suspects in the killing of Carr until the judge can hear supporting evidence.
Borum, 24, is being tried for first-degree murder in the Sept. 21, 2016, killing of Carr.
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Carr, 26, was shot in the head while taking part in a uptown protest of a Charlotte-Mecklenburg police officer’s killing of Keith Lamont Scott the day before.
If convicted, Borum faces a mandatory life sentence without parole. He is also charged with possession of a firearm by a convicted felon.
A group of Charlotte activists still contend that Carr was killed by a police bullet and that Borum is being framed for the murder.
But at the request of Borum’s prosecutors, Hayes ordered the defense team of Mark Simmons and Darlene Harris not to allude to alternative suspects responsible for Carr’s death until he learns more about the defense’s evidence.
Assistant District Attorney Desmond McCallum told Hayes on Tuesday that Borum killed Carr, and that he and co-prosecutor Glenn Cole will produce witnesses, surveillance tapes and medical reports to support their contention that an armed Borum went to uptown not to protest Scott’s killing, but to take part in “a night of chaos and destruction.”
He also said a medical examiner’s autopsy of Carr ruled that he died from a bullet wound. Medical experts who were shown the autopsy later told the Observer that a rubber bullet or other projectile possibly fired by police would not have caused the amount of damage done to Carr’s skull.
McCallum said the defense has shared no evidence of an alternative suspect in Carr’s killing, which he dismissed as “conjecture and baseless speculation.”
If the defense has evidence that police shot Carr, the prosecutor told the judge, “Let’s see it. They have don’t have it.”
Defense attorney Mark Simmons said evidence already has been presented in court this week that shows Charlotte-Mecklenburg police “using weapons to suppress the crowd” on the night of the demonstrations.
To be blocked from questioning witnesses about possible links between police tactics and Carr’s death, Simmons said, “doesn’t allow us to try our case.”
Earlier in the day, Hayes also overrode defense objections and ruled that prosecutors can show video of Borum’s interrogation to his eventual jury.
Simmons and co-counsel Darlene Harris had argued that Charlotte-Mecklenburg police detectives had violated Borum’s rights by continuing to question him after he asked for an attorney.
Harris told Hayes that detectives Franchot Pack and Richard Jones were required to stop questioning Borum at the moment he requested an attorney. But Harris said the interrogation video showed that the officers had continued “to badger” Borum for more information.
“There was no stop to their investigation, at all,” Harris said . “They very clearly came for a purpose, and they were going to get it regardless of what Mr. Borum asked of them. There was no honoring of my client’s right to an attorney. They wore him down.”
Eventually, according to the video, Borum admitted to the detectives that he had fired a handgun during the demonstrations outside the Omni Hotel. He also said in the video that he was trying to disperse the crowd but hit Carr by mistake.
Cole said detectives honored Borum’s request for an attorney by stopping their discussion about the shooting and only resumed their questioning with Borum’s OK.
Hayes homed in on a portion of Pack’s comments to Borum shortly after the defendant had requested an attorney.
Pack told Borum that this might be his last chance to “write your narrative, tell your story” — statements that led Jones, who was sitting nearby, to loudly tap his pen on a table to warn Pack to stop, Pack testified.
Hayes describes Pack’s comments to Borum as “troublesome.” But while the detective “had come up to the line” of a so-called “Miranda” violation, in which police questioning undermines a suspect’s constitutional rights, Pack had not crossed it, the judge said.
Hayes ruled that the video showed Borum had reinitiated the interview with the detectives out of “an overwhelming curiosity” to see the evidence against him.
The judge also ruled that recordings of four phone conversations police say Borum made later that day from the Mecklenburg Jail would also be admissible, provided the prosecution can prove that one of the voices on the line belongs to Borum.
Detectives believe all the calls went to the same person, Marcus “Black” Williams, a companion of Borum’s on the night of the shooting, Pack testified this week.
During the calls, a man prosecutors say is Borum admitted that he had told police that he had fired the shot “to clear the crowd” and that it hit Carr by accident, according to audio played in the courtroom.
“They got video of me .... They got you and me. They got us walking all through downtown,” the man identified as Borum says in a recording of one of the calls. Later, the man tells his listener that he had confessed: “I already told them I did it.”
In 2017, Borum rejected an offer from the district attorney’s office to plead guilty to second-degree murder in exchange for a 16-year sentence, according to his attorney at the time.
While the interrogation video includes Borum’s confession, he also told detectives that the Carr shooting was an accident. To prove first-degree murder under N.C. law, prosecutors must show Borum was responsible for a “willful, deliberate, and premeditated killing.”
McCallum told Hayes the prosecution also has a witness who was with Borum the night of the shooting and will testify to defendant’s actions and motives. Prosecutors also say they will present video of Borum looting the Kandy Bar, an uptown nightclub, on the same night.
“Justin Carr was protesting,” McCallum said. “The defendant was not.”