Friday, May 28, 2010


Circumstantial case good enough
May 28, 2010 10:35 AM

Tom Jenkins felt much more relaxed Thursday morning sitting on his Swansboro back porch watching birds fly across Queen’s Creek than he did the day before.

Jenkins was the final holdout in an Onslow County jury that convicted former Cape Carteret police chief George Hayden Wednesday of a decades-old murder.

“This was my first jury,” he said. “It was the most difficult decision of my life.”

Jenkins, who described himself as a very analytical person, said SBI ballistic experts did a poor job testifying.

“It was a very lackluster job,” he said, adding that he would have liked to have seen photographs of ballistics markings, but no comparison pictures were made.

Jenkins said he felt Hayden’s defense attorney, Jacksonville lawyer Billy Joe Morgan, was “a true southern gentleman who did an excellent job” for his client, but in the end witness testimony that Hayden threatened to shoot Sgt. William Miller before his Sept. 16, 1972, shooting death overruled everything else in the case.

The jury did not hear any evidence that postdated the Naval Criminal Investigative Service interview of Hayden in 1998. Jenkins said that left many jurors curious as to why Hayden was on trial in 2010.

Prosecutors never called FBI Special Agent Rick Sutherland and NCIS Special Agent Dan Carlin, who reworked the case two years ago when the Millers’ 1970s babysitter came forward after reading about the unsolved homicide in The Daily News in summer 2008.

Jenkins said more information about the 2008 investigation that led to Hayden’s arrest may have helped the jury understand the case better.

“We wondered why now?” he said.

Jenkins said the main point of contention in the jury room was not whether Hayden killed Miller in 1972, but whether the state proved it.

Jenkins said for him the decision came down to repeated threats witnesses said Hayden made about shooting Miller with an M-16.

Hayden made statements that he would get Miller with an M-16 in the weeks before Miller was found shot dead on a then-isolated portion of Western Boulevard with rounds consistent with an M-16, according to witness testimony by two of Miller’s neighbors and co-defendant Rodger Gill.

The information Jenkins found damning against Hayden was circumstantial. Which is just as good as a smoking gun in the eyes of the law, said Chief Assistant District Attorney Ernie Lee who prosecuted the case with Senior ADA Mike Maultsby.

Lee said there are two types of evidence in North Carolina: direct and circumstantial.

Direct evidence is eyewitness testimony to a crime and various types of forensic proof.

“A good example of circumstantial evidence is if you go to sleep and there is no snow on the ground and when you wake up the ground is covered in snow, you can say it snowed during the night even though you didn’t actually see it,” Lee said.

State law makes no distinction between the weight given to direct and circumstantial evidence. “Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence,” according to state jury instructions.

Lee said the evidence was enough to show Hayden had threatened Miller, had the type of weapon he threatened to use and was near the crime scene.

“Justice was delayed,” Lee said of the nearly 40-year-old murder. “But it was not denied.”

Miller’s then-wife Vickie Babbitt is awaiting trial on first-degree murder and conspiracy charges. Prosecutors contend that Babbitt lured Miller to the spot where he was killed.

Babbitt’s attorney, Jacksonville lawyer Scott Jack, said the jury did not hear enough evidence during Hayden’s trial.

The Millers’ babysitter at the time did not testify, and Gill’s testimony was very limited.

“Plus, I understand that the jury found Hayden killed Miller,” he said. “However, that does not mean they found it was done with an M-16.”

He pointed out that state experts acknowledged during Hayden’s trial that the shell casings and bullet fragments found at the crime scene could have come from seven to 11 different bullets in existence at the time.

Babbitt’s trial date has not been set.

Lee said that while he is preparing for Babbitt’s trial, he also has several other murder trials in the hopper.

When asked about the trial, Maultsby said, “The verdict speaks for itself

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