Hayden appeal argued

April 13, 2011 8:31 AM

LINDELL KAY

Onslow County prosecutors used little more than suspicion, hearsay and a positive spin on a victim’s character last year to successfully convict a former area police chief of a decades-old homicide, according to a defense appeal made this week in Raleigh.

George Hayden, 60, currently housed in Marion Correctional Institution in McDowell County, was convicted in May of first-degree murder and sentenced to life in prison for the 1972 shooting death of Marine Sgt. Bill Miller.

In a rare oral argument requested by the Appeals Court, Assistant Attorney General Amy Irene told a three-judge panel Monday that prosecutors presented a strong circumstantial case. She said the state proved Hayden had a motive, had made repeated threats, had access to a weapon of the type used in the shooting and admitted to being near the crime scene the night of Miller’s murder.

Miller had returned to Jacksonville from Japan in the summer of 1972 to find his wife and Hayden living together, and tossed Hayden out of his home. When Hayden left, Miller’s wife, now Vickie Babbitt, left with him, taking the 1-year-old daughter she shared with Miller, according to court testimony.

Miller said in 1972 that he was going to divorce his wife, sue for custody of their daughter and press criminal charges against Hayden for using his store charge accounts.

Miller received a phone call from his wife late on the night of Sept. 16, 1972, asking him to meet. His dead body was found shortly after that. He had been shot twice with an assault rifle, once in the back and once in the head.

Hayden married Miller’s wife four months after Miller’s death. They were later divorced, but stayed in close contact. Hayden worked in local law enforcement, becoming the police chief of Cape Carteret and Belhaven.

“From the first hours of the investigation state law enforcement and naval investigators focused on collecting evidence to connect George Hayden and Vickie Miller to the crime,” Hayden’s appeals attorney, Chapel Hill lawyer Marilyn Ozer wrote in her appeals brief. “Despite this joint effort, no forensic or witness evidence placed Mr. Hayden at the murder scene, the weapon was not found and investigators did not find an M-16 in Mr. Hayden’s possession.”

Ozer said local law enforcement tried in 1972, SBI agents tried in 1974 and Naval Criminal Investigative Services tried from 1996 to 1998, but sufficient evidence against Hayden was never found.

“In August 2008, The Jacksonville Daily News ran an article about the case,” Ozer said in her brief. “As a result, Rodger Gill was re-interviewed. According to a Sheriff’s Department news release, the 2008 interview was the basis for George Hayden’s arrest.”

Gill was a co-defendant in the case until charges against him, as well as those filed against Vickie Babbitt, were dropped by the state in December. He testified with immunity at Hayden’s trial that Hayden told him in 1972 that he had stolen an M-16 while on a shipboard deployment. Gill said he had warned Miller about it.

Fearing an ambush, Miller had brought a pistol with him to meet his wife the night he died.

The trial court should not have allowed investigators to testify from notes they took in 1974 and 1998 while interviewing Gill, because the notes amounted to uncorroborated hearsay, according to Ozer’s appeal.

Irene disagreed in her brief, saying the N.C. Supreme Court has ruled prior statements consistent and supportive of testimony are admissible in court.

Ozer also argued that Miller’s sister Sharon Aguilar should not have been allowed to testify as to pictures in Miller’s wallet recovered from the crime scene because her testimony was emotionally prejudicial.

Contrarily, Irene states in her brief that Aguilar’s identification of Miller’s wallet was relevant because it showed “the motive for his murder was not robbery.”

Ozer said Tuesday a decision by the Appeals Court usually takes a few months, but she has seen rulings in some cases take two years.

PDFs of both legal briefs are available online at http://onslowcrime.encblogs.com.