Keith Antoine Carter shouldn't be the only person on trial for first-degree murder in the death of Winston-Salem police Sgt. Howard Plouff, his attorney, David Freedman, said in court yesterday after prosecutors rested their case.
Under the state's theory, other people, including the bouncer who fired his gun in the air in an attempt to disperse the crowd, could be charged with first-degree murder as well, Freedman argued in a motion to dismiss the case.
Prosecutors are pursuing the first-degree murder count under the felony murder rule, in which someone is considered guilty of first-degree murder if that person committed the killing during the commission of another felony.
In this case, the underlying felony is engaging in a riot.
Plouff had gone to the Red Rooster nightclub in the early morning hours of Feb. 23, 2007, to help off-duty sheriff's deputies break up fights that had spilled into the parking lot. He was shot in the neck as he moved among a crowd and later died at Wake Forest University Baptist Medical Center.
Prosecutors said that Carter threw a chair at someone while in the club and was then beaten by several people. A friend took him outside, and Carter went to his car to get his gun and load it. He fired the gun seven times into a crowd, with one of the bullets hitting Plouff, prosecutors have said.
Carter said in a statement to police that he fired the gun into the air and never meant to hurt anyone.
Freedman said he wasn't aware of a case in which prosecutors used engaging in a riot as the underlying felony in a first-degree murder case. The riot charge, which came on the books in 1969, is overbroad, vague and unconstitutional, he said.
He argued that using engaging in a riot under the felony murder rule gives prosecutors too much discretion in deciding who to charge with murder.
Joseph Hensley, the bouncer who fired his gun in the air at the Red Rooster that night, could have been charged with first-degree murder as well as the person who threw the first punch that started a series of fights in the nightclub, Freedman said.
"You could have someone encourage someone else to be in a riot, setting off a chain of events that results in a person's death," he said.
Assistant District Attorney David Hall said that Hensley would not have been charged because there is no evidence that his firing in the air caused Keith Carter to run to his car, get his gun and start firing into the crowd. He said that prosecutors are allowed to use the felony murder rule if it can be proven that in the commission of a felony, a person uses a deadly weapon and kills someone.
"Mr. Freedman would like to keep contending that everyone who was out there could have been charged with felony murder, and that's simply not true," Hall said.
Assistant District Attorney Mike Silver said that state law is clear on what constitutes felony engaging in a riot, including that there has to be more than $1,500 in property damage, and serious bodily injury, and that the person possessed a deadly weapon.
In the end, Judge William Z. Wood of Forsyth Superior Court sided with prosecutors and denied Freedman's motion.
Earlier yesterday, one of the state's final witnesses was Dr. Donald Jason, a Forsyth County medical examiner. Jason testified that Plouff died from a gunshot wound to the neck. He said that the bullet struck Plouff's carotid artery and jugular vein, and damaged his spine, paralyzing him from the neck down.
Neal Morin, a forensic ballistics expert with the State Bureau of Investigation, testified that the bullet recovered from Plouff and seven shell casings found outside the nightclub near where Plouff was shot came from a 9 mm handgun owned by Carter.
And Travis Smith, a Winston-Salem man who was at the nightclub that night, testified that he was standing beside Plouff when he was shot. Smith told the jury that he was hit in the head with a chair and that he was upset when he got outside. Plouff tried to calm Smith down and get him to leave, and then Plouff fell to the ground.
Smith testified that he heard gunshots and saw two police officers go toward Plouff. That's when he realized that Plouff had been shot. He said he never saw who shot Plouff.
Prosecutors contend that Carter threw the stool or chair at Smith.
mhewlett@wsjournal.com
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