Hayes had ordered the video played Monday, before jury selection begins, to decide whether prosecutors may admit it as evidence. Borum’s defense attorneys have filed a motion to suppress the footage.
After more than a day and a half debate, Hayes ruled Tuesday that the detectives who questioned Borum about his possible role in Carr’s death had not violated his constitutional rights.
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Midway through Borum’s interrogation by Charlotte-Mecklenburg police detectives Franchot Pack and Richard Jones, Borum asked for an attorney. His conversations with Pack and Jones later resumed with Borum acknowledging that he carried a gun to the Sept. 21, 2016, demonstrations about an earlier police shooting.
Borum said he fired the gun to disperse the crowd and that the shooting of Carr had been an accident. Defense attorneys Darlene Harris and Mark Simmons argued that the detectives had continued “to badger” Borum, placing his in a position where he “clearly needed” an attorney but was not provided with one.
“There was no stop to their investigation, at all,” Harris told Hayes. “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.”
But prosecutor Glenn Cole said the detectives only resumed their questioning after Borum said it was OK to continue, and that Pack and Jones had never badgered or mistreated Jones. Instead, he said, they questioned him only to the point of trying to understand if he wanted to resume talking without an attorney present.
Cole also said the defense motion to suppress the video was filed well after the mandated deadline, and that an affidavit included by the defense attorneys was not notarized, signed or sworn to.
Hayes agreed. And while he said some of Pack’s questioning “had come up to the line” of a Miranda violation, in which questioning violates a suspect’s constitutional rights, it had not crossed it.
The judge ruled that Borum had reinitiated the interview with the detectives out of “an overwhelming curiosity” to see the evidence against him. Hayes also ruled that four phone conversations that Borum had later that day from the Mecklenburg Jail would also be admissible, provided the prosecution can prove that the voice on line is Borum’s.
Harris, the defense attorney, later declined to comment on Hayes’ ruling.
In the video, Borum says he didn’t carry a gun that night and doesn’t know who fired the shot. Detectives tell Borum they have video of the shooting. He asks to see it. They tell him they can’t show it because it’s part of a case file, according to the footage.
After about 90 minutes of interrogation of Borum, the video shows homicide detective Richard Jones moving his chair next to the defendant and putting his hand on Borum’s shoulder. “It was an accident, right?” Jones says.
Jones places his finger near Borum’s chest. “That heart right there is beating in your chest. You’d didn’t mean to shoot him, did you?”
Borum rubs his eyes and pulls his hair back from his face, the video shows. Then he begins to cry.
Later in the video, Borum tells Jones and fellow investigator Franchot Pack that he carried a handgun to the uptown demonstrations for protection.
Following more questions, the detectives asked Borum to show how he fired the gun to disperse the crowd. Borum made a quick motion with his left hand with his finger pointed skyward — and not at people, the video shows.
On the video, Borum says he didn’t know anyone had been shot until he watched the news reports at his mother’s home that night.
On the afternoon of his arrest in the Carr shooting, Borum told a friend in a series of calls from the Mecklenburg Jail that he had fired the shot, and that it hit Carr by accident, prosecutors say. Audio recordings of those calls were played in court Monday.
Borum’s lawyers said they have not filed a motion to suppress the recordings, but that their admissibility might be covered by Hayes’ decision on whether to allow the video.
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 Monday.
“They got video of me …. They got you and me. They got us walking all through downtown,” Borum says in a recording of one of the calls. Later in one of the recordings played Monday, Borum tells his listener that he had confessed: “I already I told them I did it.”
He adds that detectives had a photo of him holding the gun, with the weapon circled. Whether the jury ever hears those calls or sees the interrogation videos still hangs in the balance.
The trial is underway with tight security. Among spectators Monday were three members of the activist group Charlotte Uprising, which claims police killed Carr and then falsely charged Borum, a convicted felon who spent three months in jail in 2012 for breaking and entering.
One Charlotte Uprising member, Ash Williams, was banned from the rest of the trial Monday after taking an unauthorized photograph of the security scanner outside the courtroom and posting it on Facebook, according to a courthouse spokeswoman.