Trial may hinge on man's thinking
Jury in a murder case may have to decide if a deputy's killing was a premeditated act

Grant
By ANDREA WEIGL, Staff Writer

RALEIGH -- As a Wake jury begins hearing evidence against Matthew Charles Grant, its ultimate decision will depend on whether jurors think the 19-year-old Apex man was able to think beforehand, even for a moment, about killing Wake Deputy Mark Tucker.

Grant's lawyers will try to persuade jurors that he didn't have the mental ability to plan the killing, and therefore should be found guilty of something less than first-degree murder. The jury could begin hearing evidence as soon as Tuesday. Grant has conceded he is at least guilty of second-degree murder. If the defense succeeds, Grant would avoid a possible death sentence.

Defense lawyers Thomas Maher and Barry Winston of Chapel Hill and Jeff Welty of Durham filed notice last month that they intend to present what is called a diminished-capacity defense. They have given no indication what their evidence will be regarding Grant's mental status at the time of the killing.

The defense had Grant evaluated by mental-health experts, and his previous treatment as an emotionally disturbed child has been reported by the media. Such evidence could be used to support an argument that Grant didn't have the ability to form the specific intent to kill, which is required for a first-degree murder conviction.

Defense lawyers predict Grant's lawyers will argue the teenager acted without thinking. "They are going to try to argue he never formed the specific intent to kill," said Raleigh defense lawyer James Crouch, who is not associated with the case. "They will probably argue that he panicked and he didn't think before he did it."

But defense lawyers say diminished capacity is not often successful, in part because court rulings have made it easy for prosecutors to demonstrate premeditation.

In a 1995 ruling, the N.C. Supreme Court ruled that the time it took a defendant to misfire a .38-caliber revolver three times before successfully firing a shot that killed a Winston-Salem police officer qualified as premeditation.

"Premeditation can be formed in the twinkle of an eye," said Johnston District Attorney Tom Lock.

Tucker, 49, a detective and former U.S. marshal for Eastern North Carolina, was shot in the face with a shotgun Feb. 12 in a undeveloped cul-de-sac off Holly Springs Road. Tucker was on his way back to work after eating lunch at home when, investigators believe, he spotted Grant's parked car.

Grant was on felony probation for breaking into cars and was prohibited from having firearms. In an unmarked car, Tucker parked behind Grant just as the teenager was taking a shotgun out of his trunk for some practice shooting. Grant told investigators that he knew Tucker was a police officer and shot Tucker because he didn't want to go to prison for violating his probation.

'Twinkie' defense

The most famous, and successful, use of a diminished capacity defense was the so-called "Twinkie" defense.

In 1978, Dan White shot and killed San Francisco Mayor George Moscone and Supervisor Harvey Milk in City Hall. White claimed his consumption of sugary junk food -- most notably, the yellow, creme-filled Hostess snack -- affected his judgment. White was found guilty of manslaughter, instead of murder, and served less than five years in prison.

It worked for Dan White, lawyers say, but it is not often successful in North Carolina.

"We do diminished capacity defenses in murder cases all the time," Crouch said. "They're hard to sell to a jury."

Lawyers say they typically argue that a defendant couldn't form the intent to kill if the defendant has a mental defect or was under the influence of drugs or alcohol at the time. It works more often in the latter scenario, lawyers say, because it is easier to understand why a heavily impaired person would act without thinking.

In a death-penalty case, evidence of a diminished mental abilities due to a mental illness can be more successful when argued during sentencing, said Karl Knudsen, a Raleigh criminal defense lawyer.

In North Carolina, death-penalty trials are divided into two phases: first, jurors decide if the defendant is guilty of first-degree murder, and if they do, the jury then decides if the defendant receives life in prison or the death penalty.

At the sentencing phase, Knudsen said, evidence of diminished mental abilities at the time of the crime can be used to persuade jurors not to impose a death sentence.

Grant's past is issue

Some psychiatric testimony is expected during Grant's trial.

That testimony will likely touch on Grant's troubled childhood. He had four caretakers before the age of 4. His grandparents, who adopted him, suspect he was the victim of verbal and physical abuse. He spent time in a treatment center for emotionally troubled children. He has been in and out of the juvenile and adult courts.

To counter the defense's efforts, prosecutors will likely point to portions of Grant's confession to prove he thought about killing Tucker ahead of time.

Wake District Attorney Colon Willoughby and Howard Cummings, the first assistant district attorney, could argue that Grant's admission to investigators that he knew Tucker was a police officer when he saw him drive into the cul-de-sac proves premeditation.

Sgt. Jerry Winstead testified during an earlier suppression hearing that Grant told him: "There was no doubt in my mind that he was a police officer."

Prosecutors also can highlight evidence that Grant and Tucker talked back and forth before Grant shot Tucker in the face.

At the suppression hearing last month, Winstead testified that Grant said Tucker twice asked him to put the shotgun down. Grant told Winstead that he responded that he could not and pulled the trigger.

Cummings and Willoughby could argue that the time it took to have that conversation could prove premeditation.


Staff writer Andrea Weigl can be reached at 829-4848 or aweigl@newsobserver.com.
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