Retrial opens in '95 Durham killing

A man who has been spared the death penalty once may claim he lost consciousness

Staff WriterMay 15, 2007 

— Todd Boggess went on trial Monday for a second time in a 1995 homicide, and his attorneys outlined an unusual defense -- that he was in a state of unconsciousness when Danny Pence, a Wilmington honor student, was beaten to death in northern Durham County.

Boggess, 31, is on trial for the first-degree murder of Pence.

The defendant, a man of slight build with forearm tattoos and a long, braided ponytail, was sentenced to death after being convicted in 1997.

But in 2004, the N.C. Supreme Court gave Boggess a reprieve, granting him a new trial because a judge had erred in the instructions he gave jurors.

Testimony began in the new trial on Monday after two weeks of jury selection.

This time the prosecutor is not seeking the death penalty, a fact that the victim's mother said she could live with if her son's killer spent the rest of his life in prison.

Nearly 12 years after getting the devastating news of her son's death, Sharlene Pence had to relive some of those horrible moments in a Durham County courtroom Monday.

As she sat within yards of the accused killer, Sharlene Pence testified about the custom Ford Mustang that Danny loved, the vehicle that ultimately led to his death.

Prosecutor Mitchell Garrell and defense lawyer Stephen Freedman of Chapel Hill laid out their cases Monday morning.

In his opening statement, Garrell talked about how Boggess met Pence one August night in 1995 at Johnny Mercer's Pier, a teenage hangout at Wrightsville Beach. Pence, 17, was trying to sell his car; he wanted to buy a motorcycle.

Boggess, who was 20 at the time, and his girlfriend, Melanie Gray, who was 14, went with Pence on what they said would be a test-drive, the assistant district attorney said.

The trio eventually ended up in Durham -- where Gray grew up -- and on Terry Road where the fatal beating took place.

Garrell told jurors that Boggess had tried to steal the car but ended up stalled in a ditch.

At some point during the 12-hour journey from the coast to the bludgeoning scene, Pence was tied up and gagged, Garrell said.

Then in the woods off Terry Road, Garrell said, the defendant beat Pence with a board repeatedly and then with a brick.

Boggess and Gray left in Pence's car, hastily repainted it and drove back toward the coast, according to Garrell. The two were eventually arrested in a Beaufort County cornfield, not far from where Boggess' parents lived.

Garrell told the jury that many of the details that he spoke of were from three statements that Boggess made to police shortly after his arrest.

Garrell said that Boggess planned the killing of Pence over a 12-hour and 165-mile trip, an element necessary to prove first-degree murder.

"The manner of death constituted torture," Garrell said.

Gray, the girlfriend, served nearly a decade in prison for second-degree murder. She was released in 2005.

Freedman provided a different interpretation of what happened on the day of the killing.

The defense lawyer outlined his plans to use the "automatism theory," legal jargon for a complex and sometimes controversial excuse for why a defendant is not guilty of the charges against him.

Boggess, Freedman told the jurors, had been sexually abused by his father starting at age 7 until well into his teenage years.

"His father would take him into his bedroom, into his car, into the woods," Freedman said.

To cope with the abuse, Freedman said, Boggess had learned how to go into an altered state.

"It's called losing consciousness," Freedman said. "It's how the mind and the body learn to protect themselves."

At stressful times, Freedman said, Boggess would fall into that state of unconsciousness.

At the crucial moment, when Pence was struck in the woods in northern Durham County, Freedman told the jurors, Boggess was in that altered state.

"He couldn't control what was going on," Freedman said. "He was in that state of separation of mind and body."

Boggess' father, who served five years behind bars for abusing Boggess' brother, is no longer alive. But the father testified in the previous trial, and the defense lawyers hope to use that testimony and that of a forensic psychiatrist to bolster their case.

The automatism theory, although used sparingly, has been employed in cases of sleepwalking or drunken suspects who, according to the arguments of their attorneys, were not guilty of crimes because they could not control their actions.

Freedman told jurors that as they listened to the prosecution's evidence in the coming days to remember the sexual abuse suffered by the defendant.

"You can't understand what happened in August 1995 without understanding his past," Freedman said.

Staff writer Anne Blythe can be reached at 932-8741 or anne.blythe@newsobserver.com.

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