Teen brothers accused of Raleigh murder in August heading to adult court

Boys, 13 and 15, are accused in the death of a North Raleigh teen

ablythe@newsobserver.comDecember 6, 2012 

— The teenage brothers accused of murdering a 16-year-old boy outside a North Raleigh apartment complex in August will move from the juvenile court system into an adult system that gives little lenience for their youth.

Judge Jennifer Knox found probable cause on Thursday in Wake County court that prosecutors had enough evidence to try the 13-year-old and 15-year-old on the allegations of first-degree murder and acting in concert.

The legal system keeps their names secret until they are indicted as adults, an acknowledgement of their age. But under state law, when anyone 13 or older is charged with first-degree murder, their cases must be transferred to adult court.

Defense attorneys immediately appealed the decision, citing a growing mass of research that shows an adolescent brain is still growing in the teen years and reasoning abilities aren’t fully developed until the 20s. Similar reasoning was cited by the U.S. Supreme Court when ruling that murder defendants younger than 18 could not face the death penalty.

In this case, it is the younger brother, the 13-year-old, accused of being the shooter.

The Wake County grand jury is set to consider their cases next week.

The brothers are accused of killing Fernando Garibay-Benitez on Aug. 15 near the Lexington on the Green apartments on Rolling Green Court in North Raleigh. The victim was 16 and a rising sophomore at Millbrook High School.

Though police have released few details of the case, the hearing on Thursday offered a glimpse of what prosecutors and several witnesses contend happened in the hours before and after shots were fired from a white van.

Testimony on gangs

It was unclear from the hearing whether the shooting was gang-related, but testimony offered a glimpse of teenagers who associated with different gangs.

The accused brothers told people they were in the TLS gang, according to testimony Thursday from teenage girls who were with the brothers that day. The homicide victim and the friend he was hanging out with that afternoon were in the BPA, a gang also known as the Brown Pride Aztec, according to testimony.

On Aug. 15, at about 4 p.m., the teenagers came together near the entrance of the Lexington on the Green apartments.

Garibay-Benitez and a 16-year-old friend were on their way back from the store. The friend was riding a bike, and Garibay-Benitez was walking.

The accused brothers were leaving the apartment complex in a white van with tinted windows.

The 15-year-old was driving. The 13-year-old was in the passenger seat. Two teenage girls were in the back seats.

They had just taken the older teen’s infant daughter to her mother’s home and were on their way back to their place.

The 15-year-old stopped the van by Garibay-Benitez and his friend, who were near the street.

Words were exchanged through the van window.

A confrontation

From testimony on Thursday, there was no evidence the teens had ever met before or knew each other.

The teens in the van asked the teens in the street who they were, where they were from.

Then the older brother, according to witnesses, told the younger brother: “You don’t say, ‘Where are you from?’ You say, ‘What are you banging?’ ” using an urban phrase for finding out if someone is in a street gang.

Then the 13-year-old boy lifted a dark-colored long-barreled gun from under a blanket between the two front seats, according to witnesses. Several shots were fired, they said.

The 16-year-old on the bike sped away, crashed it and fled to a vacant apartment where he, the victim and two other girls had been earlier in the day and the night before.

Garibay-Benitez was struck and fell to the ground; blood covered his head, according to witnesses.

The girls in the vacant apartment went outside to check on Garibay-Benitez and came back with urgent calls for help, but no one immediately called emergency dispatchers.

The teen who had been on the bike went back to the scene, saw his friend down, lifted his shoulders to see his face and found a lot of blood.

He then borrowed a phone to dial 911.

There was no evidence, prosecutors said, that the victim or his friend were armed. There was no evidence, prosecutors added, that any threatening gang gestures were made.

But defense attorneys argued that only one shell casing was found inside the van, and no casings were recovered elsewhere in the crime-scene area.

Defense attorneys further argued that had the shooting been premeditated or done with deliberation, the brothers would not have brought the two girls along with them as potential witnesses.

The judge offered little explanation for her finding.

Cases of teenage killers

Wake County District Attorney Colon Willoughby said that while it is rare to see such young defendants accused of murder, there have been other cases in recent years.

There was a woman who pleaded guilty to second-degree murder for killing her common-law husband in 2008 with the help of her two children and then leaving his dismembered body in a freezer.

The daughter was 15 when the killing occurred, and the son was 13 at the time.

In North Carolina courts, anyone 16 or older is treated as an adult.

The state database on juvenile crime only goes back to 2009, so it can be difficult to determine how many other 13-year-olds have been charged similarly.

In 2007, a 13-year-old boy was charged with first-degree murder in Lee County for the shooting death of a 33-year-old woman he lived with.

In 2009, according to Lassiter, eight defendants younger than 16 were convicted of murder. In 2010, nine juveniles were convicted or murder and in 2011, seven were.

State law has not always allowed for juveniles accused of felonies to be tried in the adult court system. The law was changed in the early 1990s after a widespread outcry over the sentence given a seventh-grader who used a hammer to fatally bludgeon a 92-year-old widow while stealing her car.

The seventh-grader, who reportedly showed little remorse for his crime, was released from a youth detention center after his 18th birthday.

Blythe: 919-836-4948

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