CHAPEL HILL - One of the men accused of killing Josh Bailey avoided an attempted murder charge last year that police say could have kept him off the streets.

In February 2007, paramedics called police to Brandon Hamilton Greene's girlfriend's apartment in Chapel Hill. The woman complained of chest pain and shortness of breath. Police said Greene had choked her "severely with his hands ... causing her to gasp for breath," according to arrest warrants.

Police charged Greene, now 26, with trespassing, assault by strangulation and attempted first-degree murder. His girlfriend refused to testify, and a judge dismissed the attempted murder charge.

Greene's attorney, Barry Winston, said his client was innocent in the 2007 incident, just as he is innocent in Bailey's death.

"If they had had evidence, they would have prosecuted him," Winston said of the earlier charges. "The reason that he was not prosecuted was because there was no evidence."

The police officer who responded to the apartment that night said the woman's story was critical to the case.

"The system did everything it could," Chapel Hill Police Officer Jim Orbich said. "The DA was eagerly trying to proceed forward and prosecute the case. But if we don't have a witness who's willing to testify, that's kind of how the system works."

In a document dismissing the assault charge, Assistant District Attorney Lamar Proctor wrote that the woman believed Greene was defending himself and the state had no contrary evidence that would have held up in a courtroom.

"Mr. Green and myself had been drinking all day and had gotten into an altercation earlier that night," the woman wrote in a letter to the district attorney's office. (Greene's name is spelled two different ways in court and police records.)

"Both parties were physical with each other. Problems were resolved, and we both continued to drink. I know in my heart that Mr. Green did not do anything to harm me. ... I cannot consciously sit by and sleep at night knowing that an innocent man is losing half his life incarcerated for something he did not do!"

Greene received a prayer for judgment continued on the trespassing charge, meaning it stayed off his conviction record. Greene had been put on probation weeks before the 2007 incident for driving while intoxicated the previous June. His two-year probation was scheduled to end just before Christmas of this year. Because of the prayer for judgment, the trespassing charge did not constitute a probation violation.

Beth Froehling, deputy director for the N.C. Coalition Against Domestic Violence, said the alleged victim's reluctance to testify is typical.

"Often, the victim is going to be terrified to testify against their abuser whom they very well might be going home with," Froehling said. "That's a common problem, and so it makes it difficult to hold abusers accountable."

Orbich said the victim was simply trying to protect her boyfriend from a prison sentence.

"I believe without a doubt that our arrest charges were appropriate," Orbich said. "Should he have been locked up? ... [Y]eah, without a doubt. He should have been."

Winston cautioned against judging Greene now based on the 2007 incident.

"Since I wasn't there, I don't know what the true explanation is. There are police officers who think that if someone is charged with a crime, that that is the end of the matter -- they are guilty and they should be punished accordingly.

"Brandon Greene is charged with a very serious crime," the defense lawyer said. "He deserves a fair trial."

Police records show Greene had a history of domestic disputes but never served prison time. In June 2006, he called police twice after fights with another woman, who he said scratched him on the back and arms. A couple of months before the alleged strangulation, Greene had been arrested for being drunk and disruptive at the woman's apartment complex.

Investigators say Greene was present in the woods off Twisted Oak Drive in Chapel Hill on July 29 of this year, along with five other suspects, when the group dug a shallow grave. Investigators say Matt Johnson, 21, shot Bailey in the head with a 9 mm pistol, and the group buried Bailey's body. It lay there for nearly a month before Brian Minton, 18, Jacob Maxwell, 18, and Chris Manley, 23, moved it to another location near Jordan Lake, according to search warrants.

Greene faces first-degree murder and kidnapping charges along with Minton, Maxwell, Johnson, Ryan Lee, 20, and Jack Johnson II, 19. Manley and Minton's parents face accessory charges. The suspects could have a bond hearing today.

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