GRAHAM — After nearly three weeks of testimony, the fate of two men charged with murder in the Memorial Day killing of Tony Antwane Daye Jr., 21, is now in the hands of a jury.
The last day of trial was for the lawyers who made their closing arguments.
Prosecutor Corey Santos reviewed, summarized and filled in the gaps in the case he built over the past few weeks in his hour-and-20-minute closing.
“A 21-year-old man was left to die on the ground in a park over nothing,” Santos said.
Khakim Malik Harvey, 22, of 213 Kernodle Drive, Burlington, and Kyle Lavar McNeil, 20, of 317 Fulton St., Burlington, are accused of conspiring with two women to get Daye and surviving alleged victim Joshua Sims into the Burlington City Park to rob them. Their trial on charges of first-degree murder and robbery with a dangerous weapon started May 2, and jurors started hearing testimony May 21.
Cooperating witnesses Brittany Nicole Slade, 24, and Akayzee Kareona Wright, 19, testified early in the trial to luring Daye and Sims into the bathroom with the promise of sex so Harvey and McNeil could rob them. Daye was shot five times outside the women’s bathroom near the Jimmy Combs Pavilion shortly after 11 p.m. on May 30, 2016.
Santos started the timeline of Daye’s last day with a pair of text messages between Daye and Wright, when they met at an Ireland Street convenience store. Santos told jurors they had heard proof that Harvey, McNeil, Slade and Wright were there together meeting Daye and Sims because, not only had three of them — Sims, Slade and Wright — testified to it, but McNeil told police after he was arrested that he was there that day with Harvey trying to break a $100 bill.
Robert Broadie, Harvey’s defense lawyer, questioned that, asking why police couldn’t get independent confirmation the defendants were there with security camera footage.
The texts between Wright and Daye picked up much later between 10:35 and 10:56 p.m., when Wright got him to drive to City Park.
From there, Santos focused on texts between Slade and the phone Harvey had when he was arrested, especially one she sent at 11:06 p.m. that said, “It’s a go,” and the response, “Don’t be by them — we’re about to come in.”
Santos showed jurors the same surveillance-camera video they had seen throughout the trial of two figures hiding behind the supports of the pavilion watching the bathroom, pointing out how one witness identified as Harvey can be seen looking at a phone screen — bright in the infrared-camera image — with a time stamp that matched the times the texts were sent.
“That’s how we know the two were texting to each other,” Santos said.
Broadie went after that video in his closing. The city employee who introduced it into evidence explained the old recording system could back up, causing skips in the video recording. The system has since been replaced.
“So what sticks out with the video, which is the main piece of evidence in the state’s case, is flawed,” Broadie said.
Santos also synced that video to a police body camera video recorded outside the park, but close enough for the microphone to pick up the sounds of what Santos said were the five gunshots that killed Daye, and two follow-up pops that Santos said came from the silver-but-dirty .380 witnesses said McNeil tried to shoot Sims with.
Santos talked about a spent bullet police found too damaged by an apparent ricochet to determine its caliber, and an unfired .380 bullet found along the path Sims said he ran down as McNeil fired at him. Burlington Detective Steve Reed explained to jurors that when semi-automatic guns jam — as Sims testified the .380 had — they can eject unspent rounds when cleared.
“If the .380 was fired, there would be shell casings,” said Thomas Johnson, McNeil's attorney. “If there are no shell casings, there was no .380, and that means Josh lied to you. … That means Brittany lied to you. … That means Akayzee lied to you … because they said they saw him shoot.
“There’s no evidence of a .380 being shot,” Johnson said. “The mythical .380.”
He cast doubt on Santos’ suggestion that McNeil took the shell casings by pointing out it took a police search in the daylight to find the single unfired .380 bullet lying on the ground.
“That’s a reach by the state,” Johnson said.
Johnson cast his client not as a robber and murderer, but a pimp who had everything to gain from Wright’s getting money for having sex with Daye.
Both defense attorneys challenged the credibility of the eyewitnesses, basically calling them totally unreliable. Slade and Wright have agreements with the state, changed their stories since they were arrested, and Wright had trouble on cross-examination.
Sims, Santos said, had no reason to lie, but the defense lawyers pointed to his original statement that he didn’t know who shot at him. At trial he said McNeil, whom he knew before the shooting, tried to shoot him, but testified that he hadn’t wanted to identify McNeil before was been arrested.
Santos said the independent evidence and Sims’ testimony was consistent with the important points of Wright’s and Slade’s testimony to give them credibility even if they differed on points like whether Daye gave them marijuana and money.
“With the right stimulation, with the right provocation,” Santos said, “the truth comes out.”
Broadie went after unanswered questions in the forensic evidence, like a gunshot residue test investigators had done on Daye that was never processed because, Reed testified, the State Crime Lab wouldn’t accept it.
Thompson went after an unidentified DNA trace found on the condom Daye was wearing when he died. It appeared to have come from a man, but not McNeil, Harvey or Sims.
“I didn’t introduce a third party; the DNA did,” Johnson said. “It wasn’t Kyle McNeil.”
The prosecution suggested it was “touch DNA” from the police officer who collected it and whose DNA was not tested.
The defense also spent a lot of time going for reasonable doubt and calling out the prosecution’s case. Broadie suggested alternative theories that he said were consistent with the evidence.
“We can think of other ways that this could have happened, and it’s their job to prove it didn’t happen in those other ways,” Broadie said.
“It’s not your fault the state didn’t prove the elements to you today,” Broadie said. “Because they didn’t prove it to you beyond a reasonable doubt, you have to find not guilty — yes, you do.”
Reporter Isaac Groves can be reached at firstname.lastname@example.org or 336-506-3045. Follow him on Twitter at @tnigroves.