Murder appeal fails

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By Christopher Brooke, Reporter

The Virginia Court of Appeals saw no cause to set aside the convictions of murder against a 23-year-old Carroll man in the Nov. 12, 2007, shooting deaths two teens in Fancy Gap.

A jury in Carroll County Circuit Court after a two-day trial found Clinton Eric Burke guilty in the deaths of George Adam Fulton, 19, and Dustin Bond, 17, at Fulton's mobile home on Frog Spur Road.

The jury also found Burke guilty of five related charges, including three counts of use of a firearm, the malicious wounding of Amanda Bond and burglary from the home.

As a result, Burke was sent away to prison for two life terms plus 43 years.

The appeal was based on the inconsistent testimony and gory crime scene photos that could have prejudiced the jury, the defense believes. Both the testimony and the photos should have been thrown out by the judge.

The defense argued that testimony from witnesses Amanda Payne and Randy Martin did not agree on certain facts, the largest being the timeline and places visited as the three were driving around on the night of the shooting.

"The timeline established by the commonwealth's [attorney] does not allow for Clinton Eric Burke to be in the vehicle driven by Amanda Payne and located at the residence of Adam Fulton a few minutes prior to the 911 call being placed," the defense's argument states.

There would not have been enough time for Burke to leave from Gladesboro School, as testimony indicated, go to his grandfather's farm with enough time for him to break into a garage there and rummage around for money in three vehicles, steal a shotgun and start walking a quarter mile before being picked back up by his ride and get to the scene of the crime in line with when the 911 call went out, the appeal argues.

"It also establishes that Clinton Eric Burke could not be in the vehicle and could not be guilty of the crimes charged."

While the defense argues that the crime scene photos where accurate, evidence that has a prejudicial effect outweighing other factors must be excluded, the appeal states. The trial judge did exclude some of the photographs "due to their gruesome nature," but other photographs were just as gruesome, and to allow them as evidence "was an abuse of discretion by the trial court."

Commonwealth's Attorney Greg Goad argued against the appellate court overturning Burke's conviction.

"The defendant's argument regarding the time frames various witnesses testified to is without merit," he wrote. "There was no evidence the witnesses had synchronized their watches to where everyone had the same time on their watch."

Goad cited precedent in submitting photographs as evidence "to show motive, intent, method, malice, premeditation and atrociousness of the crime," Goad's argument said. Case law says that accurate photographs of crime scenes "are not rendered inadmissible simply because they are gruesome or shocking."

The jury had to determine if there was malice and premeditation in this double homicide, and the photographs were relevant to that, Goad argued. Plus, the fact that the judge did exclude some of the photographs shows he did not abuse his discretion.

The ruling by the appeals court judge upheld Burke's conviction.

While there might have been some differences in the witnesses' statements, their testimony was largely consistent, the appeals court found.

"Both witnesses confirmed appellant [Burke] directed Payne to drive them to Fulton's residence and that he carried a shotgun with him," the ruling stated. "Payne testified the object was wrapped, and Martin stated it was exposed.

"Payne left [Burke] at Fulton's house and returned a short time later. At that time, [Burke] carried the shotgun and held his clothing in a plastic bag.

"Afterwards, they traveled to a pond where [Burke] discarded the shotgun in the water and burned his clothing.

"Payne also testified that during the drive to Fulton's house, [Burke] stated he intended to scare the victims to discourage them from testifying against him," the appeals court ruling noted. "After appellant returned to the car, he admitted he shot all three of them and threatened to kill Payne if she contacted police."

Martin led investigators to the pond, where they recovered the shotgun registered to Burke's grandfather. Testing confirmed it had been fired and the spent casings were found at the crime scene.

The jury had the responsibility of determining the credibility of witnesses and their testimony at trial, the appellate court ruling noted. The ruling found no fault with the jury's determination and found that the evidence was sufficient to convict Burke on all charges.

In regard to the photos, the appellate court agreed with Goad that the pictures show the atrociousness of the crime. There was no abuse of discretion in the admission of the photos as evidence.

Burke can continue to appeal his conviction to a three-judge panel of the appellate court.