Aberdeen and Carthage police charged Darrin Wilkinson with stealing Oxycontin from Kerr Drugs in Carthage and Eckerd Drug on N.C. 5 in Aberdeen.
In the Carthage robbery, which occurred on Feb. 16, 2002, he is accused of asking Kerr Drug pharmacist Marshall Sweat questions about Oxycontin tablets, then brandishing a black semiautomatic handgun and demanding that Sweat give him the Oxycontin. Two bottles taken contained about 130 tablets. Sweat later posted a handwritten notice at the drugstore: “We no longer stock Oxycontin.”
Two days later, Wilkinson went to the counter at Eckerd Drug in Aberdeen, with one hand behind his back. He told employees he was armed, according to police. Wilkinson left with Oxycontin, but left his driver’s license behind.
Kerr employees had identified Wilkinson as the armed robber prior to that second robbery, said Carthage Police Chief Chris McKenzie.
After a three-day search, Will Brooks, then Moore County sheriff’s deputy, found him hiding in a closet at his mobile home. He threw down a hawkbill knife on Brooks’ command. There were shallow cuts on his wrists, an apparent attempt at suicide. Officers took him to FirstHealth Moore Regional Hospital for treatment.
During a later interview conducted by Aberdeen Detective James Allen, and witnessed by Carthage police Capt. Bart Davis, Wilkinson signed a statement. That statement was introduced in court, and was one of the documents later requested by the jury during deliberations.
Wilkinson did not deny his actions.
“I had back pain,” Wilkinson said in a brief interview after the jury first went out. “My doctor prescribed 160 milligrams. That’s several times the right dose.”
Wilkinson was sent to detox. He said he has been clean now for nearly three years.
His attorney, James R. Van Camp, argued diminished capacity, contending Wilkison had become addicted as the direct result of his doctor’s overprescription of the strong painkiller. Van Camp presented expert testimony to that effect.
The prosecution did not put any opposing experts on the stand.
Final arguments and a charge by Superior Court Judge Henry E. Frye, Jr., were completed, and the case went to the jury at 11:30 a.m. Thursday. During the afternoon, jurors sent out a note saying they were deadlocked 11-1 on the Kerr robbery and 9-3 on the Aberdeen robbery.
When Frye asked whether further deliberations might result in a verdict, jury members said it would. The jury continued its work until a recess at the end of the day.
The jury returned Friday and resumed deliberations at 9:30 a.m. By midmorning, numbers had changed somehwhat: still 11-1 on the one charge, but now 7-5 on the other. By noon, the jury gave up any hope of a verdict.
Jesse Wimberley, the jury foreman, told Frye they were hopelessly deadlocked 10-2 on the first case and 8-4 on the second.
“On my own motion, I am going to declare a mistrial,” Frye said.
The issue of diminished capacity had become the bone of contention during hours and hours of jury deliberation. Notes asking for clarification brought Frye’s reply that such a question is one for juries alone.
“That is where the jury got locked up,” Wimberley said later. “They could not provide for us, there isn’t one. The closest we got was 11 to 1 for conviction on the armed robbery. That’s where we got stuck. One person just didn’t think the threshold had been met.”
In an unusual move after the trial ended, jurors sent for Assistant District Attorney Warren McSweeney, who prosecuted the case. They had suggestions for the retrial.
“We got stuck,” Wimberley said. “That is why we wanted to talk with the D.A. and say ‘Here are the holes we thought were in the prosecution’s case.’ There was not one person in the room who did not think he was guilty.”
Diminished capacity was the question that stumped the jury, according to Wimberley.
“We said to him, next time bring an expert witness who can refute on his mental capacity, his mental state,” he said. “They did not present it. The only person was for the defense. The defense (witness) said, ‘Yes, this person, because of his level of drug addiction, is operating at diminished capacity.’ We needed someone to refute. We didn’t have it. So, it was tough. It was tough.”
Tempers frequently flared.
“I tried to keep it light,” he said. “It almost came to blows a couple of times. So, we would take a break. I stayed up most of the night trying to think of a strategy to try for today. Still could not get folks to follow in. We thought we had it this morning. But one just could not let go of ‘It was not proven that he was operating at the mental capacity.’ It was tough.
“There were a lot of disappointed people in the jury room, very upset people.”
They tried to help McSweeney.
“After talking with the D.A., we know he will bring it back in six months,” he said. “Very useful information, what we gave him. He thinks he can get a conviction next time around. It was amazing. To think that this process works, to some degree. There was not one person in that room who was not affected to the point where they were not sleeping. My strategy this morning when I came in was to try to get a conviction on the first charge and a not guilty on the second one.”
Another thing bothered the jury.
“People got stuck on the fact that Van Camp said ‘He’s got to do 16 years,’” Wimberley said. “The D.A. said he would probably have gotten four years. Probably four. The defense attorney is allowed to say what the maximum (sentence) with a really crappy record is. That’s not what we had. He doesn’t have priors. That did prejudice the jury. They went to a place of ‘This guy’s had a bad life; we don’t want to put him away for 20 years.’”
The question that kept nagging whether he had the mental capacity to form intent.
“I wrote on the board: signs of incapacity — signs of capacity,” he said. “It was clear in this case he had the capacity to procure firearms, arrange transportation, negotiate with the doctor for dosage. But that’s where we got stuck. If he had criminal intent, he would have said ‘Give me all of it!.’ He just wanted to satisfy his drug (addiction), which is not his fault.’
“I said, ‘Let’s don’t confuse poor planning with incompetence.’ Then, this morning we went back from 11 to one to 10 to two. That’s when I said we were hopeless, no need to take up more of anybody’s time. Let’s sit down with the D.A. Give him some information so they can bring this back. There was not one person in the room who did not believe he was guilty and should be punished. The one holdout we had just did not believe the prosecution had done their job enough to carry us over that doubt.”
The best they could do was help out in planning the next trial, the jurors felt.
“We said, ‘We want to help you win this case in six months,’” Wimberley said. “He said all he wanted us to do was get a conviction on the first charge. He spent the night in Jackson Hamlet, high as a kite. He just stumbled into number two. He didn’t carry a firearm, didn’t arrange transportation. He just stumbled onto it. That’s what the D.A. said he wanted. I had empathy. Sure I did. I walked in this morning, said we were not going to talk about emotions.
“We were going to go about this in a methodical way, by the numbers. We were right there, then our guy just said, ‘Nope.’ Probably the most conservative person in the room, not who you would think. You would think this would be the person who would say, ‘Send him down.’”
Some jurors wanted conviction on both counts. Wimberley’s compromise was designed to split the difference, convict on the Carthage case and acquit on the Aberdeen robbery. It didn’t work out that way.
Friendships were not formed, Wimberley said. He added: “I doubt these folks will ever get together for bowling.”
