Lawyer says 'double jeopardy' protects his client

Herald-Sun, The (Durham, NC)

Author: JOHN STEVENSON jstevenson@heraldsun.com; 419-6643

The constitutional prohibition against "double jeopardy" -- or prosecuting someone twice for the same crime -- means that Melinda Ann Wilkins cannot be tried for first-degree murder in the 2003 death of her daughter, a defense lawyer contends in newly filed court documents.

Wilkins pleaded guilty to felonious child abuse in 1996 and was imprisoned for injuring the child. But after the girl died from the same injuries seven years later, Wilkins was charged with murder.

Now, the first-degree murder case must be thrown out on grounds of double jeopardy, lawyer Jay Ferguson argues in the new court documents.

Prosecutor Mitchell Garrell had no comment Friday.

"We'll address this at the appropriate time," he told The Herald-Sun.

To convict Wilkins of first-degree murder, prosecutors would have to rely on the so-called felony murder rule, according to Ferguson. The rule holds that someone can be convicted if he or she committed another felony in the course of killing someone.

In Wilkins' case, the only possible underlying felony would be the child abuse she already was prosecuted and punished for, Ferguson argues.

She cannot be prosecuted for it again -- not even as part of an attempt to convict her of murder, the defense lawyer adds.

"In order to prove felony murder based on the underlying felony of child abuse, the State would have to prove every element of felony child abuse [a second time]," Ferguson writes. "To try her again based on the crime of felony child abuse would violate double jeopardy."

Ferguson cites a 1981 North Carolina Court of Appeals decision on the topic.

In that case, a driver was convicted of failing to yield the right of way in a collision that injured another motorist. When the other driver subsequently died from injuries sustained in the accident, the defendant was immune to further prosecution because of his earlier conviction, the court ruled.

The belated death "did not undo the defendant's constitutional protection against double jeopardy," appellate judges said.

The Durham case arose in August 1995, when Wilkins' daughter, Melissa Wilkins, then 19 months old, suffered injuries that initially hospitalized her and finally sent her to the Hilltop Home for Retarded Children in Raleigh.

Medical experts concluded the child was a victim of "shaken baby impact syndrome." They said her injuries were "consistent with grabbing the child around the ribcage and exerting pressure so that the ribs were fractured," according to a prosecutor.

The injuries included a blood clot on the brain, retinal hemorrhaging, a fractured back and a fractured skull. As a result, the child reportedly became blind, speechless and unable even to sit up without support.

Melinda Wilkins pleaded guilty to felonious child abuse in November 1996 and was sentenced to between 31 and 47 months in prison. She was paroled in July 1999.

Her daughter died in June 2003 at age 9. A medical examiner's report listed the cause of death as "pneumonia due to complications of a traumatic brain injury suffered on Aug. 16, 1995."

Because of a mix-up with the death certificate, police didn't learn about the situation until July 2004. Wilkins was charged with murder in September.

She is free on bond as she awaits the outcome of her case.