By Shavonne Potts
spotts@salisburypost.com
SALISBURY — It’s been nearly three years since a Rowan County jury convicted Bradley Paul Blymyer of the beating and stabbing death of Jimmie Edgar Musselwhite. On Friday, Blymyer and his new attorney set out to prove ineffective counsel during portions of the 2009 trial.
The five-hour hearing took place before Superior Court Judge Allen Baddour.
In August 2009, Blymyer was sentenced to life without parole. Nearly a year later his case was heard before the N.C. Court of Appeals.
Dawn Blagrove, a post-conviction attorney with the state prisoner legal services, now represents Blymyer and said Friday her client’s trial attorney, Ken Darty of Statesville, could have and should have included testimony by a DNA forensic expert.
In November 2006, Musselwhite, 62, was found in his Verlen Drive home with his throat cut. He had been beaten with a baseball bat and stabbed nine times with a knife.
Co-defendant Joshua Lee Shaffer pleaded guilty in September 2009 and is currently three years into a 20-year prison sentence for his involvement.
Shaffer testified against his longtime friend Blymyer, saying the two went to Musselwhite’s home to buy pills, but decided if they were unable to obtain pills, they would rob the man.
When Musselwhite refused to sell the two pills, Shaffer hit him on the head with a baseball bat. Blymyer bound Musselwhite with duct tape, Shaffer said during the trial.
Shaffer said he went to a back room and heard what he believed was Blymyer hitting Musselwhite again.
The only DNA evidence collected that investigators said connected Blymyer to the murder was in the tip of a latex glove stuck to duct tape on Musselwhite’s shirt.
According to testimony at the trial by SBI forensic DNA analyst Special Agent Sharon Hinton, the glove matched Blymyer’s DNA profile.
Durham Attorney and Chapel Hill professor Jonathan Broun testified Friday that DNA was critical in the case because Darty argued at trial that Blymyer’s DNA was on the glove because he had previously used the gloves at work.
Broun, who was called in Friday as a consultant, said an expert should’ve been consulted. Darty disagreed with that notion.
Darty said he consulted prior to the trial with trusted friend and fellow attorney Robert Campbell regarding the evidence of the case, specifically the DNA evidence.
Broun said he knows and respects Campbell, but he said Campbell is no DNA expert.
Darty said he also attended Capital College, a program where lawyers can bring real cases before a group of attorneys to brainstorm and get opinions before trial.
Broun said if a DNA expert had been called to testify during trial, the expert could’ve provided answers as to how Blymyer’s DNA could be in the glove but he could still be innocent.
Blagrove contends it was possible for Darty to provide effective counsel in every way except when it came to further developing the theory of how his client’s DNA came to be at the crime scene.
Dr. James McClintock, a forensic DNA analyst and founder of DNA Diagnostics Inc., testified during the hearing that he was first contacted in 2007 or 2008 by one of Blymyer’s first attorneys, Diane Savage, to provide analysis of the DNA evidence.
McClintock, who is also a professor at George Mason University, said he tested the piece of latex glove and concluded it was an incomplete DNA profile.
An incomplete profile could mean the amount of DNA available for analysis is small or there is a mixture of DNA from more than one person and the DNA profile of a major contributor masks some of the characteristics in the DNA profile of a minor contributor.
McClintock said it appears to him that the reason for an incomplete profile was because of the low concentration or not enough DNA to definitively say it fits a particular person.
Rowan District Attorney Brandy Cook asked McClintock if incomplete match and partial DNA were the same. He said they were.
There was enough DNA found in the glove to say Blymyer was at least a partial match.
Cook asked Darty if during preparation for the trial, Blymyer objected to Darty’s strategy in trying the case. Darty said Blymyer did not.
Darty said his strategy was to explain that Blymyer was not in the house, but the DNA was there because Shaffer often wore his friend’s clothes and, on the day of the murder, his latex gloves.
The Statesville attorney said he was not a DNA expert but certainly intelligent enough to ask questions at trial about DNA, which Darty said he’d done.
Darty said given what he now knows of DNA evidence, he still would’ve maintained the same strategy at trial.
Sherry Ritter, Musselwhite’s daughter, attended the hearing with other family members.
Blymyer’s parents, Linda and Donald, were also in court.
The hearing will continue Monday at 10 a.m.
Contact reporter Shavonne Potts at 704-797-4253.