Judge: Attorney's strategy for convicted murderer no cause for retrial
Published 12:00 am Wednesday, November 28, 2012
By Nathan Hardin
SALISBURY – A superior court judge refused to grant a retrial for a convicted murderer because the judge said “the case came down to a matter of trial strategy,” court files show.
Bradley Paul Blymyer was convicted of murdering Jimmie Musselwhite in 2009 and sentenced to life without parole. Musselwhite was found dead in his home after he was beaten and stabbed to death in 2006.
Judge Allen Baddour, of Orange County, denied Blymyer’s request for a new trial on Oct. 18. Court files regarding Baddour’s decision were released Monday.
In his appeal, Blymyer argued his trial attorney, Kenneth Darty, of Statesville, failed to investigate a partial DNA match.
The DNA was found in the tip of a latex glove which was caught on duct tape used to bind Musselwhite’s hands and feet.
Darty did not bring in a DNA expert to dispute the claim.
Baddour said in the decision Darty could have challenged the DNA and tried to explain its presence on the glove, but Darty decided to gain credibility by accepting the DNA was Blymyer’s.
“In the course of a trial, it is of course permissible to deny, fight and argue with every assertion made by the State,” the decision said. “It is equally permissible for counsel to choose its battles, in a manner that invites the jury to see (the defendant) and his attorney as reasonable and credible …”
Baddour said Darty’s decision to fight one aspect of the case over another was not cause for a retrial.
“Put another way, had trial counsel chosen the other strategy, and lost, would an ineffective assistance claim be successful? The answer here is no,” the decision said.
Contact reporter Nathan Hardin at 704-797-4246.