Jurors deadlock in capital murder trial

By MARTHA DELLER

mdeller@star-telegram.com

FORT WORTH — The capital murder trial of Dustin Nall ended in a mistrial Wednesday because jurors could not agree on whether he intentionally killed a 68-year-old Arlington grandmother while robbing her two years ago.

Juries in capital murder trials sometimes deadlock on punishment, attorneys said, but it is almost unheard of for juries to do so during the guilt-innocence phase of the trial.

"This is incredible," defense attorney Robert Ford said. "It’s usually at punishment."

The jury was given two charges to consider — capital murder or the lesser charge of felony murder. A conviction of capital murder requires the prosecution to prove that the defendant intended to kill the victim. A conviction of felony murder would mean that while robbing Wilkerson, Nall committed a dangerous act that led to her death.

The eight men and four women deliberated for 9  1/2 hours over two days before telling 213th District Judge Louis Sturns — for the second time — that they were hopelessly deadlocked on which charge to convict him of.

Sturns considered delivering the Allen charge — instructing the jury to continue deliberating — but granted the defense request that he declare a mistrial. Prosecutors did not oppose the request.

An unchanged vote

After they were dismissed from service, two jurors said it wouldn’t have mattered if the judge had delivered the Allen charge.

They said that when deliberations began Tuesday, the panel was split 8-4, with the majority favoring capital murder. After further discussions, two jurors changed their votes, making it 10-2 in favor of capital murder.

The two jurors said the vote never changed after Tuesday afternoon, when they first told Sturns they were deadlocked.

If convicted of capital murder, Nall, 27, would face death by lethal injection or life without parole. A felony murder conviction carries a maximum penalty of life in prison with the possibility of parole.

Prosecutors Lloyd Whelchel and Page Simpson contended that Nall intentionally murdered Wilkerson on the doorstep of her Arlington home Aug. 4, 2007, while trying to steal her pain medication and other prescription drugs.

But court-appointed defense attorneys Joetta Keene and Ford argued that Nall was still agitated after fatally stabbing his uncle and slashing his girlfriend’s throat three hours before. They said he was merely trying to take Wilkerson’s drugs and did not intend to kill her.

Both jurors said the deadlock hinged on the meaning of the word intent.

Jury foreman Von McCray, one of the two who supported a felony murder conviction, contended that the other jurors did not understand the meaning.

"I felt the charge to the jury was crystal clear," McCray said. "But it appeared that most of them wanted to speculate and ignore the evidence from a personal emotional standpoint."

But juror Jennifer Aufricht said evidence supported a capital murder conviction.

"When he showed up at her door with a knife, he probably wasn’t going to make a sandwich," she said.

The facts that the killing occurred at the door and that she had 15 stab wounds was further evidence of Nall’s intent, Aufricht said.

"If he wanted to disable her, all he had to do was to manhandle her," she said. "He was a young strong man and she was a weak old lady. But he stabbed her numerous times while she screamed for her life trying to defend herself."

Wilkerson’s screams woke her teenage grandson, who testified that he confronted Nall with a shotgun after seeing him standing over his dying grandmother. When the safety prevented the gun from firing, Nall fled to Randol Mill Park, where officers caught him and found Wilkerson’s pill bottles.

Attorneys said they were disappointed that jurors could not reach a verdict. They said a retrial is likely, although a plea agreement is always possible.

"Obviously, we’re disappointed that the jury was not able to reach a verdict," Whelchel said. "At this point, we anticipate retrying it, but that decision is for another day."

Keene said she had hoped jurors would resolve their differences but understands that they had trouble applying the legal issues to the evidence.

"The evidence was not clear what the proper resolution should be," she said.

MARTHA DELLER, 817-390-7857

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