Judge denies request to dismiss Hayes murder charge

The state rested its first-degree murder case against Gary Lamont Hayes II on Friday afternoon and his defense lawyer asked for the charge to be dismissed for lack of evidence.

Senior Resident Superior Court Judge Ben Alford denied the motion, and Hayes is expected to take the witness stand in his own defense next week when the case continues on Monday.

Hayes is charged with killing Odell Foster Jr. on April 26, 2008, as Foster and a friend stood outside the Bayside Restaurant in Havelock. Foster took three shotgun blasts to his body — one to the chest and two below his waist.

Hayes’ lawyer, Walter Paramore III, said that the murder was not premeditated. He said that it was happenstance that Hayes was at the restaurant. Earlier testimony showed that Moises Rodriguez drove his car with Hayes and Hayes’ shotgun inside to the restaurant after leaving a nightclub. Rodriquez was going to meet a friend there. As Rodriquez drove past the restaurant Hayes saw Foster, remarks were exchanged and Hayes put three shots into Foster.

Paramore said in opening arguments that his client killed Foster, but it was because he was drunk at the time and feared for his life.

On Friday, five State Bureau of Investigation agents with the SBI lab in Raleigh explained how they gathered gunshot residue from the 12-gauge Mossberg pump shotgun that was identified as the murder weapon, and how fingerprints taken at the murder scene by Havelock police were analyzed.

SBI agent Natasha Robinson explained that Hayes’ fingerprints were not found on the shotgun. She said fingerprints are fragile. “It is not unusual to not find prints — they can be wiped off, humidity and secretions leave a blob of moisture. Dry hands often leave no prints,” she said.

Agent Michael Gertzel testified that there was no gunshot residue on Hayes’ hands. “No residue is inconclusive to determine if the subject could have fired the gun,” he said.

The defense begins Monday. Hayes’ mother and other family members from California have been in court all week. They are expected to testify. Hayes himself is expected to take the stand to explain that he feared for his life, and feared Foster.