Hung jury in Menchville High School murder trial; judge declares mistrial

A Newport News jury failed Wednesday to reach a verdict in the slaying of a 17-year-old student who was shot during a fight outside Menchville High School after a basketball game late last year.

Newport News Circuit Court Judge Bryant L. Sugg declared a mistrial after jurors could not unanimously agree on whether to find Demari Antonio Batten guilty of second-degree murder or manslaughter — or not guilty at all — following a full day of deliberations.

The breakdown of how many jurors favored each choice wasn’t clear, though Batten’s attorney said the jury’s finding on a separate count makes clear their disagreement was between manslaughter and acquittal.

Newport News prosecutors now must decide whether to retry Batten in the Dec. 14 killing of Justice Michael Dunham. Prosecutors haven’t announced their plans, and no new trial date has been set.

Dunham, a standout football player at Woodside High School, was shot to death near a parked car as fans cleared out after the packed game between Menchville and Woodside.

Batten’s attorney, James Broccoletti, made a self-defense case, with Batten testifying he shot Dunham as he was being attacked and while Dunham and another student were trying to grab his gun.

“I wanted them to back off of me and get away and to leave me alone,” Batten testified Tuesday.

While the 12-member jury failed to reach a verdict on the homicide charge, jurors found Batten guilty on three other charges — possessing a firearm on school property, shooting a firearm on school property, and carrying in public a loaded semi-automatic pistol with a magazine holding more than 20 rounds.

Those charges will move forward to sentencing in January.

But jurors found Batten, who turns 19 on Thursday, not guilty of another gun charge — using a firearm in the commission of second-degree murder.

Broccoletti contended the acquittal on that count indicates jurors agreed not to convict Batten of second-degree murder — and were split only between finding him guilty of manslaughter and finding him not guilty at all.

That created about 45 minutes of legal wrangling following the verdict.

If that was indeed the jurors’ point of impasse, Broccoletti contended, Sugg needed to toss the second-degree murder charge and bar the prosecution from bringing it back later. Broccoletti asked the judge to poll the jurors “to resolve this matter once and for all.”

But Senior Assistant Commonwealth’s Attorney Jennifer Titter disagreed, asserting that polling the jurors would be improper under the court’s rules and the case law. She said the judge should not inquire about their decision beyond the verdict forms.

“They are not allowed to explain things to us,” she said of jurors. “We are not to know what goes on back there.”

In the end, Sugg didn’t ask jurors where the stalemate was. He instead asked the jury’s foreman only if they “considered all three options,” and the foreman said yes. That means prosecutors can bring back the second-degree murder count if they choose.

During closing arguments Tuesday, Assistant Commonwealth’s Attorney Mary Button said Batten overreacted after the Dec. 14 basketball game and “brought a gun to a fistfight.”

“He retreats to where the gun is,” Button said. “He aims the gun, and he shoots the gun. Those were all his choices ... If they were going to beat him so severely, why would they do it in a packed parking lot with police and other people around.”

Broccoletti, on the other hand, asserted that Dunham and his friends were attacking Batten from both sides of a parked car, severely limiting his options to get away.

“What did they want him to do, stand there and take an a** whooping?” Broccoletti asked. “He’s trapped like a rat with nowhere to go and acted reasonably under the circumstances.”

As for the prosecution’s argument that Batten “brought a gun to a fistfight,” Broccoletti said Batten only “brought a gun to a parking lot,” and “they brought the fight to where the weapon was.” Batten had no idea, he said, “how far they were going to go” to injure him.

Batten, who was attending Warwick High School at the time, testified Tuesday that he “thought it was going to be a fun night” when he went with a friend to the Menchville-Woodside basketball game after work.

But during the first half, Batten said, he got an ominous text message from a friend that another group of students was watching his every move.

Text messages introduced at the trial showed that a group of students — including Dunham — was mad at Batten about an Instagram post he made that they interpreted as mocking of their gang, the “Playboy Bunnies.”

They were upset that Batten had posted a video along with an upside-down bunny.

“We really about to do his a** tomorrow,” Dunham texted another student the night before the basketball game, with texts also indicating the group was watching Batten’s movements during the game.

Batten said that to get away from any danger, he left the tied game early — with about two minutes left — and walked to his friend’s parked car. There he had a gun — a Glock 9 mm with an extended magazine and 22 rounds — on the floorboard and illegally on school property.

As Batten waited outside the car, Kaveon Eley, one of the students who had a beef with Batten, approached.

Batten said he tried to get quickly into the sedan and close the door, but Eley held it open and punched him once in the face. Then, he testified, Eley reached over him and tried to grab his gun.

Batten said he picked up the gun, tried to block Eley with his body and pointed the weapon toward the empty driver’s side window.

Just then, he said, a student in a ski mask — later identified as Dunham — ran around the front of the car and opened the driver’s side door. Batten said Dunham leaned into the car and tried to grab at the gun. Batten said he closed his eyes and fired, striking Dunham once in the chest.

Police arrested Batten at the scene.

Under questioning from detectives that night, he at first denied the gun was his, before later admitting to he bought it “on the street” two months earlier. Batten then told detectives he was “wrestling” with his attackers over the gun when “the gun went off” — before later acknowledging that they never got their hands on it.

Peter Dujardin, 757-897-2062, pdujardin@dailypress.com