He killed a man during Charlotte protests. Now he might have prison time cut short

One of the most hotly debated murders from one of Charlotte’s most turbulent times went before the state’s highest court on Tuesday — not to determine Rayquan Borum’s guilt or innocence, but how much time he should spend in prison for the fatal shooting of Justin Carr.

The state Supreme Court’s decision later this year likely will hinge on a subtle distinction — the type of malice Borum harbored in committing the crime. What the court decides could cut off a third of Borum’s current sentence of at least 24 years.

Carr was shot and killed on the night of Sept. 21, 2016 during a large, emotional and sometimes violent demonstration in uptown Charlotte following the police killing the day before of Keith Lamont Scott.

Shortly before he planned to leave the demonstration on College Street, Carr, a 26-year-old truck driver, according to court documents, called his mother to say the event had been peaceful and that he hoped it would bring change.

Twenty minutes later, he was lying on the pavement with a bullet wound in his head.

Police arrested Borum and charged him with Carr’s murder on Sept. 23. While other demonstrators had been chanting “Black lives matter” and “No justice, no peace,” Borum had shouted “F--- the police” and “Grip a Glock, shoot back,” according to court documents.

A friend who was with Borum that night later testified that Borum made good on his threat. He pulled a 9mm handgun, aimed at a police line outside a nearby hotel, and pulled the trigger. The gun did not fire.

Borum, according to court documents, tried again. This time, according to a witness, the 21-year-old wildly took aim in the general direction of the police and other protesters. This time the gun went off.

That the killing occurred amid weeks of nightly Keith Scott protests over police violence only intensified the scrutiny that followed Borum’s arrest. For months some demonstrators blamed police for Carr’s killing, describing Borum as a scapegoat.

On March 8, 2019, a Mecklenburg jury convicted Borum of second degree murder and possession of a firearm by a convicted felon. Superior Court Judge Gregory Hayes of Catawba County sentenced him to a combined prison term of 290 to 370 months.

“My son was down there for a cause, taking a stand for something he strongly believed in. And he was murdered,” Vivian Carr, the dead man’s mother, told the court after the verdict, according to WFAE. “He had just discovered his purpose in life. He was about to have his first son.”

Borum’s attorneys appealed. But their arguments were rejected, save one. And it arose from the small print of North Carolina’s sentencing procedures.

Evidence of malice

Under N.C. law, second degree murder can either be a class B1 or B2 felony, with the former designation carrying a far heavier sentence. How the crime gets classified one way or the other depends in part on the degree of malice that the defendant carried.

Thus, during its deliberations, Borum’s jury not only had to decide guilt or innocence but malice as well. Three types of malice were listed on the jury’s verdict sheet. The top two choices justified the more severe B1 classification.

The third, the so-called “depraved heart malice,” distinguishes a B2 classification. It was defined on the Borum verdict sheet — and in state law — as malice that arises “when an act which is inherently dangerous to harm life is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.”

Hayes told the jurors that if they found Borum guilty, they had to check one or more of the malice boxes. They checked all three.

In an unpublished ruling on Nov. 3, 2020, the N.C. Court of Appeals ruled that Borum’s arrest and trial had been proper. But the three-judge appellate panel unanimously ruled that his sentencing was “ambiguous.” Borum’s prosecutors had presented evidence to support both B1 and B2 designations, the panel found, and the jury had not differentiated between the types of malice that distinguish the two classes of the same offense.

When in doubt, according to N.C. law and court precedent, the decision goes in favor of the defendant. The panel ordered the case returned to Mecklenburg County for a new sentencing under the B2 classification for Borum’s crime.

The Attorney General’s Office, which handled the case on appeal, petitioned the state Supreme Court to review the Court of Appeals’ decision, arguing that the jury’s verdict was clear on the topic of malice.

The high court’s decision, if it upholds the Court of Appeals, could cut years off of Borum’s prison time.

A new sentencing hearing brings into play all sorts of outcomes. But if Borum is sentenced at the same range and criminal history as he was at his trial, the new B2 felony designation would cut 96 months off his minimum sentence for second degree murder — from the 276 months he received three years ago to 180 months. His maximum sentence would drop by almost a decade, from 334 months to 228.

Borum’s sentence of 14 to 26 months for the firearm violation would remain unchanged.

Charlotte attorney Darlene Harris, part of Borum’s defense team at his trial, did not respond to email and text messages by The Charlotte Observer on Monday seeking comment.

Bill Bunting, the Mecklenburg DA’s homicide chief, declined an interview request, saying he cannot comment on a pending case.

As for now, Borum is being held in Pasquotank Correctional Institution in Elizabeth City. The N.C. prison website says the 28-year-old currently is scheduled for release in 2043.