08:48 AM EST on Friday, December 3, 2004

Associated Press

Lawyers for former Carolina Panthers player Rae Carruth on Thursday filed an appeal to overturn his conviction and sentence in connection with the November 1999 slaying of his pregnant girlfriend.

The appeal in Mecklenburg Superior Court challenges the admission of key prosecution evidence: the 911 call from girlfriend Cherica Adams following the shooting and what the 24-year-old told a police officer at the scene and hospital.

The defense claims Adams' statements are hearsay and their introduction into evidence during the murder trial violated Carruth's constitutional right to confront his accuser -- Adams.

"The issue we are raising goes to the heart of the case -- the unreliability of the evidence the jury heard," defense attorney David Rudolf said. "All of us, football players or not, should be convicted only on evidence that is tested by cross-examination."

Mecklenburg Assistant District Attorney David Graham, who helped prosecute Carruth, would not comment, saying he had not read the motion.

Carruth has been imprisoned nearly five years at Nash Correctional Institution, about 55 miles northeast of Raleigh, where he earns 40 cents a day as a janitor.

Adams was eight months pregnant with Carruth's baby when she was gunned down in a drive-by shooting on Nov. 16, 1999 in south Charlotte. Doctors saved her son, Chancellor, in an emergency Caesarean. But Adams, shot four times, died a month later.

Chancellor has cerebral palsy and still doesn't walk or talk.

6NEWS File

Rae Carruth, seen here in this 6NEWS file photo, is now incarcerated at the Nash Correctional Institution near Rocky Mount.

Carruth, 30, was convicted in January 2001 of conspiring to murder Adams and was sentenced to at least 18 years and 11 months in prison.

The state Court of Appeals has denied Carruth a new trial and the state Supreme Court and the U.S. Supreme Court have refused to hear his case.

The prosecution's theory was that Carruth had enlisted Van Brett Watkins and Michael Eugene Kennedy to kill Adams because he did not want to pay her child support.

The defense theory was that Carruth had backed out of an agreement to lend Kennedy money to buy marijuana from Watkins that night. Watkins and Kennedy, the defense claimed, had planned to try to force Carruth to provide the money but Watkins shot Adams in a fit of rage over Carruth's decision to back out of the deal.

Watkins testified during the trial that Carruth paid him to attack Adams because he didn't want the baby. He told jurors that he shot Adams because Carruth hired him to do it -- not because he was frustrated about a failed drug deal.

Carruth, 30, was acquitted of murder in January 2001. But the jury convicted him of conspiring to murder Adams, shooting into her occupied vehicle and attempting to kill her unborn child.

Watkins, 44, the trigger man, pleaded guilty to second-degree murder and was sentenced to at least 40 years in prison. Kennedy, 29, who drove the attack car, also pleaded guilty to second-degree murder. He was sentenced to at least 11 years and eight months in prison.

The defense has in the past challenged the admission of notes a dying Adams wrote from her hospital bed implicating Carruth in her shooting.

The N.C. Court of Appeals ruled that Adams' notes should not have been admitted during Carruth's trial. But the appeals court judges upheld the conviction, ruling that the error in allowing the notes into evidence was harmless because of other incriminating prosecution evidence.

Carruth's lawyers are now claiming that letting the jurors hear what Adams told the police officer and her 911 call compounded the error of the introduction into evidence of the hospital notes.

The defense also is challenging the judge's decision to impose the maximum sentence on Carruth. In handing down the sentence, the judge found two aggravating factors -- that Carruth occupied a position of leadership over the other participants in the murder and that he took advantage of a position of trust to commit the offense.

Defense lawyers are arguing that the sentence was illegal. They cite a recent U.S. Supreme Court ruling that jurors -- not judges -- must determine the aggravating factors.

The defense argues that the aggravating factors cited by the judge in sentencing Carruth were not found by the jury that convicted the former football player.