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Judge rules police had the right to stop and search Orlando Carter, who was shot by an officer in 2020

Building with large windows
Crixell Matthews
Richmond's John Marshall Court's building. (Photo: Crixell Matthews/VPM News)

A Richmond Circuit judge last week denied two motions to suppress evidence and dismiss the indictments against a Black man city police shot on New Year’s Eve.

Officer Ja’Ontay Wilson shot Orlando Carter three times in the 1300 block of Coalter Street. Carter survived the shooting, but is facing felony charges of possession of a firearm by a nonviolent person with a felony conviction and eluding police.

Carter asserted that police violated his Fourth, Fifth, and Sixth Amendment rights.

His defense attorney, Kathernine Poindexter, argued police stopped Carter without cause. But Deputy Commonwealth’s Attorney Michael Hollomon successfully argued that Carter’s behavior before his arrest created “overwhelming suspicion” on the part of the police.

Poindexter also asserted that police violated the defendant’s Miranda rights, though the prosecution said they don’t plan to enter any statements made by Carter following his arrest into evidence. She also argued that police undermined Carter’s Sixth Amendment right to counsel, and that any evidence collected since he invoked that right should not be admissible in court.

In the defense’s second motion, they argued that the indictments against Carter were “fatally defective” due to vague wording and limited evidence provided to the grand jury that returned those indictments.

“Under this indictment, all they need to prove is that he had [a firearm] in his possession or transported it,” and not that he did so intentionally, Poindexter said. Furthermore, she said the indictments did not provide details of the crimes Carter is accused of.

“We need specifics for my client to build his defense... it would ultimately be a denial of his due process rights,” Poindexter said.

Prosecutors successfully argued that they cited the Virginia Code which included the charges against Carter, and that the charges against him were specified in filed court documents.

The defense also objected to the process through which the indictments were delivered by a grand jury. According to Poindexter, Detective William Thompson, a member of the Richmond police’s internal investigatory body, testified in April before the grand jury that returned those indictments. Grand jury proceedings are private in Virginia, so not even the defense knows what evidence was presented by Thompson to the jury that day.

The defense argued that because Thompson wasn’t present on the day of the shooting, and because he failed to interview the officers involved in the shooting, his testimony did not qualify as a “competent witness” to the crime.

“[Thompson] did not interview any of the witnesses… and instead relied on the investigations of others,” Poindexter said. 

Hollmon convinced Judge Melvin Hughes that it was up to the grand jury to ask people who testified before them where they got their information from.

“If grand jurors want to probe how he got his knowledge, that’s their right,” Hollomon said.

But after testimony by one of the officers who was on the scene, the defense argued new inconsistencies were introduced that invalidated the indictments against Carter.

Did officers have reasonable suspicion to pull Carter over?

The hearing on Tuesday focused primarily on whether the police had the right to pursue Carter in the first place.

Officer Moses Railey, who initiated the traffic stop with Carter, testified that the reason he began following Carter’s car was because his headlights were off.

According to court documents filed by the defense it was still daylight when Railey first started following Carter. Railey testified he first saw Carter around 5 p.m. on Dec. 31. The prosecution argued that because the headlights of other vehicles were illuminated, and because streetlights were also on at the time, Carter’s headlights also needed to be on. According to Virginia law, headlights must be displayed between sunset and sunrise.

Railey also testified that he pursued Carter because he observed Carter making “furtive movements” while driving. In court, he clarified that meant he observed Carter looking at and away from him quickly.

Railey said he activated his sirens and lights after Carter blew a stop sign at the intersection of P and 20th streets. Video played in court last Monday confirmed that Carter failed to stop at several stop signs while being pursued. But, the defense argued there was no stop sign in the direction Carter was traveling at the intersection where Railey engaged his sirens and submitted photographic evidence. An image of P St. captured by Google Maps in 2019 shows no stop sign.

However, the prosecution argued that even though Railey’s testimony on that detail doesn’t add up, Carter broke other traffic laws, including failing to signal a turn and ignoring a different stop sign before Railey activated his police siren. Hollomon argued that these traffic infractions gave police enough “reasonable suspicion” to pull Carter over.

“The facts in this case provide overwhelming suspicion,” Hollomon said.

Hughes agreed.

“I think the motion has no merit and is therefore denied,” Hughes said.

The defense also requested a bill of particulars from the commonwealth’s attorney’s office. Bills of particulars are written statements giving details about a case, but that too was denied by the judge.

According to Jennifer Carter, her son was shot in his lower back, in the back of his arm and on the rear side of his hip, something the defense asserts in documents filed into court. However, the prosecution claims that Orlando Carter was facing police, and pointing a gun at chest level, when he was shot by an officer.

However, Railey testified that when Orlando Carter fell out of his car in front of an apartment complex near Mosby Court, he didn’t see him holding a gun. Instead, an object that he suspected was a gun fell on the ground about 2 feet away from where the defendant was laying in the street.

“From my vehicle, it appeared to be a firearm, just the shape of it and how it hit the ground,” Railey said.

Though he testified that he could see the gun, Railey said last week he “doesn’t remember” seeing Orlando Carter reach for it. All he would say in court was that Carter was in the area of the firearm.

“I never saw it in his hands,” Railey said. “I never saw him grab the gun.”

Railey also claimed in court that he heard the gun clatter to the ground when it fell from Orlando Carter’s vehicle. However, Railey also said that when he observed the gun fall, he was two to three car lengths away from Carter. And, he testified that the other police car at the scene, which was parked between his vehicle and Carter, had its sirens on. When body camera footage of the interaction was played in court, it confirmed that sirens were blaring when the officer exited his vehicle.

The body camera footage played in court last Monday was paused at that point. Railey testified that as he exited his police vehicle, he heard three gunshots. Those shots were later confirmed to have been shot by Wilson, hitting Orlando Carter.

Immediately before he was shot, the prosecution and defense agree that Orlando Carter’s leg was crushed by a car. The prosecution says because Carter’s vehicle wasn’t in park when he exited it, it rolled over his leg when he fell out of the driver’s seat. But Poindexter has asserted in previous hearings in Carter’s case that his leg was instead shattered by the other police vehicle at the scene which she says hit Carter.

This police vehicle was driven by Officer Dominic Rivera. Though he said he didn’t see Rivera hit Orlando Carter with his car, Railey testified that the other officer’s vehicle passed his car and was closer to where Carter fell when his leg broke. That car was traveling at a high enough rate of speed,Railey testified Monday, that when he attempted to open his door, it was slammed closed by the vehicle as it passed.

Lastly, the prosecution claims in its court filings that before standing up on his severely fractured leg and attempting to flee, Orlando Carter “picked up the firearm with his left hand.” But later in the same document, the prosecution says that the firearm “fell out of his right hand” after he was shot by Wilson.

In court, Poindexetr said Railey’s testimony was “contradictory” and said as a result they were an improper witness to the crime.

“Even though they were wrong, they still got away with it. It's frustrating,” Jennifer Carter, Orlando Carter’s mother, said about the police statements. “He just kept on with the inconsistencies. And [Poindexter] kept proving that there was inconsistencies in the testimony.”

Orlando Carter’s trial begins Jan. 13.