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Witness testimony continues in second day of drive-by murder trial

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By Caroline Curran, Reporter

BOLIVIA—Twenty-seven-year-old Elliot Simmons took the stand Thursday in the state’s case against Matthew Lee Baber, charged with first-degree murder in the drive-by shooting death of a Calabash man.

Simmons, along with Baber, was initially charged with felony murder for his role in the May 8, 2008, death of James Murdock, 28, who was gunned down while sitting in the front seat of a friend’s van.

The original charges against Simmons were dismissed when he pleaded guilty to lesser charges in September 2010 as part of a plea agreement with the state in exchange for his testimony.

Simmons pleaded guilty to accessory after the fact to first-degree murder and firing into an occupied vehicle, both Class C felonies, which carry a maximum of 261 months each in the N.C. Department of Corrections.

During the first day of testimony Wednesday, Tina Watts, 33, of Calabash, testified she was with Murdock on May 8, 2008. Murdock was sitting in the front passenger seat of her minivan in front of his Pineclair Drive home in Calabash.

Watts testified she was speaking to Murdock, who was seated in the front passenger seat of the minivan, when the shooting began. Describing what sounded like multiple “firecrackers tied together,” exploding around her, Watts felt the dirt beneath her feet kick up by the spray of gunfire from what prosecutors say was an AK-47 assault rifle.

For most of the day Thursday, Simmons testified about the events of May 8, 2008.

“I do recall the night of the shooting, yes sir,” Simmons told assistant district attorney Lee Bollinger when he asked about the night Murdock was shot and killed.

Simmons was living with friends in Calabash in 2008 when he met Baber through a mutual friend, Clint Gaines, who testified briefly Thursday morning. Simmons said he knew Baber for, “maybe a month, a month and a half,” at the time of the shooting.

He did not know Murdock, Simmons testified.

On the evening of the shooting, Simmons said he drove his 1985 Mazda pickup truck to Gaines’ house on Persimmon Road.

“I asked Clint if he could go to the bar. He said yes, but [his girlfriend] said no. Matt [Baber] wanted to go to the bar. Matt went and grabbed his weapon,” Simmons said.

Bollinger asked Simmons to identify the weapon Baber had that night.

“It was an AK-47 assault rifle.”

Holding up an AK-47 in court, Bollinger asked if that could be the same assault rifle.

“It’s very similar to that,” Simmons replied.

Simmons continued about the events of May 8, 2008.

“Both me and Clint tried to persuade him to leave [the AK-47] at Clint’s house,” but added Baber insisted on bringing the AK-47 with them.

“I told him to put it in the back and cover it up with some clothes. We headed to the bar. I was driving. Baber was sitting in the passenger seat up front,” Simmons said.

Baber and Simmons went to Nesbitt’s bar, where Simmons said he did “a lot of drinking.”

He testified he had “maybe five mixed drinks and three or four beers.”

Baber, that night, “had maybe one drink,” Simmons said. Bollinger asked Simmons about Baber’s state of mind that evening.

“I believe he was fine. He seemed to be under control.”

After about a hour and a half or two hours at the bar, they decided to leave the bar “to go smoke a blunt,” then went to Roger’s Store in Calabash.

“Whenever we pulled in, [Baber] saw some people off to our left that he recognized, and he told me to back up. I told him they weren’t any problem with me, but I went ahead and backed up,” Simmons said.

Baber told Simmons to follow the white minivan, Simmons testified.

“I pulled out of the gas station, waited across the street. They left. I waited for two cars, and then followed them to the next gas station, which was the Citgo across from the Napa at Calabash. I pulled into the parking lot of the China Panda across the street.

“Then he told me to go to the dirt road behind the ACE hardware store, which is across from the gas station,” Simmons said.

As they neared Pineclair Drive, Baber had the AK-47 in his hands, “pointed toward me, but not pointed physically at me,” Simmons said.

Simmons testified Baber turned to him and “I believe he said something like, ‘you know we’re both going to prison for this.’”

“Not if I don’t say anything,” Simmons testified he replied to Baber.

Then, Simmons said Baber rolled down the window and began firing in rapid succession at the minivan.

“It seemed to be fully automatic,” he said. “I believe he was actually half out of the window, himself, firing.”

Bollinger asked Simmons if he could see anyone in the minivan.

“I believe there was somebody sitting in the passenger side seat. I believe there was maybe one, maybe two people in the yard. I don’t know if it was a man or a woman. I just know he was black,” Simmons said.

After the shooting, Simmons said he turned left onto Thomasboro Road and drove back to Gaines’ house.

“I got out of the truck and told him to get out and take his gun with him. I fished around for the extra clip and threw it on the ground.”

Gaines told Baber and Simmons to leave. Simmons left in his truck and Baber left on foot.

“I never saw the weapon again. I don’t know where it is.”

During his cross examination of Simmons, Baber’s defense attorney James Payne questioned Simmons about his drug use and his different retelling of events to various state and local law enforcement officers.

Payne questioned Simmons’ motives in testifying for the state, specifically asking about his plea agreement with the state.

For more on this story, pick up next week’s issue of the Beacon.