WOODLAND — A Yolo Superior Court judge is expected to rule Thursday whether there will be a second trial in a Davis homicide case.
A jury in May convicted 38-year-old James Elron Mings of attempted murder for the Oct. 1, 2011, death of local resident Kevin Gerard Seery in what has been described as an incident of assisted suicide.
Seery, 42, suffered from chronic pain and multiple ailments at the time of his death. But Mings’ attorney, Deputy Public Defender Dan Hutchinson, argued that it was another man who fatally stuffed a tube sock down Seery’s throat after Mings had choked the victim to unconsciousness in his J Street apartment.
The jury acquitted Mings of both first- and second-degree murder but, after reaching the lesser attempted-murder verdict, deadlocked over whether the crime was premeditated — a finding that would determine the length of Mings’ prison sentence.
Potential terms range from a determinate sentence of five, seven or nine years to an indeterminate one of seven years to life.
The Yolo County District Attorney’s Office announced in June that it planned to retry the case on the premeditation allegation, which prompted Judge Timothy Fall to reply that the court “will also be considering whether it’s going to meet the needs of judicial economy” to hold a second trial.
Fall instructed Hutchinson and prosecuting attorney Martha Holzapfel to submit motions on the premeditation issue, which were filed in court in July and early August.
At the heart of their debate is whether the allegation that Mings committed a “willful, deliberate and premeditated” crime should have been presented to the jury among the lesser-included offenses of murder. Holzapfel says yes, while Hutchinson disagrees.
The jury deadlocked 9-3 in favor of finding the allegation true, according to the attorneys’ motions.
In a separate document, Hutchinson seeks a dismissal of the premeditation allegation “in the furtherance of justice,” saying a life sentence would be “completely inappropriate” given Mings’ lack of criminal history and motivations of “love and compassion” for Seery.
Holzapfel opposed the request, noting that “the Legislature has not changed the Penal Code to nullify or modify the sentencing scheme for those convicted of murder in mercy killing situations,” regardless of their motivations at the time of the act.
Mings remains in custody at the Yolo County Jail. He was arrested on the night of Seery’s death after walking into the Davis police station and confessing to helping his friend end his life.
— Reach Lauren Keene at email@example.com or 530-747-8048. Follow her on Twitter at @laurenkeene