Appeals court lowers murderer’s sentence

Published 9:30 am Thursday, October 4, 2018

Convicted murderer Michael Bryan Freeman appeared in court again Sept. 14, this time for resentencing after the NC Court of Appeals vacated his November 2016 sentence.

Freeman, 48, was found guilty of second degree murder in the killing of Michael Foster in April 2014. According to testimony from Freeman’s 2016 trial, Freeman and Foster spent the evening drinking at Freeman’s mobile home off NC 801 South April 7. Freeman repeatedly kicked and beat Foster, who died four days later from head injuries.

Freeman’s wife, Tracey, was at the home that night and testified against him in a probable cause hearing May 1, 2014. She died from natural causes later that year.

DyAnn Cole, Foster’s ex-wife, who was at the home for part of the night April 7, also testified against Freeman at the hearing. She died a month before Tracey of an overdose.

Assistant DA Greg Brown told the jury at the 2016 trial while the witnesses were gone, their testimonies did not go to the grave with them.

At the conclusion of the week-long trial, the jury found Freeman guilty of second degree murder, and Judge Marty McGee sentenced him to 264 to 329 months, with credit for the 273 days he spent in jail prior to the trial. Freeman’s attorney, Lisa Costner, filed an appeal, arguing two points: that his case should have been dismissed for insufficient evidence of malice in the killing of Michael Foster in 2014, and that he should have been sentenced as a B2 rather than a B1 felon.

In their opinion, published June 5, the Court of Appeals found Freeman and Costner failed to preserve the argument of insufficient evidence of malice during the trial.

Their second argument related to under which classification Freeman was sentenced. Their argument was he should have been sentenced as a B2 felon, which carries a lesser sentence.

The Court of Appeals found while there was sufficient evidence of malice to support Class B1 second degree murder, there was evidence to support depraved-heart malice, an exception under the B1 classification. Depraved-heart malice is defined as the ‘commission of inherently dangerous acts in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.’

In Freeman’s case, because there was evidence to support more than one theory of malice and because those theories support different levels of punishment, the verdict was found to be ambiguous.

According to the filing, “When a verdict is ambiguous, neither we nor the trial court is free to speculate as to the basis of a jury’s verdict, and the verdict should be construed in favor of the defendant.”

Under B2, Freeman received 174 to 221 months with credit for 353 days.