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Raleigh teens can be tried as adults in gang-related shooting death

Posted December 6, 2012

— A Wake County District Court judge on Thursday ruled that two teenage brothers charged in the August shooting death of another teen can be tried as adults.

Judge Jennifer Knox found that there is probable cause to believe the teens, ages 13 and 15 at the time of the crime, committed first-degree murder when Fernando Garibay-Benitez, 16, was shot in the head as he was on his way home from the store.

"He pointed (the gun) at him, and he shot him over and over," Wake County Assistant District Attorney Amily McCool said during a hearing. "This is not a victim who was coming at him. There was no self-defense here."

Garibay-Benitez, 16, was a rising sophomore at Millbrook High School in Raleigh.

According to witnesses, he and another boy were walking on the sidewalk outside the Lexington on the Green apartments in north Raleigh on Aug. 15 when a minivan driven by the 15-year-old pulled up beside them, and the 13-year-old started firing.

"The driver was basically trolling for a victim," McCool told Knox.

Witnesses testified that the shooting was gang-related and that the 13-year-old shot Garibay-Benitez after learning he and the other boy were in a rival gang.

Fernando Garibay-Benitez Raleigh teens can be tried as adults in fatal shooting

"After he replied, the first gunshot went off," an 18-year-old girl, who had been in the van, testified. "Then there were more shots."

She also testified that, after the shooting, they drove to an abandoned apartment on Lake Boone Trail, the brothers wiped down the gun, wrapped it in plastic and made jokes about Garibay-Benitez falling to the ground.

"(They) were laughing about it, making fun of it," the girl testified.

Defense attorneys for the brothers argued that the state did not show probable cause that the shooting was first-degree murder.

"There's not enough evidence to prove that he acted with premeditation and deliberation," attorney Mike Klinkosum said of his 13-year-old client.

The names of the brothers are not yet public because they are currently charged as juveniles. They must be indicted by a grand jury to have their cases go from juvenile court to Superior Court before their identities are released.

They, however, cannot face the death penalty because of a U.S. Supreme Court ruling limiting capital punishment to those over age 18 at the time of a capital crime.


This story is closed for comments.

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  • danielaangelina1990 Dec 11, 2012


  • Dynol Yn Cael Ei Dec 7, 2012

    Glad to hear this! If they behave like rabid dogs, they should be treated like rabid dogs - regardless of their age. PERIOD!!!

    Praying for those who loved their victim.

  • storchheim Dec 7, 2012

    "Previously because they have not been able to be tried as adults these kids have been sent out by older ones to do the crime because of that very fact." Scubagirl

    Ding ding ding, we have a winner! Nice catch and true. Adults use kids as drug mules too.

  • torchhappysean Dec 7, 2012

    Kudos to the lawmakers for finally doing something right!! To the critics who say "they're too youg" stop and think about these two facts: 1. How old were YOU when YOU learned murdering someone in cold blood was wrong? 2. Gangs use underage kids to do their driveby killings and murders BECAUSE they stand a good chance of not really facing any sort of REAL punishment (juvenille prison until they are 18) and their juvenille records are sealed when they reach 18. Does 5yrs seem like adequate punishment for murder? It doesn't to me!!!

  • Jimmytwotimes Dec 7, 2012

    put them away forever they do not value life and have murderous instict in them. Green rd area needs to be cleaned up big time, there is no room in raleigh for these people.

  • coats78 Dec 7, 2012

    So, I'm just curious... All these individuals who are crying about a 13 and a 15 year old being tried as an adult, do you people seriously think that they just made a "booboo", a lil mistake? I'm sorry, but after reading a lot of these comments, I can easily see why the world is falling apart.

  • heisenberg Dec 7, 2012

    There's part of the problem larterl - what parents? They need to locked up for life.

  • Fireflies Rock Dec 7, 2012

    what's an 18 year old woman doing riding around with 13 & 15 year old boys, and how would they even know the victim was from a "rival gang"? My understanding is they're from Wake Forest and weren't at the same school as the victim. Horrible that kids that young are already in gangs...how do their parents not know this?!

  • rk1115 Dec 7, 2012

    Wow.. unreal.

    Age 21 = You can drink
    Age 18 = You can vote / fight for country
    Age 16 = You can drive
    Age 13 = You're an adult but can't do any of the above.

    Something is seriously wrong with society and the laws

  • free2bme Dec 7, 2012

    There is a lot wrong with out justice system. These brothers were riding around with a gun, they have a witness that was with them, and a dead body. How much more is needed? It does not take a rocket scientist to figure out deliberate and premeditated. Our justice system needs some real changes.