Suspect's gun identified as one used in slaying BALTIMORE COUNTY

August 07, 1993|By Robert A. Erlandson | Robert A. Erlandson,Staff Writer

State and defense firearms experts testified yesterday that the .38-caliber revolver that police got from a murder suspect in a fake swap was the gun that killed Cockeysville restaurant employee John D. Tillman during a Christmastime holdup last year.

However, Judge Joseph F. Murphy Jr. refused to let William Welch, a private firearms examiner, testify for the defense that the trigger pull on the five-shot Smith & Wesson pistol was "insignificant" or "insubstantial" when the hammer was cocked and the user was under stress.

Defense lawyers Kirk Osborn and Joseph Niland tried to establish that the Dec. 26 shooting at the Sizzler Restaurant was unintentional and that Robert Lee Berry, 26, should not be convicted of premeditated murder. They will present that argument to a Baltimore County jury on Monday.

The pressure required to fire a gun is constant, regardless of the shooter's condition, argued prosecutor Jason G. League. The judge agreed, saying terms like "insignificant" or "insubstantial" are "meaningless" in the context of the case.

Under cross-examination, Mr. Welch, former head of the state police crime lab, concurred with Joseph Kopera, the state police firearms expert, that the bullet found on the restaurant floor was fired from the gun obtained from Mr. Berry and that bullet fragments taken from the victim's head matched the lead content of the bullet.

The state is seeking the death penalty for Mr. Berry. Three other men have already been convicted and are awaiting sentencing as participants in the robbery and slaying.

Mr. Berry is being tried on charges of first- and second-degree murder, first-degree felony murder, involuntary manslaughter, using a handgun and seven counts of armed robbery.

Mr. Berry did not testify. The only other defense witnesses were a Sizzler cashier and a woman patron who were among the more than 30 people in the restaurant at the time of the incident.

The witnesses did not identify Mr. Berry and gave only vague descriptions of the shooter and the robbers as the defense tried to create reasonable doubt about Mr. Berry's role.

When the shot rang out and Mr. Tillman, 29, fell, one man who was collecting wallets and cash shouted, "Oh [expletive], no one was supposed to be killed," testified Mignon Atkins, a patron. The shooter gave the orders during the robbery and "was hyper but he wasn't nervous," Ms. Atkins said.

Kelly M. Call, a waitress, and two other employees picked out Mr. Berry as the trigger man from a police array of six photos.

After both sides rested their cases yesterday, Judge Murphy denied a defense motion for acquittal on the first-degree murder charge. He said the jury will decide whether there was premeditation before Mr. Tillman was shot through the left eye at a half-inch range.

Police obtained the .38-caliber pistol after Christopher Bazemore, Mr. Berry's brother-in-law, agreed to cooperate with the investigation. Mr. Bazemore testified that Mr. Berry told him about the shooting and asked him to get rid of the gun. Police gave Mr. Bazemore an inoperable pistol that they later found on Mr. Berry when they arrested him Jan. 14, after the trade behind a Lansdowne convenience store.

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