After conviction overturned, man waits to be freed

June 12, 1994|By Mike Farabaugh | Mike Farabaugh,Sun Staff Writer

The wheels of justice are turning slowly for a 25-year-old Havre de Grace man whose assault and battery conviction in 1993 was overturned May 2 by the Maryland Court of Special Appeals.

Craigg Eric "Chicken" Wallace remains locked up at the Eastern Correctional Institute at Westover in Somerset County. A mandate for the prisoner's release was issued June 1, a clerk for the state appellate court said Thursday. But Mike Miller, administrative officer at the Eastern Shore prison, said it had not been received there.

A three-judge appellate panel ruled that Miller's confession should not have been admitted as evidence at his trial in May 1993. The decision was written by Judge Charles E. Moylan Jr. for the panel, which included Judges Paul E. Alpert and Dale R. Cathell.

Diana A. Brooks, the Harford County assistant state's attorney who prosecuted the case, said a mandate usually comes two or three weeks after a written opinion is issued.

"Our office has not received a copy of the mandate," Ms. Brooks said Thursday, "but I have scheduled a new trial for Sept. 22."

Wallace is serving eight years on the battery conviction, plus eight years for violating his probation on a previous attempted murder conviction, Ms. Brooks said.

"Since the battery conviction has been overturned and the violation of probation was based on that case, I assume he should be released," she said.

L Ms. Brooks said Miller would be charged and arraigned again.

"Since it was a severe case of assault and battery, we will retry him and will be seeking a substantial bond," the prosecutor said.

The appellate opinion states that there was enough evidence to convict Wallace without the confession.

Ms. Brooks said the conviction should not have been overturned.

"Either the panel misread the trial transcript or it got the facts wrong," she said. "The police did nothing underhanded, but the panel makes it sound as if they did."

Wallace's conviction stems from an attack on James Johnson, a Pennsylvania man who suffered brain damage from repeated kicks in the head after he tried to help a woman who was being beaten by a friend of Wallace's at a home in Havre de Grace.

Prosecutors charged Wallace and Timothy Clarke in the attack. Clarke pleaded guilty and got a two-year prison sentence.

Ms. Brooks said trial testimony showed that Wallace was advised of his rights by police officers when he was arrested. The Miranda warning -- which advises suspects of their right to remain silent and to be represented by a lawyer -- is intended to preserve an individual's right to avoid self-incrimination.

But the Court of Special Appeals ruled that if a suspect even half-heartedly indicates a desire to have a lawyer present during questioning by police, the interrogation must cease.

The judges concluded, based on police testimony at the trial, that Wallace had indicated he wanted an attorney and that a police detective used a popular TV ploy: If Wallace didn't want to talk, police would not photograph the injuries he allegedly received in the attack. Such pictures, the detective hinted, could benefit Wallace's defense.

"The subtle message to the appellant was that if he insisted on his right to counsel, he would pay the price for it by not receiving the benefit of having his injuries photographically memorialized," Judge Moylan wrote.

The appellate judges rejected the prosecution's contention that if the trial judge erred in allowing Wallace's confession to be used as trial evidence, it was harmless.

Ms. Brooks said the confession itself was harmless. In it, she said, Wallace admitted only to being at the scene of the crime and did not admit hitting or beating anyone.

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