Prosecutor criticized in reversal

September 13, 1994|By Darren M. Allen | Darren M. Allen,Sun Staff Writer

In a stinging opinion that said a Carroll assistant state's attorney resorted to "prosecutorial overkill," the state's second-highest court overturned the conviction of a Westminster man who broke into a George Street gas station.

The Court of Special Appeals last week ruled that Joseph Phillip Zemo's burglary conviction in June was in error because Assistant State's Attorney Christy McFaul allowed a jury to hear testimony for which "there was no legitimate purpose."

The reversal in Zemo's case is the fourth Carroll conviction overturned by the state's second-highest court this year. The others were:

* The conviction of Noland Maurice Rheubottom of Westminster, who prosecutors successfully tried as a three-time cocaine dealer. His retrial is scheduled early next year.

* The marijuana distribution conviction of Pamela Snowhite Davis, an activist sentenced to five years in prison for a crime involving less than an ounce of marijuana.

* The first-degree murder conviction of James Howard VanMetre III, who was accused of killing a Pennsylvania woman on a Harney farm in 1991. The court said the state's attorney violated the state's trial-scheduling rule when he failed to bring VanMetre to trial within six months of his attorney's appearance in the case. The Court of Appeals has yet to decide whether it will reconsider the reversal.

A Carroll jury found Zemo, 24, guilty of breaking into and stealing from the Direct To You gas station after a daylong trial in which Ms. McFaul presented testimony from several co-conspirators as well as Westminster Detective Michael Augerinos, the investigator.

It is the testimony of Detective Augerinos that the Court of Special Appeals, in an opinion by Judge Charles E. Moylan, found objectionable.

The detective's testimony about Zemo's silence after he was arrested reveals "an instance of prosecutorial overkill, wherein the state, not by passing or careless reference, but by a sustained line of inquiry, sought to milk the testimony of Detective Augerinos for far more than it was legitimately worth," Judge Moylan wrote.

While the court didn't fault the detective's testimony about the initial phases of his investigation, it said his details about the defendant's refusal to make a statement when he was arrested were irrelevant.

Over the objections of Carroll Public Defender Barbara Kreinar, Circuit Judge Luke K. Burns Jr. allowed Ms. McFaul to question the detective about his entire investigation into the gas station break-in. Ms. Kreinar argued that such testimony had nothing to do with Zemo's guilt or innocence.

Ms. McFaul persuaded the judge to allow the detective's continued testimony so that she could "lay out the course of the investigation."

The appellate court found that argument specious: "It behooves us to point out that the state is retelling the 'old wives' tale' that it is somehow necessary always to lay out for the jury the detailed course of a criminal investigation.

"It is a tale that seems to be enjoying of late wide circulation at the prosecutorial council fires. It is an apocryphal tale, however, and one that urgently needs demythologizing."

Judge Moylan said Zemo's constitutional rights were violated when the jury was allowed to hear that he chose to invoke his right to remain silent when arrested by the police.

"The taboo reference to the silence here was obviously no inadvertent lapse by a careless witness nor even a gratuitous little bonus tossed in by a more clever witness," Judge Moylan wrote. "Adverse comment (nay, all comment) on a defendant's invocation of a right to silence is constitutionally forbidden. . . . "

Ms. McFaul, Carroll State's Attorney Thomas E. Hickman and Deputy State's Attorney Edward M. Ulsch could not be reached yesterday for comment on the decision.

The reversal will have little practical effect on Zemo, who is serving about 11 years in state prison for burglaries in Carroll and Howard counties.

The conviction that was overturned was one of two related to a string of Westminster break-ins last fall, in which three other people were implicated.

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