Spicer trial evidence ban sought

His attorneys want to prevent witness' testimony

Retrial set for March

Conviction in beating of Annapolis man was overturned in '98

January 19, 2000|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

With a March retrial looming, Brady G. Spicer's defense team is preparing to ask an Anne Arundel County judge next month to bar evidence that helped convict the Annapolis man eight years ago of the near-fatal beating of a popular City Dock restaurateur.

If successful, defense moves at a February hearing could cost prosecutors one of their two surviving witnesses from Spicer's first trial or force them to bring in a prosecutor from another county.

Spicer, 43, was convicted in 1992 of beating Francis "Bones" Denvir while Denvir worked in his upstairs office at Armadillo's. Spicer, who has a record of mostly property crimes, has maintained his innocence in the assault case.

The attack sent shock waves through other restaurants at Annapolis' trendy City Dock, where Denvir was well-liked, and in legal circles because Armadillo's was a popular watering hole for young prosecutors, public defenders and county police.

A federal judge overturned Spicer's conviction and 30-year sentence in December 1998, saying prosecutors had failed to share information that witness Larry Michael Brown had embellished his account, probably to gain probation in his drug case.

Initially, Brown, who died last year, said that Spicer had said incriminating things to him before and after the crime. Later, Brown testified that he had seen Spicer run from the scene. The federal ruling was upheld on appeal, leading to the retrial.

The case went to federal court when Spicer, after exhausting his state appeals, wrote to U.S. District Court in Baltimore in 1997. The case was assigned to U.S. District Judge Peter J. Messitte.

Defense attorney Carroll L. McCabe said she will ask Circuit Judge Clayton Greene Jr. to prevent witness Sam Novella of Annapolis from testifying. In Spicer's first trial, Novella, whose identification of Spicer from photographs was uncertain, watched part of the trial despite a court ruling barring witnesses from the courtroom. On the witness stand later, Novella said Spicer looked "very, very familiar."

The elimination of a witness would be important, because no physical evidence linked Spicer or anyone else to the crime.

"It's going to be hard to convict him anyway," said Assistant State's Attorney Thomas J. Pryal. But the absence of Novella would not destroy the case, he said.

"The bottom line is, Sam Novella never really identified Brady Spicer," he said. "The main witness was Hank Connick."

Connick, an Armadillo's bartender who confronted and chased his boss' assailant, described a shorter attacker. But when he saw Spicer in court, he said he was positive that Spicer was the attacker.

McCabe said she does not know whether she will try to block Connick from testifying.

The third witness was Brown, and Pryal said he is uncertain whether he will try to use Brown's testimony. If he does, the defense probably would counter with Brown's deathbed statements that he lied to save himself from a prison sentence. (Brown had violated his probation and was sentenced to eight years.) That and Brown's record, which included drug offense and assault, make Brown's testimony "a double-edged sword," Pryal said.

Pryal said another Armadillo's employee came forward last year, but the prosecutor said he has not decided whether to ask the employee to testify.

Unusual move

Defense lawyers McCabe and Daryl D. Jones are considering the unusual move of asking the Anne Arundel County prosecutor's office to withdraw from the case in favor of an outside prosecutor.

Prosecutors, county police officers and lawyers with the public defender's office often visited Armadillo's, and McCabe said that might taint prosecutors' handling of the case.

"That question has never come up," Pryal said.

The public defender's office removed itself from the Spicer case in 1991. It did not take Spicer as a client because it was representing Brown at the time. At least one investigator for the public defender's office also worked part time at Armadillo's.

Knocked unconscious from behind with liquor bottles, Denvir did not see who beat him. Although Annapolis police initially viewed it as a botched robbery, investigators later suspected that the beating was intended to send a message.

A thief could have slugged Denvir twice, grabbed the cash and run away, but the attacker left behind more than $1,000 in cash and broke every bone in Denvir's face.

Denvir later stopped cooperating with Annapolis police, refusing a lie detector test. Last year, he told The Sun he needed to devote his energy to his recovery and his family.

In recent months, the defense has begun to look at other possible motives.

Police did not solve the case. Through his attorney, Brown approached prosecutors. The chief investigator for the prosecutor's office was not convinced that Spicer was the attacker, but prosecutors sought and won a grand jury indictment and later the conviction. Police who worked on the case remain unconvinced that Spicer did it.

Initial appeals upheld

Spicer's initial appeals were upheld locally. Last year, after his conviction was erased, Spicer offered to plead guilty in exchange for time served. Judge Eugene M. Lerner, who presided over the trial, refused to accept the plea. Attorneys tried to get Greene to take it, but he refused.

Spicer's lawyers had their client submit to a lie detector test administered by a former FBI employee, who said the test showed that Spicer was truthful in saying he had nothing to do with Denvir's attack. Results of lie detector tests are not admissible in court.

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