Man found not guilty in death of neighbor

Judge finds fault in testimony by defendant's friend


November 14, 2001|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

Saying that prosecutors did not prove their case, an Anne Arundel County Circuit Courtjudge found an Annapolis teen-ager not guilty of murder yesterday in the shooting death of his 58-year-old neighbor.

Shouts of "Thank you, Jesus" came from the family of Justen Jeremiah Johnson, 18, as Judge Ronald A. Silkworth announced his verdict.

Johnson, a former honor roll student at Annapolis High School, was charged with first-degree murder and related counts in the April 6 shooting of Charles Edward "Nick" Kirby in Kirby's Eastport Terrace apartment.

Silkworth said that prosecutors' case hinged on the words of the defendant's friend, David Fisch. Silkworth was unconvinced that the version of events recounted by Fisch in testimony last week accurately depicted what happened between Kirby and Johnson.

"There are just as many scenarios that are consistent with innocence as with guilt," Silkworth said. He said circumstantial evidence presented by prosecutors - such as the discovery in Johnson's home of a cleaning kit for the same caliber weapon that killed Kirby - did not prove the defendant's guilt.

Johnson did not testify in the trial last week, but a version of what he purportedly claimed to have happened was given in Fisch's testimony. Prosecutors called Fisch to the stand to show that Johnson was with Kirby the night of the man's death, but Fisch also said Johnson claimed to have shot Kirby during a struggle.

Fisch testified that Johnson told him Kirby fired twice at Johnson, but the gun jammed. Then, as the two struggled, a bullet ripped into Kirby's chest, Fisch said Johnson had told him. Parts of that version were hotly disputed by prosecutors as unbelievable.

Johnson, leaving Kirby wounded, went to Fisch's home, where he washed up, played video games and decided to surrender two days later, Fisch testified.

Prosecutors had outlined 17 points they believed established Johnson's guilt. Among them were a witness who saw Johnson and Kirby arguing before going to Kirby's apartment and saw Johnson calmly leave the area afterward. Also, Johnson did not call 911 after the shooting, undermining any claim that the shooting was accidental.

Before his death the day after the shooting, Kirby told police that Johnson pointed the gun at him in an attempted robbery, and it fired on the third try, court records show. But that statement was ruled inadmissible at trial. Police recovered no weapon.

"The court apparently had trouble with trying to figure out what happened in the room," said Assistant State's Attorney Daniel Andrews.

Defense lawyer Alan H. Legum said, "It was a tough case for the judge because you've got a victim, Mr. Kirby, who's obviously been shot with a .32-caliber weapon, and you've got one person in the apartment, Justen Johnson."

Legum also said, "If you chip away at [Fisch's testimony], then there's no other evidence."

After the verdict was announced, Johnson, who had been under house arrest in Glen Burnie during the trial, somberly shook his lawyer's hand. Tears streamed down Johnson's face as crying relatives gave him bearhugs. Family members said they were too overwhelmed to discuss the verdict.

Kirby's relatives quickly left the courtroom. A victim advocate from the prosecutor's office who had been with them said they were upset and that they did not want to discuss the case.

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