Mistrial in Sands murder case

Witness surprises court

saw police photo of suspect

Breach of evidence discovery rule

Columbia

October 30, 2002|By Lisa Goldberg | Lisa Goldberg,SUN STAFF

The murder trial of Tavon Donya Sands ended abruptly in a mistrial yesterday after a witness testified that an investigator showed him a series of photos that included the 21-year-old Columbia man's picture - information that both prosecution and defense attorneys said caught them by surprise.

Howard Circuit Judge Raymond J. Kane Jr. halted the proceedings during the trial's first full day of testimony, saying a mistrial was the only "remedy" for a situation lawyers likened to "trial by ambush."

No new date for motions or trial was immediately set for the case.

Sands is charged with first-degree murder, armed robbery and related offenses stemming from the fatal shooting of 23-year-old computer student DeShawn Anthony Wallace during a botched robbery Jan. 25 in the 5800 block of Stevens Forest Road.

Trials for two other defendants in the murder case, Sands' cousins Jonas L. Askins and Robert L. Burgess, both 18, are pending.

The testimony that ended this week's trial came near the end of the day yesterday after the state's eighth witness, Gaston Leonard Davis, said he saw Sands and two other men get out of a white Cadillac near his apartment building. He said he watched as Sands put an object in his waistband and headed for the nearby Stevens Forest Apartments.

Moments later, he testified, he heard a shot. He said he later followed the Cadillac from the parking lot and called dispatchers - but subsequently dodged prosecutors and investigators and lied when they tried to question him and bring him before a grand jury, testimony showed.

Still, he is certain, he said in court yesterday, that Sands was the man he saw that night.

"My memory never fails," he testified.

Under cross examination, defense attorney Joseph Murtha confronted Davis with a transcript of a 911 call he made to police that night - and Davis' statement to a dispatcher that he "couldn't see them too clear," a reference to the men who got out of the car.

Then Murtha asked Davis if he had ever been shown photographs of people involved in the case, to which Davis responded with a surprise "Yes."

With the jury out of the courtroom, Davis then testified that a Howard police officer had shown him eight photos, one of which was of Sands.

That exchange prompted a clearly agitated Murtha to ask for a mistrial. "I was angry because, for whatever reason, a violation of due process like this just disrupts the entire system and a mistrial is the only fair remedy," he said later.

The issue, the lawyers said yesterday, was one of discovery - rules requiring that the state turn over any evidence relating to guilt or innocence of a defendant to the defense.

During a hearing this month, Murtha sought testimony on whether the only photo identification of Sands that prosecutors planned to introduce at trial - that of Davis' girlfriend, Jill Jennings - was reliable.

At such hearings, prosecutors must show that a photo identification was made without anyone or anything influencing a witness' pick.

Because he never knew that Davis had been shown photos, Murtha said, he never had the chance to challenge whether testimony about the identification was admissible.

Deputy State's Attorney I. Matthew Campbell said he was caught equally off-guard. Neither prosecutors nor the lead investigators knew that Davis had been shown photographs, he said. While officials are looking into the situation, it appears to amount to a "failure of communication," and not "intentional withholding of information by the police," he said.

And while he said he initially offered Kane alternatives to ending the trial, he said he agrees that a mistrial was the right solution.

"We do not conduct trials by ambush," Campbell said. "We all agreed the only remedy at this junction was to take this train off the tracks and find another time to proceed."

The next step for the case likely will be a motions hearing to determine whether Sands can be tried again. Murtha said yesterday that he expects to argue that the case cannot be reset for trial because of double jeopardy, a constitutional provision that bars trying a defendant twice for the same crime.

Campbell said he believes double jeopardy does not apply in the Sands case.

The murder is one of several offenses - ranging from drug and gun offenses to attempted murder - that Sands is accused of committing during an eight-month period from May 2001 to January. Each time he was charged, Sands, who was on probation at the time, was released on bond, prompting police officials to point to his case as a failure of the criminal justice system.

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