Trial in boy's shooting ends in hung jury

Judge declares mistrial after jurors split 11 for acquittal, 1 for conviction

April 03, 2003|By Allison Klein | Allison Klein,SUN STAFF

After deliberating almost eight hours over two days, a Baltimore jury came within a vote yesterday of acquitting Perry Spain, a man charged with shooting a 10-year-old in the neck on a West Baltimore street, but ended up declaring themselves deadlocked.

Eleven members of the jury wanted to acquit and one wanted to convict Spain, 20, who is charged with attempted murder and other crimes related to the wounding of Tevin Davis.

The judge declared a mistrial when the jurors said they could not reach a unanimous verdict. The trial, which took four days, included testimony from Tevin and his parents.

"I guess they didn't really know what to do," Tevin said after the hung jury was announced. "Now we have to do it all over."

Assistant State's Attorney Roger Harris said he has not decided whether to retry Spain.

Defense lawyer Warren A. Brown said members of the jury sent a message though they couldn't agree on a verdict.

"When 11 people say not guilty you ought to read between the lines," Brown said. "If the state decides to come at us again, we'll be prepared."

Two jurors leaving the courtroom said they thought there was not enough evidence to convict Spain.

The jurors, who asked not to be identified, said they did not believe Tevin's father, Rodney Harden, who testified that he saw Spain shoot Tevin. It was too dark outside for Harden to make the identification, they said.

During deliberations yesterday, the jury sent three notes to Judge Shirley M. Watts saying they could not reach a unanimous decision. At the end of the day, Watts released them, saying she did not want to force them to deliberate an "unreasonable" amount of time.

Harris said the case was compromised because Juan Wilson, one of two witnesses who identified Spain as the gunman, was killed in November. At the time, prosecutors said losing Wilson - whom police described as a drug dealer - was "catastrophic" to the case.

"We did not have the witness alive we wished to call," Harris said yesterday. "But we did not have a weak case. This was a hung jury, not a `not guilty.'"

Tevin's father said if Williams was alive, they would have had an "airtight" case. He also said Tevin is sad that the jury didn't reach a verdict.

"Tevin is pretty upset about it," Harden said. "He has nightmares every night. Sometimes he's afraid to go outside." He said the family is willing to go through another trial.

Tevin was shot about 9 p.m. July 15 last year in the 1900 block of W. Fairmount Ave. when he was playing with some of his friends outside. He was shot in the neck and the bullet came out his mouth.

Police say that a craps game had been going on nearby minutes before the shooting. Four men ran up and, at gunpoint, robbed the men playing dice.

Harris said Spain was one of the men playing dice, and that he ran after the robbers, shooting at them. One of the bullets hit Tevin, he said.

At the time of the shooting, Spain and Tevin lived in the same Fairmount Avenue neighborhood. Days later, Spain was released on $35,000 bail, touching off a political battle about the criminal justice system.

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