Forging a link in Va. sniper case

If witnesses saw Malvo, Svengali-like Muhammad was near, prosecutors say

October 24, 2003|By Stephen Kiehl | Stephen Kiehl,SUN STAFF

VIRGINIA BEACH, Va. - The witness identification is nearly perfect. The suspect is paraded into the courtroom in an orange jumpsuit, and, after a few moments of examination, the man on the witness stand cries out, "That's him!"

But there's one small twist - the suspect being positively identified as the killer is not the man on trial for murder.

The man on trial is John Allen Muhammad, 42, charged in the 13 sniper shootings that terrorized the Washington region last fall. The suspect identified as the killer is Lee Boyd Malvo, 18, who is awaiting trial for his role in the shootings. But for prosecutors, who contend that Muhammad dominated Malvo's every move with Svengali-like control, every witness who points to Malvo is also pointing to Muhammad.

"Malvo is being portrayed in the same manner as the assault rifle: He is one of the killing instruments," said Steven D. Benjamin, a criminal defense lawyer in Richmond, adding that prosecutors are suggesting that Muhammad was pulling the strings. "Muhammad controls Malvo who controls the rifle."

Few witnesses have been able to place Muhammad at the scenes of the shootings. In the opening days of the Muhammad trial, his alleged co-conspirator has been repeatedly identified by witnesses. One man who survived said Malvo fired a bullet into his stomach. Two witnesses placed Malvo at the scene of two other shootings.

A key connection

The prosecution is trying to make the case that whatever Malvo was doing, it was probably because Muhammad told him to. The connection is crucial: To secure the death penalty, prosecutors must show that Muhammad was a direct participant in the killings even though Malvo has admitted pulling the trigger in many of them.

The Muhammad trial was not in session yesterday because of a power failure at the courthouse after a transformer blew. Court officials hope to resume the trial this morning.

While one witness testified this week that Muhammad was near the scene of a killing about an hour beforehand and another is expected to say he was seen near the Bowie middle school where a boy was shot, the prosecution has sought in some instances to have witnesses identify Muhammad's car.

One such witness was Muhammad Rashid, 32, of Waldorf, who was wounded Sept. 15, 2002, in front of his liquor store in Brandywine. Rashid testified this week that as he was locking up, he felt two bullets whiz by his right side, then noticed someone approaching from the left - a person he would later identify as Malvo.

Rashid testified that before closing, he had seen through the drive-up window a dark-colored car parked behind his store. Prosecutors showed him photographs of the blue Chevrolet Caprice in which Muhammad was arrested and asked if it was the same car. Rashid said the car was dark blue or dark green, he couldn't be sure.

Even without an identification of the car, the notion had been planted that Muhammad was nearby. Muhammad's defense team tried to exclude Rashid's testimony before he took the stand.

`Another bad act'

"There will be no identification and no ties to Mr. Muhammad and the Rashid shooting in any way, shape or form," defense attorney Peter D. Greenspun argued. He also objected to other shootings being brought into the trial. "They're talking about very serious and aggressive robbery-shootings without any ties to Mr. Muhammad. It's just to put another bad act out there."

But Prince William County Circuit Judge LeRoy F. Millette Jr. has allowed other crimes to be introduced because they could be used to build the case for a common plan or scheme - the extortion of $10 million from the government, prosecutors allege.

Another instance in which witnesses said they saw Malvo but not Muhammad at a crime scene was a September 2002 liquor store shooting in Montgomery, Ala., in which a store clerk was killed and another seriously wounded. A community newspaper publisher who heard the shots and saw the assailant gave chase.

The publisher, James Gray, said he came face to face with the assailant in a dark alley. In court this week, Gray identified that person as Malvo.

"That's him!" Gray said, before dissolving into sobs. But the prosecution was unable to find anyone who saw Muhammad near the scene.

Likewise, when Hong Im Ballenger was shot and killed in the parking lot outside her beauty store in Baton Rouge, La., a witness saw a young man running from the scene and a dark sedan idling nearby. A witness might be able to place Malvo at the scene, but not Muhammad.

Fusing the suspects

However, the fact that Malvo was seen so often and Muhammad so rarely might not be a big problem for the prosecution. If prosecutors can fuse Muhammad and Malvo in the minds of the jurors - by showing their quasi father-son relationship and how they were almost inseparable - the panel might not see a difference between them, legal experts say.

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