Interview tape causes dispute in slaying case

Mistrial denied for men accused of killing children

July 20, 2005|By Julie Bykowicz | Julie Bykowicz,SUN STAFF

The decision to hold a joint trial for the two Mexican immigrants accused of killing their three young relatives appears to be hampering prosecutors' ability to use a once-critical piece of evidence: a tape-recorded statement by the elder defendant that implicates the younger one.

Outraged defense attorneys requested a mistrial yesterday as prosecutors played a portion of that statement for the jury that a judge had previously ruled to be inappropriate.

Policarpio Espinoza, 23, and Adan Canela, 18, are on trial in Baltimore Circuit Court facing three counts of first-degree murder and conspiracy charges in the deaths last year at a Northwest Baltimore apartment of an 8-year-old girl, her 9-year-old brother and their 10-year-old male cousin.

Hours after the children's bodies were found May 27, 2004, Espinoza told police that he and his nephew, Canela, had driven to the children's Fallstaff apartment that day. Espinoza said he waited in the car for about half an hour while Canela was inside "playing with the children" before emerging shirtless through a rear window.

Police gave details about Espinoza's statement in charging documents when they arrested the men. But when prosecutors chose to try the defendants together -- over the objections of defense attorneys -- the statement lost much of its significance. Accusatory comments that Espinoza made about Canela had to be removed because Canela has a right to confront an accuser, and Espinoza cannot be compelled to testify at his own trial.

In the early days of the trial, which began July 6 with jury selection, prosecutors and defense attorneys took hours to carefully review a typed English translation of Espinoza's interview, which was in Spanish. With the judge, they went over the document line by line to ensure that it contained no references to Canela and no hint that Espinoza had said anyone was with him that afternoon.

But as Assistant State's Attorney Sharon R. Holback played a tape of the interview for the jury, she let it run a few seconds too long. That allowed jurors to hear the homicide detective in English tell Espinoza -- and a Spanish-speaking officer who was translating -- that he was going to begin by asking "questions about who he was with" at the children's apartment.

Canela's attorney, James Rhodes, approached the judge and said later that he and Espinoza's attorney, Timothy M. Dixon, had asked for a mistrial. Circuit Judge Thomas Ward denied that request, the attorneys said.

As court ended yesterday, defense attorneys were grumbling about Holback's error, saying they didn't see how a seasoned prosecutor could make such a mistake. Holback later apologized to Rhodes in the hallway, saying she was tired and had slipped.

Defense attorneys said the error would make a strong argument for appeal if their clients are convicted.

Michael Millemann, a University of Maryland law professor who teaches an appellate and post-conviction advocacy clinic, said yesterday's situation points to some of the pitfalls of a joint trial.

"The problem is that it's very difficult to sanitize a statement so that it applies only to the speaker and not to the co-defendant," he said. "Even good-faith mistakes are difficult to remedy without drawing the jurors' attention to them."

The heavily edited transcript that jurors can read while they listen to testimony and while they deliberate does not include the detective's question that was played aloud on the tape yesterday.

This morning, jurors will hear more about what Espinoza told detectives, including a comment he made about going to the crime scene right after someone called his cellular phone to say that "something very sad had happened" to the children, Lucero and Ricardo Espinoza, ages 8 and 9, and 10-year-old Alexis Espejo Quezada.

Phone records show that Espinoza received that call at 5:29 p.m. He and Canela arrived at the apartment complex between 7:30 p.m. and 8 p.m., according to earlier testimony.

Detective Juan Diaz, who speaks Spanish, is the only Baltimore police officer who had direct communication with the family members the night of the crime.

Diaz, who took the stand yesterday and will be back this morning, served as an interpreter for homicide detectives. Along with Sgt. Darryl Massey, who testified earlier, Diaz took Espinoza's taped statement.

The defendants, like many other relatives of the slain children, immigrated illegally to Baltimore from Veracruz, Mexico, and speak mostly Spanish.

Diaz testified yesterday that he translated a few brief comments that Canela made while at police headquarters. Diaz said Canela responded in Spanish, "Yo no se nada," which means, "I don't know nothing," when asked about the killings.

He described the defendants as having a "flat attitude" when he first saw them at the crime scene.

So far, five family members have testified, including the parents of Ricardo and Lucero. Some of their answers have raised questions about their behavior around the time of the killings. And the prosecutor's questioning has hinted that she does not believe they have told police everything they know.

Yesterday, Diaz described his first few minutes at the crime scene. He said he found Maria Andrea Espejo Quezada, Alexis' mother, screaming and sobbing uncontrollably. He said no one else there showed any outward emotion.

"The whole family was weird," the detective testified.

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