Reluctant witness will testify at murder trial - on '05 tape

Law allows use of police interview after intimidation by defendant

May 05, 2007|By Julie Bykowicz | Julie Bykowicz,Sun reporter

The Baltimore murder witness ignored six notices to appear at trial, evaded investigators who had staked out his home and called a detective to say he had no intention of ever coming to court.

He even traveled to Ohio, after the defendant in the case had urged him to keep "duckin' and dodgin'."

Pharaoh Carr might not physically take the witness stand, but he will - in an unusual way - testify against LeShawn Green, whose trial begins Monday.

For the second time since a state witness intimidation law was enacted, city prosecutors have been granted permission to use a "hearsay exception" during a murder trial. This means that jurors can listen to an audiotaped police interview in which Carr says Green shot up a pizza parlor - even though Carr might not be in court and Green's attorney won't have an opportunity at cross-examination.

Green is accused in a West Baltimore shooting almost two years ago that left a 16-year-old dead and three other teens wounded.

A few weeks afterward, Carr, a friend of Green's, informed police that Green was responsible. Homicide detectives asked how he knew. "He told me," Carr replied, according to a tape of the 2005 interview.

Problems with witnesses - rising from overt threats on their lives and a culture of "stop snitching" - have helped countless Baltimore defendants win acquittals. Witnesses often tell police one version and then either come to court with a different story or don't come to court at all.

With the witness intimidation statute that went into effect in October 2005, Maryland prosecutors got a tool to help them overcome those problems. In some cases that involve violence or drugs and in which witnesses are missing, prosecutors can try to persuade judges to allow out-of-court witness statements into evidence. Prosecutors must first show that the behavior of defendants caused witnesses to be absent.

That's what happened this week in a pretrial motions hearing for the Green case.

Baltimore Circuit Judge John C. Themelis ruled Wednesday that Green, 25, had forfeited his right to confront Carr, 22, by encouraging him not to come to court.

A more clear-cut violation of the witness intimidation statute involves the killing or threatening of a witness, but Themelis said his interpretation is that even "a respectful, polite plea not to testify" can be a violation.

The new statute hasn't been considered by the state's appellate courts. Last summer, city Circuit Judge Wanda K. Heard allowed a jury to hear the audiotaped police interview of the sister of a man on trial for murder. Even so, a jury acquitted Tyrone Beane of all charges.

Themelis acknowledged from the bench that he is treading untested ground.

He made his ruling after listening to several jailhouse phone calls in which Green, Carr and others spoke about coming trial dates and strategies to avoid coming to court.

The phone conversation that Themelis considered the most damning had Green encouraging Carr's girlfriend, "Tell your baby's daddy to keep it up. Good duckin' and dodgin'. Keep it up, keep it up!"

A few months later, before his scheduled March trial date, Green spoke to Carr: "I'm just letting you know my court date. You know what I'm saying."

"You already know I know what to do," Carr replied.

Green also advised Carr to stay away from specific locations to avoid being arrested and forced to come to court.

It seems that Carr took the advice.

A homicide detective testified at the pretrial motions hearing that efforts to find Carr in Baltimore turned up nothing. In September 2006, according to a detective, Carr called and said he had no intention of ever showing up to testify.

Then, in late April, as Green's current trial date approached, Baltimore authorities learned that Carr had been arrested - in Ohio. He was jailed briefly on suspicion of a weapons violation but released without being charged. Then he disappeared again.

Poised to begin Green's murder trial, Assistant State's Attorney Diana Smith filed a motion to use Carr's interview with police because he wasn't likely to show up in court.

Green's defense attorney, Maureen O'Leary, argued that Carr had plenty of motivation on his own to skip town: He might have been a suspect in the murder.

"Of course, he would lie," O'Leary said. "He wanted to get the heat off him."

Witnesses reported seeing two masked gunmen firing shots July 16, 2005, at Pizza Pizza Etc., a restaurant in the 1300 block of Poplar Grove St. Jawan Lee was killed.

Carr's brother had been shot to death days earlier. The prosecutor in Green's case has said the pizza shooting was in retaliation for that.

Two homicide detectives testified at the motions hearing that Carr was never a suspect. But the defense attorney said police files indicate that he was. In a brief interview, Lee's mother called Carr "the second shooter."

Whether Carr was a suspect was a major issue in the pretrial motions hearing because O'Leary won't be able to cross-examine him about his motivation for accusing Green of murder.

Defense attorneys argue that's why the constitutional right to confront one's accuser is so vital to the criminal justice system.

But in state courts across the country, and in federal court, legislators and judges have determined that there's another rule to consider: "forfeiture by wrongdoing." Simply put, a defendant gives up his right to cross-examine witnesses if he is the reason that witnesses aren't in court.

So, in Green's case, jurors will listen to Carr's police interview. Given in August 2005, Carr tells detectives, "I know a friend of mine named LeShawn Green is involved."

julie.bykowicz@baltsun.com

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