Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, May 31, 1990 TAG: 9005310386
SECTION: VIRGINIA PAGE: B-3 EDITION: STATE
SOURCE: By PAUL DELLINGER SOUTHWEST BUREAU
DATELINE: TAZEWELL LENGTH: Medium
Circuit Judge Donald Mullins took the dismissal motion under advisement, and gave defense attorneys Tom Scott and Marty Large 10 days to submit written briefs supporting it. Tazewell County Commonwealth's Attorney Tom Bowen will have 10 days to respond.
The prosecutor said failure to tell the defense that a key witness had named others besides Ealy as the killer was "an innocent oversight due to a management problem" of having no single coordinator for the case.
Scott said it would be hard to find precedents because, "I'd be willing to bet there hasn't been a case in the country where the things have occurred like they have in this case."
Ealy, 27, was scheduled for trial this week in the shotgun deaths of Robert and Una Mae Davis and the woman's 14-year-old son, Bobby Hopewell, early April 16, 1989, at their home in Pocahontas.
But Bowen, prompted by Scott on Friday to check further, learned that 16-year-old Brian Burnopp - Ealy's half-brother and a key figure in his indictment - had named a variety of people in inconsistent stories during a rambling six-hour account at the sheriff's office on July 28 while intoxicated.
Scott produced witnesses Tuesday who claimed notes and tape recordings were made of Burnopp's statements. Sheriff W.E. Osborne and Chuck Ruble, an investigator with the department, said there were none. Scott said that if they existed and were destroyed, the defense is denied that evidence and the case should be dismissed.
"What we're really talking about is incompetence," he told reporters. "Certainly, the persons involved shouldn't be spearheading a capital murder investigation." He suggested Mullins empanel a grand jury to look into how the case has been handled.
Bowen agreed that Burnopp's statements should have been given to the defense, but failure to do so "is not as sinister as Mr. Scott has argued," he said. "I submit that the officers may not have attached that much significance to what Brian was saying on that particular night . . . because Brian was drunk as a skunk."
Burnopp gave a formal statement the following afternoon naming Ealy as the killer.
Another prosecution witness, Rick Perdue - charged with helping plan the killings but offered leniency for testifying against Ealy - also told so many stories that Mullins interrupted Tuesday to say, "Mr. Perdue, I'm a little bit confused at this point. What is your story now?"
It was that Ealy planned to rob former Pocahontas mayor and convicted drug dealer Charles Gilmore, and that Perdue told Ealy the drug money had been moved from Gilmore's home to that of his employee, Robert Davis.
Bowen, asked after the hearing whether its revelations would hurt his case if it ever came to trial, replied, "It hasn't helped anything." But he said they might keep a similar situation from happening in future cases.
"I feel great about the case right now," Scott said. As for his client, he said, "I think he's cautiously optimistic, just like we are."
by CNB