THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, May 24, 1995 TAG: 9505240472
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 121 lines
A sudden falling-out Tuesday between Donald Marcus and his court-appointed attorney ended with the lawyer pulling out of Marcus' murder case and the judge declaring a mistrial.
It was the latest bizarre twist in the two-year saga of Marcus and his co-defendants, Brian McCray and Denaldo Hill, all charged in the Halloween 1992 shotgun slaying of convenience store manager James Harris. Tuesday's trial ended with Marcus cursing his attorney, Jon Babineau, under his breath as Babineau asked the judge to release him from the trial.
``Your honor, relations between my client and I have rapidly deteriorated,'' Babineau said. ``While I was talking to him about his case . .
Marcus muttered: ``He damn sure is.''
Babineau replied: ``He's even saying it right now.''
Last May, McCray was acquitted of all charges in Harris' murder and robbery, after Judge Alfred Whitehurst declared a mistrial in his August 1993 conviction because police and prosecutors withheld evidence critical to his defense. Hill was convicted of the same charges in June and sentenced to life plus 80 years in prison.
Marcus' trial started Monday with Babineau arguing his client's innocence before the jury. Babineau said in his opening
statements that detectives ignored crucial evidence implicating other suspects because they had already decided to arrest Marcus, McCray and Hill. Marcus, like his co-defendants, was charged with murder, robbery, malicious wounding, abduction and three firearms counts.
Marcus has maintained his innocence from the start, refusing prosecutors' plea agreements and asking for a jury trial. He claimed he was with his girlfriend and child when three men dressed in black robbed the Jr. Market on Westminster Avenue and one fired into Harris' head. The state always had less evidence against Marcus than against the other two defendants.
The court appointed Babineau to Marcus' defense soon after his arrest in February 1993. Marcus was released from jail on bond soon after Whitehurst's December 1993 ruling for a mistrial in McCray's case. Marcus returned to Grandy Village, got a job and showed up at every hearing over the next two years. ``I believe Donald's not guilty, and I believe the evidence would prove that,'' Babineau said Tuesday after the mistrial was declared. ``I put in two years and hundreds of hours on investigating this. A defense attorney couldn't ask for a better case. Until yesterday, when he slept through the trial, he was as alert and as dependable as you could ask any defendant to be.''
But on Monday, odd things started to happen. Marcus showed up late for his trial after reportedly having to be rousted out of bed. He fell asleep while Babineau gave his opening statements and cross-examined a police forensics expert. At one point, he started to snore.
Marcus told his lawyer he kept falling asleep because of a reaction ``to strong cold medicine,'' Babineau later said. Whitehurst remanded Marcus to jail at the end of Monday's hearing, saying he was probably hurting his case by nodding off in front of the jurors. On Tuesday, Marcus appeared well-rested and alert.
But before Tuesday's case started, the unexpected happened. Babineau said he thought Marcus wanted to enter an Alford plea, which allows a defendant to admit no guilt but concedes the evidence is sufficient to win a conviction. In exchange for his plea to first-degree murder, which carries a maximum punishment of life imprisonment, prosecutors reportedly agreed to a 12-year prison sentence.
Babineau tried to convince Marcus that he had a strong case, but nevertheless carried the plea agreement into a conference room for Marcus to sign.
Suddenly, Marcus started yelling. He burst from the conference room into the courtroom with two deputies at his heels, fussing at Babineau over his shoulder. Apparently there had been a misunderstanding - Marcus was saying he had never agreed to accept a guilty plea.
``I didn't do anything wrong,'' he yelled at Babineau. ``Trying to get me to sign that damn paper. Take your own damn self to prison. I didn't do anything wrong. Damn!''
Whitehurst asked Marcus whether he wanted to drop Babineau in the middle of the trial, saying Babineau had done an excellent job. But Marcus was adamant: ``If he misunderstood what I said, he should be fired.'' He then referred to the plea agreement as ``some damn paper he wanted me to sign.''
Whitehurst allowed Babineau to withdraw and appointed Michael Fasanaro as Marcus' new attorney. A new trial was set for Sept. 11.
Whitehurst also revoked Marcus' bond until his trial and released four witnesses who had been jailed for failing to appear in court as unwilling witnesses at earlier hearings. Among them were brothers Adrian and Jerome Holley, named on Monday by Babineau and in court records as alternative suspects in the killing.
Neither brother was ever charged, but detectives were divided over whether the Holleys and an accomplice were guilty. Witnesses who told police about threats to Harris were ignored, Babineau told jurors. In addition, Harris' mother made a statement to police March 31 in which she said her son told her to ``look for Jerome'' if anything ever happened to him.
Marcus' new lawyer would not let him comment Tuesday about what happened.
But after the trial, Babineau said he didn't feel there was a misunderstanding. ``I don't know what happened,'' Babineau said. ``On Monday, he just started acting bizarre. I told him that if he wanted to enter an Alford plea . . . that I was going to put him on the stand and make it clear that it was against the advice of counsel. That was when he had his outburst.'' ILLUSTRATION: Donald Marcus
CASE CHRONOLOGY
Halloween 1992: Convenience store manager James Harris is killed
during a robbery at the Jr. Market in Norfolk.
February 1993: Donald Marcus, Brian McCray and Denaldo Hill are
arrested and charged with Harris' murder. Most of the evidence rests
on the shifting tales of a 12-year-old boy.
August 1993: McCray is convicted of murder and a jury recommends
43 years in prison.
December 1993: A judge orders a new trial for McCray after
evidence shows that police and prosecutors withheld evidence that
would have been key to his defense.
May 1994: McCray is acquitted by a second jury.
June 1994: Hill is convicted of the murder and a jury recommends
life plus 80 years in prison.
Tuesday: Marcus is granted a mistrial when his lawyer asks to
withdraw from the case after an apparent misunderstanding in court.
KEYWORDS: TRIAL MISTRIAL SHOOTING SLAYING by CNB