THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, September 12, 1995 TAG: 9509120257
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
DATELINE: NORFOLK LENGTH: Medium: 97 lines
The last of three defendants charged in the Halloween 1992 shotgun slaying of convenience store manager James Harris went to trial Monday - the last in a string of trials and mistrials that raised questions about the suppression of evidence by law enforcement officials.
More than two years after his arrest, Donald Marcus is on trial on charges of murder, robbery, malicious wounding, abduction, unlawful wearing of a mask and three firearms counts.
In May, Marcus was granted a mistrial when his former lawyer, Jon Babineau, asked to withdraw from the case after an apparent misunderstanding in court. A new attorney - Michael Fasanaro - was then appointed.
That sudden falling-out was just the latest twist in the saga of Marcus and his co-defendants, Brian McCray and Denaldo Hill, all charged in Harris' killing.
In August 1993, McCray was convicted of the murder and sentenced to 43 years in prison. But a November 1993 story in The Virginian-Pilot showed that the case was based on the changing testimony of teenager Larry Edwards - who testified he saw the three outside the store - and tainted by the prosecutors' suppression of evidence. That December, Judge Alfred Whitehurst declared a mistrial.
In May 1994, McCray was acquitted in a second trial. Two weeks later a jury convicted Hill and recommended life plus 80 years - a sentence that Whitehurst upheld.
Marcus has maintained his innocence from the start, refusing prosecutors' plea agreements and asking for a jury trial. Fasanaro said during his opening statements to the jury that Marcus was with his girlfriend and child when three men dressed in black and wearing Phantom of the Opera masks robbed the Jr. Market on Westminster Avenue. During the robbery, Harris was shot point-blank in the head with a sawed-off shotgun.
From the start, the state had less evidence against Marcus than against the other two defendants. Unlike McCray and Hill, Marcus was released from jail on bond soon after Whitehurst's December 1993 ruling for a mistrial in McCray's case. He showed up at every hearing over the next two years.
Then, in May, he started acting strangely. During the first day of trial, he fell asleep during testimony and at one point started snoring. The next day, an apparent misunderstanding between Marcus and Babineau arose over whether to accept a plea agreement. Marcus, saying he was not guilty, fired Babineau.
Whitehurst declared a mistrial and revoked Marcus' bond.
On Monday, Marcus appeared alert, occasionally whispering to Fasanaro during the testimony of the state's first witness, Tabatha Wright, the clerk working with Harris during the robbery and murder.
On Monday, Richard Grizzard - the Southampton County commonwealth's attorney appointed special prosecutor for all three trials - told jurors that although Marcus was not the triggerman, he was a willing accomplice. Grizzard's case against Marcus is the same as that against McCray and Hill.
At 6:30 a.m. on the day of the killing, Grizzard told jurors, the three went to the Jr. Market where Harris was manager. Hill and Harris argued over the price of some orange juice. Hill pointed at the handgun Harris wore and said: ``You think you're bad because you got a gun. I got one bigger than that and I'll come back and blow your ass off.''
About an hour and a half later, three men entered the store and robbed Harris of about $2,700. As they were leaving, one of them shot Harris. Hill was the trigger man, Marcus and McCray accomplices, Grizzard said.
In May, Babineau, Marcus' former lawyer, told jurors that detectives ignored crucial evidence implicating - brothers Jerome and Adrian Holley and a third man - because they had already decided to arrest Marcus, McCray and Hill.
Fasanaro did not tell jurors this on Monday, concentrating instead on the state's circumstantial evidence and on inconsistencies in Larry Edward's statements to police. But Fasanaro did subpoena some of the same witnesses as Babineau. They include:
A security guard at the store, who said Jerome Holley was fired by Harris for stealing money. Holley threatened to kill Harris, Babineau said in May.
An unnamed witness, who said he was approached by Adrian Holley a few months before the killing and was asked to help rob the store. The actual robbery followed the plan described to the witness, Babineau said in May.
Neither Jerome nor Adrian Holley has been charged with Harris' killing, but they have been named as suspects in court records.
On Monday, Tabatha Wright said Jerome Holley could have been aware of where Harris kept the store receipts - wrapped in his jacket and stuck under a counter.
``So many (employees) came and left'' the store, Wright said.
Also, Wright's testimony on Monday did not match the prosecution's sequence of events. Wright said Marcus, Hill and McCray left the store at about 6:50 a.m. Five minutes later, Edwards and two women arrived, bought groceries and left, she said.
About 10 minutes later, she added, the three robbers arrived.
Store video cameras have shown that Larry Edwards arrived at the store at 8:07 a.m. At 8:15 a.m., Edwards left.
Two minutes later, the robbers entered the store, the video cameras show. ILLUSTRATION: After one mistrial, Donald Marcus, charged with the murder of
James Harris, comes to trial - again - with a new lawyer.
by CNB