THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, September 16, 1995 TAG: 9509160275
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 149 lines
After three years and five trials, the verdict is still out on who killed convenience store manager James Harris on Halloween 1992.
After six and a half hours of deliberation, jurors on Friday acquitted Donald Marcus on charges of first-degree murder, malicious wounding, robbery and abduction.
But then, in one of the strangest verdicts court officials could recall, the jurors found him guilty of three counts of using firearms in the charges they had just acquitted him of, of possession of a sawed-off shotgun and of unlawful wearing of a mask. They recommended 13 years in prison and a $500 fine - a sentence Judge Alfred W. Whitehurst immediately upheld.
``How could they find me guilty for one thing and not guilty for the other?'' Marcus said in a holding cell after the trial. ``It doesn't make sense. I don't know what to say.''
Michael Fasanaro, Marcus' lawyer, appealed the verdict. Richard Grizzard - the Southampton County commonwealth's attorney appointed special prosecutor for trials of all three defendants in the case - told the court he thought the verdict was a compromise.
After the trial, some jurors said it was not a compromise, but rather their interpretation of the law. They seemed frustrated, tired, and glad the week-long trial was over.
Thus ended the saga of trials and mistrials for Marcus and his co-defendants, Brian McCray and Denaldo Hill - a case that raised questions about the suppression of evidence by Norfolk law enforcement officials.
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 moments before the fatal robbery - and tainted by the prosecutors' suppression of evidence. That December, 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 maintained his innocence from the start. Fasanaro said during his opening Monday that Marcus was with his girlfriend and her 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.
During that time, Norfolk's law enforcement officials also found themselves on trial. In January 1994, the state bar investigated charges of prosecutorial misconduct against Commonwealth's Attorney Charles D. Griffith Jr., his chief deputy Norman Thomas, and Troy Spencer, the veteran prosecutor who first tried McCray's case. The charges against Spencer were dropped later that year.
Then, this March, Griffith and Thomas were apparently exonerated. The state bar does not comment on nonpublic proceedings, and Griffith has declined to comment. But friends of both Griffith and Thomas have said the men told them they were exonerated during a two-day hearing in Richmond.
Sources familiar with the investigation said that the key factor in the bar's decision was Whitehurst's rulings that evidence had been suppressed, but that there was no malice by prosecutors.
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 mistrial ruling. He showed up at every hearing over the next two years.
The case against Marcus was the same as that against McCray and Hill. At 6:30 a.m. on the day of the killing, Grizzard said, the three went to the store. Hill and Harris argued over the price of 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 more than $2,000. As they were leaving, one shot Harris. Hill was the trigger man, Marcus and McCray accomplices, Grizzard said.
But in May, Marcus' first lawyer, Jon Babineau, told jurors about a death threat Harris had received from Jerome Holley, a former employee, a few days before the slaying. That trial ended in a mistrial before testimony could be heard, but it was the first time any jury heard about another set of suspects in the crime.
This week, two men were essentially on trial - Marcus and Holley, who had been fired for poor performance and money shortages.
Holley befriended Harris and Gene P. Morris II, a former security guard. Holley was fired on Sept. 1, 1992.
On Wednesday, Julie Hixson - also a former security guard and Morris' ex-wife - said she witnessed the death threat.
``Jerome came in, very upset that he'd been fired,'' Hixson testified. ``He told James he was going to get him, he hadn't heard the last of it, he was going to kill him.'' Hixson said Morris escorted Holley from the store. She added Morris believed Holley had stolen one of his shotguns after the two men did some target shooting.
On Thursday, Morris testified he never heard Holley make the threat and never escorted him from the store. But he confirmed Hixson's report about the disappearance of his shotgun.
Then Grizzard put Holley on the stand.
At first, Holley seemed calm. He said that he and Harris were friends, and that Harris had advised him to quit before he got fired. ``There were no arguments, no threats, no nothing,'' Holley said.
But then, Holley admitted he told detectives that there were ``no problems'' at the store when he left. Although other employees said everyone knew where Harris stored cash, Holley said he didn't.
And then came the clincher. ``I never went shooting with Gene Morris in my life,'' Holley said, then wiped sweat from his face. ``Morris gave me the weapon to sell it for him. . . . That's what happened. That's the truth.''
Some jurors shifted uncomfortably at these words. Fasanaro called the statement ``a bald-faced lie.'' Grizzard never mentioned the contradiction to jurors when he closed.
Contradictory statements swirled through the trial. Time dulled the memories of witnesses for both the prosecution and defense. Marcus contradicted past statements to police about the early-morning argument between Hill and Harris.
But once again, the most contradictory was the state's star witness, Larry Edwards, who was 12 at the time of the slaying. He contradicted past statements and testimony at least nine times when he testified Tuesday.
Grizzard told the jury that Edwards' inconsistencies were the result of the passage of time.
But Fasanaro disagreed. ``Larry Edwards wanted to help and he said all sorts of things,'' he told jurors Thursday. ``He wanted to be part of this police investigation and he said what people wanted him to say.''
Finally, there was the evidence that the jury never saw. It included:
An unnamed witness, who said he was approached by Jerome Holley's older brother, Adrian, a few months before the killing and was asked to help rob the store. The actual robbery followed the plan described to the witness, records show.
On Thursday, Fasanaro said he did not call this witness because of the legal rules against the introduction of hearsay evidence - evidence that a witness did not see or hear himself. Since the witness said he did not talk with Jerome Holley, the testimony probably would not be admitted, Fasanaro said.
A March 31 statement by Harris' mother, Isabelle Green, taken by Investigator Shaun Squyres. Green's statement, sent to Babineau in April, describes how her son said to ``look for Jerome'' if ``anything ever happened to him.'' She said someone had shot at Harris. She added that Harris' former girlfriend threatened to get even when the two broke up; she was going to get her cousin, identified as Adrian Holley, to do something to Harris, the statement said.
Once again, Fasanaro said, this was hearsay and probably would not be admitted. ILLUSTRATION: ``How could they find me guilty for one thing and not guilty for
the other?'' Donald Marcus said after the trial.
Brian McCray was convicted of the slaying in August 1993 but later
was acquitted at a second trial in May 1994.
In 1994, a jury convicted Denaldo Hill of the slaying and urged life
plus 80 years - a sentence that a judge upheld.
KEYWORDS: MURDER TRIAL VERDICT by CNB