THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Friday, March 15, 1996 TAG: 9603150442
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Medium: 72 lines
An appeals court has overturned a conviction of a teenager whom a prosecutor called ``the most dangerous man in Virginia Beach,'' meaning he will be eligible for parole in 11 years instead of spending the rest of his life in prison.
Citing a judge's mistake during the trial, the state Court of Appeals this week reversed a jury's conviction of Curtis Brandon for robbing a pizza delivery man in 1993.
It was the last in a string of three convictions against Brandon for robbing or shooting delivery men. One of his earlier convictions was for shooting another pizza delivery man through the heart after he did not give up his wallet quickly enough. The victim survived.
The appeals court ruled that Brandon was a victim of double jeopardy in the last case against him, meaning he was tried twice for a crime.
That, in turn, will affect Brandon's eligibility for parole. Three-time offenders are ineligible for parole. But because Brandon is now a two-time offender, he will be eligible for parole in December 2007, when he is 30, said his attorney, Theresa B. Berry.
``It's a whole new ball game for Curtis Brandon,'' Berry said.
The ruling was handed down Tuesday by a unanimous three-judge panel. It was delivered Thursday to Brandon's attorney. It will not be appealed, the attorney general's office said.
The appeals court criticized Circuit Judge Jerome B. Friedman, who presided over Brandon's last trial. The court said Friedman should not have stopped Brandon's attorney from questioning a witness, should not have declared a mistrial because of that questioning and should not have allowed Brandon to be tried again.
Allowing Brandon to be retried constituted double jeopardy under Virginia law, wrote appeals judge Joseph E. Baker of Norfolk.
``Because the wrongful declaration of a mistrial on the motion of the Commonwealth is equivalent to an acquittal,'' Baker wrote, ``the conviction (in the later trial) is reversed and the charges against appellant are dismissed.''
Brandon was 16 when he was arrested in December 1993 and accused of a string of pizza-delivery robberies. In one case he shot the victim, in another he shot at the victim but missed, and in the third he did not shoot.
In one trial, prosecutor Shep Wainger said of Brandon, ``Some people are just born bad. Some people are not fit to live in human society.''
Brandon's last trial was in July 1994. Four witnesses testified against him. The last was a 16-year-old who said he saw Brandon steal a gun and was asked by Brandon if he wanted to rob a pizza delivery man with the gun.
On cross-examination, Berry tried to discredit the witness. She asked him about his previous rape conviction, which had been deferred by a judge on condition of good behavior. The implication was that the teenager had to testify against Brandon or be convicted of rape in the other case.
Judge Friedman stopped the questioning and declared a mistrial at the prosecutor's request. He ordered a new trial, in which Brandon was convicted of robbery, grand larceny and using a firearm.
The appeals court ruled, however, that Berry's questioning was proper and prosecutors did not prove the need for a mistrial. ``There is no evidence . .
He cited a 1978 case from Arizona: ``Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.''
KEYWORDS: ASSAULT SHOOTING ROBBERY INJURIES
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