CHESAPEAKE, Va. - A judge refused to let jurors hearing the case against teen-age sniper suspect Lee Boyd Malvo listen to a gut-wrenching tape of an Arlington man wailing to a 911 dispatcher that his wife had just been shot.
Franklin was hyperventilating and crying so much that the dispatcher repeatedly told him to calm down because he could not understand what Franklin was saying.
Malvo's lawyers objected to jurors hearing the tape, which had been played earlier this month at the trial of Malvo's alleged accomplice, John Allen Muhammad.
Malvo attorney Craig S. Cooley argued that the tape was prejudicial, irrelevant to the prosecution's terrorism charge that the killings were a scheme to extort $10 million from the government, and offered no information on the Oct. 14, 2002, killing of Linda Franklin.
"If there is anything that shows the atrociousness of this crime, it's that 911 call," Fairfax County Commonwealth's Attorney Robert F. Horan Jr. contended.
After sending the jury out of the room so she could hear the tape, Fairfax County Circuit Judge Jane Marum Roush ruled that whatever informational value the tape had for prosecutors was overshadowed by its "prejudicial effect."
But it might be barely a setback at all for prosecutors. The tape might be admissible during a sentencing hearing if jurors convict Malvo of capital murder and must decide between execution and life without parole.
"It's not that big of a deal. It really doesn't go to guilt or innocence - it goes to the enormity of the crime," said University of Maryland law professor Abraham Dash, a former federal prosecutor. "Frankly, I think something like that is more important for sentencing."
The tape was the emotional zenith in the trial of Muhammad, the elder sniper suspect, who was convicted yesterday. Two jurors wept as they heard it. But Muhammad's terrorism charge includes an accusation of intimidating the public, Cooley said.
Yesterday was the first day that prosecution witnesses took the stand against Jamaican-born Malvo, who was 17 at the time of Franklin's slaying. Horan, whose fat-free style of questioning allowed him to elicit testimony from 17 witnesses yesterday, said he expects to put about 50 witnesses on the stand by Friday morning.
Through witnesses and exhibits, he detailed Franklin's killing and the Oct. 9, 2002, slaying of Gaithersburg engineer Dean H. Meyers, shot behind the left ear at a Sunoco station outside Manassas, Va.
Malvo wore a boyish gray sweater - the latest in a series of crewnecks giving him a clean-cut all-American appearance. He did not look up at a large screen showing more than 70 exhibits, including gory photos of two victims. However, a small monitor sits in front of him on the defense table.
Malvo is pleading not guilty by reason of insanity, claiming he was so brainwashed by Muhammad that he did not know right from wrong. He and Muhammad are suspected in 13 shootings, 10 of them fatal, that laid the Washington area under siege for three weeks last fall.
They are suspected of more shootings and other crimes elsewhere.
Cooley drove home the point that Malvo was indoctrinated for two years by Muhammad. Cooley grilled David McGill, a forensic specialist with the Montgomery County Police Department, on cross-examination to show that a number of items found in Muhammad's car suggested that Muhammad was in a warped and controlling state of mind.
Among the items pointed to by Cooley: Rambo and other violent movies; books including The War with Hannibal, and Black Power, the Politics of Liberation; more than two dozen dietary supplements, two black stockings and a jar of petroleum jelly.
With a series of photographs, and guided by Horan, McGill gave the jury a bird's eye view of the interior of the Caprice. It included the hiding place behind the back bench seat for the Bushmaster rifle that Horan alleged was used in the shootings and how that seat flipped to allow a person to climb in and shoot out of a hole in the trunk.
The laptop computer authorities allege was stolen from Paul LaRuffa, who was shot and wounded Sept. 5, 2002, in Clinton, Md.; a .223 casing from the Bushmaster; walkie-talkies and a rifle scope were also among items recovered from the car.
The trial was moved to Chesapeake in southeastern Virginia so that people who might have been affected by the three-week sniper rampage in the Washington area would not be on the jury.
More prosecution witnesses detailing more shootings will be presented this week before the defense begins.