By Justin Fenton, The Baltimore Sun
7:51 PM EST, February 1, 2013
The judge overseeing the Phylicia Barnes murder trial said Friday that prosecutors are proceeding on a circumstantial theory that causes him "great concern," but added that the case should continue and be presented to jurors.
Circuit Judge Alfred Nance's comments came after prosecutors rested their case and the defense moved for the acquittal of Michael Maurice Johnson.
Johnson is charged with one count of first-degree murder, and defense attorney Mary Lloyd said prosecutors cannot prove that he planned to kill Phylicia. "There's no evidence whatsoever that he planned or premeditated the act," Lloyd told Nance after jurors were sent home for the day.
Assistant State's Attorney Lisa Goldberg acknowledged that the case is "largely circumstantial" but said Johnson's own account of his actions that day "does not add up." She noted that the medical examiner's found that Phylicia was asphyxiated, which would take three to five minutes — evidence of premeditation.
Sixteen-year-old Phylicia vanished on Dec. 28, 2010, in a case that attracted national attention, and Johnson was the last known person to see her alive. Prosecutors allege Johnson, who had dated Phylicia's older half sister for a decade, became enamored with the teen after both took part in a sexually explicit video during a night of partying six months earlier.
Prosecutors believe Johnson killed the teen from North Carolina and removed her body from the apartment by putting it in a storage container. Her body was found four months later in the Susquehanna River.
The prosecution's theory centers largely around the video, testimony from a neighbor who saw Johnson struggling to move a storage container, and a 36-year-old petty thief named James McCray who testified that Johnson called him for help with disposing of the body and explained how he had killed her.
Nance, a former defense attorney, called Phylicia a "16-year-old with a lot to live for, but that is not a determining factor" in the trial, which has had six days of testimony. He said the state had to prove its case "not by speculation or assumption, but by evidence."
He first appeared to question the cause of death determination by the medical examiner's office — though there was no evidence of how Phylicia died, assistant medical examiner Pamela Southall said the suspicious nature of her death made it a homicide. Nance said it was the office's finding nevertheless and that it had "motivated and marshaled the manner that the case has been prosecuted."
He then listed flaws in the case. He noted that the circumstantial evidence had made the direct testimony of McCray crucial, but McCray — also known as James Lee — had wrongly testified that Johnson's apartment was on the second floor when it was in the basement. Johnson also said he saw the body before Christmas, though Phylicia disappeared three days after the holiday.
Earlier in the day, Detective Ray Bennett, who took over the case after the lead detective was suspended from the force, said he had worked to verify the credibility of McCray, who came forward with information after Johnson's indictment.
Bennett said there was a "common denominator" between McCray and Johnson involving a Baltimore auto body shop, and said McCray "almost immediately" picked Johnson out of a photo lineup. But under defense questioning, he said that in all of Johnson's phone call logs, investigators can't show any calls to a number that could be associated with McCray.
Nance also said that there was no evidence in the autopsy to suggest that Phylicia's body had been folded into a plastic storage container.
"This is a theory," Nance said. But the judge said he had to view the evidence in the light most favorable to the prosecution, which he concluded "has a right to proceed on this theory."
Cellphone tower data shows that Johnson's phone may have traveled into Patapsco Valley State Park, an area west of Baltimore that was searched twice by police and turned up no evidence. Police also searched a well near the home of one of Johnson's relatives, and police said a dog trained to detect cadavers had been alerted to a "hit" inside a shack around the well.
The significance of those locations has been unclear, but Goldberg provided a possible explanation that dovetailed with why investigators can't connect Johnson to the Susquehanna River.
She suggested that Johnson "stashed" the body in the well house or the state park, "until a later time where it could be deposited."
Prosecutors had earlier tried to present evidence of an Internet search on Johnson's brother's computer. That search — about how to avoid GPS detection on a cellphone — was made the day after Phylicia disappeared. But Nance ruled that they couldn't connect the search to Johnson, so he did not allow jurors to hear the evidence.
Also Friday, prosecutors played for jurors a recording of a phone call Johnson made from jail Monday night, after the second day of trial. The significance was unknown, with the call almost entirely unintelligible to spectators seated near the jury.
Because of a gag order in the case, it is unclear whether the defense plans to call any witnesses. The trial is expected to resume Monday morning.
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