Witness says he saw Muhammad, Malvo at scene of sniper killing

MANASSAS, Va. - For the first time, a witness testified yesterday that he saw sniper suspects John Allen Muhammad and Lee Boyd Malvo at the scene of one of the 13 shootings that terrorized the Washington region last fall.

Gerald Driscoll, a chiropractor, said he was stopped at a red light when he saw the suspects sitting in a blue Chevrolet Caprice on a street adjacent to Benjamin Tasker Middle School in Bowie one hour before a student was shot as he entered the school Oct. 7.

Gesturing toward Muhammad during a hearing in a Prince William County courtroom yesterday, Driscoll said: "The gentleman sitting in front of me was staring directly at me with a smilish smirk on his face. The sun was shining on his face. ... He seemed very happy, smiling, carrying on a conversation with the passenger."

The passenger, Driscoll said, was Malvo. While Driscoll was watching the pair, he said, he saw Malvo climb over the front seat into the back seat and begin fidgeting with something there. "He was almost crouching down behind the front passenger seat, doing something on the seat," Driscoll said.

The car, according to investigators, had a back seat that folded down, providing access to the trunk, from where some of the shots are thought to have been fired through a gun port carved into the car above the taillights.

Driscoll drew a map on a large poster board in the courtroom yesterday, showing how his car was perpendicular to Muhammad's car at the intersection. He said Muhammad was sitting in the car with the window down, and his map depicted the car as facing the front door of the school.

Muhammad, 42, and co-defendant, Malvo, 18, are both charged with two counts of capital murder. Muhammad will first stand trial Oct. 14 in the killing of Dean H. Meyers outside a Manassas gas station. Malvo is to face his first trial Nov. 10 in the killing of Linda Franklin in the parking lot of a Home Depot in Fairfax, Va.

Prosecutors introduced the testimony of a shooting in Maryland in an effort to prove that the pair committed other killings so that they can secure the death penalty under Virginia's multiple-homicide law. Circuit Judge LeRoy F. Millette Jr. ruled yesterday that Driscoll's testimony was admissible.

Prosecutors had less luck persuading the judge to permit them to argue their theory - revealed for the first time yesterday - that the motive for the shootings was to provide cover for a planned attack on Muhammad's former wife, Mildred, who had taken the couple's three children from Bellingham, Wash. to live with her in Clinton, Md.

"Once she did that, Mr. Muhammad became obsessed with finding her," prosecutor Richard A. Conway said. "One of his motives for committing these offenses was to eventually do harm to Mildred."

Millette ruled that there is no link between the alleged threats against Mildred Muhammad and the crimes John Allen Muhammad is charged with. As a result, he said, the theory cannot be presented to a jury.

"We can't argue something that isn't supported by evidence," Prince William Commonwealth's Attorney Paul B. Ebert said outside the courtroom.

Mildred Muhammad and members of her family have said in media interviews that they think she was a target. As long ago as March 2000, Muhammad said in court documents that she feared for her life and her children's lives because of her former husband's behavior.

"I am afraid of John," she wrote in 2000 in seeking a restraining order. "He was a demolition expert in the military. He is behaving very, very irrational. Whenever he does talk to me, he always says that he's going to destroy my life."

It was revealed in court yesterday that neither prosecutors nor defense attorneys have been able to find Mildred Muhammad, who went into hiding with her children after her former husband and Malvo were arrested last fall.

Prosecutors indicated that several motive arguments remain open to them. They are expected to argue extortion, using as evidence a note left at one of the crime scenes demanding $10 million for the shootings to stop.

In other testimony, two employees at the Silver Spring YMCA said they encountered Muhammad and Malvo about half a dozen times at the gym from August through October last year and that Muhammad once called Malvo his son.

Stephen Kane, a retired State Department employee and personal trainer at the YMCA, said he saw Muhammad in the gym's locker room Oct. 22, the day bus driver Conrad Johnson was killed in Aspen Hill at the beginning of his early-morning shift.

"He was sitting on a bench with his head in his hands, and I asked him if everything was OK," Kane said. "He said that nothing was the matter, everything was OK."

Sharon Douglas, who worked the front desk at the gym, said she signed in the two suspects several times and that twice she waived the $1.50 out-of-state fee because they had no money and she had "built up a rapport" with them.

Muhammad used the phone there several times and asked an employee whether any good vegetarian restaurants were nearby, Douglas said.

Douglas and Kane picked the two suspects out of a photo lineup shown to them by police about a week after the arrests. Driscoll also picked the two out of a photo lineup several months after the arrest.

Also yesterday, prosecutors persuaded the judge to allow into evidence two guns that Muhammad and Malvo might have used before the sniper shootings began. One is a .308-caliber rifle that Muhammad, who was rated an expert marksman by the Army, used to train Malvo, prosecutors said.

"He was teaching Mr. Malvo how to shoot is what the evidence is going to show," Conway said. "He and Malvo used that particular rifle to go to the [shooting] range repeatedly and train and fire."

A Bushmaster .223-caliber rifle that Muhammad bought in 1999 and returned a year later was admitted into evidence to show Muhammad's familiarity with the weapon. Another Bushmaster .223 was found in the Chevrolet Caprice that Muhammad and Malvo were sleeping in when they were arrested.

The judge also allowed into evidence two other items seized from the car, a digital voice recorder and a laptop computer that included maps of the shooting scenes.