A 21-year-old Columbia man charged in last year's fatal shooting of a young computer student can be retried on murder charges despite the surprise witness testimony that forced a mistrial last year, a Howard circuit judge ruled yesterday.
At most, prosecutors trying Tavon Donya Sands in the death of 23-year-old DeShawn Anthony Wallace violated rules of evidence, Judge Raymond J. Kane said. Their conduct fell far short of the prosecutorial "sabotage" required to bar retrial, he said.
The law requires "pretty egregious conduct" for double jeopardy, the constitutional provision that bars trying a defendant twice for the same crime, to apply, he said.
Kane set an Aug. 11 trial date for the case.
Kane's ruling comes four months after Sands' trial on murder, armed robbery and related charges was brought to an abrupt halt by a revelation during cross-examination by witness Gaston Leonard Davis that a police officer had shown him a series of photos that included Sands' picture.
The information, which followed Davis' in-court identification of Sands as one of three men he saw get out of a white Cadillac and walk toward the Stevens Forest Apartments on Jan. 25, 2002, moments before the shooting, caught both prosecutors and defense attorney Joseph Murtha by surprise.
Kane ruled then that the only "remedy" for what one attorney called "trial by ambush" was a mistrial.
Investigators allege that Sands, one of two men charged in the case, was the gunman who shot Wallace during a botched robbery.
Yesterday, prosecutors I. Matthew Campbell, who has since left the Howard County state's attorney's office, and Jim Dietrich testified that although an officer first told them a few weeks before trial that he might have shown Davis pictures, he couldn't be certain.
The officer had made no mention of it in his notes or in any investigative report, and the lead investigator in the case later determined that the officer was "mistaken," the prosecutors said.
Davis, who had initially refused to cooperate with authorities, also made no mention of the array during extensive interviews, the prosecutors said. But Campbell and Dietrich also testified yesterday that they did not ask Davis about the array after talking with the officer.
The last thing they wanted, they said, was to stop the trial. To that end, they had agreed not to use DNA evidence in the case to avoid postponement of the October trial date.
They were dealing with nervous and transient victims and witnesses, they said.
Murtha argued yesterday that prosecutors' failure to disclose the existence of the photo array was intentional. Had he known about it, he said, he might have been able to argue that Davis' in-court identification of Sands was unreliable.
"Because of cross-examination, the state now gets caught," he said. "It's actually, basically, 'Can we get away with it?'"
But prosecutor Kim Oldham argued that there was no attempt to derail the case.