A man convicted of murder is entitled to a new trial because his first jury heard, three times, that he was on parole at the time of the killing, the Court of Special Appeals held Monday.
The court said the prosecutor should not have referenced Marquis Evans’ parole in opening statements or solicited testimony that Evans “just got home” and was being supervised by a Violence Prevention Unit.
“We conclude that any reference to parole, probation or VPU was clearly inadmissible other crimes evidence,” Judge James R. Eyler wrote for the state’s second highest court. The case was argued just one week ago, according to court documents.
While there are some scenarios in which attorneys can mention previous crimes committed by a defendant, this did not fit into any of those exceptions, the court held.
On appeal, the state argued that the mention of parole made by the assistant state’s attorney, Richard Gibson of the homicide division, was unpreserved because the defense did not object to the comment and because the trial court gave a curative instruction ordering the jury to disregard the statement.
But the court said the information was “prejudicial to appellant, no matter how it was elicited, and requires reversal.”
Mark Cheshire, a spokesman for the Baltimore City State’s Attorney’s Office, said the office was in the process of evaluating the decision in order to determine its next steps.
Assistant Attorney General Stephen Ruckman said he could not comment on the decision because the office was still reviewing it. (The court’s opinion is unreported, meaning it cannot be used as precedent in future cases involving other parties.)
On appeal, Ruckman argued that Evans’ own counsel’s discussion of his parole in closing statements “rendered harmless ‘any alleged error from the state’s’ two passing mentions of parole,” according to the opinion.
But Public Defender Marc DeSimone Jr., who was the appellate attorney for Evans, said mentioning Evans’ parole in the closing argument was “good trial strategy” once the defense lawyer’s motions for mistrial had been denied.
“When you’ve made your record and the decision doesn’t go your way and you’ve made it clear that the evidence shouldn’t be admitted, don’t ignore the elephant in the room,” he said.
The issue arose over Evans’ explanation of details about the night of the shooting. He claimed he was afraid that getting shot in Baltimore would constitute a violation of his parole and he would be sent back to prison.
The prosecution should have applied the rule that evidence of other crimes stays out of court unless the state demonstrates a special need for that information, DeSimone said.
“The nuance here and why it got reversed is the state pretty much failed to identify any way in which it helped to advance the state’s case,” he said.
Evans was on trial for the shooting death of Thaddeus McCauley Jr. in the 1400 block of Homestead Street in Baltimore. Prosecutors claimed he called McCauley to set up a marijuana buy, but wound up shooting him and shooting himself in the leg.
After the encounter, the state said, Evans went to visit friends in Howard County. The friends noticed he was bleeding and took him to the hospital, where police, thinking he was a victim, interviewed him.
Evans gave them an alias and said he was shot in Howard County, but eventually told officers that he lied about where he was shot because he had just been released from prison and thought that he would get locked up for being shot.
The state could have simply introduced evidence of Evans’ inconsistent statements about what had happened, the court said.
“At that point…, it would be up to [Evans] to decide whether to put in any evidence explaining the inconsistency,” Eyler wrote.
The court rejected Evans’ other claims of error, including his argument that police had coerced him into implicating himself by making statements that he interpreted as a threat to arrest his mother as an accessory to his crime.
Monday’s unreported opinion is available as RecordFax # 11-1114-05 (63 pages).