Top court reverses murder conviction

A Prince George’s County man convicted of murder will get a new trial after the state’s top court found that a prosecutor overstated the results of DNA testing during closing arguments.

The Court of Appeals found a mistrial should have been declared, overturning the jury’s verdict against Tommy Whack Jr. in the 2008 murder of a man in Landover.

The case will be remanded to Prince George’s County Circuit Court for a new trial.

“This will be another opportunity where the jury will have a better understanding of what the DNA evidence did show and what it didn’t show,” said Whack’s lawyer, Amy Brennan, a staff attorney in the appellate division of the Office of the Public Defender.

Prosecutors in Whack’s case asserted his DNA was present on the passenger armrest in the truck near where the victim was found. An expert in the case, however, testified only that she “could not exclude” Whack as being the source of the DNA.

“In this case, the evidence was not overwhelming that Tommy Whack was the shooter,” Brennan said. “The closing argument suggests his DNA was there.”

A spokesman for the Office of the Maryland Attorney General declined to comment on the opinion.

The Court of Appeals held that the prosecution’s remarks misrepresented scientific evidence that was a key part of its case, since the rest of the state’s argument rested mainly on the circumstantial evidence from one witness’s testimony.

“Minor misstatements from counsel are inevitable in a trial, but this was not a minor misstatement,” Chief Judge Mary Ellen Barbera wrote in Wednesday’s opinion. “The prosecutor wrongly asserted that [Whack’s] DNA was definitely on the armrest when the evidence demonstrated only that it might be present.”

Counsel should be careful when presenting DNA evidence, the opinion said.

“The result is a potentially dangerous combination: jurors place a great deal of weight on DNA evidence, but this evidence has the potential to be confusing or misunderstood,” Barbera wrote.

Whack was convicted of second-degree murder in the death of George Jerome White Jr., who was shot twice in his side next to a pick-up truck in Landover early in morning on Oct. 21, 2008.

White, who later died of his wounds, described the shooter as a six-foot-tall black male in his 20s with long hair and a light or medium complexion.

Whack had been in the area of the shooting to meet a woman he called on a chat line for sex, according to his cousin Bryant Whack’s testimony in the August 2010 circuit court case.

Bryant Whack had accompanied his cousin and was waiting for him at a nearby school while he presumably met with the woman. Bryant Whack heard gunshots and his cousin came back moments later, telling him the person he had arranged to meet with had been “a dude.”

Tommy Whack was arrested on charges of first-degree murder, robbery, theft and use of a handgun in the commission of a crime of violence.

Police collected DNA evidence from the truck. DNA found on the passenger-seat headrest was identified as White’s. DNA found on the passenger-door armrest was less conclusive, but the state’s expert testified at trial that Tommy Whack “could not be excluded.” The expert also testified that the DNA found on the armrest could be consistent with one out of every 172 African Americans.

During closing arguments, Whack’s defense counsel suggested that the DNA evidence was so inconclusive that, had Bryant Whack’s DNA been compared to the samples, it might have matched.

In rebuttal, the prosecutor said, “I submit to you the reason why Whack’s DNA, and it is Whack’s DNA, it is not Brant Whack’s. The reason why Whack’s DNA is on the inside portion of the armrest…”

White’s attorney moved for a mistrial, but the judge denied the motion. White was found guilty of second-degree murder, but the jury acquitted him of first-degree premeditated murder, first-degree felony murder and lesser crimes.

The Court of Special Appeals affirmed the conviction.

In his argument before the Court of Appeals this May, Whack argued that the state misconstrued evidence when it emphasized that Whack’s DNA was present at the crime scene.

The state, meanwhile, said the prosecutor’s rebuttal was “inartfully worded” and that the statements were permissible under the invited-response doctrine, which allows the prosecution to respond to “improper attacks by defense counsel” to “balance each other out.” The state also argued that evidence against the Whack was strong enough to convict without the DNA evidence.

The Court of Appeals concluded that the DNA evidence was the only direct link between Whack and the scene of the crime since there was no murder weapon found, no eyewitness and no other trace of Whack at the scene.

“From the prosecutor’s statements, jurors could have concluded that the DNA evidence proved [Whack] touched the passenger armrest in the truck,” Barbera wrote in the opinion. “In actuality, the evidence showed only that … he might have touched the armrest.”

BARBERA

WHAT THE COURT HELD

Case:

Tommy Whack Jr. v. State of Maryland, No. 86, September Term 2012, Argued May 6, 2013. Decided August 21, 2013. Opinion by Barbera, C.J.

Issue:

Did a lower court err when it denied defense counsel’s motion for a mistrial when a prosecutor mischaracterized DNA evidence during closing arguments?

Holding:

Yes; the DNA evidence showed only that the defendant could have been there, not that he was there; and, since there was no other evidence linking the defendant to the crime scene, that could have impacted the jury’s decision in the case.

Counsel:

Amy Brennan, Office of the Public Defender, for petitioner; James E. Williams, Office of the Attorney General, for respondent.

RecordFax 13-0821-21 (30 pages).