THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, May 23, 1995 TAG: 9505230256
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 123 lines
Police ignored crucial evidence implicating other suspects in a 1992 convenience store slaying because they already had fingered Brian McCray, Denaldo Hill and Donald Marcus as the prime suspects, Marcus' lawyer told jurors Monday in the opening day of his trial for murder.
Last May, McCray was acquitted of all charges for the murder and robbery of store manager James Harris - but only after Judge Alfred Whitehurst declared a mistrial in his August 1993 conviction because police and prosecutors had withheld evidence critical to his defense. Hill was convicted of the same charges last June and sentenced to life plus 80 years in prison.
Now, two years after his arrest, Marcus goes to trial on charges of murder, robbery, malicious wounding, abduction and three firearms counts. And, once again, new evidence has arisen.
Attorney Jon Babineau told jurors that Jerome Holley threatened to kill Harris after the manager fired Holley for stealing money while working as a clerk at the Jr. Market on Westminster Avenue, where the murder later occurred.
In addition, a police informant will testify that Holley's older brother, Adrian, approached him a few months before the murder and asked him to help the brothers rob the store, Babineau said.
Neither Jerome nor Adrian Holley has been charged with Harris' killing, but they have been named as suspects in court records since Marcus and his co-defendants were arrested in February 1993. Detectives themselves were divided over which set of suspects killed Harris.
And in a March 31 statement to police, Harris' mother, Isabelle Green, said her son told her shortly before his death ``that if anything happened to him, tell them to look for Jerome (Holley),'' court records show.
That information was not available in the earlier trials of McCray and Hill. If Marcus' trial had started on Feb. 8 as originally planned, it would not have been available then. But that trial was continued when one of the Holleys could not be found to testify as an unwilling defense witnesses. Both brothers are now behind bars, awaiting their turns on the witness stand.
These are the newest twists in the cases of McCray, Hill and Marcus - cases that raised questions about the suppression of exculpatory evidence by law enforcement officials. Babineau indicated Monday that he would not let the issue rest. Among those he has subpoenaed are: former prosecutor Troy Spencer, who resigned from the commonwealth's attorney's office in 1994 after learning of the suppression; former homicide detective David Browning, who resigned from the police force in protest over the way the case was handled; and Police Chief Melvin High, who called for an investigation of police conduct after McCray's acquittal.
``Other people had the motive, had the opportunity,'' Babineau argued after Richard Grizzard - the Southampton County commonwealth's attorney appointed special prosecutor - tried to block Babineau from telling jurors about the other suspects. ``There were other facts that they (the police) learned and deep-sixed - that they didn't look at, didn't care about,'' Babineau said. ``Their bias is certainly a fact.''
In August 1993, McCray was convicted of the murder and sentenced to 43 years in prison. Yet a November 1993 story in The Virginian-Pilot showed that the case was based on the changing testimony of teenager Larry Edwards and tainted by the prosecutors' suppression of evidence. That December, Whitehurst declared a mistrial; last May, McCray was acquitted in a second trial.
Two weeks later, in June 1994, Hill was found guilty of the same crime.
Grizzard's case against Marcus is the same as that against McCray and Hill.
At 6:30 a.m. on the day of the killing, Grizzard told jurors, the three went to the Jr. Market where Harris was manager. Hill and Harris argued over the price of groceries. A witness testified that Hill pointed at the gun Harris wore and said: ``You think you're bad because you got a gun. I got one bigger than that and I'll come back and blow your ass off.''
About an hour and a half later, three men dressed in black entered the store and robbed Harris of about $2,700. As they were leaving, one of the men shot Harris point-blank in the head with a sawed-off shotgun. Hill was the trigger man, Grizzard has said; Marcus and McCray accompanied him.
But now, evidence about the Holleys and an unnamed accomplice will be aired in court for the first time. Babineau told jurors the witnesses will include:
A security guard at the store, who will say Jerome Holley was fired by Harris for stealing money. The guard heard Holley ``vow to get back at Harris - that he would kill him.'' The guard told police about the threat ``a night or two after the killing,'' Babineau said.
An unnamed informant, who says he was approached by Adrian Holley a few months before the killing and was asked to help rob the store. ``They would go at the end of the month or the first of the month when the receipts were best,'' Babineau said. ``They would take Harris' gun, then flee down the railroad tracks towards the Ingleside neighborhood,'' where one of the brothers lived. The actual robbery followed this plan, and a sawed-off shotgun like the one used in the murder was later found in a creek by Ingleside, evidence showed.
Harris' mother, who quietly sat through the trials of McCray and Hill. Green's statement, sent to Babineau late last month, describes how her son said to ``look for Jerome'' if ``anything ever happened to him.'' She said someone had shot at Harris. She also said that Harris' former girlfriend threatened to get even when the two broke up; she was going to get her cousin, identified as Adrian Holley, to do something to Harris, the statement said.
A few weeks before his death, Harris ``started acting differently,'' Babineau told jurors.
He bought a gun. He'd walk his girlfriend to the bus stop in front of the store as if protecting her. ``He'd turn around, as if checking the area,'' Babineau said.
Green even had a vision of her son's death. In it, she heard a blast and saw everything scattering. She went to see her son at the store.
But Harris tried to comfort his mom. ``Ain't nothing going to happen to me, Ma,'' he told her. ``Up here nobody will bother me.'' A month and two days later, he was killed. ILLUSTRATION: Color photos
BRIAN MCCRAY
Acquitted after mistrial declared
DENALDO HILL
Convicted; sentenced to life plus 80 years
DONALD MARCUS
Murder trial started Monday
KEYWORDS: MURDER ROBBERY SHOOTING TRIAL by CNB