Pulaski County Circuit Judge Herb Wright on Monday refused to bar prosecutors from using the testimony of a dead witness at the pending retrial of a Little Rock man whose 2006 murder conviction was overturned by the Arkansas Supreme Court.
Irma Moragne was the only eyewitness to the May 2005 murder of 30-year-old Melvin Lunnie that prosecutors could produce at the 2006 first-degree trial of Wardell Newsome II and Armon Jamol Houston.
Both men were convicted of first-degree murder. Newsome, now 31, was sentenced to 25 years in prison while Houston, now 42, received a 40-year sentence.
But Moragne, the 42-year-old mother of seven and admitted crack cocaine addict, was killed in March 2010 when she was caught in the crossfire of a Little Rock police raid on a drug den.
Houston's conviction was overturned on an appeal in December. Prosecutors can present Moragne's testimony to jurors by reading it to them from a transcript.
Defense attorney Willard Proctor asked the judge to block prosecutors from using the testimony at Houston's December retrial, arguing that it wouldn't be fair to his client since Moragne can't be cross-examined. Proctor called her trial testimony "incredible."
Moragne recanted her testimony in a 2008 taped interview with a defense investigator working on the defendants' appeals, and Proctor said he would have asked her about that statement if she could testify at the new trial.
But the judge said the circumstances of how Moragne gave that statement were "questionable" and that Proctor could not use the statement at trial because Moragne was not under oath when she gave the interview, and she had subsequently refused to testify under oath in court about what she had told the defense investigator.
Proctor said a possible solution could be to call the prosecutor, Barbara Mariani, who interviewed Moragne in preparation for the original trial as a witness, but the judge also ruled that out.
At trial, Newsome argued that someone else was the killer and that he was at a Calhoun Street home when Lunnie was shot to death on Fletcher Street in Little Rock's East End neighborhood. Newsome did not testify, but called four witnesses to confirm his whereabouts.
According to trial testimony, Lunnie had repeatedly complained about the poor quality of some drugs Houston once sold him, and the men argued regularly.
Moragne told the nine women and five men of the jury in 2006 that she just happened to be walking by as Newsome and Houston were arguing with Lunnie in the street.
She said the tone of the men's voices prompted her to hide under a bush and she watched both men aim and shoot at Lunnie as he turned to walk away from them. She told jurors that Houston and Newsome were too close together for her to see which one fired first.
Lunnie was shot twice in the back, with the fatal wound piercing his lungs and heart. Lunnie had been "bad-rapping" and "disrespecting" the men before they shot him, she told jurors.
Newsome's conviction was overturned by the state high court on the grounds that his original trial lawyer should have had what turned out to be the murder weapon tested.
Newsome and Houston had contended another man, Corey Lamont Bealer, who was arrested on drug charges six months after Lunnie's slaying, was the real killer, in part because he was found with a gun similar to the weapon that killed Lunnie. Bealer is serving a 10-year federal sentence for having the gun and dealing drugs.
They claimed that Bealer and Lunnie had been at odds because Bealer was dating Lunnie's former girlfriend, court filings show. But the trial judge ruled the defendants did not have enough evidence to make that argument to jurors. The Arkansas Court of Appeals upheld the two men's convictions in 2007.
Testing of the Bealer weapon after the trial showed it to be the murder weapon. In 2007, seeking a new trial, the defense presented another potential eyewitness, 44-year-old Anthony Wayne Salley, who said he saw Bealer shoot Lunnie, and that neither Houston, Newsome nor Moragne were present.
But Salley also said Bealer shot Lunnie once in the chest, which conflicted with the medical findings that showed Lunnie had been killed by two gunshots to the back.
Metro on 09/23/2014