Silent witness identifies her assailant

Courtroom, jurors in rapt attention as Marker scribbles it was Kalvin Smith

By Christopher Quinn

JOURNAL REPORTER

WINSTON-SALEM

December 4, 1997

The soft squeaking of a green marker on a white laptop writing board brought jurors, witnesses, attorneys and a courtroom full of observers to strained silence yesterday in Forsyth Superior Court.

Jill Marker, mute and partially paralyzed since someone bashed her skull in during a robbery two years ago, was trying to write an answer to a prosecutor's question about who assaulted her. People leaned forward in their seats.

Kalvin Michael Smith, charged with assaulting Marker and robbing the Silk Plant Forest where she worked Dec. 9, 1995, was still except for a habitual twitch in his left eye.

Moments before, Eric A. Saunders, the prosecutor, had pushed Marker's wheelchair to within five feet of Smith. The brain damage that Marker suffered in the beating weakened her eyes. Saunders asked her, "Can you see the person in front of you?"

Marker opened her eyes wide for a moment and stared. She affirmed that she could with a slow nod like a weed bobbing in a breeze. She paused and slowly lifted an unsteady right arm, the only one she can use. She extended her index finger and pointed at Smith.

Edna Hoisington of Ohio, Marker's mother, cheered her daughter on from a front-row seat with a whispered, "Oooh, come on."

After Saunders wheeled Marker back to the front of the jury box, he asked her, "Did you recognize the man?"

Marker's head began moving slowly again, a bit side-to-side then up and down.

Hoisington breathlessly whispered, "Oooh. Good."

Saunders continued, "Can you tell the members of the jury if that was the man that hurt you at the Silk Plant Forest?"

That's when Marker motioned for her writing board and began scribbling.

Members of the jury stared as Marker, 36, strained against her body to write. She spends most of her time lying in bed and breathes with the help of an opening in her throat.

She stopped once, scratched over something with the help of her father, Walter "Bud" Hoisington. The judge then told him not to help.

Marker started again. When she finished, Saunders took the board and held it up to the jurors. Several nearly came forward out of their seats to see it.

Marker had written what looked like a poorly figured capital "H" or perhaps the word "It." She clearly wrote after that the word, "was."

Saunders tried to make sure.

He asked, "Is the man you just saw the man that hurt you at Silk Plant Forest?"

Marker's head moved up and down with some side-to-side wagging.

Marker and the Hoisingtons left immediately after her testimony to fly back to Akron, Ohio, where Marker lives in a nursing home.

William M. Speaks Jr., Smith's defense attorney, declined to put on evidence after Marker's testimony and argued in closing statements that many of Marker's motions were ambiguous. He also argued that she had been coached because detectives showed her a photographic lineup and told her that her assailant was one of them.

Marker picked Smith, 26, out of the lineup as the assailant.

The suggestions and brain damage that Marker suffered could have caused her to unfairly identify Smith, Speaks said. "Whatever black man is sitting there, she's going to say that's him," he said, pointing at Smith.

Prosecutors said that Smith and Eugene Littlejohn went to the Silk Plant Forest the night of the robbery.

Littlejohn testified yesterday that he stood at the door. He said he saw Smith grab Marker by both arms as she stood at the counter and heard him ask for money. Littlejohn said he then walked to Toys R Us and stole an electronic game. He said he came out five to 15 minutes later and saw Smith going into the toy store.

Under cross-examination, Littlejohn said he gave accounts of what he saw to police only after a detective told him that he could get prison time for his role. Littlejohn has not been charged.

Andra Wilson, Smith's estranged girlfriend, testified Tuesday that Smith told her about 20 times that he was the one who beat Marker.

Speaks pointed out to jurors that witnesses against Smith had given conflicting statements about what they heard or knew. He argued to them that Littlejohn wasn't facing charges because prosecutors knew his statements were lies.

Saunders told jurors in his closing argument that at the beginning of the trial, he was unsure whether Marker would be able to testify. "But you have heard from an eyewitness and I submit to you that she was emphatic when she identified him (her attacker) in court," Saunders said.

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