Jury deadlocked in Marker trial

By Christopher Quinn

JOURNAL REPORTER

WINSTON-SALEM

December 5, 1997

The jury in the trial of Kalvin Michael Smith, charged in the savage beating two years ago that left Jill Marker an invalid, could not reach a verdict yesterday.

Jurors sent a note to Judge Peter M. McHugh about noon saying they were deadlocked. They did not tell McHugh how the jury was divided. McHugh called the jurors into the courtroom and told them not to give up any conscientiously held beliefs but to continue trying to reach a verdict. The jurors continued deliberating until 5 p.m., when McHugh sent them home for the day.

Smith, 26, is charged with armed robbery and assault with a deadly weapon with intent to kill, inflicting serious injury.

Prosecutors said they intend to retry Smith if the jury deadlocks and McHugh declares a mistrial.

Prosecutors say that Smith walked into Silk Plant Forest at Silas Creek Crossing on Dec. 9, 1995, after 8:30 p.m., robbed the store of $295 and hit Marker repeatedly in the head with a blunt object. Marker was the store's manager.

The injuries left Marker, who was 3 1/2 months pregnant, in a coma for more than a month. She was semi-comatose in April 1996 when she gave birth to a baby boy. Her husband moved their family to Ohio in May 1996 to be near relatives. Marker lives in a nursing home and spends much of her time in bed. She has improved and can nod and write a few words.

She testified Wednesday. A prosecutor pushed Marker in her wheelchair close to Smith so that she could see him.

The prosecutor then asked Marker questions -- such as, Was it a black man who assaulted you? -- to show the jury that she knew what she was doing. Some of her head nods or shakes in response to questions were clear. Others weren't.

The prosecutor asked her four times whether Smith was the man who hurt her. One of her nods seemed an affirmation. Two of her nods had some side-to-side swaying, and one was unclear.

Marker wrote a two-word note after one of the four questions. The first word looked like a poorly formed capital "H," or perhaps "It". The second word was a clearly written "was."

The prosecutor argued that her identification of Smith was clear.

The defense attorney warned jurors about putting too much weight on Marker's silent testimony because of the brain damage she has suffered, her poor eyesight as a result of the damage, and because police showed her pictures of black men, including Smith, before the trial.

Jurors deliberated for only 20 minutes late Wednesday afternoon before asking McHugh to see a videotape that had been made of Marker's testimony. McHugh declined, saying he wanted them to remember the testimony of all the witnesses, including a woman who said that Smith admitted to her that he beat Marker, and another woman who said that Smith told her that he beat a woman in a store but did not name the woman or the store.

An acquaintance of Smith's said he saw Smith go into the store and grab Marker. He did not see what happened after that.

The jury also asked yesterday what a prosecutor meant when he said in his closing argument that Marker had qualified as a witness.

McHugh told them that it means Marker knows the difference between truth and lies, knew that she was under oath, and was capable of expressing herself.

If Smith is found guilty, he could be sentenced to between 10 years and 11 months and 22 years and 10 months in prison.

« back