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Second mistrial declared in Smithsburg shooting case

December 18, 2009|By BRIDGET DiCOSMO

HAGERSTOWN -- The attempted first-degree murder trial of Anthony Caldwell ended in a mistrial Friday when a juror revealed in a note that he or she had obtained outside information that would have prevented him or her from reaching a fair verdict.

This was the second attempt to try Caldwell, 26, formerly of 27 E. Lee St. in Hagerstown, on the charges. His first trial, in September, ended in a mistrial after a juror revealed being familiar with Caldwell's family. At the time of the admission, the jury had been deliberating for about 50 minutes.

Washington County Circuit Judge John H. McDowell said Friday the note he received from the jury foreperson indicating the impropriety left him with no choice but to declare a second mistrial.

"The jury pool has been tainted," McDowell said.

McDowell called the outcome of the 2 1/2-day trial "very distressing."

The case went to the jury at 4:31 p.m. Thursday and the jurors were sent home for the day at 6:14 p.m. The jury resumed deliberations Friday at 9 a.m., and the judge received the note more than two hours later.

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At the time McDowell received the note concerning the jury problem, attorneys were conferring on another issue that had arisen. A document that had not been admitted into evidence during the trial had mistakenly worked its way into the jury's hands when it was deliberating Thursday.

McDowell said a clerk's error caused the document, a statement signed by Caldwell's former co-defendent, Louis G. Gonzalez, to be included among evidence in the case that the jury reviewed in the deliberation room.

The statement concerned an Alford plea entered by Gonzalez to one count of armed robbery. Under an Alford plea, the defendent does not admit guilt but acknowledges that sufficient evidence exists for the state to gain a conviction.

Gonzalez, 27, of 82 W. Washington St. in Hagerstown, also has been indicted on charges that he solicited first-degree murder and intimidated a witness.

McDowell said that if a juror sought and obtained information independently about the case, that juror was in contempt of the court directive given before every trial recess.

"I'm not pointing fingers at anyone because I don't know who it is," McDowell said.

Attempting to identify the juror who raised the issue would be delving into the deliberation process, McDowell said.

Assistant State's Attorney Viki Pauler and Assistant Public Defenders Brian Hutchison and Charles Bailey agreed that a mistrial was the only option.

Caldwell was charged with attempted first-degree murder, attempted second-degree murder, first-degree assault, armed robbery, using a handgun in a felony violent crime, theft $500 plus, robbery, second-degree assault, and wearing, carrying, or transporting a handgun upon person.

He is accused of shooting Bruce Jones, 31, after he and Gonzalez arranged to meet Jones in a deserted area of Federal Lookout Road in Smithsburg under the premise that Jones would buy prescription painkillers, according to court records.

Gonzalez, who reached a deal with the state in which 14 related charges against him were dropped in exchange for his testimony against Caldwell in September, was called as a witness both Wednesday and Thursday. Both times, he refused to testify, invoking his right against self-incrimination.

An employee with the state's attorney's office read Gonzalez's prior testimony, in which he described the shooting.

Gonzalez has not been sentenced on the armed robbery charges.

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