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Inmate gets third trial in 30 years

July 02, 2010|By DON AINES

HAGERSTOWN -- More than three decades after being convicted of attempting to shoot a correctional officer while trying to escape from the Washington County Courthouse, a state prison inmate has been granted a new trial.

Washington County Circuit Judge W. Kennedy Boone III on Wednesday granted the petition of James E. Moore based on Moore's attorney not having hearkened, or polled, the jury after Moore's second trial in 1982.

"Granting the Petitioner a new trial is based solely on the procedural error only, and not on the evidence, which was more than sufficient to sustain the convictions," Boone wrote in his opinion. "However, to ensure all persons due process, the required procedural trial process must be adhered to strictly."

Boone cited a 2009 decision in another case stating, "Hearkening requires the trial court to inquire in open court, before the jurors are discharged, whether the jury agrees with the verdict just announced by the foreperson."

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Moore, who was serving a state prison sentence at the time, was in Washington County Circuit Court on July 23, 1979, to testify at the trial of his brother, John Moore, according to court records. As he and another defense witness, George Brown, were being escorted from the building, Brown jumped a correctional officer and tried to grab his weapon, court records said.

At the same time, James Moore grabbed an officer's weapon, cocked it, stuck it in Officer Ricky Niekirk's stomach and ordered him to "freeze." Moore pulled the trigger, but Officer Randy Grove stuck part of his hand under the gun's hammer, preventing it from firing, a published report said.

Moore had twice previously used firearms in escape attempts in Baltimore City, according to a published report. In one, the gun misfired; in the other, Moore took a supervisor at the Baltimore City Jail hostage, the published report said.

At his October 1979 trial, Moore was convicted of attempted escape, conspiracy to escape, assault with intent to murder, assault with intent to maim, and assault and battery, according to the verdict sheet. He was sentenced to 50 years in prison, court records said.

Moore got a second trial in 1982 and again was convicted, though his sentence was 40 years, Boone wrote in his opinion.

In his 2009 amended petition for post-conviction relief, Moore alleged that his trial attorney was ineffective for not objecting to the instructions to the jury. The petition also alleged ineffective assistance of his trial and appellate attorneys for "failing to acknowledge the lack of procedure at trial, specifically, the court's failure to hearken the jury after verdicts rendered," according to the opinion.

Boone denied Moore's claims that his attorney erred by failing to object to the court's instructions to the jury.

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