- The Washington Times - Tuesday, September 2, 2003

Prosecutors will be allowed to use the testimony of two federal prison guards who say sniper suspect Lee Boyd Malvo had bragged about committing some of the 13 shootings that left 10 persons dead in the Washington area last fall, a Fairfax County judge ruled yesterday.

Fairfax County Circuit Court Judge Jane Marum Roush disagreed with the argument by Mr. Malvo’s attorneys that the guards forced their client into talking about the shootings without first informing him of his rights. Mr. Malvo’s attorneys asked the judge to suppress the testimony.

“Malvo’s statements about the shootings were completely voluntary,” the judge wrote. “Although the guards at times asked him questions, there is no evidence whatsoever that the guards were deliberately eliciting incriminating information from Malvo for use at his trial.”

Judge Roush, however, will not allow the prosecutors to use records of Mr. Malvo’s nonverbal communication to a Montgomery County detective before he was taken to the federal prison in Baltimore the day he and fellow suspect John Allen Muhammad were caught. The judge said Mr. Malvo’s rights were violated during that interrogation.

The prosecutors were pleased with the ruling.

“We believed all along that the statements were admissible in evidence, and we’re delighted that the judge agreed with us,” Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. said yesterday.

Defense attorneys did not return phone calls.

Prison guards Capt. Joseph Stracke and Cpl. Wayne Davis testified at a July 24 hearing that Mr. Malvo had talked at length about the 13 shootings, which also wounded three last October. Mr. Malvo, 18, and Mr. Muhammad, 42, have been linked to the shootings, as well as to at least six prior shootings across the country.

Prosecutors can now use the guards’ testimony in addition to statements Mr. Malvo made to a Fairfax County detective on Nov. 7, when he reportedly admitted committing several of the shootings and laughed as he told the detective how he had done them.

Mr. Malvo was brought to the federal prison on Oct. 24 when he and Mr. Muhammad were caught near Frederick, Md. One day later, he began a running conversation with the two guards that lasted several days.

Capt. Stracke said Mr. Malvo told him he shot 13-year-old Iran Brown on Oct. 7 outside Benjamin Tasker Middle School in Bowie to upset Montgomery County Police Chief Charles A. Moose so that the then-chief couldn’t “think straight” and to show him that Mr. Malvo “meant business.”

“It worked, didn’t it? He was crying on TV,” Capt. Stracke quoted Mr. Malvo as saying during one of the conversations.

The guards also said Mr. Malvo had told them he was the triggerman in several of the shootings, including the Oct. 14 slaying of FBI analyst Linda Franklin, 47, outside a Home Depot store in Falls Church. Mr. Malvo is facing a capital murder charge in her death.

Mr. Muhammad is on trial for the Oct. 9 fatal shooting of Dean H. Meyers, 53, at a gas station in Manassas. Both trials have been moved to the Hampton Roads area in southeast Virginia. The elder suspect’s trial begins Oct. 14, while the other begins Nov. 10.

Mr. Malvo referred to Mr. Muhammad as his father, and denied having a homosexual relationship with him, Cpl. Davis said. “We Jamaicans don’t play that,” Cpl. Davis quoted Mr. Malvo as saying.

Mr. Malvo reportedly said he shot James “Sonny” Buchanan, 39, in Rockville and Sarah Ramos, 34, in Aspen Hill on Oct. 2. He also said he shot and injured an unidentified 37-year-old man on Oct. 19 in Ashland, Va., and killed bus driver Conrad Johnson, 35, on Oct. 22 in Aspen Hill.

Mr. Malvo reportedly also talked about wanting to shoot several others, including a busload of students at Tasker, a pregnant woman in a cemetery and a police officer questioning Mr. Muhammad in his car on a routine traffic stop. Mr. Malvo also described his near miss of a man outside a store, reveling in the man’s startled reaction.

Mr. Malvo made most of his confessions on Oct. 26 when he asked for some of Cpl. Davis’ fish dinner. The young man, who is a vegetarian, then told the guards that he did not eat the day “before missions.”

“What missions?” Capt. Stracke said he had asked Mr. Malvo, to which the suspect replied, “To kill people. We don’t eat to get more oxygen to the brain.”

“I just listened in astonishment,” Capt. Stracke told the court at the hearing.

Judge Roush said Mr. Malvo’s mention of his missions “to kill people” initiated a conversation about the shootings, and that the prison guards did not try to interrogate the suspect.

“Although Malvo was in custody, and the prison guards were law enforcement officers, Malvo initiated the conversations, and the guards did nothing deliberately to elicit any incriminating statements,” Judge Roush wrote.

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