- The Washington Times - Monday, November 17, 2003

CHESAPEAKE, Va. — The husband of sniper victim Linda Franklin testified yesterday in the capital murder trial of Lee Boyd Malvo about the night he witnessed his wife fatally shot, but defense attorneys stopped the jury from hearing an audiotape of his emotional 911 call.

Judge Jane Marum Roush said the tape of William Franklin weeping hysterically and moaning as he reported the shooting did not contribute to the prosecution’s case and would prejudice the jury against the defendant.

The jury will be permitted to hear the tape in the sentencing phase of the trial if Mr. Malvo is convicted in the Oct. 14, 2002, fatal shooting of Mrs. Franklin, 47, in the parking lot of a Home Depot in the Seven Corners area of Fairfax County. She was the 11th victim in the October 2002 sniper spree throughout the Washington area that killed 10 persons and wounded three in the District, Maryland and Virginia. The two men also are accused of shootings in five other states.

Mr. Franklin was among the first witnesses to testify yesterday during the prosecution’s opening presentation of evidence. He described hearing a loud noise, then seeing his wife shot through the head.

Judge Roush’s ruling on the tape, which she played in court without the jury present, was the opposite of the judge’s ruling in the trial John Allen Muhammad.

On the tape, Mr. Williams struggles to answer the dispatcher’s questions as he talks on his cell phone, kneeling beside his wife’s body.

“She is shot in the head,” he said in a high-pitched, panicky voice, gasping to catch his breath between sobs. “Oh, my god.”

Mr. Malvo, who was wearing a gray crewneck sweater and light blue dress shirt unbuttoned at the neck, did not react to the recording, which lasted about three minutes. He kept his hand over his mouth, resting his chin against his palm with his elbow on the defense table.

Mr. Malvo, 18, and Muhammad, 42, face the death penalty under Virginia’s new antiterrorism law.

However, Malvo defense attorney Craig S. Cooley says prosecutors in the separate cases have employed the law differently.

He said the Muhammad prosecutors made the case that the defendant planned to spread fear throughout the general public; therefore, the emotional impact on Mr. Williams was relevant evidence.

However, the Malvo prosecutors are making the case that the snipers created the terror to extort money from the government, so the tape is irrelevant.

Fairfax County Commonwealth’s Attorney Robert F. Horan Jr. tried convincing Judge Roush that the jury should hear the recording: “The tape of his 911 call will show the agony he suffered that night. … This is certainly evidence to the degree of atrociousness of this crime.”

Mr. Malvo and Muhammad could also face the death penalty under a serial-killer law.

Muhammad was convicted yesterday in Virginia Beach on two counts of capital murder in the fatal shooting of Dean Harold Meyers. Mr. Meyers, 53, was filling his car with gas Oct. 9, 2002, at a Manassas service station when he was shot.

The first capital murder charge came under an antiterrorism law and the second came under a serial-killer law.

During lunch recess at the Malvo trial, defense attorney Thomas B. Walsh said he did not expect the Muhammad verdict to affect his client’s trial, though the Malvo jury will probably see headlines about the conviction.

Mr. Walsh also said the verdict would not cause the defense to alter its strategy of arguing that Mr. Malvo was brainwashed by Muhammad and is not guilty by reason of insanity.

“It’s really not going to affect us too much,” Mr. Walsh said. “We conceded so much in the opening, that [Mr. Malvo] was involved, he was there.”

The Muhammad verdict has cleared the way for physical evidence from the sniper killings to be used by the prosecution in the Malvo trial.

Prince William County Circuit Judge LeRoy F. Millette Jr., who is presiding over the Muhammad trial, last week said he would not allow the evidence to leave his court until a verdict has been reached.

Judge Millette’s decision forced Mr. Horan to start presenting his case to the jury yesterday without such key evidence as the Bushmaster .223-caliber rifle used in the sniper attacks. Mr. Horan instead showed the jury a replica of the rifle, which came equipped with a retractable bipod.

He also introduced more than 60 photographs of crime scenes and evidence collected by police.

As in the Muhammad trial, the Malvo prosecution presented evidence about the Franklin and Meyers shootings to prove the defendants were eligible for the death penalty under the serial-killer law.

Mr. Horan called witnesses to the murders, including Mr. Meyers’ brother Larry T. Meyers to identify photographs of the victims.

He also called agents from the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives and other agencies to identify evidence collected from the Meyers and Franklin crime scenes and from the 1990 Chevrolet Caprice in which Muhammad and Mr. Malvo were apprehended Oct. 24, 2002, at a highway rest stop in Frederick County, Md.

The car was crucial to the prosecution’s case against Muhammad and is expected to play a similar role for Malvo prosecutors. The car was modified to allow a shooter to access the trunk from the back seat, and to fire through a hole cut above the rear license plate.

Inside the car, investigators found the .223-caliber rifle, shooting mittens and ammunition. A brown, right-hand glove stuffed in the hole in the trunk matched a left-hand glove police found next to a ransom note the snipers left at the scene of the Oct. 22, 2002, slaying of bus driver Conrad Johnson, 35, in Aspen Hill, witnesses testified.

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