ANNAPOLIS – In his opening statement during the trial last year of a Baltimore County man accused of murdering his parents, a state’s attorney played a recording of gunshots to simulate the killing.
James Garland Finneyfrock was convicted and sentenced to life in prison. But he appealed, arguing that the prosecutor should have known that, while the trial judge ultimately barred the recording as evidence, the prosecutor should have known during his opening statement that its admissability was doubtful.
But the Maryland Court of Special Appeals, ruling Wednesday in the case, said that the recording was acceptable in the prosecution’s opening statement because Finneyfrock’s lawyer made no immediate move for mistrial.
The appellant’s parents, Wade and Sue Finneyfrock, were shot to death in November 1993 as they entered their home in Baltimore County’s Cedar Breach area.
The state argued that Finneyfrock killed his parents in order to gain money to maintain his relationship with his girlfriend. The defense, meanwhile, called the state’s case largely circumstantial and said Finneyfrock was not guilty.
The recorded gunshots were fired by a police detective, using the .22-caliber rifle found at the scene, to simulate what a neighbor of the victims heard, court records show.
But one day after the tape was played in court, the trial judge ruled that the recording could not be used as evidence.
Michael R. Braudes, the assistant public defender who represented Finneyfrock in the appeal, said, “The playing of the tape was prejudicial.”
The appellate court acknowledged that playing the tape might have been an error, but pointed out in its ruling that Finneyfrock’s lawyer “failed to seek appropriate relief.”
Furthermore, the ruling said, “When the tape was played for the jury, the State reasonably believed that the tape would be admitted into evidence, and, had that occurred, the advance playing of it, even if objectionable, would have been harmless.”
If any prejudice occurred, the judges said, it “arose when the court ruled the tape inadmissible.”
According to the state’s brief in the appeal, when the state’s attorney made his opening argument, he “reasonably anticipated that the jury would soon hear and be permitted to consider the recording as evidence.”
The appellate court also dismissed Finneyfrock’s argument that the trial court should have allowed him to retain a private attorney.
On the opening day of the trial, Finneyfrock asked to discharge his public defender, saying he had received a check worth $10,000 from the IRS, with which he could hire a private lawyer. He did not present the money at the trial, saying he had it sent to his girlfriend.
“His explanation was not convincing,” said Gary Bair, chief of the Attorney General’s Criminal Appeals Division.
Finneyfrock also complained in his appeal that his attorney was not served with notice that the state intended to seek life imprisonment without parole.
But the appellate court’s opinion concluded that “nothing in the record indicates that appellant’s attorney claimed she was not actually served notice.” Finneyfrock’s attorneys have not decided whether they will take the case to the Maryland Court of Appeals. -30-