(10/19/2007)
Judge Refuses To Drop Murder Case

www.thetimesrecord.net

By David Hedges Publisher
www.thetimesrecord.net

A Roane circuit court judge has refused to dismiss murder charges against a Spencer man because of alleged prosecutorial misconduct.

Judge Tom Evans entered the order last week, in response to a request by defense attorney Lee Benford.

Benford had asked Evans to dismiss charges against his client, Raymond Elswick, because prosecutor Mark Sergent failed to disclose a potential witness.

Evans said he was unable to find enough evidence that Sergent knew of the witness, John Manis Richards, who is currently wanted by police on unrelated charges.

Elswick was indicted on charges of murder, kidnapping and conspiracy for the May 2005 death of Daniel Burns, whose body was dumped along a rural road outside Spencer.

Two co-defendants, Joey and Crystal Hicks, have already entered into plea agreements and are serving sentences in connection with the crime.

Elswick was to go on trial in February, but before jury selection began, the defense learned of approximately 50 photos police had taken of the crime scene that had not been previously disclosed. The case was continued.

Elswick did go on trial in April, but after four days of testimony, Evans declared a mistrial. That came when Sergent, in his closing arguments, made a reference to the fact that Elswick had not taken the stand in his own defense. Sergent admitted his mistake.

The case was to go to trial again in July, but the day before Benford learned that Richards had given a statement about the case to Calhoun County prosecutor Matthew Minney, who had prosecuted Richards on unrelated charges.

Richards clamed that Joey Hicks had shared information about the case when the two were cellmates at the regional jail.

Minney said he had sent the information via fax to Sergent's office, but Sergent said he never received it.

In his ruling, Evans said if Sergent had received the information, it would have been logical for Sergent to use the information in prosecuting Hicks.

In a hearing on the motion to dismiss the charges against Elswick, Sergent testified that he was out of the office in July 2005 when the fax was supposedly sent. He said he had terminated a staff member for failing to follow procedures.

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