Murder case to be tried again

By David Hedges, Publisher

A murder trial in Roane Circuit Court that ended in a mistrial after four days will have to start over from square one.

In closing remarks Friday, prosecutor Mark Sergent made a reference to the fact that the defendant, Raymond Elswick, did not testify in his own defense.

Prosecutors are not allowed to mention in front of a jury that a defendant chose not to testify.

Sergent said he realized his error as soon as he said it.

"I'm human. I made a mistake," Sergent said afterward. "I will retry the case but I'm sorry for the inconvenience I caused the court and the witnesses who will have to reappear.

"Sometimes in the heat of the moment we have a little slip of the tongue," he said. "What I said was true but it shouldn't have been said."

Shortly after Sergent made the statement in his closing argument, Defense attorney Lee Benford asked for a mistrial.

Judge Tom Evans, after hearing argument outside the jury's presence, granted the motion and admonished Sergent.

"The court was correct," Sergent said. "I'm not complaining about the court's ruling."

A new trial has been set for July 24. Elswick was returned to jail where he has been held without bond since his arrest almost two years ago.

The 42-year-old Elswick is charged with murder of Daniel Burns in May 2005. Two co-defendants, Joey and Crystal Hicks, have already entered pleas in connection with the case.

Joey Hicks is serving 15 years for voluntary manslaughter and 1-to-5 years for conspiracy while his wife, Crystal, is serving a year for involuntary manslaughter and 1-to-5 years on two counts of conspiracy.

In his closing Sergent told the jurors that only three people knew what happed the night of Burns' death. He pointed out that two of those people, the Hicks, had testified, but that Elswick did not.

"It's a very serious case and I spent weeks and weeks preparing for it," Sergent said. "I'm sorry this ever happened and I've been sick over it ever since, but we will move on."

After a daylong jury selection process last Tuesday, the three man, nine-woman jury began hearing testimony Wednesday. Sergent called a total of 20 witnesses to the stand, including the Hicks, while Benford and co-counsel Kevin Postalwait called three witnesses...

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