A Prince George's County Circuit Court jury convicted a Laurel teenager last night of involuntary manslaughter and two second-degree assault charges in the fatal attack on a Salvadoran immigrant last year, rejecting a prosecutor's last-minute argument for a felony murder conviction.
The jury also acquitted the teenager of second-degree murder.
Jurors deliberated about five hours before returning their verdict in the murder trial of Cochise Iraun "Cody" Queen, 18, in the death in September 1998 of Gilberto Hernandez, 40. Queen could be imprisoned for a maximum of 10 years on each of the three counts. Sentencing is set for Nov. 5.
Queen, who has been jailed since his arrest last fall, showed no emotion as the verdicts were read. His co-defendants, Kellie Day Martin, 19, and Steven Darby, 17, are scheduled to be tried separately next month.
Although prosecutors have said for months, up until yesterday's final arguments, that there was no motive in the Sept. 4, 1998, attack on Hernandez, Assistant State's Attorney Fran Longwell changed course and argued that it occurred during a robbery.
Her abrupt switch in tactics came after Circuit Court Judge E. Allen Shepherd ruled that the jury could consider the felony murder charge because of testimony that Hernandez was tackled to the ground and kicked during an attack that began as a robbery.
Prince George's State's Attorney Jack B. Johnson had declined to charge Queen and his two co-defendants with felony murder specifically--instead obtaining an indictment for common law murder--and had dismissed the accounts by a brother of Hernandez's and other witnesses who said the assault began as a robbery.
Advocates for Latinos and others have criticized Johnson's prosecution of the case and have said it reflects how Latinos are treated by his office.
Shepherd ruled that the jury could not consider a first-degree murder charge because the government had failed to show premeditation. Without the element of premeditation, prosecutors would have had to prove that the slaying occurred during the commission of a felony--such as a robbery--to obtain a murder conviction.
In his opening statement, Assistant State's Attorney E. Wesley Adams had told jurors there was no explanation for the assault.
"You have testimony from more than one witness now that a robbery was about to take place," Longwell argued to the jurors. She cited testimony from Gilberto Hernandez's younger brother, Juan Hernandez, 22, who said that the attackers demanded money and that one brandished a knife, and testimony from Mark Ramsay, who said he heard one of Queen's co-defendants suggest a robbery moments before the assault.
Juror Gary Brown, 27, said after the verdict that he did not believe there was enough evidence of a robbery to convict Queen of felony murder.
"We didn't believe he really wanted to commit the murder," said Brown, of Springdale.
"I think the jury fairly evaluated the evidence and saw the weaknesses in the state's case," said Steven M. Jacoby, one of Queen's attorneys.
The trial, which began Monday, has been attended each day by about a half dozen members of the Hernandez family. The Rev. Brian Jordan, a Franciscan priest who has been helping the Hernandez family and has criticized Johnson for dismissing the accounts that the assault began as a robbery, said Hernandez family members were upset by the verdict and the prosecution.
"The family members are more than disappointed--they are angry," Jordan said. "We fought two battles this week--the battle against the defense, and the fight with the prosecution, which said it could not provide a motive.
"There's a lot of evidence [of a robbery attempt] that was never brought forth," Jordan said. "The prosecution didn't say anything about a robbery until the very end. It was too late."
Laurel police originally charged seven teenagers with robbery and murder in connection with the Hernandez slaying. Last November, Johnson dropped charges against four of the original suspects in exchange for their testimony. The prosecutor also dropped robbery charges against Queen and his two co-defendants, saying there was no evidence of a robbery attempt.
But a law enforcement source said that one of the former suspects had evidence that the assault began as a robbery that prosecutors did not use. The former suspect told police investigators that Hernandez's attackers did not take anything because Hernandez was injured seriously and they were afraid the police would come by. The former suspect told police that Queen had said he should have rifled Hernandez's pockets, the source said.
Johnson could not be reached for comment last night.