The attorney claimed prosecutors and police never turned the photo over as evidence, which deprived his client of a fair trial and due process.
Criminal Court Judge Stacy Street said claims made by the defense attorney for Moses Ballard Jr. of a discovery violation based on a missing trajectory rod showing a bullet going through a car door did not constitute withholding evidence, and did not change the outcome of the second-degree murder conviction.
Ballard, 32, of Johnson City, was convicted Aug. 25 in the July 4, 2014, early morning shooting death of Michael “Tito” Rowe, 30, who was sitting in a vehicle outside an East Myrtle Avenue residence talking to another person.
Police and prosecutors said Ballard and Rowe had an argument earlier in the evening, then Ballard left and returned later with a handgun. Evidence presented at trial indicated Ballard fired six times at the car Rowe was in — five went through the door and the sixth shattered the driver’s side window — and that Rowe got out holding his side and was able to fire back at Ballard.
The defense’s theory at trial was that it was Rowe who fired first and Ballard only acted in self defense.
State law requires prosecutors to turn over all evidence they have against a defendant in any case, and Assistant District Attorney Ken Baldwin said that was done.
Long before the trial, defense attorney Chris Byrd went to look at and inspect Rowe’s vehicle, which Johnson City police had in safekeeping. After Byrd met with police and prosecutor to go over the evidence, Investigator Johnnie Willis took Byrd to inspect the car.
At that time, Willis did not place the trajectory rods into the car, although he testified that he and another detective had done that four days after the shooting and took photos.
Those photos were turned over to the defense, but only showed one rod that went completely through the door, and it was at the lower back portion of the door. Apparently the photos did not show another rod that also fully penetrated the door, but just below the door handle and into the driver’s seat area.
Byrd called foul on that, saying the prosecution withheld evidence in the discovery process.
Byrd first saw the trajectory rod going all the way through the door and into the car in the Johnson City Press after the trial was over, he said. During trial, the car was taken to the Washington County Justice Center so the jury could look at it first hand.
Media representatives were allowed to photograph and video the car prior to the jury getting its chance to see it up close. Prosecutors, the judge and the defense were also present when the jury inspected the vehicle, but they were standing inside a fenced-off area of the back parking lot.
“There’s no way I would have just ignored something that important,” Byrd said during his argument Thursday. He said he would have approached the case differently if he’d know that was the path of the bullet prosecutors were going to say killed Rowe.
“Had I known how the jury was going to look at that car … it would have drastically altered the way I presented a defense,” Byrd said. He also said the forensic pathologist, Dr. Nicole Masian, should not have been allowed to testify hypothetically that the bullet was likely the one that caused Rowe’s fatal injury because she was not a crime scene expert.
Rowe’s vehicle was facing toward the back of the building with the driver’s side closest to the fenced-off area, and the driver’s door was closed. But the media — and later jurors — were allowed to walk all around the car.
From the passenger’s side, one trajectory rod that had been placed in a bullet hole on the outside of the door was visible on the inside of the car. Byrd said it was so important because the car “was the heart” of the state’s case.
Baldwin argued that Byrd had full opportunity to inspect and perform tests on the car just as the prosecution did.
“The defense is overlooking the testimony of two eyewitnesses,” Baldwin told the judge. Those two witnesses — one who was in the car with Rowe — testified they saw Ballard approach the car and start shooting. Also, Baldwin said, a bullet was found loose in Rowe’s clothing, so it was obvious it had gone through the exterior of the door and into the driver’s compartment.
“We know if there’s a bullet in the vehicle, it had to go all the way through,” Baldwin said. “When the pathologist testified, she said the victim’s body had glass imbedded in (his left) side,” as well as a metal fragment.
After hearing the full argument of both sides, Street said it was clear to him there was no discovery violation.
“Nothing was withheld from (the defense) except for the fact the trajectory rod would go all the way through the door,” Street said. “The reason I find there was no discovery violation is the state’s theory is there was an argument, Mr. Ballard left, got his gun and came back. Whether the rod was shoved all the way through changes nothing.”
Ballard is serving a 38-year sentence for the murder conviction. His next step in the appellate process is to file the appeal with the Criminal Court of Appeals in Knoxville.