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Robbery conviction overturned on appeal

An appeals court finds fault with the prosecutor's closing argument in a bank robbery trial.

By CHRIS TISCH
Published December 26, 2005


LARGO - An appeals court has ordered a new trial for a man convicted and sentenced to 15 years in prison for a St. Petersburg bank robbery in 2002.

Earvin Ealy Jr. was convicted of taking more than $30,000 from the Signature Bank, 344 First Ave. S, during a robbery on Oct. 18, 2002. Pinellas Circuit Judge Richard Luce sentenced Ealy to 30 years: 15 years in prison and 15 years on probation.

Ealy appealed his conviction and sentence. The 2nd District Court of Appeal in Lakeland reversed the conviction this week, saying the prosecutor made improper comments to the jury in closing arguments.

Ealy also argued that the sentence by Luce was vindictive. After the conviction, Luce told Ealy he would reduce his sentence if he returned the missing money. Ealy, who says he is innocent, either could not or did not oblige.

Though the maximum sentence was 30 years, Luce could have sentenced him to as little as five years in prison. Because the appeals court tossed out the conviction, it did not resolve the issue of the sentence. However, the opinion written by Judge Chris W. Altenbernd states "it appears this argument may have some merit," and ordered that Ealy's second trial occur before a different judge.

Reached by the St. Petersburg Times last week, Luce said he could not recall the case.

Ealy, who was being held at the Marion Correctional Institution, should be returned to Pinellas County to receive a new trial, said Frank McDermott, who represented Ealy during his trial in 2004.

"He has maintained his innocence from the beginning," McDermott said.

Judge Altenbernd writes in his opinion that the evidence against Ealy was "largely circumstantial and quite limited."

That morning, a man wearing a black nylon stocking over his face approached a courier at the bank, told him he had a gun and ordered him inside. There, the robber threatened to shoot the courier if an attendant didn't let him inside. The robber then forced the attendant to empty the cash drawers.

Neither the courier nor the attendant could positively identify Ealy as the robber. However, they said the robber was a black man whose lips were visible through the mask. They said Ealy had a similar build to the robber and had lips that "looked similar to the robber's lips," the opinion states.

However, one witness initially said the robber had darker skin than Ealy. One witness also said the robber may have driven a small-sized, champagne- or beige-colored Cadillac. Ealy owned a full-sized silver Cadillac.

Police never found a gun or the cash in Ealy's possession. There was testimony that the robber was left-handed; Ealy said he was right-handed.

At the time of his arrest, Ealy had been arrested twice before in Pinellas County on charges of disorderly conduct, domestic battery, burglary and tampering with a witness. All those charges were dropped, so Ealy had no convictions on his criminal record. He was working several jobs, was taking classes in forensic science and didn't seem to have an overwhelming need for money.

Police determined Ealy arrived late for work the morning of the robbery. Ealy took the stand at trial and said that was because he had a flat tire.

The most important evidence were fingerprints. A police examiner initially said prints lifted from inside the bank's back door did not belong to Ealy. But police later got a better set of prints, which they determined were a match, the opinion states.

During closing arguments, prosecutor Michael Marr told jurors that "you've not heard one thing from that witness stand that contradicts that those are his fingerprints."

McDermott objected and moved for a mistrial, saying Marr had shifted the burden of proof from the state to the defense.

Luce denied the motion, and Marr continued: "You've not heard one ounce of testimony, one word even spoken from anybody during this trial from that witness stand, that even placed Earvin Ealy there at that bank on a different day."

In the order for a new trial, Judge Altenbernd wrote that Marr "repeatedly implied that Mr. Ealy had an obligation to refute the questionable fingerprint evidence," which could have misled the jury about who had the burden of proof.

"The prosecutor's comments impermissibly shifted the burden to Mr. Ealy to disprove that the fingerprints were his and suggested his failure to do so was indicative of his guilt," the judge wrote.

Bruce Bartlett, the chief assistant in State Attorney Bernie McCabe's office, said he was disappointed in the decision. He said if the defendant took the stand and offered no explanation as to how his fingerprint got on the bank door, the prosecutor would point that out to the jury.

"I would think it would be fair game," Bartlett said. "But the 2nd District has the final say, and if that's what they think, that's the way it is."

McDermott said he didn't think the prosecutor did anything wrong on purpose.

"I don't think he was intentionally making an improper argument at all," he said. "It wasn't like Mr. Marr was acting in a horrible manner. He's very professional."

McDermott said Ealy may have hurt his chances during the trial when he decided to represent himself half way through the process. McDermott said the jury appeared shocked and may have held that against Ealy.

Bartlett said prosecutors will try Ealy again. McDermott said he hopes to represent him during a second trial.