A former prosecutor failed to tell defense attorneys that he had promised immunity to a witness in a first-degree murder case that landed a Forsyth County man on death row, according to a motion filed in Forsyth Superior Court.
Errol Duke Moses, 38, was convicted of first-degree murder in November 1997 in connection with the drug-related killings of Ricky Griffin and Jacinto Dunkley.
Judge Catherine Eagles sentenced Moses to death after a jury trial. Moses has maintained his innocence and has unsuccessfully appealed the ruling several times.
In the motion, Moses' attorneys, Ken Rose and Shelagh Kenney, say that Vince Rabil, who prosecuted Moses, told a key witness, Casey McCree, that he would likely not face charges if he testified. McCree testified that he was with Moses when he killed Dunkley.
Last week, Judge Richard Doughton of Forsyth Superior Court ordered that an evidentiary hearing be held on the motion, which was filed in October. After the hearing, Doughton could order a new trial for Moses. A hearing date has not been set.
Rabil is now a capital-defense attorney. He declined to comment because he said he might be asked to testify at the hearing. Rose and Kenney also declined to comment on their motion.
In an affidavit filed with the motion, Rabil said he never had a written deal with McCree.
"I told Case that he would have to trust us that he would not be charged if he testified," Rabil said in the affidavit. "In my experience, this was a common practice among prosecutors to obtain testimony without having to formally agree to a deal where no formal grant of immunity was being offered."
McCree testified in 1997 during the trial that he accompanied Moses to Dunkley's house on Jan. 27, 1996, saw Moses shoot Dunkley twice, and helped Moses ransack the house to make it look like a robbery, according to the motion. He also testified that Moses told him that he killed Griffin, who was shot to death on Nov. 25, 1995, the motion says.
According to the motion, Rabil and McCree said during and after the trial that there was no deal with McCree for his testimony.
The only other evidence in the case was the gun that authorities said was used to kill Griffin and Dunkley, the motion says. Moses had contacted both victims by telephone or pager before they were killed.
In addition, Griffin had threatened Moses with a knife during a previous argument. Police also found a diamond ring belonging to Dunkley near a car accident involving Moses and McCree, the motion says.
"Mr. McCree's testimony, in combination with this circumstantial evidence, led jurors to conclude that the defendant Errol Moses perpetrated both murders," the motion says.
Rose and Kenney argue that if defense attorneys had known that Rabil had offered some kind of "wink and nod" deal to McCree, they would have been able to raise questions about McCree's testimony during trial, the motion says.
It says that "This claim could not have been discovered earlier because of active deception by the State both at trial and in prior post-conviction proceedings."
Rose and Kenney said in the motion that McCree, Rabil and two police investigators presented previous affidavits in which they denied making any kind of promise of immunity.
mhewlett@wsjournal.com
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