PORTSMOUTH
A prosecutor violated the rules of evidence and caused a mistrial when she asked a murder suspect Thursdaywhether he had told police the man he killed tried to rob him.
Deputy Commonwealths Attorney Teressa Murrell knew Carl William Holder had invoked his Fifth Amendment right not to speak to police so she should not have questioned him in front of the jury about his choice to remain silent, a judge ruled.
"Nothing was done intentionally, but it was done," Circuit Judge Kenneth Melvin said as he dismissed the jury on the fourth day of Holder's trial.
Prosecutors immediately announced plans to retry Holder in the August 2015 death of 40-year-old Elvin Elliott near the Farm Fresh at 4000 Victory Blvd.
A new trial date will be picked early next month.Holder will remain incarcerated until at least that time.
Outside the courtroom, Elliott's father said he was satisfied with how prosecutors were handling the case.
"I've got great confidence in the commonwealth's attorney," Eddie Elliott said.
Neither Commonwealth's Attorney Stephanie Morales nor a spokeswoman for her office immediately returned requests for comment.
Holder, 34, is charged with one count of first-degree murder. Prosecutors say he bought a kitchen knife at the Farm Fresh, walked outside and cut Elliott's hand during an argument. Murrell said Holder then chased Elliott into a Zero's sub shop and fatally stabbed him in the abdomen.
Holder took the stand Thursday morning in his own defense. He said Elliott approached him at a bus stop and when Holder refused to give him some of an alcoholic drink he was making demanded he empty his pockets. To appease Elliott, Holder offered to buy him a beer.
Holder said he walked into the Farm Fresh with Elliott and started to yell for help. No one responded, though. And when he asked customer service to call 911, a woman asked whether he was serious, Holder said.
That, Holder said, was when he decided to buy the knife.
Holder said he walked outside and called two friends to see whether they could pick him up, but neither were available. He said he then started walking to a different bus stop, but Elliott, who had a blood-alcohol content of .184, confronted him again in search of the free beer he was promised.
Holder said he cut Elliott's hand when the man moved toward him. He said he then chased Elliott down because he noticed Elliott's backpack was missing. He said he was afraid Elliott was going to get a weapon or find a friend.
On cross-examination, Murrell tried to poke holes in Holder's story. He admitted to leaving his drink behind at the bus stop when he went into the grocery store and to never using his cellphone to call police.
Holder maintained he feared for his safety, though, prompting Murrell to ask if he had told police someone had tried to rob him.
Before Defense Attorney Andrew Sacks could object, Holder responded that he invoked his Fifth Amendment right to remain silent.
Sacks then moved for the mistrial.
While arguing against the request, Murrell said she did not intend for Holder to tell the jury about his decision not to grant detectives an interview. She said she was referring to what happened when the first officers arrived.
Melvin countered that she didn't say that when she asked her question, and he ruled the trial could not go forward.
In an interview Thursday, Sacks said he didn't want a mistrial in Holder's case. He said he believed the trial had been going well for his client and argued that several government witnesses appeared to offer contradictory versions of events.
But, he said, he didn't think he could gamble with his client's freedom and not request a mistrial when he believed one was legally appropriate.
"I do not have a crystal ball," he said. "There is no way to know how the jury would react to that information."
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Portsmouth prosecutor's question leads to mistrial in deadly stabbing near Farm Fresh - Virginian-Pilot