The uncle of a man charged with murder claims to have a video showing suspects running through a field near the east Macon home of a slain 55-year-old widow.
Gwendolyn Cole answered a knock at the door of her Bradstone Circle home, off Millerfield Road, on Feb. 4, 2008.
A man asked for her son. Moments later, assault rifle fire bombarded the home.
Police have estimated as many as 70 shots struck the house, killing Cole.
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Marlon S. Jackson, 35, and Benjamin Finney, 37, were charged with murder in the case Oct. 31, 2012. They are scheduled to stand trial in Bibb County Superior Court next month, just short of the seven-year anniversary of Cole’s death.
While continuing to investigate the case, authorities listened to phone calls recorded at the Bibb County jail in recent months.
In at least one of the calls, Jackson’s uncle has said prosecutors’ case against his nephew “will not succeed” because he has a video showing the alleged murder suspects running through a field near the crime scene, according to a motion filed by prosecutors.
The alleged suspects -- neither of whom is alleged to be Jackson -- purportedly are shown carrying a duffel bag.
Police obtained a surveillance camera video from a convenience store near Cole’s house, but prosecutors don’t know whether the video the uncle claims to have “contains additional footage, is from a different angle, is a different video, or even exists at all,” according to the motion.
Prosecutors have tried to interview the uncle, but he hasn’t been willing to talk with them, according to the motion.
They have asked a judge to “compel” the uncle to testify and produce the video. A hearing is scheduled for Monday afternoon.
“This witness should not be allowed to play games with this court,” prosecutors argued in the motion, explaining that the evidence could potentially help the defendants and should be provided as soon as possible to ensure Jackson’s “due process rights to a fair trial are met.”
Judge Edgar W. Ennis Jr. could grant the uncle immunity as a way to persuade him to testify. If given immunity against self-incrimination, the uncle can’t invoke a Fifth Amendment objection.
Finney’s lawyer, Pamela Bettis, declined comment Friday. Attempts to reach Jackson’s lawyer were unsuccessful.
WIRETAP EVIDENCE ALLOWED
Despite arguments this summer that evidence garnered through a wiretap should be thrown out, Ennis ruled last week that jurors can hear the evidence.
Investigators applied for a wiretap on Finney’s cellphone calls Feb. 8, 2008, four days after the killing. A judge granted a warrant, which was later extended until the end of the wiretap investigation March 20, 2008, according to the judge’s order.
Investigators logged and “registered” 3,178 calls, looking for evidence or conversations regarding “murder; armed robbery; the distribution, manufacture, and/or sale of cocaine; conspiracy to commit narcotic felonies; criminal solicitation; and potential violations involving the Racketeer Influenced and Corrupt Organizations (RICO) Act,” according to court documents.
Among the arguments made by Bettis, Finney’s lawyer, were complaints that investigators didn’t “minimize” the calls they intercepted to prevent unconstitutional invasions of privacy and that the intercepted calls weren’t sealed by the court in a timely manner.
Bettis has identified 50 calls included in the wiretap that weren’t minimized, including a call between two female callers.
Ennis ruled that investigators’ efforts were reasonable.
There was a 16-day delay in sealing the wiretap evidence, which prosecutors contend was caused by the judge who issued the warrant being away at training and the then-lead prosecutor being preoccupied with the upcoming death penalty trial of men accused in the 2006 shooting death of Bibb County Deputy Joseph Whitehead.
Bettis also has argued Finney didn’t receive a required notice that investigators had listened to his calls.
A Jones County Sheriff’s Office investigator testified at a hearing this summer that he hand delivered a notification letter to Finney, according to the judge’s order.
Finney and Jackson were indicted on federal charges in June 2008.
Finney later pleaded guilty to possession of cocaine and possession of a firearm by a convicted felon. Jackson pleaded guilty to aiding and abetting the possession of a firearm by a convicted felon, according to federal court records.
Both men were sentenced Jan. 21, 2009. Finney was ordered to serve 70 months and Jackson 28 months.
Jackson has been held at the Bibb County jail without bond since Oct. 31, 2012.
Finney is being housed at the Jones County jail, separately from Jackson. He has been there since April last year.
Information from Telegraph archives was used in this report. To contact writer Amy Leigh Womack, call 744-4398.