A judge on Wednesday ordered a Savannah man freed on a murder and related charges after the prosecution’s key witness repeatedly refused to testify.
As a result, Izell Marketh Perry, 23, was granted a directed verdict of acquittal — that the prosecution did not have sufficient evidence to convict — on murder and aggravated assault charges in the early morning March 16, 2013, slaying of Sidney Grant, 32, outside the Club Frozen Paradise on Indian Street.
Prosecutors contended Perry was the gunman and John Antonio “Poodie” Smith was their sole identification witness; the defense said “Poodie” did it. Chatham County Superior Court Chief Judge Michael Karpf’s action came after prosecutors called several witnesses, none of whom could identify Perry without Smith.
Before the jury was brought into the courtroom, Smith, who is serving a two-year sentence, was brought into court Wednesday morning in shackles and dressed in a green Chatham County jail jumpsuit.
When asked by Assistant District Attorney Matthew Breedon whether he had identified the defendant as the gunman in the March 16, 2013, slaying, Smith responded, “I ain’t answering no questions. I got nothing to say.”
When asked by defense attorney Michael Schiavone if he had killed Sidney Grant, Smith remained silent despite admonitions from Karpf and was ordered returned to jail.
Smith had taken a similar stand on Tuesday and again later Wednesday morning.
Lead prosecutor Jerry Rothschild then asked Karpf to halt trial until Thursday and bring the witness back to court to see whether his attitude had changed.
Prosecutors wanted Karpf to hold Perry in contempt of court and hold him in jail until he “purged” himself by testifying — an indeterminate sentence. They also offered “use immunity” to protect him and remove any 5th amendment protection against answering questions.
The prosecutor conceded that without Smith’s testimony in a videotaped interview with police, the state was facing a directed verdict for the defense.
“I’m not ready to throw in the towel,” Rothschild said. “The only way to prove Mr. Perry did it is through this witness.”
Prosecutors opposed the directed verdict.
Meanwhile Schiavone argued Smith had made it clear he would not testify, so any offer of immunity did not fit the casek. He asked the judge to rule the evidence out and direct the state to present its case.
But Karpf said, “The law doesn’t compel a useless act. This appears to be a useless act.”
He said he could not delay trial until — and if — the witness decided to testify and did not see how another night in jail would accomplish anything.
Further, the judge said if he suspended the trial and the defense filed a motion for a speedy trial, he would order Perry released because keeping him in jail would not be fair to the defendant.
“You’ve had the opportunity,” Karpf told prosecutors before directing them to put on their remaining evidence. “Let’s put it on.”