Climbing wall retrial set for late August

A judge overruled Floyd’s motion for acquittal.
Friday, July 16, 2004 | 12:00 a.m. CDT; updated 8:40 p.m. CDT, Saturday, July 12, 2008

Local climbing wall owner Marcus Floyd will face a retrial set for Aug. 24.

Judge Gene Hamilton of the 13th Judicial Court overruled a motion for Floyd’s acquittal, which his defense attorneys raised at a motion hearing last week.

Court records show that on June 17, jury foreman Tim Chinn submitted to the judge in a note, “We have two jurors who are not inclined to change. We all have strong feelings.” When the jury came back after nearly nine hours, Hamilton declared a mistrial.

Last week, defense attorneys Pat Eng and Matt Woods raised a post-trial motion for acquittal because they said the jury was deadlocked, 10 to 2, in favor of acquitting Floyd. Assistant Prosecutor Richard Hicks maintained that the state had enough evidence to convict Floyd. The judge took the motion for acquittal under advisement and overruled it Wednesday.

Floyd was arrested in August and later charged with second-degree involuntary manslaughter. Last July, Christine Ewing, 22, of Jefferson City, died from injuries she suffered when she fell from Floyd’s portable climbing wall. Investigators found that the snapped support cable was corroded.

In a memo to Hamilton dated July 8, Hicks explained the prosecutors’ contention that they presented enough evidence of Floyd’s recklessness. He also answered the defense attorneys’ argument that the lack of expert witnesses made it impossible for jurors to know whether Floyd had violated a standard of care. When it comes to the standard of care considered in a criminal negligence case, Missouri law requires juries to consider what a “reasonable person” would have done, Hicks said.

“The defendant seeks to substitute this ‘reasonable person’ standard with a ‘professional care’ standard,” Hicks wrote. “However, counsel for the State has been unable to find any support in either Missouri case law or any other state law for the defendant’s position.”

In a July 12 response to the prosecutors’ memo, defense attorneys told the judge that the state’s evidence was insufficient and lacked necessary expert testimony.

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