Murder charge dismissed against 18-year-old

June 9, 2012 2:45:40 PM PDT
A murder charge against an 18-year-old Berkeley man for the fatal shooting of 24-year-old Devin Lee Whitmire in Berkeley in late March was dismissed this week after a dramatic courtroom moment in which the prosecution's key witness said the man was not involved in the shooting.

Randall Oscar Alston was the first person to be arrested and charged with murder in connection with the death of Whitmire, who was a Berkeley resident, from a shooting outside Bob's Liquors and Deli in the 2800 block of Sacramento Street at about 7:35 p.m. on March 29.

Authorities later arrested a second suspect, 19-year-old Berkeley resident Calvester Stewart. Stewart was also charged with murder and is accused of being the shooter.

A preliminary hearing at which a judge was to decide if there was enough evidence to have Alston and Stewart ordered to stand trial was scheduled to start Tuesday morning.

But when Whitmire's brother, 22-year-old Darnell Robinson, who was with Whitmire when he was shot, came into the courtroom shortly before the hearing was to begin, he said Alston wasn't involved in the shooting and then pointed at a man in the audience and said, "That's the guy who did it," according to Alston's lawyer, James Giller.

Authorities subpoenaed the man and took a statement from him, Giller said, but Berkeley police said that he hasn't been arrested.

Charges against Alston, who had been in custody since the night of the shooting and was accused of being an aider and abettor to Stewart, were dismissed later on Tuesday and he is now free and at home, Giller said.

Giller, who's been practicing criminal law in Oakland for more than 50 years, said he's never heard of another case in which a murder defendant was freed after a prosecution witness came to court and said the wrong man was in custody.

"It's a unique situation and lawyers around the courthouse are talking about it," Giller said.

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