Man to be tried a third time in pizza parlor slaying

CLEVELAND (AP) - A man accused of killing a pizza parlor manager in 1997 will have to stand trial a third time, a Cuyahoga County judge ruled Wednesday.

Legal technicalities and errors have negated the two previous murder trials of 28-year-old Charles Marshall III.

Prosecutors said Marshall pulled a .38-caliber pistol on Rocco Buccieri, 27, of Parma, in suburban Garfield Heights and ordered him to open a safe. When Buccieri tried to wrestle the gun from Marshall, he was shot twice, prosecutors said.

Marshall's first trial ended in a conviction and death sentence.

But the sentence was overturned when Common Pleas Judge Timothy McGinty realized he had failed to give jurors the option of recommending life without parole.

A mistrial was declared in Marshall's second trial when deliberating jurors told the judge that they had received an exhibit regarding testimony never presented at trial -- a childhood friend's claim that Marshall had admitted killing Buccieri.

Marshall's lawyers in November asked visiting Judge Joseph Cirigliano to bar a third trial, saying prosecutors were at fault for the mistrial at Marshall's second trial.

Assistant Prosecutor Richard Bombik asked Cirigliano to reinstate the original verdict, saying that a second trial never should have taken place.

Cirigliano ruled Wednesday that there is no evidence of prosecutorial misconduct, but he refused to reinstate the original verdict, said Prosecutor William Mason.

That means Marshall will have to be tried a third time. Since the previous trials were vacated, the constitutional prohibition on trying someone more than once for the same crime do not apply,
Cirigliano ruled.

A pretrial hearing was set for Jan. 23.

Marshall is serving 98 years in prison for other robberies.

(Copyright 2003 by The Associated Press. All Rights Reserved.)