THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Thursday, May 11, 1995 TAG: 9505110417
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JUNE ARNEY, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Medium: 98 lines
Prosecutors may have lost their chance to try Kelly Anne Dara as an adult in the stabbing death of a Salem High School classmate because they failed to give her attorneys evidence that could have helped her defense.
On Wednesday, prosecutors told a Circuit Court judge that they would not pursue charges of first-degree murder, attempted robbery and conspiracy, which had been transferred from Juvenile Court on April 5.
Prosecutors then had to start the process all over again. They refiled petitions for identical charges in Juvenile Court and will seek another transfer to Circuit Court.
Dara, who turns 18 today, is accused along with her boyfriend at the time, Joshua Johnson, in the March 6 stabbing death of Joseph D. Garcia III.
Defense lawyers argued that because prosecutors failed to pro vide them with the potentially favorable evidence, they should not be given a second chance to transfer the case to adult court. Prosecutors are required to supply such information.
``I am asking that it be reconsidered and the transfer denied,'' Lawrence H. Woodward Jr., one of Dara's two attorneys, argued in Circuit Court. ``My position is that there shouldn't be a second bite at the apple. They had one chance to do it right.''
If Dara were convicted of first-degree murder in adult court, she could receive a life term. If she were tried as a juvenile, the maximum penalty would be confinement in a juvenile facility until age 21.
The information that prosecutors failed to turn over involved statements made by Johnson.
Dara ``didn't want to kill'' Garcia, Kill Devil Hills police officer William Walker testified at a preliminary hearing for Johnson on April 19. To appease Dara, Johnson promised only to hit Garcia on the head, Walker testified.
``She didn't like that idea, either,'' Walker testified in April. ``But she called and got (Garcia) there.''
Prosecutors said they did not learn of the evidence until after the Juvenile Court transfer hearing.
In court Wednesday, Deputy Commonwealth's Attorney Albert D. Alberi said there was nothing ``sinister'' about his office's failure to divulge Walker's statement to defense attorneys.
Police reports didn't arrive in his office in a ``timely manner,'' Alberi said. Two days before Dara's preliminary hearing, prosecutors received two thick case files from police. But neither he nor Assistant Commonwealth's Attorney Afshin Farashahi saw the potentially exculpatory portions of Walker's statements until after Dara's hearing, Alberi said.
``The fact that we didn't know about it and didn't do it intentionally didn't mean that it didn't cause some . . . violations'' of the pre-trial discovery process, he said. So prosecutors decided not to pursue the circuit charges and to begin again in Juvenile Court.
A law professor at Washington & Lee University, William S. Geimer, said Wednesday that Virginia Beach prosecutors handled the matter properly once they realized there was apparently a problem.
``This is laudable conduct by the commonwealth compared to our experience with lots of prosecutors,'' he said. ``It is unusual that they would confess error and try to put the defendant back to the beginning with the evidence in place.''
Defense lawyers said they learned of Walker's statement when they read it in The Virginian-Pilot the day after Johnson's hearing.
In order for prosecutors to try Dara as an adult, they will have to convince a juvenile judge that the case was not tainted by their failure to provide exculpatory evidence, as defense lawyers will argue.
One legal expert said a judge would have to decide how to handle any prosecutorial misconduct.
A second transfer hearing has been set for May 25. A hearing to consider bond is to be Friday.
Perhaps more important, legal scholars say the new evidence could cause a juvenile judge to keep the case in Juvenile Court.
``The nature of the exculpatory evidence might very well reduce her involvement and may make more difficult the job of the prosecution in getting the transfer,'' said Robert E. Shepherd Jr., a law professor at the University of Richmond. ``I think it gives the defense a much stronger argument that this young lady can be dealt with in the juvenile system.''
Dara was to be sent to Tidewater Detention Home after Wednesday's hearing, but is to be returned to Virginia Beach Jail today, since she turns 18.
Dara and Johnson were arrested a day after Garcia's killing at a motel on North Carolina Route 12, where they had fled.
The two had apparently talked about killing Garcia but decided to steal his car instead, according to statements by Johnson.
Everything changed after Garcia arrived at Dara's house, Johnson told police. Garcia, 17, argued with Dara soon after his arrival and slammed her against a wall. So Johnson allegedly retaliated, picking up a pocketknife he found on a table and stabbing Garcia twice.
Garcia staggered to his car and drove about 100 feet before blacking out. He died soon afterward. ILLUSTRATION: Photo
Kelly Dara
KEYWORDS: MURDER JUVENILE STABBING by CNB