THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, May 13, 1995 TAG: 9505130241
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JUNE ARNEY, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Long : 133 lines
Kelly Anne Dara, who faced first-degree murder charges in the stabbing death of a Salem High School classmate, was set free Friday, the result of a prosecutor's error.
Juvenile Judge Woodrow Lewis Jr. dismissed murder, attempted robbery and conspiracy charges against her in a hearing closed to the press and public, saying that the Juvenile Court no longer has jurisdiction.
The judge's ruling followed a hearing Wednesday in which prosecutors withdrew the charges in adult court after defense lawyers accused them of failing to provide them with evidence favorable to Dara's defense.
Hoping to start the process anew, prosecutors then refiled the charges in Juvenile Court. But Lewis ruled that the law barred him from allowing the case to proceed in his court because the case had been transferred to adult court.
Prosecutors said they did not know of the favorable evidence at the time of Dara's hearing April 5 in Juvenile Court.
Dara and her boyfriend at the time, Joshua Johnson, were accused in the March 6 stabbing death of Joseph D. Garcia III.
Johnson is to be tried in June.
``I'm going home,'' Dara told her lawyers after the hearing Friday.
Prosecutors plan to seek indictments from a grand jury June 5 on the same charges. But defense lawyers say they probably will be unsuccessful, since Dara was a juvenile at the time of the offense. She turned 18 Thursday.
Deputy Commonwealth's Attorney Albert D. Alberi took full responsibility for failing to turn over the key evidence. He added, however, that he had not even seen the file containing the evidence prior to Dara's Juvenile Court hearing.
``I'm deeply saddened,'' Alberi said. ``It's clearly our responsibility - mine in particular. It's not the police officers' job to sift through the information that they collect for exculpatory information. It happened, and I have to take responsibility for it.
``It would further sadden me if the criminal justice system is set up so that an oversight of this consequence is fatal to a case this serious,'' he said.
Prosecutors are required by law to provide defense lawyers with ``exculpatory evidence'' - evidence that could help the defense - including any information that police officers have gathered.
If Dara were convicted of first-degree murder in adult court, she could have received a sentence of life in prison. If convicted as a juvenile, the maximum penalty would be confinement in a juvenile correctional facility until age 21.
``I feel a lot of the pain of the Garcias,'' Alberi said during an interview Friday afternoon. ``It's my pain now. They had a trust in me, and I tried to do the very best job I could.''
Alberi maintains that the case needs to be tried in court. When asked how he would feel if that did not occur, he said: ``I'll never be able to live with myself.''
In arguing for dismissal of the case Friday, Dara's lawyers cited a passage from the state juvenile code, which says that a Circuit Court judge's order, issued following a transfer, ``shall divest the juvenile court of its jurisdiction over the case as well as the juvenile court's jurisdiction over any other allegations of delinquency arising from the same act.''
``I think they're going to come up with a lot of inventive ways to get her back in court, none of which will be successful,'' said Thomas B. Shuttleworth, one of her defense lawyers.
``I'm happy for Kelly, but I still feel an immense amount of sadness for the Garcia family.''
Shuttleworth and co-counsel Lawrence H. Woodward Jr. said they do not know of any way that charges can be brought again against their client.
``If they'd followed the court order to begin with, they wouldn't have to worry about breathing life back into a case that's over,'' Woodward said.
Outside the courthouse Friday, Juana Hurtado Garcia, the victim's mother, clutched to her chest a picture of her son - a photo taken for his 17th birthday, two months before he was killed.
``You're talking about a person who's out there who can plan to kill someone,'' she said. ``She shouldn't be out there smiling and breathing and walking and having a good time.''
Joseph G. Garcia, the boy's father, said the judge's ruling was devastating. But he believes prosecutors will see that justice is done.
``It's a temporary setback, but we're going to get justice,'' he said. ``We want to make sure that this is not a gateway for others to think that they can conspire to kill and walk away. A lot of people at Salem High School are going to be angry.''
The prosecution's case started to fall apart Wednesday when Alberi told a judge that his office would not pursue the charges against Dara, which had been transferred to Circuit Court April 5.
Prosecutors then had to start the process over again. They refiled petitions in Juvenile Court to begin the transfer process anew.
``In fairness to Kelly Dara, we wanted to give her the chance to have a transfer hearing with all the evidence available in place,'' Alberi said.
``The thing that hurts the most is that by trying to do the right thing, I have put the whole case into some danger and confusion. You make one serious mistake like this and the public will never forgive you, nor will the people involved . . . The mistakes you make can carry awesome consequences.''
Defense lawyers said they learned of an exculpatory statement made by Johnson when they read testimony from a North Carolina police officer in The Virginian-Pilot and The Ledger-Star.
Dara ``didn't want to kill'' Garcia, Kill Devil Hills police officer William Walker testified at a preliminary hearing for Johnson 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. ``But she called and got Garcia there.''
Alberi said he did not learn of the information until after Dara's April 5 hearing, although the file containing Walker's statements arrived in the commonwealth attorney's office March 30. Prosecutors based their case against Dara on interviews with witnesses, Alberi said. He didn't talk to Walker, he said.
Dara and Johnson were arrested at a motel in Kill Devil Hills, N.C., a day after Garcia was killed.
The two apparently had talked about killing Garcia but decided to steal his car instead, according to statements made by Johnson.
But after Garcia arrived at Dara's house, he allegedly argued with Dara and slammed her against a wall. Johnson allegedly picked up a pocketknife he found on a table and stabbed Garcia twice.
Garcia, who had planned to be a Navy officer, staggered to his car and drove about 100 feet before blacking out. He died shortly afterward.
In a phone conversation moments before the killing, Dara allegedly told a friend that he wouldn't have to worry about Garcia anymore.
``I asked her why,'' 19-year-old Arceo Vitangcol testified April 5. ``She said, `Josh, Josh, can I tell him? It begins and ends with the same letter.' I thought for a couple seconds and said `Dead?' She said yes. She said she was leaving and wasn't coming back.'' ILLUSTRATION: Photo
After the hearing, Kelly Anne Dara said, ``I'm going home.''
Virginia Beach prosecutor Albert D. Alberi took full responsibility
for failing to turn over key evidence.
KEYWORDS: MURDER JUVENILE STABBING DISMISSED CHARGES by CNB