THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, May 31, 1995 TAG: 9505310462
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JUNE ARNEY, STAFF WRITER
DATELINE: NORFOLK LENGTH: Medium: 98 lines
Kimberly Fields and her four sons went to court Tuesday to see that the 17-year-old accused of killing the boys' brother is brought to justice.
Stanley Frazier came wearing a T-shirt with his grandson's picture on the front and back, and the words: ``In memory of Jerrell W. Stokes '94.''
Stokes' family members were in court hoping for the best, but prepared for the worst.
They had been told that the prosecution's case against Paul Asby, accused of killing Stokes in a drive-by shooting, was falling apart. Co-defendant Curtis Ellenberger had decided he wouldn't cooperate with the state by testifying against Asby.
When it was all over Tuesday, Asby was freed.
Outside Circuit Court, Fields wept as she repeated the words: ``He's free.''
``I still feel like I'm carrying this terrible burden,'' she said. ``He just walks away.''
Asby, who has been in jail since shortly after the August 1994 shooting in the 5100 block of E. Princess Anne Road, was released from the City Jail Tuesday afternoon.
``You can't expect me not to have a lot of anger in me,'' Fields said. ``There is no justice. This boy's walking free.''
The shooting occurred while Fields and her 16-year-old son looked on.
Fields said she was 3 feet away from him when the shooting occurred and about 18 feet from the triggerman as he sped by, firing five shots.
She gave her son CPR.
Authorities said the killing resulted from a dispute between two rival gangs: the Bromley Boys, to which Stokes allegedly had ties, and the Fairlawn Boys, with which Asby was supposed to be linked.
``I think they think it's just another gang member off the street, and that's not the point,'' Fields said.
On Tuesday, Assistant Commonwealth's Attorney Jeffrey A. Swartz asked Judge John C. Morrison Jr. to postpone Asby's case for his own protection and the safety of the community.
That delay would also have allowed time for Swartz to receive an opinion from the state attorney general regarding juvenile cases that have been transferred to Circuit Court and then are not pursued. Swartz is asking for an opinion on whether such cases can be brought back by juvenile petition or through indictments.
Swartz said he could not discuss the case.
The judge refused to allow a continuance and instead agreed to allow prosecutors to drop the charges. It was unclear Tuesday what options prosecutors now have in the case, if any.
Ellenberger, who has told authorities he was driving the car involved in the drive-by shooting, goes to trial for murder and use of a firearm on Aug. 30.
During the hearing Tuesday, attorney Troy Spencer, who represented Asby, argued that prosecutors should not be granted a postponement because they had no certainty that the co-defendant would ever testify against Asby.
Later, Spencer said he does not think prosecutors have given up trying to make a case against his client.
The Asby case echoes recent events in Virginia Beach, where Kelly Dara, accused in the killing of Joseph D. Garcia, was released after a juvenile judge ruled that he no longer had jurisdiction to handle the case once prosecutors decided not to pursue it in adult court. Dara and her boyfriend at the time, Joshua Johnson, were accused in the March 6 fatal stabbing of Garcia.
Virginia Beach prosecutors say they will try to obtain an indictment when the grand jury meets on June 5, a move defense lawyers say they will fight.
Spencer, who also represents the Garcia family, said he believes there is a legal safety net for prosecutors, even if they lose the opportunity to try a juvenile in juvenile court and cannot indict the defendant in adult court.
Spencer said he believes the law allows prosecutors to charge a person, when he reaches age 21, with a crime as an adult ``even if he was a juvenile when the offense was committed.''
``It seems ridiculous that this even has to be considered as a safety net,'' Spencer said. ``But if it ever got to that ridiculous point, it's there.''
Spencer said the law regarding juveniles is so murky that it's unclear how prosecutors should proceed.
``The question is the ability of the commonwealth's attorney to direct indict in Circuit Court,'' he said. ``That's really the issue. The answer depends on who you talk to.''
The issue of prosecutors being able to treat teenage felons as adults by seeking indictments is under review by the state. Attorney General James S. Gilmore III has recommended that the matter be examined by one of three commissions studying juvenile justice reform. The group is expected to make recommendations to the next General Assembly session. ILLUSTRATION: Color photo
The shooting of Jerrell W. Stokes was gang-related, authorities say.
The case was postponed, which gives the prosecutor time to explore
whether juvenile cases can be returned from adult court by petition
or indictment.
KEYWORDS: MURDER DRIVE-BY SHOOTING ARREST RELEASE by CNB