THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, June 21, 1995 TAG: 9506210526
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Medium: 78 lines
A judge ruled Tuesday that Kelly Anne Dara will stand trial as an adult on charges of murdering a Salem High School classmate in March.
Circuit Judge Thomas S. Shadrick denied a motion by Dara's attorneys to dismiss her new indictment based on improper court procedures. Shadrick ruled that prosecutors followed proper procedures in re-indicting Dara June 5.
But Shadrick left the door open to charges of prosecutorial misconduct. Dara's attorneys say prosecutors withheld evidence from them before Dara was transferred from juvenile court to adult court. Prosecutors say it was not done intentionally.
Shadrick said he will hear evidence on the question if Dara's lawyers file a new motion alleging prosecutorial misconduct. The attorneys, Thomas B. Shuttleworth and Lawrence H. Woodward Jr., said they will file the motion this week.
Otherwise, Shadrick ruled, ``This defendant is properly before this court.''
Today, a murder trial will begin for Joshua M. Johnson, 18, Dara's boyfriend at the time of the killing. Lawyers said the trial will last two or three days.
Dara was 17 when her classmate, Joseph D. Garcia III, also 17, was stabbed to death in her home March 6. Prosecutors say Dara and Johnson stabbed Garcia as they tried to steal Garcia's car.
The teenage couple then fled to North Carolina. They were found the next day at an Outer Banks hotel.
Dara was initially charged as a juvenile. A judge in Juvenile and Domestic Relations Court eventually certified the charges to Circuit Court, so Dara could be tried as an adult.
Later, Dara's lawyers learned that Johnson had given a statement to North Carolina police that might have helped Dara in her juvenile hearing. Prosecutors had the statement at the time of the hearing, but did not share it with Dara's lawyers.
In his statement to police, Johnson said Dara was not present when Garcia was killed.
``She didn't see s---,'' Johnson said. He also told police that he killed Garcia ``because he was slamming Kelly into the wall and wouldn't stop.'' Both statements might have helped Dara's case.
But prosecutor Albert Alberi argued Tuesday that another part of Johnson's statement would have hurt Dara's case. At one point in the police interview, Johnson said, ``We planned it,'' speaking of himself and Dara.
Alberi said it was an accident that he did not give Johnson's statement to Dara's lawyers. He said he didn't even know he had it at the time of the juvenile hearing, and had not read it. Shuttleworth, however, argued Tuesday that Alberi had intentionally withheld the statement.
Faced with this problem, on May 12, prosecutors withdrew the murder charge against Dara in adult court, then began anew by refiling the charge in juvenile court. Dara was set free, however, when a juvenile court judge dismissed the charges against her, saying his court no longer had jurisdiction.
Prosecutors got a new indictment against Dara in Circuit Court June 5. She surrendered to police three days later.
On Tuesday, Dara appeared in court in an orange jail jumpsuit. Shuttleworth tried to call Alberi as a witness to question what the prosecutor knew about Johnson's police statement, and when he knew it. But the judge refused to let him.
Later, Shadrick ruled on the procedural question alone. He said Dara's lawyers could file a new motion if they feel that the prosecutors' conduct deprived Dara of a proper juvenile hearing. ILLUSTRATION: Graphic
Photos
THE SUSPECTS
THE VICTIM
[For complete graphic, please see microfilm]
KEYWORDS: MURDER ARREST TRIAL by CNB