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May trial slated for teenage rock-throwers

Defense attorneys file motions to dismiss indictment

Posted: January 20, 2013 - 12:13am

Editor’s note: Names of juveniles being prosecuted for crimes are usually not disclosed by the Empire. This case is not being tried in the juvenile justice system, and the names are in the public record. The name of the 6-year-old victim is being withheld by the Empire.

The three Juneau teenagers who are charged with felony assault and could be facing years in prison for throwing rocks at cars, one of which injured a 6-year-old boy in the backseat of one of the passing vehicles, are now slated to go to trial in May.

The trio appeared in Juneau Superior Court on Thursday with their defense attorneys and requested their current Jan. 28 trial date to be postponed since there are pretrial motions pending in the case.

Judge Louis Menendez scheduled a 10-day trial to begin on May 13 for Chaleb E. Calandra, now 19, Noel Toribio, 17, and Jared H. Cheatham, 17. The case is to be tried jointly.

The three were indicted in November by a grand jury in Juneau on felony charges, which auto-waived them into adult court. They pleaded not guilty in November.

The defense attorneys are now asking that the judge dismiss the indictments on several grounds, especially since if the teens are convicted, they will bypass the juvenile justice system where the emphasis is on rehabilitation and will be subject to incarceration in adult prison as convicted felons.

Calandra, Toribio and Cheatham all admitted to police that they were throwing rocks at cars driving by the intersection of Mendenhall Loop Road and Stephen Richards Memorial Drive in the Mendenhall Valley on July 15. But it remains unknown who threw the rock that hit the back window of the Pontiac SUV, shattering the glass and hurting the unsuspecting boy in the backseat.

“Could have been any — any one of the three,” JPD Det. Russ Haight testified before the grand jury, according to court papers.

Prosecutors say the 6-year-old sustained injuries, such as a laceration on his cheek that required 17 stitches, glass removed from his eye, facial fractures, injured muscles and possible nerve damage that cause facial drooping and left him unable to smile properly. It was unclear if the damage is permanent.

With it unknown who threw the “offending” rock that hit the vehicle, the defense attorneys argued the state failed to prove causation to the grand jury. Her client may have acted recklessly by throwing rocks, but the state did not show that anything he did was a substantial factor in the injury, argued Kirsten Swanson representing Toribio.

“There is no evidence that he specifically threw a rock at the car in which the passenger was injured,” attorney Swanson wrote in her motion. “At most, there was evidence that he threw rocks at cars. If he were the lone rock thrower then the doctrine of res ipsa loquitur could be used to establish causation. It cannot be applied in a case with two co-defendants and a possible fourth unknown person all throwing rocks. Mere presence at the scene is not enough.”

Swanson added that if the state had charged each of the teenagers in separate grand juries, then each defendant would have been entitled to bring in exculpatory evidence, or evidence favorable to him, to show that he is not the one who caused the injury and that one of the other boys threw the rock.

“The state’s decision to indict all three denies Noel Toribio of his opportunity to point out that he was likely not the one who threw the rock that broke the glass that caused the injury,” Swanson said, adding that Toribio does not have a juvenile record.

Calandra is represented by Grace Lee and Cheatham is represented by Julie Willoughby.

Willoughby described the state’s charging decision to the incident as “Old Testament” and as an “abuse of discretion.”

She said in her motion most juveniles who are auto-waived into adult court for much worse crimes than rock throwing. Usually murder is the most common crime subject to waiver, she said.

Willoughby argued that the Alaska Constitution guarantees a right to rehabilitation, and her client, who does not have a juvenile record, is denied that right under the current charges.

“If Jared is convicted of a class A felony there will be no rehabilitation for Jared,” Willoughby wrote. “The thought of this baby-faced rock-throwing pimply boy going to Lemon Creek Correctional Center or similar institution should be abhorrent to anyone.”

The defendants on Thursday agreed to waive their right to a speedy trial as the case in pending in court. They are not being held in custody and were previously released on their own recognizance.

The next hearing is scheduled a week before trial on May 6.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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