Defense lawyers were unsuccessful today in attempting to prevent prosecutors from offering a baggie of marijuana as evidence to link defendants Ronald Smith and Joey Rey Soto to the Jan. 25 beating death of Kenneth Thomas.
"I was frankly shocked to hear about it," Michael O'Brien, the lawyer representing Soto, said in objecting to the baggie being allowed into evidence. "It prejudices the defense."
The small baggie was first mentioned in court Tuesday as having been inside one of two ski masks seized from the black Lincoln in which Smith and Soto were driving when they were arrested just before 5 a.m.on Jan. 25.
Smith and Soto were apprehended within seven minutes of police receiving a report of the beating Thomas received near his trailer on Village Street.
Smith's defense lawyer, Darrel Gardner, joined O'Brien in claiming that the state never mentioned the baggie to them.
"The masks had no hair or DNA (evidence) on them," Gardner said. "The car was on loan, so there is a definite lack of evidence that these masks belong" to the defendants.
Assistant District Attorney Sue McLean noted that she wrote to both attorneys in April about the 126 items of evidence, including this baggie of "green leafy material." She showed Judge Larry Weeks copies of documentation of her correspondence.
Weeks said he had examined precedent for not allowing the evidence.
"It is hard for me to see what the defense could have done that hasn't been done with the baggie that was found," Weeks said. "If the state offers it, I will allow them to put it into evidence."
Weeks said the defense could have the baggie fingerprinted if they wished. He then allowed discovery of the baggie into the record.
Witnesses this morning included Juneau Police Sgt. Steve Hernandez, who noted the "red tint" of crumpled money from the pockets of Soto. Jay Epstein, loss prevention manager at Fred Meyer, testified to the purchase Jan. 20 of a Mossberg 12-gauge shotgun by Zachary Brown. The state alleges that Smith and Soto borrowed Brown's gun and used it in the assault. Police officer Robert Haskell testified that he saw Soto at the Mendenhall Valley site where he was apprehended with "a large amount of blood covering his hands; he was rubbing his hands, trying to get it off."
On Tuesday, Alfred Torres Sr. testified he was with Thomas, who is his brother, and friends Mark Paddock and Stephanie Sanders watching a video of "The Blair Witch Project" in the trailer about 4 a.m. on Jan. 25 when there was a knock on the door.
"I saw a guy coming in with a shotgun pointing straight to my head, so I grabbed the barrel and pointed it up to the ceiling," Torres said.
Torres testified he was "jerked outside" while clinging to the gun barrel, and hit by a man wearing a ski mask and dark clothes. His brother came running to his aid and was hit by a second masked man holding a wooden bat.
Torres suffered a dislocated left arm and two head wounds that needed stitches in the events of that morning, wounds he claims he suffered at the hands of Smith and Soto.
Paddock, 20, testified Torres was "yanked out of the trailer by his shirt." Paddock said he saw Torres bracing against the door with both hands resisting being forced outside the trailer, but he did not see him grab the barrel of a gun.
Paddock said he had known Torres for seven years and had smoked marijuana with him on the afternoon of Jan. 24. On the stand, Paddock seemed stunned, and on several occasions took 10 to 20 seconds before responding to questions.
Smith and Soto were charged Jan. 27 with second-degree murder. They also are charged with first-degree assault in the beating of Torres, as well as second-degree robbery.
Ann Chandonnet can be reached at firstname.lastname@example.org.
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