Murder trial pushed back as prosecutors seek possible DNA evidence
A judge delayed the murder trial for three men suspected in the fatal shooting death of 34-year-old Emilio Lopez, in part so prosecutors can seek a superseding indictment that would charge the defendants with robbery and felony murder.
Despite an objection from one defense attorney, Assistant Prosecutor James Scott on Thursday was granted an adjournment in the murder trial of Roberto Cruz, Kenneth Rivera and Jose Rivera, all of whom are cousins and all of whom were set to be tried in late September on counts of murder and weapons offenses.
Judge Robert Billmeier agreed to delay the trial in order to give prosecutors a chance to test evidence for possible DNA matches to the defendants and for additional undisclosed discovery to be turned over to defense attorneys.
In the meantime, Scott, who took over the case for Assistant Prosecutor Michelle Gasparian, told the court that after reviewing the evidence in the case, he plans to go back before the grand jury to seek the additional charges of felony murder and first-degree robbery against each defendant.
Previously, prosecutors had not disclosed a motive in the slaying of Lopez, who was fatally shot in the back after he was allegedly approached by the men from different angles and boxed in near Kent Street.
If a grand jury returns a subsequent indictment charging the men with robbery and felony murder, prosecutors would have their motive for the murder.
The felony murder charge would mean prosecutors do not have to prove the men intended to kill Lopez, just that he was killed during an attempted robbery.
Prosecutors would also not be required to prove the defendants took Lopez’s property by force, only that they intended to.
Scott revealed for the first time Thursday he has evidence – in the form of text messages Jose Rivera allegedly exchanged with an unknown party – that shows a conversation in which the defendant talked about committing robberies.
Scott said Jose Rivera allegedly responds to an unknown party by saying, “It’s too hot out here” to commit robberies.
Scott said the text message, possibly sent from an Internet website, could not be traced.
The case against the defendants is largely circumstantial.
A murder weapon was never recovered, although investigators believe each man was armed. However, it has never been determined who fired the fatal shot, prosecutors said.
Prosecutors say they have cell phone tower evidence that puts at least two of the defendants in the area of the murder on the night in question.
But prosecutors are hoping to bolster their case by securing irrefutable forensics. Scott said he plans to have some of the clothing the men wore the night of the murder tested at the State Police crime lab for traces of the victim’s DNA.
It had not been previously tested, even though the victim bled and vomited, Scott said. Some of those bodily fluids could have been absorbed by the defendants’ clothes if they were in close proximity.
The defendants agreed to turn over DNA swabs, known as buccal swabs, to prosecutors. None of their attorneys objected to their clients providing DNA samples, hoping it could lead to their clients being exonerated.
However, Andrew Duclair, the attorney for Kenneth Rivera, asked the court that defense attorneys be allowed the opportunity to renegotiate plea deals with prosecutors on behalf of their clients once the results of the DNA tests are turned over in discovery. All three men were offered 30-year state prison sentences for murder.
After the hearing, they were taken downstairs where officials obtained a swab from the inside of each of the three men’s cheeks.
Scott believes the DNA swabs could just as well help him link the defendants to a vehicle allegedly driven by Jose Rivera the night of the murder. Inside, authorities found drink containers that could contain small traces of biological material unique to each of the defendants.
Beyond that, prosecutors have a formal statement from Jose Rivera’s mother, Maria Torres, in which she told police she lent her son her minivan around 8 p.m. the night of the murder.
Further, Scott said, she told police that when Jose Rivera picked her up from work around 11 p.m., several people were in the vehicle with him, including Roberto Cruz, putting at least two of the defendants together within an hour of the murder.
She said she was dropped off at home at 11:30 p.m., about 15 minutes before Lopez was killed, Scott said. Scott plans to call Torres as a witness but is worried she could recant her prior statement to police. If that happens, prosecutors would want to have Torres’ prior statement to police admitted into evidence. The issue will likely be hashed out at trial.
The defendants, all of whom remain incarcerated on high bails, are scheduled to have bail reconsideration hearings in the coming weeks. After that, they are next set to appear in court in November for a status hearing.