WILKES-BARRE — Introduction at trial of 11-month-old testimony by a missing witness would violate homicide suspect Joshua Ovalles’ constitutional rights, the Wilkes-Barre man’s attorney argued Friday.
Ovalles, 20, of Wilkes-Barre, is scheduled to go to trial Monday in the July 7, 2013, shooting death of Vaughn Kemp, 24, outside a party at 174 S. Grant St. Witnesses have said they saw Ovalles fire shots into the air.
Luzerne County President Judge Thomas F. Burke Jr. is scheduled to preside over the non-jury trial.
Defense attorney Peter J. Moses filed the motion on Ovalles’ behalf in the wake of a request by prosecutors Frank McCabe and Mamie Phillips to have testimony by Erik Rodriguez from an Aug. 21 preliminary hearing admitted at trial because Rodriguez moved home to his native Dominican Republic and cannot be brought back to the United States.
Moses blasted prosecutors, stating that although they know Ovalles is living with his grandparents in the Dominican Republic, there is no evidence that the Commonwealth went through any legal procedures to seek his return, and “indeed, there is no allegation that the Commonwealth even so much as asked the witness to testify.”
Prosecutors acknowledged that they only learned Ovalles was back in the Dominican Republic on July 3, after city police went to his last known address in Wilkes-Barre.
Instead, Moses noted language in the prosecution’s request stating: “In prior Luzerne County homicide cases, officials have attempted to secure witnesses from the Dominican Republic with the help of the Federal Bureau of Investigation.”
“In the past, local law enforcement officers traveled to the Dominican Republic and unless the witness is willing to voluntarily return, they were unable to extradite the witness,” prosecutors added.
Moses argued that this line of reasoning regarding other cases “is as completely irrelevant as it is baseless.”
Rodriguez, now 18, and another man, Ramon Duval, testified for the prosecution last year at the hearing. He and Duval were among 25 to 30 people who attended a party at the South Grant Street house when Kemp was gunned down.
A Spanish interpreter was used for the two witnesses.
Rodriguez had testified he was inside the house when he heard gunfire. He looked out of a second-floor window and saw a man holding a pistol and yelling. “I only saw him shooting in the air,” the teen said.
Rodriguez initialed his name next to Ovalles’ picture in a photo array presented to him by police during an interview on July 9, 2013.
While “face-to-face accusation” is the constitutionally preferred approach for witness testimony, prosecutors noted, they argue that prior recorded testimony from a preliminary hearing is admissible when a witness is unavailable and the government has made reasonable efforts to locate the person and bring them to court to testify.
Moses responded that Ovalles was denied “a full and fair opportunity to cross examine” Rodriguez previously, arguing that his testimony was marred by “blatant leading of the witness” by the Commonwealth, and due to any lack of discovery material being provided to the defense at the time of the preliminary hearing.
Admission of Rodriguez’s testimony would therefore be a violation of Ovalles’ constitutional rights, Moses argued.