Prosecutors ask for jurors to see the scene in DJ Mo shooting case

By Patrick Kernan - [email protected]
Battle -
Nealy -

WILKES-BARRE — Two months out from their trial for allegedly killing a prominent local DJ, Roberto Battle and David Nealy appeared in court with their attorneys to argue a series of motions.

Luzerne County Judge David W. Lupas is holding back on issuing an order on most of those motions until attorneys file further briefs on them.

Battle and Nealy stand accused in the Oct. 13, 2013, death of Michael Onley, who performed under the name DJ Mo, outside of the former Outsider’s Bar on South Main Street in Wilkes-Barre.

According to prosecutors, Nealy was driving the car from which Battle fired the fatal shot.

Perhaps the most surprising of the motions discussed Thursday was one filed Thursday morning by prosecutors, asking Lupas for permission to bring the jury to see the scene where the shooting occurred.

Assistant District Attorney Jarrett Ferentino argued that the logistics of the scene make it difficult to accurately convey to jurors how the shooting happened.

“This is not your garden-variety homicide,” Ferentino said. “This is something that the jury should see how the defendants saw it that night.”

Lupas, though, wasn’t so sure.

“I would assume it’s always better to be there in person,” he said. “If that was the standard, we would do that in every trial.”

Defense attorneys Thomas Sundmaker and Allyson Kacmarski, who represent Nealy and Battle respectively, argued there was no reason to bring jurors to the scene, as it wouldn’t accurately show how the scene looked that night — Outsider’s has since closed, for one thing, and jurors would be seeing the area during the daylight and not in the early morning when the shooting occurred.

Lupas set a date for another hearing, Nov. 21, where he will make a ruling on the motion. Attorneys will have time in between to file further briefs.

Prosecutors also responded to defense motions that some evidence photos would be unnecessarily inflammatory, namely those depicting the shooting.

Ferentino said he would not be opposed to showing the photos in black and white to make them less shocking, but he said the photos were necessary.

Sundmaker also filed a motion, asking for prosecutors to be barred from referring to Onley as the “victim,” saying the term implied his client’s guilt. Ferentino balked at this, saying that Onley was a victim of a shooting, regardless of the defendants’ guilt or innocence, and the purpose of the trial was to determine who shot him.

“If we can’t refer to the victim as a victim, what’s next, can we not refer to ourselves as prosecutors?” Ferentino asked.

A final motion regarded a prosecution request to refer to other crimes allegedly committed by Nealy. Ferentino says Nealy acquired the car he was driving in payment for selling another man drugs.

“This vehicle didn’t fall from the sky,” he said, explaining the background story was necessary to explain how he got the car.

Sundmaker, though, said the prosecution’s theory of how he got the car didn’t have enough proof to be brought to the trial.

Lupas said all of these motions would be discussed further at the Nov. 21 hearing, but he did deny a defense motion requesting a bill of particulars — which is a formal written summary of the prosecutors’ case — saying that such details can be found in evidence already provided to the defense by prosecutors.

Battle and Nealy are currently scheduled to go on trial starting on Dec. 10.



By Patrick Kernan

[email protected]

Reach Patrick Kernan at 570-991-6386 or on Twitter @PatKernan

Reach Patrick Kernan at 570-991-6386 or on Twitter @PatKernan