Tuesday, August 26, 2008

DA's Supplemental Brief in Response to Motions for Severance



Joseph Kerekes duly filed a Notice of Alibi defense indicating that he was at the Fox Ridge Inn the evening of January 24, 2007. Mr. Kerekes had signed in the hotel the evening before, noting that there would be two occupants.

Co-Defendant Harlow Cuadra flIed an untimely Notice of Alibi defense stating be was at the Fox Ridge Inn on January 24, 2007.

In conclusory fashion, Defense Counsel broadly asserts the defenses are antagonistic without reference to any facts.

In Commonwealth. v. Jones 610 A.2d 93 530 Pa 591 (Pa., 1992), the Pennsylvania Supreme Court wrote, “There is nothing inherently antagonistic about alibi defenses being used by multiple defendants.”


1. Whether or not the Defendants have shown actual prejudice from consolidated cases so as to warrant severance?


2. Whether or not the Virginia Beach prison intercepts are admissible as adoptive admissions where the Defendant Cuadra, responding to Defendant Kerekes, states:

a. JOSEPH KEREKES: Listen we have to go to Plan B, we went there.
HARLOW CUADRA: Alright, airight. Hey Joe, don’t don’t say anything over the phone, I already need to, I already know.

b. JOSEPH KEREKES: Harlow, it’s pretty, it’s pretty much what we already know, remember what Plan B was, right?
JOSEPH KEREKES: Okay, and umm...
JOSEPH KEREKES: Because we can’t get any...we have to tell, ya know what I mean?
JOSEPH KEREKES: Are you good with that?
HARLOW CUADRA: Yea, I’m good, I’m good.

c. JOSEPH KEREKES: Do you remember though what is was, you, you had an appointment, I mean..
HARLOW CUADRA: I know, I know, I know...
JOSEPH KEREKES: Egh, Egh, Egh, Egh.
HARLOW CUADRA: I, I, I know, I know Joe.
JOSEPH KEREKES: And I wasn’t there.
HARLOW CUADRA: Everything, everything’s in my head, just be very calm, alright?

d. JOSEPH KEREKES: Hey Harlow, when I’m off the phone here she’s gonna explain to you the hypothetical okay?

e. JOSEPH KEREKES: So Harlow pretty much knows the hypothetical story, right?



A. The Defendants’ Alibi Defenses Do Not Warrant Severance In Commonwealth. v. Jones 610 A.2d 931, 530 Pa 591 (Pa., 1992), a capital case with thee defendants, the Defendant Jones claimed a severance was warranted because both he and his co defendant presented alibi defenses and it was possible that appellant’s defense might be prejudiced by conflicts with testimony presented by the co-defendants. The Supreme Court wrote:

“Appellant’s first contention is that a motion to sever his trial from that of his codefendants was erroneously denied. The record is silent as to the circumstances surrounding the denial of appellant’s motion for severance. The motion was not denied by the trial court, but rather by another judge. Appellant has not cited anything in the record indicating the grounds on which the motion rested. The trial court, in preparing its opinion for purposes of this appeal, expressed uncertainty as to the grounds asserted for severance. It speculated that appellant presented his motion to a calendar control judge in proceedings not transcribed, but acknowledged that appellant may have at some time during trial presented a renewed oral motion for severance.”

“Nevertheless, appellant claims that severance would have spared him prejudice from testimony given by certain alibi witnesses who appeared on behalf of codefendant Givens. Numerous alibi witnesses testified that Givens was not in the courtyard at the time of the shootings. Three of these testified further, however, that they saw appellant and Robertson commit the shootings. Appellant claims therefore that his own defense, which was one of alibi, was inherently contradictory with Givens’ defense. While the record provides no basis to determine the grounds actually asserted for severance, we believe that if, as appellant infers, the motion for severance was based on the possibility that appellant’s defense might be prejudiced by conflicts with testimony presented by the codefendants, the motion was properly denied.” Id.

“It is well established that a motion for severance is addressed to the sound discretion of the trial court, and that its decision will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Chester 526 Pa. 578, 589-90, 587 A.2d 1367, 1372-73 (1991), cert. denied, U.S. 112 S.Ct. 152, 442, 116 L.Ed.2d 442 (1991). Where, as was the case here, defendants have been charged with conspiracy, joint rather than separate trials are to be preferred. Id. Commonwealth v. Jackson 451 Pa. 462, 464, 303 A.2d 924, 925 (1973) (joint trials are advisable where multiple defendants are charged with participation in the same criminal acts and much of the same evidence is necessary or applicable to all of the defendants). severance may nevertheless be proper where a defendant can show that he will be prejudiced by a joint trial. Commonwealth v. Chester 526 Pa. at 590, 587 A.2d at 1372-73.” Id.

“Although the possibility of conflicting defenses is a factor to be considered in deciding whether to grant severance, it is clear that more than a bare assertion of conflict is required. Id. at 590, 587 A.2d at 1373. As stated Commonwealth v. Chester 526 Pa. at 590, 587 A.2d at 1373, “ mere fact that there is hostility between defendants, or that one may try to save himself at the ex of another, is in itself not sufficient grounds to require separate trials. Further, “defenses become antagonistic only when the jury, in order to believe the essence of testimony offered on behalf of one defendant, must necessarily disbelieve the testimony of his co defendant.” Id.

“Applying these principles to the present case, it is evident that the essence of Givens’ defense was his own non-participation in the crime rather than the involvement of appellant and Robertson. Givens presented many witnesses in support of his defense of alibi, and, of these, only three testified that appellant was involved in the crime. Givens testified in support of his own alibi defense, and he did not, in any way, implicate appellant. Thus, the core of Givens’ defense was one of alibi, as was the core of appellant’s defense. There is nothing inherently antagonistic about alibi defnses being used by multiple defendants”. Id.

“While portions of the testimony provided by a few of Givens’ alibi witnesses indeed proved to be at odds with appellant’s defense that he was not at the scene of the crime, the record does not reveal whether such a conflict was made known to the court when the motion for severance was offered. Even assuming that the conflict was made known, the testimony would not have so affected appellant’s defense as to render the decision not to sever the trials a manifest abuse of discretion.”

“If the severance motion had been granted the Commonwealth would likely have been able, if it desired, to introduce testimony against appellant from the same three witnesses in a separate trial. Hence, granting the motion to sever would not have insulated appellant from the testimony in question.” Id.

“Further, the testimony was of very doubtful significance, since the Commonwealth produced six or more of its own witnesses who testified that they saw appellant commit the shootings. Quite obviously, too, Givens’ alibi witnesses were not believed by the jury. If they had been believed, Givens would not have been found guilty. It is most unlikely, therefore, that their testimony played any role in appellant’s conviction.” Id.

“Thus, the three defendants were charged with conspiracy, making a joint trial advisable. Much of the evidence pertained to all three defendants, rather than to just one. The testimony given by a few of Givens’ alibi witnesses, even if the adverse nature of it had been foreseen at the time the motion for severance was made, was not such as would have necessitated that the defendants be tried separately. Further, the trial was a very lengthy one, consuming more than two months. It was characterized by the trial court as one of the most time-consuming homicide trials ever conducted in Philadelphia. A record in excess of seven thousand pages was produced. To have conducted separate trials for the codefendants in this case would have placed a heavy burden upon the judicial system as well as upon the public. Based upon these considerations, the trial court committed no abuse of discretion in denying the motion for severance.” Id.

In Clark v. O’Dea 257 F.3d 498 (6th Cir. 2001), Clark argued that he was improperly joined for trial with co-defendant Hardin. He alleges that standing trial with Hardin substantially prejudiced him, because most of the evidence of satanism related only to Hardin and not to him. Specifically, the prosecution elicited testimony about a sketch book of sacrilegious drawings, a handwritten book of spells, and a satanic poem. These items, however, were all possessions of Hardin, not Clark Similarly, Clark argues that testimony about the threat that Hardin made to Warford related only to Hardin, and not to himself.

The Clark court wrote: “This court has held, in a Sixth Amendment habeas challenge, that a defendant must show both (1) an abuse of discretion on the part of the trial court and (2) compelling and specific prejudice in order to successfully challenge the joinder of his trial with that of a codefendant. Jenkins v. Bordenkircher 611 F.2d 162, 168 (6th Cir. 1979). Furthermore, we have found no compelling and specific prejudice where a codefendant’s testimony did not expressly implicate the defendant. United States v. Sherlin 67 F.3d 1208, 1215 (6th Cir. 1995) (holding that, in a federal prosecution, the admission of a confession by Sherlin’s codefendant did not violate Sherlin’s confrontation rights where his name was redacted from the codefendant’s confession and the confession did not expressly implicate Sherlin).”

“No compelling and specific prejudice to Clark’s case has been shown here. Clark and Hardin do not even present mutually antagonistic defenses. Instead, both defendants presented essentially the same alibi defense to the jury - that they were with each other at another location on the evening of the murder. At most, testimony about Hardin’s satanism and threats towards Warford only implicate Clark by association, not by direct reference But the fact that there “is a substantial difference in the amount of evidence adduced against each defendant is not grounds to overturn a denial of severance unless there is a substantial risk that the jury could not compartmentalize or distinguish between the evidence against each defendant.” 14. citing United States v. Lloyd 10 F.3d 1197, 1215 (6th Cir. 1993).

The court went on to write, “In the present case, a jury could easily separate the testimony against Hardin from the testimony against Clark, because the testimony about Hardin’s threats and satanic paraphernalia was not particularly complex. See 14. at 1216 (upholding the joint trial of several defendants in a prosecution for drug trafficking because “this case, while lengthy, was not a case of such complexity that the jury could not compartmentalize the evidence”). Indeed, the state court had ample reasons to try Clark and Hardin together, because they both were charged with committing the same crime. Buchanan v. Kentucky 483 U.S. 402, 418 (1987) (recognizing that the state has an interest in proceeding with joint trials where “all of the crimes charged against the joined defendants arise out of one chain of events, where there is a single victim, and where, in fact, the defendants are indicted on several of the same counts”).”

“Nor has Clark demonstrated that the Kentucky Supreme Court, in allowing Clark and Hardin to be jointly tried, based its decision on “an unreasonable application of... clearly established Federal law” as required for habeas relief. 28 U.S.C. § 2254(d). In a prior case, the Kentucky Supreme Court specifically declared that the mere introduction of evidence that is competent as to one defendant and incompetent as to the other is not in and of itself grounds to grant a severance... [O]rdinarily there must be some additional factor, such as that the defendants have antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate the other, e.g., one defendant's admissions directly implicate the other.” Id. citing Compton v. Commonwealth 602 S.W.2d 150, 152-23 (Ky. 1980).

“Here, Clark presented no additional factors. The evidence against Hardin -- his satanic paraphernalia and threats against Warford -- did not directly implicate Clark in Hardin’s actions. Any implication of Clark comes indirectly through Clark’s association with Hardin. Skinner v. Commonwealth 864 S.W.2d 290 (Ky. 1993) (holding that the defendant failed to establish that he should have been tried separately from his codefendants, despite his contention that he was prejudiced by the introduction of evidence about his codefendants’ misdeeds). Because the decision of the Kentucky Supreme Court in Clark’s appeal falls within the realm of plausible and credible results, and is not unreasonable in its analysis of law or fact, we reject Clark’s habeas challenge to the joinder of his trial with that of Hardin.”

In this case, Cuadra’s and Kerekes’ alibi defenses are consistent. Neither defendant is pointing the finger at the other, Neither defendant is saying the other committed any crime whatsoever. The alibi defenses are consistent, compatible, congruent, and commensurate with each other. In fact, Defendant Kerekes, the evening before the homicide, even indicated that TWO people would be in the room on the Fox Ridge Inn registration slip.

B. The Virginia Beach Prison Intercepts are Admissible as Adoptive Admissions

To clarify for Defense Counsel, the Virginia Beach prison tapes are offered as adoptive admissions. The adoptive admission is a separate concept from the co-conspirator exception to the hearsay rule.

The twenty-fifth exception listed within Rule 803 is designated, “Admisison by Party-Opponent,” and it encompasses both of the exceptions urged by the Commonwealth, is as follows:

“(25) Admission by Party-Opponent
The statement is offered against a party and is... (B) a statement of which the party has manifested an adoption or belief in its truth,...” Furthermore, a person is considered to have adopted the conspiracy and can be held liable for the actions of others involved in the conspiracy. “Once there is evidence of the presence of a conspiracy, conspirators are liable for acts of co-conspirators committed in furtherance of this conspiracy.” Commonwealth v. Lambert 795 A.2d 1010 (Super.2002), appeal denied 805 A 521. “Once the trier of fact finds that there was an agreement and the defendant intentionally entered into the agreement, that defendant may be liable under conspiracy theory, for the overt acts committed in furtherance of the conspiracy regardless of which co-conspirator committed the act.” Commonwealth v. Murphy 844 A 1228 (Super.2004).

Kerekes outlines Plan B to Renee Martin. Cuadra is not a participant to that conversation. See conversation #98 of “Transcripts of Intercepted Telephone Calls at the Virginia Beach Correctional Facility” (filed by the Commonwealth as a bound exhibit on July 7, 2008). (Note: The Commonwealth intends to redact the following phrases from that conversation on page 23:

JOSEPH KEREKES: Well, well why isn’t Harlow calling is he with Brice now?
RENEE MARTIN: Yea, yea, he’s with Brice now.
JOSEPH KEREKES: Well how do you know that?
RENEE MARTIN: Umm, because I talked to Jim Brice and he said he was going in to see Harlow, he’d call me back.)

The Commonwealth also intends to redact intercepted call #99 (also in the bound filing), an intercepted conversation between Joseph Kerekes and Renee Martin, as follows:

At page 37, Joseph Kerekes states, “... ya know and even the day of the supposed meeting when I thought that he would do business with this man, I said Harlow, do you really think we need to do this business with man, we have our own company, do we need to do this business with this man, anyways, this is all stuff Harlow will verify I sure, if it ever has to be.” The Commonwealth would seek to delete the italicized portion of Defendant Kerekes’ statement for trial (“I said Harlow” to the end of the statement would be deleted).

At page 38 of the same conversation, Defendant Kerekes states, “Umm, a very small bottle of liquid, that you might use at a picnic. Yes, you know... and umm, I said Harlow.” The Commonwealth would seek to delete the “I said Harlow” portion of the statement for trial. By removing those two references, that particular conversation would not identify Harlow, and the Commonwealth submits the conversation should be admissible at a joint trial.

Thereafter, in conversation #101 at pages 43-45: #101-103 at page 49; and #104 (all contained in the Commonwealth’s bound filing), Cuadra, responding to Kerekes, adopts Plan B as outlined above on page 2. The intercepted conversations from the Virginia Beach prison outlined above, and within the above-referenced Commonwealth filing, are adoptive admissions. Both Defendants are adopting ‘Plan B’ as a common scheme or design. The conversations are also evidence of the Defendants adopting the conspiracy. The Commonwealth submits that the statements are admissible against both parties and their use is not grounds for severance.