CONVICTED: Stewart guilty of criminal conspiracy

Kailin Stewart was convicted yesterday of criminal conspiracy in the Feb. 12, 2005, shooting death of Carmen Oliva.

A jury of eight men and four women who found him guilty acquitted Stewart of first-and third degree murder charges in the case.

Stewart is to be sentenced on the conspiracy conviction in 90 days.

With homicide charges no longer pending, defense attorney Michael Frisk asked that bond be set for his client.

Stewart soon will be eligible for parole in a separate illegal gun possession conviction, for which he is currently incarcerated in a Greene County state prison, Frisk said.

He asked that Stewart be allowed to stay in the Lawrence County jail until he is sentenced.

Lawrence County Common Pleas Judge Thomas Piccione, the presiding judge, said he would make the request.

District Attorney John Bongivengo requested Stewart’s bond be set at $250,000, and Piccione set it at $200,000. He also denied Frisk’s motion for acquittal.

Frisk reiterated his argument, that the “mere presence or knowing that a crime was committed” is not enough for a conspiracy conviction and that the commonwealth had not met its burden of proving its case beyond a reasonable doubt — especially in light of the jury’s not guilty verdicts on the murder charges.

Bongivengo, who prosecuted the case, took exception.

“There was enough evidence for the conviction,” he said. “Conspiracy does not have to be spoken, but in this case it was. We had (Stewart) saying ‘We’re going to take care of it.’ And a relationship — a father and son. That was enough evidence, albeit circumstantial.”

Piccione said he had deferred acting on the defense’s motion, but decided let the verdict stand.

Both attorneys said they had anticipated the verdict.

“I expected convictions on the murder charges, but I’m satisfied,” Bongivengo said. “We had the evidence.”

He also said he did not believe the six-month break between the start and conclusion of the trial adversely affected the outcome.

They jury was attentive. Earlier testimony was read to them. They took notes. They were interested.”

Frisk said he is happy with the dismissal of the murder charges, but said he plans to appeal the conspiracy conviction.

“I believe I have a good basis for appeal,” he said. “In my six and one-half years defending cases, I have never had a judge reserve a ruling on an acquittal request until the end of the trial,” he said. “They are usually denied immediately.”

He said he believes the delay might have hurt his case.

“The testimony was read to them, but as good as she was, Mary Beth Thomas (who read the parts of the witnesses) did not convey the spaced-out essence of Trucker Bob,” he said.

Piccione thanked the jury members for their “extraordinary participation.

“You were fair and attentive, took your time and looked at the facts,” he told them. “Our society and democracy would not exist without sacrifices people are willing to make.”

The trial began June 11 but was recessed for six months after only two days of testimony. Bongivengo had filed an appeal with the Pennsylvania Superior Court after Piccione ruled the commonwealth could not use an un-Mirandized statement Stewart had made to prosecutors.

The appeals court upheld Piccione’s ruling in December, clearing the way for the trial to resume.

To refresh everyone’s memories, portions of the June trial testimony were read to the jury Monday morning.

Testimony was concluded Wednesday. Both attorneys argued their points of view and the case went to the jury just after noon.

The jury was excused around 5 p.m. when potentially icy road conditions developed. They resumed deliberations at 9:30 a.m. yesterday, and reached a verdict at 11 a.m.

http://www.ncnewsonline.com/archivesearch/local_story_009100121.html