IN COURT: Stewart case may go to jury today

By Nancy Lowry
New Castle News

The fate of Kailin Stewart could be decided by a jury today.

Or Judge Thomas M. Piccione could agree with court-appointed defense attorney Michael Frisk that the commonwealth has failed to prove its case and grant Frisk’s request for an acquittal.

Piccione said he will consider the request, but the case will continue.

Frisk will have his opportunity to present a case today. He said he may call one witness, but it will not be Stewart.

Both sides are prepared to argue their cases to the jury.

Stewart, 22, was charged with criminal homicide and conspiracy to commit homicide following the Feb. 12, 2005, death of New Castle resident Carmen Oliva.

Oliva died from multiple gunshot wounds to the head. His body was found in a car parked on West North Street near the Lee Avenue baseball field.

Ronald Gilmore, Stewart’s father, was convicted by a jury of criminal conspiracy to commit homicide, but acquitted on charges of homicide and illegal possession of a handgun.

He is serving a 17 1/2 to 35 year prison sentence.

COMMONWEALTH RESTS

Lawrence County District Attorney John Bongivengo concluded his case yesterday after some frustrating moments as witnesses changed or could not remember previous statements.

Frisk jumped on the opportunity, arguing that evidence presented by the commonwealth was “not substantial enough for this matter to go to a jury.”

On the criminal conspiracy charge, Frisk said, evidence must show a clear intent to commit the crime charged.

“Mere presence, association or family relationship does not establish conspiratorial agreement.” He also pointed out that witness testimony conflicts.

Yesterday’s prime commonwealth witness, Janel Hein, testified that many of her earlier statements — including that Kailin Stewart had shot Oliva — had been lies. She said she had been so strung out on alcohol and cocaine that she just made up things to say to the police — and to protect Gilmore.

“IT WAS HIS FATHER”

However, yesterday she testified that on Feb. 12, 2005, she, Gilmore, Oliva, Stewart and others were gathered at the Wallace Avenue apartment of Robert “Trucker Bob” Comaduran when she observed a gun in Stewart’s waistband. Following argument on the possibility Oliva was a snitch, Stewart and another man and Oliva and Gilmore left in separate cars.

Later, she said, Gilmore returned out of breath, blood-covered, smelling of alcohol and “all shook up.” She said he told her that he had killed Oliva, that he had shot him three times.

“(Stewart) had absolutely nothing to do with it,” she said. “It was his father.”

“Two cars left (the apartment) but Ronald Gilmore runs back, leaving the car at the scene with a dead man in it,” Frisk noted. “No one saw the other car. It is not reasonable that the car (containing Stewart) followed the other car to the scene.”

Frisk noted that even prosecuting officer Lt. Abram Smith offered the opinion that Gilmore pulled the trigger.

NO PHYSICAL EVIDENCE

“The commonwealth can’t put (Stewart) into the vehicle (with Gilmore and Oliva). There is no physical evidence placing him at the scene, no fingerprints, no witnesses. The only thing is (Hein) saw the top of a weapon. But that is not sufficient to send the case to a jury.”

Frisk added that Hein could not identify the type of gun it was or if it was the gun that was used as the murder weapon.

“They’re trying to tell the court that Kailin Stewart might have given this gun to Ronald Gilmore knowing that he was going to use it to commit a crime. The whole case is circumstantial evidence. There is nothing solid.”

Cherrelle Rice, Stewart’s former girlfriend, said on the witness stand she had been under pressure in 2005 to say she had gone with Stewart to his mother’s house and he left for 20 to 25 minutes about 6:30 p.m.

Yesterday she said the two had been together the entire evening.

Frisk characterized the commonwealth’s case as a “witch hunt.”

“The commonwealth is coming after (Stewart) because he refused to testify against his father,” Frisk said. “Based on what they’ve presented, you have no option but to grant an acquittal.”

Bongivengo admitted some of his evidence is circumstantial, but said he had provided evidence to prove Stewart was an accomplice in Oliva’s death.

CONSPIRACY CASE

“(Hein)... at Trucker Bob’s said Kailin Stewart was armed, there were arguments and threats,” Bongivengo said. “No one else had a gun.”

He also said he had presented a solid conspiracy case.

Kailin Stewart, he noted, was a drug dealer. Gilmore — Stewart’s father — had motive and opportunity to shoot Oliva and eliminate his son’s competition.

He added that based on Rice’s original statements to police, Stewart could have left at 6:30 p.m. that night, gone to the murder scene and been home by 7:30 p.m.

His final witness, Smith, testified that on Monday he drove from Stewart’s mother’s Beckford Street house, to Trucker Bob’s Wallace Avenue apartment to the Lee Avenue ball field and back to Beckford Street. The round trip was made in 19 minutes, he said.

Frisk rejected Bongivengo’s theory.

“You can’t infer the gun (Hein) saw was even a real gun,” he said.

Frisk added that names — including that of a confidential informant — were used through the trial by the commonwealth’s witnesses but those people, who Frisk said could have cleared up a lot of questions, were never called as witnesses.

“This does not deserve to go to the jury The commonwealth does not have a case here. This man deserves to be vindicated of these charges finally after six months.”

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