BUCKHANNON - Several motions were denied Monday in a pre-trial hearing for the last remaining defendant in an Upshur County murder-for-hire case.
Rodolpho Villagomez Correa, a.k.a. "Chino," 33, of Buckhannon, appeared in Upshur County Circuit Court Monday with his attorneys, Phil Isner and Erika Klie Kolenich.
Correa was indicted in September 2013 on one felony count of first-degree murder and one felony count of conspiracy to commit first-degree murder in the death of 29-year-old Joshua Oberg. Oberg's body was found in a shallow grave along Bull Run Road in a remote area of Upshur County in July 2012. Correa is accused of paying Jessie Lee Heater and Robert Eugene Siron III $5,000 to kill Oberg for having an affair with his wife.
Heater, 31, of Buckhannon, was found guilty in June by an Upshur County jury of first degree murder, conspiracy to commit murder, concealment of a deceased human body and conspiracy to conceal a deceased human body.
Siron III, 31, of Weston, pleaded guilty in December to one felony count of manslaughter and one count of conspiracy to conceal a deceased human body in the death of Oberg.
Kolenich made a motion Monday for the court system to hire a jury consultant, and asked for a change of venue.
"As the court is aware, this case has been the subject of lots of publicity," she said. "We don't believe that Mr. Correa can get a fair trail."
Kolenich said the defense wanted to hire a jury consultant to help gauge if there is bias in the community that would prevent Correa from receiving a fair trail. She said there are online message boards that discuss the case, and said there have been 151 news articles from local media about the case. She noted many of the stories mention the disappearance of Luke Stout, which she said has no bearing on Correa's trail.
Stout, a then 24-year-old Buckhannon native, was reported missing in July 2012. No charges have been filed against Correa relative to the disappearance of Stout,
"We want to hire a jury consultant to do surveys," she said. "I think that if were in a different venue, we wouldn't have the same concerns about jurors. We think by enlisting a juror consultant it would help discover bias."
Kolenich said she has witnesses ready to testify about the supposed bias in the community.
"I don't think that they could testify to the community bias," Circuit Judge Kurt Hall said. "They could testify to their personal bias."
Kolenich responded, "I just think it (bias) is prevalent and it has been over-sensationalized."
Upshur County Prosecuting Attorney Jake Reger objected to the motion.
"They could have filed a motion to have these hearings behind closed doors if they are concerned about the news media," he said. "They have not done that. It seems to me that having a consultant adds to the problem."
Hall said a consultant would conduct a survey of a cross section of residents in Upshur County. He said none of the people interviewed could be used on the jury, and added a consultant may not be able to give definitive results.
"I understand that attempting to panel a jury is how it is done here," Kolenich said. "I think that in this case no one can dispute it has been over-sensationalized or that the community doesn't have hostile feelings toward Mr. Correa."
Hall said he would take the matter under advisement, but noted he was inclined to deny the motion. He said there would be a large jury pool for the trial.
"If we can't impanel a jury, I will hear your motion for a change of venue," Hall said.
The defense also filed several motions for experts to provide insight into the case and possibly to testify.
"These are experts that we feel we are going to need to refute the state," she said. "We need the experts to properly defend Mr. Correa."
Hall said he would need to hear the reasoning behind the experts before he could grant the motions.
"It is unfair for the prosecution to hear our defense," Isner said.
Hall said if he didn't know what the defense would be, he would not grant the motions.
"Our problem is not that the court knows, but that Mr. Reger would know our defense strategy," Isner said.
The two defense attorneys asked for time to confer. After several minutes, Kolenich said she would provide information to the court. The first witness discussed was a toxicology expert she said the defense needed to show how much alcohol and drugs were in the bodies of Heater and Siron when the murder and the hiding of the body occurred. She said the information could show if the two were physically capable of committing the act.
Hall asked how the expert - with no blood sample - would be able to come to a scientific opinion. The defense explained that an expert in toxicology could take Siron's previous testimony and then testify about the scientific basis of what effect the drugs and alcohol had on Siron and Heater. Kolenich said it is a way to examine Siron's credibility.
Hall said the expert would also consider other factors such as the pair's supposed daily use of drugs and alcohol.
"I don't know how they could render any opinion," Hall said.
Isner said whether the toxicology expert would testify or not would be "down the road." He said the defense needed "to talk to an expert to see what the defense could do. We need to be given some latitude."
Hall said he was not going to spend money on expert witnesses without being convinced of their value.
Reger said Heater provided no testimony about drug and alcohol use.
"I don't see how a toxicologist can testify without a blood test," Reger said. "I can't see a basis for it."
The judge denied the motion for a toxicologist. The defense then asked for the court to consider allowing an expert on international and domestic law.
"We believe that Mrs. (Kelly) Correa has something to do with Olberg's disappearance," Kolenich said. "She went out to the murder scene and took evidence to the city police."
The judge asked why the defense would need to consult an expert. Kolenich said Correa's wife was afraid he was going to take the children and leave the country. The defense said an expert could help outline the international law to examine the wife's fears.
"My suggestion is to start brushing up on it," Hall said. "I think between the two of you, you can investigate it."
Reger said he didn't understand why the expert was needed. Hall denied the motion.
The defense then made a motion to bring in a zoology expert. Kolenich said Olberg's body was found in a grave also containing animal bones. She said the prosecution would enlist witnesses that will state Siron chose the location because he previously buried a dog there.
"We have reason to believe that the bones are not from a dog, but a deer," she said.
Hall asked if an expert was needed to tell the difference.
"I can do that," the judge said.
Reger said he didn't believe an expert was necessary and was unsure if the state police had the skull in question.
"Let's find out if we have it," Hall said. "There is no reason if it is not in possession."
Hall said as opposed to hiring a zoology expert the defense could subpoena someone to testify about the skull.
"I am taking this under advisement," the judge said. "I need to know if the skull exists. If it doesn't, it is mute."
Kolenich said the defense has not yet seen the skull. Hall said the court is going to require a photo of the skull and any previous photos that have been taken. He said the defense has the right to see any evidence that has been collected.
The defense also made a motion to hire an independent forensic medical examiner to testify to the state of the decay of the body. Kolenich said there was at least one witness who claims to have seen Olberg after the time frame of when Siron said the events occurred.
"The only thing I know about is that someone was mistaken," Reger said. "Someone made that claim and we were able to identify the person that they say."
The court was also informed that Olberg's body has been cremated. Hall granted the motion, saying the independent medical examiner could study the pictures that were taken during the original examination of the body.
The defense also asked Hall to consider allowing a psychology expert to help determine the validity of witnesses who are incarcerated with Correa. Kolenich said two such witnesses have came forward saying Correa made statements to them about Olberg's death.
She said the expert could help determine if the statements are truthful. Hall denied the motion and said that is for the jury to decide
The defense also made a motion to exclude the testimony of one of those inmates, Kenneth Butcher. Kolenich said Butcher came forward saying Correa made statements to him about the case, but she said Butcher is also a cousin to Stout.
"He (Butcher) made statements in am email that Mr. Correa slit the throat of his cousin," Kolenich said. "The mention of Luke Stout would be prejudice. It is unfair to allow Mr. Butcher to come in to testify without us being able to cross-examine him without bringing that up."
Reger argued that Butcher is a witness for the state and if the defense want to attack his credibility that is up to them.
"I am going to take it under advisement, but I am inclined to decline it," Hall said.
The defense also asked the court to consider bringing in an engineering/construction expert. Kilenich said that Heater and Siron are smaller individuals and the expert was needed to talk about the plausibility of digging the grave and how long it would have taken them.
"I can't see the basis of this," Reger said. "She can cross-examine the witness."
Hall said he didn't see the scientific basis of the request. Kolenich said the expert could help determine how long it would take for the hole to be dug.
"Mr. Isner and I don't dig holes," she said. "We need to know how long it would take."
Hall denied the request, stating it was a matter of common knowledge.
"The jury can decide if to can or can't be done," the judge said. "It is not subject to an expert opinion."
The defense also asked to suppress any testimony in regard to a photo of the victim that was allegedly shown to Correa after the killing. She said the testimony should not be admissible because there is no copy of the photograph available. Siron testified previously that he took the photo on a cell phone that he no longer has.
"We don't have any evidence that the photo exists," she said.
Reger said the evidence should be admissible.
"Mr. Siron can testify about what he did and what he saw," Reger said.
Hall took the motion under advisement.
The defense then made a motion to take the jury to the burial site and to the scene of the murder. The defense said they wanted the jurors to see first hand the terrain that the pair had to go through to bury the body.
Reger said, "You are not going to be able to get a jury out there."
Hall asked if the locations could be shown through photographs or video.
"I think it is impractical to believe these two drug a body to the bottom of the ravine while intoxicated," Kolenich said. "The jury needs to see this."
She said the jury will question how the duo allegedly took a Chevrolet S10 pick-up trick to the site.
"I am not inclined to approve this," Hall said. "How are we going to get a jury out there?"
Isner responded, "That is the point. I drove up there to the site where the murder took place. Pictures don't do it justice. Mr. Siron's story does not add up. Our whole case is to damage Mr. Siron's credibility. I could barely make it out there in a four-wheel drive truck that is much larger."
"I am not going to do that," Hall said after he denied the motion. "I have to consider the safety of the jury."
The defense also made a motion for the prosecution to provide Olberg's criminal history. Kolenich said he was known to walk around town with knives and was charged in Buckhannon for brandishing a weapon. He said he also faced charges on Rhode Island.
"We believe that he was involved with drug-related activities," she said. "They (Olberg and Siron) knew each other before. We have been told they made meth together."
Reger argued against the motion, saying, "Josh Olberg has been murdered. He is not going to testify."
Hall said he would take the motion under consideration.
The defense make another motion to prohibit discussion about Stout. Hall said no one would bring up the Stout case during the trial.
Correa's case was originally set to go to trial in December 2013, but has been delayed multiple times. Jury selection is now scheduled to begin Dec. 8 with the trial to start Dec. 9.