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Prosecution continues to call witnesses in Johnston trial

By Staff | Jan 23, 2010

After nearly two weeks of jury selection and five days of testimony, the defense has yet to call its first witness in the double murder trial against its client, Kemar Johnston.
The state continued to build its case Friday by calling to the stand three witnesses, co-defendants of Johnson in the October 2006 torture and slaying of Alexis Sosa, 18, and his nephew, 14-year-old Jeffrey Sosa. Michael Balint, Melissa Rivera and Alexis Fernandez told the 12-member jury what they said they recalled of the night the Sosas were killed.
All three have pleaded guilty to lesser charges for a reduced sentence in exchange for their testimony against their co-defendants. Johnston , 23, was one of 10 people charged in connection to the double homicide. He faces two counts each of first-degree murder, kidnapping and aggravated battery with a deadly weapon.
If convicted, Johnston faces life in prison without parole or death.
The Sosas were hog-tied, beaten and tortured at a Cape Coral duplex during a birthday party. They were then driven to an industrial park in the north Cape, where they were fatally shot and Alexis’ body was placed in the truck of his own car and set on fire. The car was discovered in flames, with Jeffrey’s body lying nearby, by firefighters.
Balint told the jury Friday that Johnston handed shoelaces to him and told him to tie up Alexis, which he admitted to doing, but said that he did not tie up Jeffrey. Balint said he saw Johnston at one point in the night with a gun, but never saw a knife or anyone carve anything into the Sosas’ backs.
“It was on the counter and his hand was on top of it,” he said of the gun.
Under cross-examination by the defense, Balint testified that he had been drinking, smoking marijuana and taking prescription pills during the day leading up to the night of the party. He said he gave Johnston some pills, saw people throw things the Sosas while they were in the kitchen and saw people burglarizing Alexis’ car outside when he left.
“People were taking stuff out of a car. They were taking all kinds of stuff,” he said, adding that he stole a CD player from the vehicle.
According to Balint, it was about 15 months after the party before police picked him up on a warrant. He said he remembered what he had done the night of the party, but he did not know police were looking for him. During police questioning, Balint reportedly asked for a lawyer, but the detectives did not get him one and continued their interrogation.
Rivera told the jury that she also was smoking marijuana and drinking before the party started. She denied selling any pills to Johnston that night, which conflicts with testimony from other witnesses who said that she did, and Rivera said she did not know if Johnston had taken any pills during the party.
According to Rivera, two recorded voice messages were played at the party consisting of Alexis threatening to kill someone and their family. Other witnesses who have testified in the past few days, also attendees at the party, reported hearing only one voice message on a cell phone played while others said they never heard any voice message.
“Basically it was threats like, ‘I’m gonna kill you and your whole family,'” Rivera said.
She said Johnston and co-defendant Kenneth “Ant” Lopez had firearms, which they pointed at the Sosas. Johnston told a neighbor who lived across the street to “throw the first punch” and hit Alexis, then others in the kitchen joined the fight. Co-defendant Cody Roux testified Thursday that he was the first to hit Alexis, while other testimony has pointed to others.
Rivera said she tried to get the guys to stop fighting but Johnston snapped at her.
“He told me to shut up, it had nothing to do with me,” she said.
According to Rivera, she was later told by Johnston to retrieve a Taser from his bedroom to use on Alexis. After she used the Taser on the older Sosa just once, Johnson gave her a knife and told her to “do over” a backward F carved into Alexis’ back. After doing as she was told, Rivera left the kitchen and later heard a gunshot, she told the jury.
Some witnesses said they too heard a gunshot while at the duplex. Fernandez and others said they heard no such thing.
Rivera testified that the Sosas were removed from the home at some point, and she and others piled into three cars and headed for the industrial park at Johnston’s direction. At the site, she remained in one car with four others — all co-defendants in the case — then heard gunshots but could not see anything. They left the site and returned to the duplex.
Under cross-examination, Rivera told the jury that Johnston is the uncle of her two children and that he and the children had a close relationship. She said he helped take care of the youths by providing her with money and them with affection. Others have testified that Johnston bought toys for the children and worried about their well-being.
As with many witnesses who have taken the stand, the defense questioned discrepancies in the story she first told police about what happened on the night of the party against the final story and details she testified to in court. Rivera initially told police that she did not remember anything that happened that night and did not know who had a firearm.
Rivera had trouble answering many of the defense’s questions about the night of the party. Multiple times she had to reference her proffer, the contract with the state about what she would testify to, to find the correct answer to a question. Rivera reported that her memory was better when she signed the proffer.
“It was so long ago I don’t remember a lot of stuff,” she said, adding that she has tried to block out the night of the party from her memory. “I don’t remember a lot of things.”
Fernandez testified that he saw the Sosas in the kitchen, Alexis was tied up at the time, but he did not help them because it was not his business. Instead, he stayed out of the way and mingled with the others at the party in the living room and out on the patio.
“Everyone was acting normal, not paying attention to what was going on in the kitchen,” he said.
According to Fernandez, he saw Johnston hit Alexis once with a firearm and later heard “pleading” coming from the kitchen. Fernandez denied hitting Alexis at any point in the night, although others who testified before him told a different story. Later Fernandez was approached by Johnson and told his car was blocking another car. Johnston asked for the keys to move Fernandez’s car and he handed them over to Johnston, he said.
“I didn’t think anything of it,” Fernandez said.
He then saw the Sosas, with what “looked like trash bags” over their heads, put in the trunk of his car. Johnston asked Fernandez to drive and they piled into the car. He said that he did not refuse to drive because he felt like he “really didn’t have a choice.” The three cars left and headed for the industrial park. Once parked, Fernandez removed one Sosa from his trunk and put him in the trunk of Alexis’ vehicle.
“I just felt like I had to do it, that I didn’t have a choice,” he said, adding that the person he carried was alive at the time.
As Fernandez headed back to his car, he heard gunfire.
“That’s when I heard shots,” he said. “More than five.”
Fernandez testified that he turned around and saw “Kemar (Johnston) and another individual shooting into the back of the Lexus,” Alexis’ vehicle. Fernandez got back into his car, Johnston got into the front passenger seat and a third person got into the back seat and they drove from the industrial site back to the duplex.
After spending the night at the duplex, Fernandez left the next morning. Later that day he discovered a handgun in the glove compartment of his car. He sold the gun to a friend for between $100 and $200, Fernandez said.
“I didn’t want to have anything to do with what happened the night before,” he said when asked why he did not give the gun to the police. “The police would just make things worse for me.”
During cross-examination, Fernandez testified that like the others, he had consumed a large amount of alcohol and illegal drugs before and during the party. He said he was so messed up that he walked into a neighbor’s garage by accident, and he did not recall smoking marijuana that night with others who testified that he had.
Fernandez said he never saw one witness, Andrew Touchstone, touch the Sosas. Others have testified to seeing Touchstone hit Alexis with dishes and plates and break a liquor bottle over his head, as well as attempt to attack Jeffrey before being stopped.
The defense pointed out that in co-defendant Roderick Washington’s first trial, Fernandez testified Lopez was the second shooter at the industrial site. At Washington ‘s second trial, he testified that he “was not sure” who the second shooter was, changing his story.
“Over time memory is just not the same,” Fernandez said. “I wasn’t 100 percent … I wasn’t sure who it was.”
The defense also noted that in his first statement to police, Fernandez said “some black guy” asked for the keys to his car, not Johnston, and he did not know who shot the Sosas.
Fernandez told the jury that he took the lining out of the trunk of his car because it had the Sosas’ blood on it and he “didn’t want nothing like that smelling up” his vehicle. He cleaned up the pair of sneakers he wore the night of the party because they had blood on them, and he lied to police about the gun — he told police he gave it to a homeless man.
“It’s unfortunate what happened to them,” he said of the Sosas. “It shouldn’t have gone that far.”
The trial continues at 9 p.m. Monday at the Lee County Justice Center in Fort Myers before 20th Judicial Circuit Judge Thomas S. Reese. Assistant State Attorneys Bob Lee and Marie Doerr are prosecuting the case, and attorneys David A. Brener and Terry Lenmaon are defending Johnston.
Washington and Ashley Toye were found guilty following separate trials. Washington received four consecutive life sentences plus 30 years in prison, and Toye was sentenced to life in prison without parole.
Iriana Santos, Rivera, Fernandez, Roux and Balint have each pleaded guilty to lesser crimes and will receive prison sentences varying between 14 years and 26 years.
Lopez is scheduled to go to trial Feb. 1.
Paul Nunes, who pleaded guilty for a reduced sentence of 40 years, has a court date in March with his attorney, Melodee Smith. Reese appointed Smith to the case after Nunes requested that his plea deal, requiring that he testify against Lopez and Johnston, be withdrawn.