A Prince George's Circuit Court judge yesterday threw out most of the major charges against Kellie Day Martin, who is charged in a highly publicized 1998 slaying of a Salvadoran immigrant in Laurel and assaults on two of his brothers.
After considering arguments from Assistant Public Defender David Harding, one of Martin's attorneys, and Assistant State's Attorney Fran Longwell, Circuit Court Judge E. Allen Shepherd dismissed charges of first-degree premeditated murder, second-degree murder, manslaughter and involuntary manslaughter and three counts of first-degree assault.
The most serious charge Martin, 19, still faces, first-degree felony murder, is one that State's Attorney Jack B. Johnson has repeatedly said there is no evidence to support. In several interviews, Johnson has said there is no clear motive for the fatal assault on Gilberto Hernandez, 40, and no credible evidence that the attack began as a robbery. Johnson's remarks have drawn sharp criticism from some Latino advocates and legal observers.
However, after Longwell cited testimony that the fatal assault began as a robbery attempt, Shepherd let stand the charge of first-degree felony murder--in this case, a slaying allegedly committed in the course of a robbery.
Longwell pointed out that Juan Hernandez, who was walking with his brother Gilberto as the attack began, testified that Martin brandished a knife and said, "Give me your money."
"If we believe Juan Hernandez, it's clearly an attempted robbery," Longwell said.
Citing Martin's statements to police that he had chased each of the Hernandez brothers, Shepherd also kept three counts of second-degree assault.
Harding's dismissal motion came near the end of the second day of Martin's trial. Martin is the second teenager to be tried in the Sept. 4, 1998, attack on Gilberto Hernandez and his two younger brothers, Juan and Tomas Hernandez, who were attacked on their way home from their jobs at a Route 1 restaurant.
Tomas escaped on his bike, and Juan escaped on foot.
Last month, a Prince George's County Circuit Court jury convicted Cochise Iraun "Cody" Queen, 18, of involuntary manslaughter and two counts of second-degree assault in the attack. Shepherd sentenced him to 15 years in prison.
According to prosecutors and testimony in Queen's trial, Queen tackled a running Gilberto Hernandez, and Hernandez's head hit a concrete sidewalk, fracturing from the base to the hairline. Prosecutors allege that Martin caused a second fracture to the side of Hernandez's head by kicking him as he lay unconscious.
Originally, Laurel police charged seven teenagers in the attack, which detectives alleged began as a robbery. Johnson dropped charges against four of the original suspects in exchange for their testimony.
Assistant Public Defender John McKenna said in his opening statement that Queen's tackle caused both fractures to the victim's skull. However, Jacqueline Lee, of the D.C. medical examiner's office, testified yesterday that the fractures were separate injuries.