Prosecutors and defense attorneys presented a variety of motions Wednesday at a hearing for alleged child rapist Raul Manuel Magallanez Jr. in Lyon County District Court.
Three cases filed against the 32-year-old Emporian will be heard in one trial scheduled to begin on Monday.
Magallanez faces about 58 charges, including rape of a child less than 14 years old, aggravated intimidation of a witness and multiple charges of rape or sexual intercourse with a child, furnishing alcohol to a child for illicit purposes, aggravated criminal sodomy, indecent solicitation of a child 14 to 16 years of age, sexual exploitation of a child, indecent liberties (fondling or touching) with a child, criminal sodomy with a child between 14 and 16 and furnishing alcohol to a minor.
Assistant Lyon County Attorney Amy Aranda made motions to amend a complaint and endorse additional witnesses.
She asked to change the date of one of Magallanez’s alleged offenses from Oct. 4, 2006 to Nov. 1, 2006.
Defense attorney Julia Spainhour objected to the amendment of charges.
“Our position is that it is a different crime,” Spainhour said. “… The reports that we have received today from the county attorney’s office indicate that the preliminary hearing testimony that was given by the witness in this case has been recanted by her.
“She has said that the entire testimony she gave during the preliminary hearing was not true when she spoke to a police officer on Monday of this week.”
Aranda told the court that the date of occurrence was different and the physical location of the occurrence was at a different location in Lyon County.
“All the other (facts) are the same,” Aranda said.
Spainhour disagreed.
“When asked why she lied to the detective earlier, she basically said she lied because she didn’t want to tell her parents it happened some other time, some other place.”
Aranda said the girl had told the truth about the details of what had occurred; the time and place were different.
Judge Lee Fowler ruled to allow the amendment but denied the motion to add witnesses to testify about a letter allegedly written by Magallanez in which he indicated he wanted to marry a victim in one of the cases.
“We’re still talking about one allegation of the charge of rape,” he said. “We’re not talking about two different acts. … There’s fertile grounds for cross-examination.”
Spainhour argued that she believed the change would cause extreme prejudice and would give the defense only a matter of days to investigate what happened on Nov. 1, 2006.
“Do we have an alibi? Can we assert that alibi at this late date?”
Fowler said that if the case had gone to trial on the original complaint, he believed the jury still could have considered it because the original complaint stated the alleged crime occurred “on or about” Oct. 4.
“I’m not sure the state would have had to amend the complaint to go on with the case,” Fowler said. “Therefore, I would make a finding that the court’s ruling that I made earlier was appropriate and would stand by that amendment.”
Spainhour responded by notifying the court that if her team’s investigation provides an alibi for Magallanez, she would use that defense.
No new witnesses
Aranda’s motion to add witnesses for the trial came as a result of additional evidence that had come into the possession of the Emporia Police Department.
“They would be individuals that told Detective (Lisa) Sage they received a letter from the defendant sometime in May of this year and Detective Sage contacted them and copied that letter.”
The letter is believed to indicate that Magallanez wants to marry the victim in one of the cases and wants to know how she is, Aranda said.
Spainhour objected to the endorsement of additional witnesses, saying she did not know if the letter was written by Magallanez and that it raised questions about chain of custody.
Fowler denied the prosecution’s motion. “I’m not sure it’s relevant to the charges,” the judge said.
Prior conviction allowed
The prosecution also wanted to introduce information about a prior conviction of a crime involving a juvenile. Aranda said Magallanez pleaded no contest in an October 2005 case.
A juvenile in the case accompanied Magallanez to an adult video store, where he purchased “very sexual items for (the victim).
Aranda said the case was relevant and wanted the victim and law enforcement officers to testify about the crime.
Spainhour said the victim had told police that she purchased the item.
“We fail to see that it shows any kind of intent to commit aggravated indecent liberties, which is the charge in this case,” she said.
Fowler ruled that the evidence would be appropriate for the jury to hear and said the defense has the right to object during the trial.
Language restrictions
The court was emptied of observers during arguments presented after Spainhour put forth a motion regarding submission of numerous photographs. The motion was heard under the rape shield statute, which protects the identity of an alleged rape victim.
When open court resumed, Spainhour asked the judge to order those involved at the trial to refrain from using “certain words that tend to inflame the jury’s sentiments against the defendant.”
She asked that complaining witnesses in the case not be referred to as victims.
“They are not indeed victims until the jury has decided that a crime has been committed,” Spainhour said.
She also asked the court to bar use of the words “rape,” “rapist,” “predator,” “grooming” and exploitation.”
County Attorney Marc Goodman said he was aware that “lie” and “liar” should not be used, but said nothing in case law prohibited use of the term victim.
“I’m not quite sure how we have a Victims’ Rights Amendment if we don’t have victims prior to proving guilt,” Goodman said.
Fowler said that he would not grant the request to ban the words.
“These cases don’t happen in a vacuum,” he said. “There’s going to be a lot of words and terms used that some people might find offensive … and not appropriate in every-day language,” he said.
Spainhour also questioned whether some prosecution witnesses might have cases of their own under investigation or pending and wondered whether some had been given “sweetheart” deals to testify against Magallanez.
“Really, the issue is, unless it’s a crime of dishonesty, it’s irrelevant,” Fowler said.
Goodman asked the court to order the young victims’ identities be withheld from publication or broadcast by the media. Fowler agreed to consider that.
Fowler told Magallanez and the attorneys that he planned to interview four panels of 14 prospective jurors on Monday. Two panels would be considered in the morning and two in the afternoon.
“If we lose a lot for cause, we’ll have to have more on the last panel,” Fowler said.
He wants to have the jury chosen by 4 p.m. Monday.
“I’m going to direct them to release them to come back,” Fowler said of the panels. “They don’t have to sit in the room. Probably all jurors will be instructed to appear back at 4 o’clock or 4:30 and at that point, we will tell you those jurors who we’re going to pick.”