From Leesburg Today:
Bond Denied For Suspect In Lowes Island Shooting
By Erika Jacobson
(Created: Wednesday, August 19, 2009 12:57 PM EDT)
Bond has been denied for the suspect charged with murder in the July 19 shooting death of a 19-year-old man, despite his attorneys' efforts to show the shooting was done in self-defense.
Defense attorneys for Rasheed L. Nurse, 26, filed a motion seeking bond. According to the motion, Nurse and the victim, Brian Vidarte did not know each other before they attended at party at a home on Tappahannock Place in Lowes Island and only interacted with each other when Nurse stepped in to break up a fight between Vidarte and Nurse's co-defendant Guillermo Alvarado. The motion states that Vidarte "turned on" Nurse and began to attack him.
"The victim struck the defendant twice in the mouth in rapid succession with a weapon, causing severe injury to the defendant by knocking out one of the defendant's front teeth, loosening several other teeth and lacerating the defendant's mouth," the motion reads. "In defense of the attack, the defendant fired a single shot in the direction of the attacking victim."
Nurse has been charged with second degree murder in the shooting death of Vidarte. According to police reports, Vidarte was involved in a verbal altercation with Alvarado during the party, when it moved outside and became physical. According to testimony provided in court Tuesday, Alvarado asked Nurse for his gun, but Nurse refused. At that time, Vidarte hit Nurse twice and Nurse pulled out his gun.
In questioning Investigator Kelly Poland, who interviewed Nurse about the incident, attorney Matthew Snow laid out of the circumstances surrounding the shooting, including that the two hits by Vidarte to Nurse came in rapid succession, that Nurse was stumbling or falling back from the blows when he fired his gun, and that Nurse stated he never intended to shoot Vidarte.
Assistant Commonwealth's Attorney Sean Morgan, who will be prosecuting Nurse's case, objected several times to Snow's line of questioning, stating it was not appropriate for a bond hearing.
"This is a subversion of the bond process. This is not a discovery hearing," Morgan said during one of his objections. "This is a fishing expedition."
In support of bond, the defense pointed out that Nurse called authorities himself, turned himself in and cooperated fully with the investigation. In addition, the attorneys said Nurse is not a member of any criminal street gang and has strong ties to the community, including a mother, a sister and three children.
"This is a situation that is described as a self-defense situation," Snow said. "The testimony presented shows him being the reactor. This situation, we believe, is one where he is protecting himself."
Morgan noted that Nurse was in the middle of Lowes Island Boulevard when the shooting occurred, a large road that provided plenty of time for retreat, as well as questioning Poland about her involvement in observing the medical examiner's study of Vidarte's body. Poland testified the medical examiner said there was a contact burn from Nurse's gun on Vidarte's neck, where the bullet entered his body.
"He chose to introduce a gun to a fist fight," Morgan said. "As for self-defense, that's a jury question. That's a question of fact."
Snow argued the nature and circumstances of the crime were a large portion of what the court should be considering when ruling in a bond hearing. The judge agreed but ultimately denied the motion for bond, citing concerns with Nurse's prior criminal history, including a conviction for failing to appear in court. The judge also cited concerns with the pre-trial risk assessment in which some information about Nurse could not be verified.
Tuesday morning a General District Court judge also denied a motion by the defense seeking additional evidence from the commonwealth in Nurse's case. The defense maintained that because of the extensive investigation into the case and the number of witnesses at the time of the event, there is evidence in the possession of the commonwealth that is needed for Nurse's defense.
"The accused has a right to call for evidence on his own behalf," Snow said.
According to the defense motion, Nurse's attorneys were seeking photographs of the defendant and the injuries he suffered during the fight with Vidarte, including photos taken of the arrest, his booking photos and those taken in the Adult Detention Center days after his arrest. Defense was also seeking the video interview between law enforcement and Nurse's co-defendant Alvarado, a list of all witnesses known by the commonwealth to have been at the party the night of the shooting, recordings of the 911 calls from witnesses to law enforcement and from Nurse to law enforcement. Also requested by the defense was information about any weapon that Vidarte may have possessed or used at the time of the shooting, including testing for DNA and blood from Nurse, the height, weight and age of Vidarte at the time of his death and the Medical Examiner's report on the victim.
The only case law on the subject did not determine at what time evidence needs to be given to the defense through discovery, stating only it needs to happen "prior to trial."
"It is our position that this is the time to do it," Snow said.
But Morgan argued such a motion during the preliminary hearing phase was "premature," stating there is no guarantee the case would make it to trial since it hadn't been certified to or heard by the grand jury.
"A preliminary hearing is not an incident of trial. It is a screening process," Morgan said. "It is not an excuse to go on a fishing expedition through all of the commonwealth's files."
Morgan did add that, if the case goes to trial, "the state is well aware of its obligation" to go through discovery and provide evidence to Nurse's attorneys as needed.
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