MOUNT VERNON – Fifth District appellate judges concluded that Madison County associate judge Martin Mengarelli's first criminal trial was spoiled as soon as it started.
The appellate court reversed the felony conviction of Arron Dewerff on Jan. 20, finding Mengarelli allowed prosecutors to perform his job of instructing jurors on matters of law.
Justice Randy Moore wrote that the purpose of voir dire is to expose bias, “not to perform a self created, protracted I.Q. test on potential jurors.”
Justices Judy Cates and Barry Vaughan concurred.
Dewerff was charged as a felon in possession of a weapon and ammunition after officers searched a property he owned in September 2019.
He had a conviction for aggravated domestic battery from 2003.
Thirty potential jurors reported for trial in 2021, and Mengarelli told them it was his first criminal trial.
During voir dire, the prosecutor said he would give an example of circumstantial evidence.
He asked jurors to imagine a plate full of cookies on a table and a mom and a dad with a child.
“They’re not fully aware of what’s going on behind them and the next thing they know, they look over and the plate of cookies is gone,” he said.
He said they see crumbs on the table and maybe chocolate smeared somewhere, and in the living room they see a child with crumbs on his hands.
“Is there anyone in this room that would have a problem with connecting all of those pieces and saying the kid was the one that ate the cookies?” he asked.
Someone said there could be a dog, and the prosecutor said, “Fair enough, let’s say that there is no dog.”
That satisfied the dog person and when the prosecutor asked if anyone had questions, no one responded.
Next he referred to an issue of possession versus ownership.
He asked jurors how many 16 year olds buy cars for themselves.
He asked if anybody had an issue with distinguishing the person who bought and owns the car versus the person who uses it to go to school, sports, and classes.
No one responded.
He asked if anyone had an issue of stating the teen possesses the car, and no one responded.
The lawyers picked 12 jurors and two alternates, so they didn’t need a second pool.
Detective Timothy Lawrence testified that officers executed a warrant when no one else was present.
He said officers found manuals for firearms and more than 2,700 rounds of ammunition.
On cross examination, Lawrence said Dewerff’s girlfriend Brandi Talley had a valid firearm card and he couldn’t ask her about ownership because she wouldn’t speak with him.
He said he didn’t know the last time Dewerff had been there.
Captain Kristopher Tharp testified on cross examination that some of the ammunition would have fit a firearm that belonged to Talley.
Talley, no longer in relationship with Dewerff, testified that all the items the officers seized belonged to him and he obtained her firearm card.
She said he kept firearms in the bedroom and in a gun safe she couldn’t access.
She said he handled long rifles and small pistols, and he shot at targets on the property.
She added that she saw several boxes of ammunition.
Her father Kevin Talley and her two minor daughters corroborated her testimony.
Dewerff countered with testimony of his brothers, Jeffrey and Eric, who said Arron didn’t live on the property from July 2019 to January 2020.
Dewerff’s aunt Katrina Gibbs testified that Brandi lived there until Thanksgiving 2019.
Arron Dewerff took the stand in his own defense and said any ammunition the officers found belonged to Talley.
He said no firearms were stored in the home when he lived there.
He also said she shot at targets in the back yard.
He added that he didn’t have a key to the gun safe.
Jurors retired to deliberate and after an hour they sent Mengarelli a note asking for a copy of the statute or clarification of the charge.
They asked if it was legal for a felon to live around guns and ammunition.
They asked if living around guns where someone has a card would be considered possession.
Mengarelli told them the law was in the instructions they received.
Two hours later, they sent a note that they were 11 to one, and he told them to continue.
Two and a half hours later, they found Dewerff guilty.
Mengarelli sentenced him for three years at 50% and with credit for time served.
Fifth District justices found the jury notes led to a reasonable inference that jurors struggled with whether Dewerff possessed the ammunition.
They found the jurors were inoculated against the defense’s entire theory before they had heard a single shred of his evidence.
Moore wrote that broad questions are generally permissible at voir dire but specific questions tailored to a case and intended as preliminary final argument are not.
He wrote that to his knowledge no court in the state ever allowed counsel to preface such questioning with extensive narrative examples.
“This case essentially came down to a credibility contest between two witnesses who were once in an intimate relationship with each other but no longer were at the time of the trial,” Moore wrote.
He wrote that no physical evidence connecting Dewerfff was produced.
The justices awarded a second trial.
Dewerff completed his incarceration last April.