Murder charges against two men are dismissed in beating death

September 15, 2004|by CANDICE BOSELY

MARTINSBURG, W.VA. - Felony murder charges were dismissed Wednesday against two men who were charged with beating 93-year-old Delbert Rodgers to death in January 2003 because the state's main witness no longer plans to cooperate, Berkeley County Prosecutor Pamela Games-Neely said.

Berkeley County Circuit Judge Christopher Wilkes on Wednesday afternoon granted a prosecution motion to drop charges of felony murder, attempted robbery and conspiracy to commit robbery against Christopher Grady, 38, and Kevin Richard Cornell, 42, of Martinsburg.

"You don't mind losing, but you hate to lose on a technicality," Games-Neely said.

The witness, John Michael Dignazio, 31, is to be arraigned Friday on the same charges Grady and Cornell faced. Police have alleged that all three men took part in the beating.


Dignazio previously gave several statements to police, but Games-Neely said she learned late Tuesday that he planned to invoke his Fifth Amendment right not to testify unless the state cut him a deal.

"We can't live with his terms," said Games-Neely, who would not detail Dignazio's demands.

Until recently, Dignazio's past statements to police could have been used against him and the other two men. Although they can still be used against Dignazio, a U.S. Supreme Court decision handed down in March declared that such statements cannot be used against alleged co-conspirators.

The opinion, originating from the case of Crawford v. Washington, reads that such statements of others cannot be used as evidence because there was no chance for cross-examination.

"Where testimonial statements are at issue, the only indicum of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation," according to the court's 33-page opinion.

"It's ironclad. There's no ifs, ands or buts," Games-Neely said of the court's opinion.

"Let me put it to you this way. I think the Crawford decision is the worst case to come down for prosecution since Miranda," Games-Neely said.

Neither Cornell nor Grady gave police a statement and no physical evidence linked any of the men to the Airport Road home of Rodgers, who was beaten and tied up. His body was found by a caretaker on Jan. 5, 2003.

West Virginia State Police Trooper J.C. Weaver previously testified during a preliminary hearing that police did not find any fingerprints, usable footprints, blood evidence, hairs or fibers at the scene that would link the men to Rodgers' home.

"We didn't have any choice but to do what we did," Games-Neely said. "There's no additional evidence that could be admitted.

"All we had was basically Dignazio's statement and some real sketchy details from other people that didn't really give us anything."

Members of Rodgers' family were kept apprised of the situation with Dignazio and knew it was possible charges could be dropped, Games-Neely said.

They wanted to know whether Games-Neely intended to pursue a case against Dignazio, which she said she does.

At his arraignment Friday, Dignazio must plead either guilty or not guilty. If he pleads not guilty, a trial date will be set.

Neither Grady nor Cornell face any additional charges in Berkeley County. Cornell was released from Eastern Regional Jail, a jail spokesman said.

Grady was still being held at the jail. He faces unrelated charges in Morgan County, W.Va., and Frederick County, Va., Games-Neely said.

West Virginia State Police troopers have said robbery was the motive for the beating.

According to records filed in Magistrate Court, troopers responded to Rodgers' home at 1214 Airport Road, Martinsburg, and found Rodgers' hands bound to his leg with duct tape.

Dignazio later told police that Grady knew Rodgers because he previously had done work for him. Dignazio said Grady used a phone cord to choke Rodgers in an attempt to make Rodgers tell the men where his money could be found, records state.

Details in Dignazio's statement matched evidence found at the crime scene, police said.

Rodgers died of blunt force traumatic injuries to his head and chest, a state medical examiner determined. His sternum and several ribs were broken, according to the autopsy report.

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