Former Pelham Police Chief Edward B. Fleury who sponsored the event and two other men who provided the weapons are charged with involuntary manslaughter. Hampden District Attorney William M. Bennett did not charge Dr. Bizilj although at a minimum it seems that he may be guilty of child endangerment. ¹

During the shoot Dr. Bizilj videotaped the incident, dropping the camera when his son was shot. The trial was scheduled for last week but it was continued when Fleury got sick. In pretrial motions the defense requested that the prosecution be prevented from playing the video before the jury. The prosecution argued that the video was necessary “to show to the jury ‘how dangerous, how lethal’ the machine gun was in the hands of an 8-year-old boy.” But the defense attorney, Rosemary Curran Scapicchio, argued that there was no question that Christopher was shot or that he died and therefore it is not relevant. The question before the judge was whether the video’s probative value outweighed by it’s predjudicial effect upon the jury. The video is a strong tool and may take the emphasis off whether or not Fleury ² is quilty of manslaughter and place it on the horrendous nature of the death. To prove manslaughter District Attorney William M. Bennett will have to show “an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless.” The Court ruled that in this case the probative value of the tape which will show the effects of allowing the child to shoot the gun and the lack of control over the child’s use of the gun makes it sufficiently probative that the evidence ought to come in. But at the same time the court withheld deciding whether the auditory part of the tape after the camera was dropped in which the father is heard telling his son that he loves him and praying will be used. The judge indicated that that portion of the tape may be excluded.

During the chat room discussions “Shelly” asked Zahursky to bring condoms, and K-Y jelly . When Zahursky arrived at the Starbucks he was arrested by Moore while another agent searched his car. In the car the agent found the condoms, the jelly and directions from Zahursky’s Illinois house to the Starbucks. On appeal Zahursky challenged the search. The Court found it to be a valid search under the automobile exception to the Fourth Amendment’s warrant requirement. The automobile exception started with The Supreme Court’s decision in Carroll v. United States It allows for a search of any vehicle for which there is probable cause that evidence of a crime will be found due to the mobility of the vehicle and the decreased expectation of privacy in a vehicle. The Court found that there was probable cause that the condoms, the K-Y jelly and other evidence of interstate travel (an element of the offense) would be found in the vehicle and therefore the search was legal even though it started before it was discovered that the K-Y jelly and the condoms were not in Zahursky’s pockets.

Another issue on appeal was the admission at trial of evidence of Zahursky’s other contacts with juveniles on chat lines and the use of a witness called “SS” who Zahursky lured into have sex five years prior to the trial when “SS” was fourteen. The appellate court found the evidence appropriate. Evidence cannot be admitted solely to show bad character or a propensity to commit a crime. But the appellate court found that the trial court admitted the evidence under Rule 404(b) of the Federal Evidence Code. Under Rule 404(b) evidence is admissible if

(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged;
(2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue;
(3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and
(4) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.

The appellate court found that the evidence was admissible to show knowledge, motive, and intent. The chat line evidence shows Zahursky’s interest in juvenile sex and therefore is admissible to show his motive in contacting “Shelly.” The numerous discussions on the chat line indicating the girls’ ages is admissible to show lack of mistake.

Zahursky argued that the chat line evidence should be excluded because the probative value of the evidence was substantially outweighed by excessively prejudicial details. But the court did not find that the chat line evidence was unduly prejudicial because Zahursky was unable to prove that as a result of the evidence the jury decided the matter on emotional grounds.

Finally the appellate court remanded the matter to the trial court for resentencing since the trial court erred in enhancing the sentence under the Federal sentencing guidelines for unduly influencing a minor. Based on Seventh Circuit precedent the court found that the enhancement was not appropriate when the “minor” is an agent.

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Vojko Rizvanovic is the father of two young children. He was in a long term relationship with their mother. In 2006 she took the children and moved into a shelter. The family court found that Rizvanovic committed emotional and domestic abuse against the children and their mother. As a result it gave the mother sole custody.

During an overnight visitation Rizvanovic took the children to Australia with the plan to then take them to Macedonia. He was arrested on a stop over in Vienna.

At trial, Rizvanovic argued, as an affirmative defense, that he took the children abroad to protect them from being abused by their mother who had a history of mental illness. During cross examination on the international parental kidnapping charges the court allowed the prosecutor to question Rizvanovic about the family court finding that he abused his family. The Court also permitted rebuttal evidence from the defendant’s seventeen year old daughter regarding his abusiveness. The court instructed the jury that the evidence was not being admitted for the truth of the matter asserted but merely to assist in judging Rizvanovic’s credibility.

Rizvanovic argued that whether or not he was abusive was not relevant to whether he took the children out of the country to escape their mother’s abuse. Both parents could be abusive and his abuse, if any, was not relevant. But the court found evidence of his abuse relevant on the issue of motive. He claimed he was trying to protect the children. The judge felt and the Circuit court agreed that if he claimed that he was trying to protect the children evidence of abuse which was contrary to his claim to protect the children was admissible.

But certainly when you compare the probativeness of the evidence with the prejudice to Rizvanovic it is significantly more prejudicial than it is probative. Considering that his defense was based upon a claim that the children’s mother abused the children evidence that he abused them is prejudicial while of limited probative value on the issue of his credibility. But as we pointed out Monday appellate courts are reluctant to reverse trial court decisions, based upon the admissibility of evidence.

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