Accused Killer To Face Robbery Charge; Trial Delayed

November 30, 2018
Accused Killer To Face Robbery Charge; Trial Delayed

WILKES-BARRE — County prosecutors on Friday won a legal battle to add a robbery charge against accused killer Antoine McNeal, but the victory resulted in his murder trial being delayed a month.

McNeal, 34, had been set to stand trial Monday on criminal homicide charges alleging he gunned down Brandon Smith, 20, outside his West Church Street, Nanticoke, home on Jan. 18, 2017. 

But Luzerne County Judge Tina Polachek Gartley on Friday afternoon granted a prosecution motion to add a robbery charge against McNeal and delayed the trial until Jan. 7 to give the defense time to prepare against the additional count.

Prosecutors had been seeking to add the last-minute robbery charge as the result of recorded jailhouse phone calls in which McNeal referenced Smith having 30-milligram oxycodone pills in his pocket at the time of the shooting.

“The (expletive) had other drugs in his pocket so evidently someone else was coming to see him besides me,” prosecutors quoted McNeal as saying.

During a hearing Friday morning, Assistant District Attorney Thomas J. Hogans said prosecutors only in the past few weeks came across the statements while reviewing about 2,000 jailhouse phone calls McNeal has made since his arrest.

He argued that the robbery charge would represent only a “minor change” to the alleged shooting scenario and should not significantly affect the defense.

“The only additional fact would be that the victim had pills in his pocket that were no longer there (when police found Smith),” Hogans said.

Defense attorney Demetrius W. Fannick argued that the addition of the charge at such a late stage would severely prejudice McNeal, who never had a chance to challenge the charge at a preliminary hearing. Fannick also noted that aside from Mcneal’s purported statement, there is no independent evidence that a robbery had even taken place.

The addition of a robbery charge would also profoundly change the defense strategy on the eve of trial, he maintained. If Smith were killed during a robbery, that would open the door for prosecutors to argue merely that Smith died while McNeal was committing a felony, rather than having to prove McNeal murdered Smith with premeditation.

“If the amendment is allowed, it does materially affect the defense we have prepared,” Fannick said. “I wish I could explain the seriousness of how this affects the defense at this juncture.”

Luzerne County Judge Tina Polachek Gartley expressed concern about grant the prosecution request, noting it came on the “eve of trial” and that legal briefs never before mentioned the possibility of prosecutors seeking a conviction for second-degree murder.

“There’s never been reference to a robbery, which would bring second-degree murder into the fold,” Gartley said.

She added that if she granted the request she would continue the trial to allow the defense time to prepare.

She recessed the court to review case law on the matter, and then issued a brief order granting the prosecution motion. Gartley set a preliminary hearing on the robbery charge for Dec. 21 and set the trial to begin the morning of Jan. 7.

McNeal remains in custody at the Luzerne County Correctional Facility.

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