DEFENSE OPENS IN SCHOOL-ZONE CASE

PITTSFIELD -- Amid legal jostling over witnesses' Fifth Amendment rights, the defense began presenting its case yesterday in the trial of a Great Barrington teenager accused of selling marijuana in a school zone. Defense attorney Judith Knight, who represents 18-year-old Kyle Sawin, called the defendant's former girlfriend, 17-year-old Amanda Seavey, to the witness stand to describe her visits with Sawin to the Taconic Lumber parking lot area last summer.

At the time, the parking lot was being secretly scoured by surveillance officers and an undercover police officer during a drug sweep that netted 18 people. Sawin is one of seven teens with no prior record who face a mandatory two-year sentence in jail for allegedly selling small amounts of marijuana within 1,000 feet of a school.

Knight asked Seavey how long she had known Kyle Sawin, and Seavey replied that they had met in second grade, at the Farmington River Regional Elementary School in Otis.

"In third grade, did you have your first date with Kyle?" Knight asked. Seavey smiled at the recollection.

"He showed up at my door wearing this little suit and carrying an armful of chocolates," Seavey said. "His parents took us to Friendly's, and we got to sit in our own booth."

Darryl and Laurie Sawin, Kyle's parents, each wiped their eyes as Seavey recalled the date.

Seavey and Sawin were friendly until high school, when they began dating in December 2003, a relationship that lasted about 18 months, Seavey said. She said that they are still on good terms, and that she voluntarily testified for him. Undercover Officer Felix Aguirre testified last week that Sawin sold him marijuana weighing about three grams on three days, once on July 6, 2004, out of a backpack that contained a hand-held scale. Aguirre stated that Seavey acted as a lookout near the parking lot, while Sawin weighed and measured about 2.5 grams of marijuana.

However, the prosecution closed its case Friday with no eyewitnesses to the actual transactions with Sawin; rebuttal witnesses may be called to give such testimony. Meanwhile, Sawin's backpack and scale were not produced for the jury. Before Seavey took the witness stand yesterday, Judge John A. Agostini questioned her extensively on her decision to waive her Fifth Amendment right against self-incrimination.

She ran the risk of being charged with a crime if her testimony indicated that she participated with Sawin in making a drug deal; theoretically, she could face a school-zone drug charge.

But Seavey insisted yesterday that she knew her rights and would proceed. She denied accompanying Aguirre and Sawin to a remote location. "I saw them walk away together," Seavey said. "I didn't see where." She said Aguirre was regularly in the parking lot and often questioned her about Sawin's whereabouts and where he could "get something." She said she repeatedly rebuffed Aguirre, who also regularly approached Sawin. First Assistant District Attorney Paul J. Caccaviello, in cross-examining Seavey, appeared to be laying the groundwork for possible impeachment of her testimony. He questioned her on whether she was at a particular address, 87 Railroad St., on Sept. 3. She denied she was there on that date. Joshua Bessette, 25, a former Railroad Street resident, testified yesterday that he visited the parking lot area almost daily last summer and was asked by Aguirre -- and witnessed him asking others -- "on a constant basis" where he could buy drugs.

"He'd ask me the same questions over and over again," Bessette said. "I would always say no."

Bessette, who testified under a subpoena yesterday, said he had no hint of whether Sawin was upset by Aguirre's repeated overtures, but that he was suspicious of Aguirre, who always had money, and always wanted to buy. Prosecutor Richard Locke, cross-examining Bessette, elicited confirmation of Bessette's prior record: a conviction for operating under the influence, driving to endanger and possession of alcohol. He then began pressing Bessette on a hot-button issue.

"Did you ever do anything illegal with ( Aguirre )?" Locke asked. Locke's question opened the door for the potential for testimony that Aguirre smoked marijuana with and bought alcohol for some teens during his months-long investigation, as has been suggested by others involved in the Great Barrington operation.

A "yes" answer would have boosted Sawin's defense, but it also would have opened Bessette to criminal charges. He told Agostini that he would not respond based on his right against self-incrimination.

The courtroom was cleared, but the jury had heard Bessette's refusal to incriminate himself, leaving the implication of illegal conduct with Aguirre. Agostini told Knight that Bessette's entire testimony should be stricken if he invoked the Fifth Amendment, and it appeared that she might lose his testimony. The lawyers argued the point, and Agostini called a recess. Knight headed to the law library on the court's third floor, and the prosecutors rallied their efforts.

When court reconvened, Knight cited cases in which testimony was preserved despite a Fifth Amendment claim; Locke argued otherwise. Ultimately, Agostini produced his own case law, which he said would allow Bessette's preliminary testimony to stand.

It was a small victory for the defense, but Knight will need another one today. Agostini has told Knight that she must overcome a legal hurdle to introduce her expert witness, psychotherapist Maro R. Hall, who treated Sawin last year for addiction to marijuana.

Agostini questioned Knight pointedly yesterday for case law allowing testimony that an addiction had bearing on someone's propensity to deal drugs. The lawyers will argue the matter this morning at 9.

Meanwhile, during a court recess, members of Concerned Citizens for Appropriate Justice, which is challenging District Attorney David F. Capeless' use of the school-zone law, mingled in the hallway. They hoped aloud that Bessette would go through with his testimony, but one group member, Peter Greer of Great Barrington, said he had spoken to Bessette.

"He won't do it. He's scared," Greer said. "They could really screw with this kid." Then, as Prosecutor Locke passed in the hallway, Greer said, "Disgraceful." Locke had words with Greer, then left, and returned with Caccaviello. "I think what you're doing is disgraceful," Greer said to the two men. "You're entitled to your opinion," Caccaviello replied, and the two prosecutors returned to court.


Berkshire Eagle, The (Pittsfield, MA)
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