Pubdate: Tue, 19 Jul 2005
Source: Berkshire Eagle, The (Pittsfield, MA)
Contact:  http://www.berkshireeagle.com/
Address: PO Box 1171, Pittsfield, MA 01202
Fax: (413) 499-3419
Copyright: 2005 New England Newspapers, Inc
Author: Ellen G. Lahr,  Berkshire Eagle Staff
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)

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.
- ---
MAP posted-by: Beth