The eyewitness identification of Lester Kearney, 37, of Littleton, as the suspect in a 2018 home invasion and fatal fire at Lake Gaston will be allowed as evidence at his trial after Judge Henry W. Hight, Jr. ruled in Warren County Superior Court last week against a defense motion to suppress the Rev. John Alford’s identification of Kearney on three occasions in 2018.

Kearney is charged with first degree murder, among other charges, in the fatal home invasion that severely injured Alford and resulted in the death of his wife, Nancy, at their Wildwood Point subdivision home at Lake Gaston on March 9, 2018.

The state is seeking the death penalty in the case.

Pretrial motions were heard last week, including a defense motion, which was withdrawn, to have District Attorney Mike Waters recused.

Multiple witnesses took the stand on the motion to suppress Alford’s identification of Kearney.

The motion indicated that the ID was tainted because Alford was shown only Kearney’s photograph rather than a photo lineup of multiple suspects and because the state held a press conference announcing Kearney’s arrest prior to approaching Alford with a photo lineup, which led to media coverage of Kearney’s photo, interviews by news media, and social media postings.

Asst. District Attorney Melissa Pelfrey called the 84-year-old minister to the stand, where he recalled the events of the incident and the days that followed, including his recollection of media coverage, prior testimony and identification of Kearney, and statements to law enforcement and emergency response personnel.

Defense attorney Amos Tyndall questioned Alford about his vision, prescription glasses and ability to see clearly after an intruder is said to have hit him with a fist at least twice in the face, including in the eye area, and extensively about Alford’s description that the suspect was wearing black makeup covering his whole face, which was described in multiple ways — flat black, camouflage and in squares. Tyndall also questioned other descriptions Alford gave of the suspect, including seeing his hands and neck, but no tattoos. Kearney has tattoos on the front of his neck and backs of both hands.

Tyndall asked Alford about who showed him photos of Kearney and when he saw them, and when he saw a televised press conference about the arrest of Kearney and a second man accused in the case — Kevin Munn, 34, of the Afton-Elberon community of Warren County, who has pleaded guilty — and other media coverage.

Former State Bureau of Investigation agent Mallory Bennett testified remotely about her interviews with Alford and her testimony at the probable cause hearing in April 2018. She confirmed that Alford told her on March 9, 2018, that the intruder had a knife.

SBI Special Agent Kevin Snead testified that he was tasked with presenting Alford with a photo lineup, but learned before getting to the hospital, where the minister was being treated for severe burns, that Alford’s daughter-in-law had already shown him a photo of Kearney prior to his arrest. Subsequently, Alford identified Kearney as the intruder in his home, so Snead had photos texted to his cell phone and confirmed Kearney’s ID with Alford.

The defense called an expert in forensic neuropharmacology to the stand, who had reviewed Alford’s medical records and witness statements. He said that Alford, while hospitalized for his burns, was given fentanyl, described as a powerful opiate used as a painkiller and sedative with cognitive effects, and tramadol, also an opiate used for pain relief and described as having mild anti-depressive effects. The witness testified that notes from an occupational therapist in the hospital on March 14, 2018, stated that Alford was repeating himself and having trouble retaining information. 

Under questioning by the state, the witness agreed that he did not know the individual cognitive effects of the medication on Alford.

The defense also called as a witness Dr. Michael Griffin, a forensic psychologist, who had examined investigative notes, the probable cause hearing transcript, a sermon Rev. Alford gave in May 2018 and other materials to testify on eyewitness identification. Griffin was in court the two days when Rev. Alford was called to the stand.

He said that factors negatively impacting memory include opportunities for observation, and that the morning events of March 9, 2018, interfered with Alford’s ability to form a memory of the suspect, as Alford had just woken up, was startled by someone in the bedroom, was struck multiple times in the face, was in pain and bleeding, among other factors.

Also, Griffin said the suspect wearing camouflage on his face would distort features, and people tend to focus on a weapon at the expense of a perpetrator’s features.

Information a person receives after an event can change their memory, Griffin said, and he described what he called evidence of Alford having a contaminated memory and inconsistencies in suspect description, including changes in early descriptions of events and face makeup, to Alford’s new testimony last week that the suspect was wearing a turtleneck and that Alford didn’t see a knife.

Sources of the shift in memory could include talking with other people, news stories, telling the story repeatedly, and hearing information from investigators, Griffin said.

ADA Pelfrey noted that Alford described the suspect’s collar being pulled up tight during the probable cause hearing, rather than a turtleneck; Griffin conceded that though the wording was not the same, it didn’t necessarily constitute a change in memory, though as a whole, it didn’t change his opinion of memory changing.

Defense attorney Robert Singagliese admitted into evidence handwritten notes taken by Pelfrey and provided Oct. 11 by the state. Then he asked Griffin if external influences, including reports written years before and conversations with family, could influence memory, and if that appeared to have happened over the weekend, and Griffin answered yes.

The notes were dated Oct. 8 and stated that Alford denied seeing the knife and wanted the weekend to think about his testimony.

Additional testimony came from law enforcement officers regarding why a photo lineup did not take place, and the defense questioned whose decision it was, even after Alford was initially shown a picture of Kearney that his daughter-in-law had Googled, especially since that one was 12 years old. 

The state argued that it was up to the jury to determine the reliability of relevant testimony, that the accused had a right to confront an eyewitness, that the state did not orchestrate the ID procedure, and that at the press conference, it was clearly stated that both suspects were presumed innocent until found guilty in a court of law.

The state also argued that Alford’s being in such close proximity to the intruder who had attacked him and was tying his hands got his attention and allowed him to get an accurate description with a high level of certainty.

The judge denied the defense motion to suppress the eyewitness testimony, including a request made during the hearing to suppress a new ID Rev. Alford made last week.

Also in the Kearney case, the court heard a number of matters related to discovery. Among those, the defense requested surveillance videos, cell phone records, items seized in searches, and complete recordings of 911 calls made in the Alford case; law enforcement records in the Feb. 4, 2018, unsolved murder of a Keon Hicks of the Afton-Elberon community of Warren County; and copies of any letters Munn had sent to the Alford family, including one he recently sent to Laura Alford Bell.

The defense has requested that some 600 hours of Munn’s prison phone calls be transcribed. The estimated cost is $45,000.

Right to confront Munn

Filed for last week’s hearing was a motion by the state on whether or not Kearney had forfeited his right to confront in court his co-defendant — Kevin Munn — because of threats made against Munn, his children and their mother if Munn testified against him.

Two witnesses, one who formerly worked at Raleigh’s Central Prison, where both Kearney and Munn have been held for safekeeping, and one who still works there, testified about multiple threatening letters Kearney had sent to Munn.

Alisha Norris, a security specialist with the state Department of Public Safety, said that she investigated the first letter Kearney tried to send to Munn, which was intercepted, and a second letter, which made it to Munn and was found in his cell.

“He’s like, ‘This happens all the time,’” she testified Munn had said.

Norris said that Kearney was placed in restrictive housing — 23 hours a day in his cell — because of his behavior, and that Munn was not afraid of the threats.

Amy LaFleur, program director at Central Prison, also testified about Kearney’s discipline issues and said he was a different person when he wanted to be. She said it was a difficult issue with both Kearney and Munn being at the same prison.

A ruling on this motion was delayed. If the judge rules in favor of the state, it could open the door for the state to introduce prior statements made by Munn against Kearney during the trial.

Jury selection, trial delayed

Jury selection for Kearney’s trial, which was scheduled to begin on Monday from a pool of 500 potential jurors over a four-week period, has been delayed until Jan. 24. The jury pool will remain the same as those previously called.

The trial, which was to have been in Warren County’s first 2022 trial session, has been delayed until later in the year, possibly in March.