Arguments to move the trial to another county caused the greatest stir in the courtroom; Barbara Carnes, a public defender representing Deonte Simmons, irked Burdette when she tried to submit an unverified motion and then appeared to begin to lecture him on how important the case was. Burdette overruled her and sent her back to the defense table saying, "Sit down, Miss Carnes!"
Hoping to convince the court that public awareness and opinion of crimes would make it impossible for her client to get a fair trial here, Carnes has subpoenaed reporters from The Interior Journal and the Advocate Messenger to affirm the amount of press coverage the murders have received. Simmons' lawyers have assembled a supplement of printouts of print and television stories over two inches thick about the murder, arrests and previous trials to make their case.
In an unusual move, Carnes also subpoenaed Sherry Moore, Upton's mother. In a change of venue motion the attorney filed she cited the presence of a billboard asking for help in the case, memorials and fund-raisers that have kept the story in the public's mind and may prejudice their case. Commonwealth's Attorney Eddy Montgomery saw no need to put any of the subpoenaed on the stand saying, "I'll stipulate that there's been a lot of media coverage."
While the reporters and Moore were in court Monday, three local people, one a former Lincoln County resident living in Harrodsburg, who signed affidavits that simply state they agree with the change of venue motion were not. Burdette set a formal change of venue hearing for July 8 where all of those summoned by the various defense teams could be present.
Lawyers for Neccolus Mundy and Charles Smith argued for separate trials for their clients because of what one lawyer referred to as "spillover effect." Smith's lawyers said that no testimony or evidence has ever been presented showing that he ever left the car and that evidence the commonwealth is sure to use, such as crime scene and autopsy photos, will prejudice the jury against their client. He also said that that the physical constraints of the courtroom, as seen during motion hour would link the three defendants in the juries mind; Mundy and Simmons, who are serving other sentences have two armed transport officers with them in court and Smith does not.
Lawyers for Mundy appeared surprised during the argument to exclude the death penalty in his case saying that at best the commonwealth could argue for a conviction of wanton murder, which they said wasn't a capital crime. Montgomery reminded them that a wanton murder committed with a robbery or burglary was in fact a capital crime.
In both the question of severance and excluding the death penalty, Burdette told the court that he was leaning toward overruling the motions but would take them under consideration and study the cases the defense cited as precedent. He will decide on change of venue after the July 8 hearing.
