Change of venue hearing held in Fort Wayne clerk murder case

Rivera (Courtesy of the Allen County Sheriff's Department)

Rivera (Courtesy of the Allen County Sheriff's Department)

Inflammatory comments online by the public, and not media coverage, is the basis for a change of venue request at a hearing held Wednesday at Allen Superior Court in the case of a man accused of killing a gas station clerk in November. His recently appointed public defender requested that his client’s murder trial be moved out of the county or an outside jury be brought in.

Victor M. Rivera, also known as Victor Esposito, had been scheduled to be tried May 1-4 in Allen Superior Court on two counts of murder, robbery resulting in serious bodily injury and use of a firearm. During the hearing, Rivera objected to his trial being rescheduled for June 26-29 to fit into the schedule of his newly appointed public defender. His previous public defender has been reassigned.

Rivera asked the judge if he was entitled to a speedy trial. When told yes, he requested one.

His trial is now scheduled for April 16-20.

Rivera is accused of killing Jacob Walerko, 25, on Thanksgiving night, Nov. 23, at the Meijer gas station on Lima Road.

Public Defender William Lebrato cited public comments made on news media sites as well as Rivera’s Facebook account. One, according to Lebrato, said, “Drag this scumbag into the street and put a bullet in his head.”

Lebrato said he was concerned that one of the people who made inflammatory comments would make his or her way onto the jury.

There are people who do “not believe in the presumption of innocence (and) if we take that away, then his fate is sealed,” Lebrato said.

Deputy Prosecutor Tesa Helge cited case law, where a fair trial can be had if a person can put aside his or her preconceived notions, in asking for a denial of the notion. She also said the court had no way of knowing if the people making the inflammatory comments even lived in Allen County and would be part of the jury pool. Also, Lebrato would have leeway for extra questions to ensure potential jurors would be fair, but Lebrato said he had no way of determining if they were being truthful.

Judge John F. Surbeck said he will take the matter under advisement.

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