BY EILEEN PERSIKE
Editor

The prosecution and defense involved in the Avery Edwards homicide case met Wednesday in Oneida County Circuit Court to hammer out details during a pre-trial motions hearing before circuit judge Patrick O’Melia.

Ellen L. Tran, 29, is charged with first degree reckless homicide, a class B felony, following the April 2017 death of Tran’s 18-month-old stepson, Avery Edwards. A five-day jury trial is scheduled to take place Oct. 19-26.

Several motions in limine were presented by both sides of the case. A motion in limine is a motion filed by an attorney involved in a trial asking the court to limit or prevent certain evidence from being presented by the other side.  Some of the requests were agreed upon by all parties, others involved more discussion.

The defense is seeking to allow the argument to be made that there is a third party responsibility for Avery Edward’s death, meaning someone other than Ellen Tran.

“I’ve reviewed it and am familiar with the case law but I haven’t heard anything from the state yet; I assume they haven’t had a chance to respond,” O’Melia said. “I invite the state to get to me whether there is an objection and if so, what. There’s a lot of…statements that I think I need to have some basis where they come from that’s admissible.”

“Most everything, excepting the information that came from my client, is contained within the discovery the state has provided,” said defense attorney Jonas Bednarek. “Almost all the assertions I make in my brief and motion are extractions from material the state has provided.”

“Even if I rule that this may be an appropriate argument – third party responsibility – you have to concede that this evidence needs to be admissible at trial, that it’s got to pass muster in terms of hearsay.”

Four motions were filed in regard to text messages between Ellen Tran and the victim’s mother, Lori Edwards.  Defense attorney Jonas Bednarek said that unlike regular text messages that include data, these are screen shots of text messages that were recovered from the defendant’s former husband ‘s cellphone.

“I believe they were located in the picture files on Trung Tran’s cell phone,” Bednarek stated. “I do believe the state has to go through some effort to authenticate and prove chain of custody on these particular images.”

Oneida County District Attorney Michael Schiek told the court that’s the way the evidence was recovered at the Tran’s home by Detective Chad Wanta.

“These phones were identified as Trung Tran’s phones,” Oneida County District Attorney Michael Schiek said.  “[Wanta] analyzed them and these images…are what he located. I don’t know what more the court needs, if det. Wanta can testify to all that, that it was Trung’s phone, his phone number…that is enough chain of custody, authentication to be allowed into evidence.”

The defense also raised concerns about text messages between Ellen Tran and Trung Tran, and others between Trung Tran and the defendant’s parents. O’Melia said he would need more information from Bednarek before making a ruling.

Whether the prosecution will be allowed to bring up “other acts” evidence is also a decision the judge makes. Schiek stated that he wants to be allowed to admit a situation that took place prior to Avery Edward’s death.

According to Schiek, the defendant was watching the victim. When he was returned, Lori Edwards, the biological mother, filed a complaint with social services.  It was eventually found to be unsubstantiated. There were injunctions against the defendant and Trung Tran; Trung was dismissed from the injunction because he wasn’t in the state during that time and Ellen Tran was released from the injunction in February 2017, “which then launched the visitation in April.”

“It ties into this completeness of the case, goes into the understanding of what was going on in the lives of the players here,” Schiek argued. “I will concede [to the jury] that the complaint was unsubstantiated but at least we will still be able to address that particular aspect of what was going on in the lives of all these people.”

Bednarek said he is concerned other acts will “absolutely distract this jury” and would create hearsay authentication problems for everyone, adding, “We need to be cautious of burrowing into a rat hole of other act evidence in this case.”

Other motions covered included admissibility and presentation of medical records, photographs, who will remain in the courtroom and which witnesses will be sequestered.

O’Melia set up a timeline for both attorneys to provide him with information needed to rule on today’s motions. Another pre-trial hearing is set for Oct. 5.