GREENFIELD — Marking a fourth unsuccessful attempt to overturn his 1996 murder conviction, Elvio J. Marrero was denied his request for a new trial by Franklin County Superior Court Judge Michael Callan on Thursday.
Marrero, now 60, formerly of Greenfield, was convicted of the 1994 murder of Greenfield resident Pernell R. Kimplin and sentenced to life in prison. He has been incarcerated at the Massachusetts Correctional Institution in Shirley.
Callan heard arguments and testimony at multiple sessions between December and May, as the Committee for Public Counsel Services and the Boston College Innocence Program joined forces to try to get Marrero in front of a jury again, citing travel information they say suggests Marrero was in his native Dominican Republic at the time of the murder. Attorney Ira Gant of the Committee for Public Counsel Services has represented Marrero.
“It’s been nearly three decades and several legal challenges in the quest for justice for the victim in this case, Pernell Kimplin, and his family as well,” Northwestern District Attorney David Sullivan said in a statement. “It is gratifying that once again, a judge has affirmed this conviction.”
Kimplin was found dead in his Greenfield apartment on Oct. 16, 1994. He had been gagged, and his hands and feet were tied with electrical cords and rope. He had been stabbed once in the chest and once in the back, and had been beaten on his head, neck, shoulders and back with a wooden board broken from a dresser drawer. The medical examiner opined that the victim died on or about Oct. 14 as a result of the stab wounds. Kimplin, who was 26 at the time, was last seen alive in his apartment on Oct. 13.
Gant argued in the hearings that Marrero received ineffective counsel in his original trial. The American Airlines records used in the original trial contained the word “ADA,” which was indecipherable at the time. Through Gant’s investigation, it was learned that these letters were a capitalization of Ada, the first name of the travel agent who took Marrero’s reservation and who testified via Zoom from her Florida home in December.
“It is hard to think of something that is more damaging, more prejudicial, than the failure to turn over evidence that corroborates the defendant’s alibi, that supports his defense that he could not have committed this crime,” Gant said at a hearing in early May.
Gant also said during the hearings that DNA evidence rules out the blood leading away from Kimplin’s body or the DNA on a nearby door as belonging to Marrero, who is also definitively excluded from DNA found on the murder weapon, which consisted of unidentified third-party DNA. Kimplin’s DNA is also excluded from the blood inside Marrero’s jacket.
“The totality of the evidence in this makes it clear that justice was not done here,” Gant said at the time.
In response to these claims, Callan wrote in his 32-page ruling that while some potentially favorable evidence was not provided to Marrero, it would not have impacted the jury’s deliberation. He also felt the DNA testing did not support Marrero’s claim of innocence, nor was DNA a central factor in the prosecution’s case against him.
“Marrero has not shown that the results of the post-conviction DNA testing and analysis would probably have been a factor in the jury’s deliberations or that this new evidence casts real doubt on the justice of the conviction,” Callan wrote in his ruling.
Assistant District Attorney Bethany Lynch, representing the state alongside First Assistant District Attorney Steven Gagne and Assistant District Attorney Cynthia Von Flatern, argued during the hearings that “the defendant had previously threatened other people and he’d threaten to tie people up with extension cords. He had threatened to stab people with their own knives. He threatened to hit them in the head, neck and face with random pieces of wood. And all of those things were exactly what happened in this murder.”
According to Lynch, Marrero was the last person seen with Kimplin before his death. His fingerprint was also found on a folding chair close to the victim’s body. Lynch also said Marrero told someone he had used a knife to kill a person and he needed money to flee to the Dominican Republic, where he stayed for months instead of his typical shorter trip.
When he returned to the United States, Lynch said, he lied to law enforcement about where he lived and when he left the country.
Marrero appealed to the Supreme Judicial Court in 1998, 2002 and 2011, according to the DA’s office. His conviction was upheld each time.
Marrero can now appeal Callan’s denial of his motion for a new trial to the Supreme Judicial Court.
Bob McGovern, spokesperson for the Committee for Public Counsel Services, declined to comment when reached Thursday evening.
Contact Bella Levavi at blevavi@recorder.com or 413-930-4579.