TOPEKA, Kan. (WIBW) -- The attorney defending Francisco "Frankie" Alejandro Mendez, who is charged in the shooting death of a Washburn University football player, wants her client's case moved outside Shawnee County, saying he would face "great prejudice" if tried here.
The motion to move the trial and several other defense motions were filed on Jan. 10.
Slaying victim Dwane Simmons and several other Washburn players were celebrating the drafting of Corey Ballentine by the New York Giants football team when Simmons and Ballentine were shot on April 28 at S.W. 13th and Lane.
Mendez, 18, is charged with premeditated first-degree murder of Simmons; four counts of attempted premeditated first degree murder; and seven counts of aggravated robbery.
Mendez "cannot possibly receive a fair trial in Shawnee County," defense attorney KiAnn Caprice wrote in a motion to move the case outside Shawnee County. "The court must transfer the trial to a different venue."
Caprice also asked the judge to issue an order trying Mendez in three distinct trials because the offenses occurred on three separate dates over a four-day period.
Caprice said KBI analysis showed that a bullet fragment removed from slaying victim Dwane Simmons and a fragment removed from the seat of the alleged victim's car were fired by the same gun, but it is conjecture to tie it to Mendez, Caprice said.
Caprice also asked the judge to throw out evidence of a small cigar wrapper recovered from a white vehicle, which doesn't have any connection to Mendez; KBI analysis of two bullet fragments showing they were fired from the same firearm; and to throw out a statement made by Mendez as hearsay.
A date to hear the defense motions hasn't been scheduled.
The Mendez trial is to start on February 18.
Shawnee County District Court Judge Cheryl Rios is handling the Mendez case.
Simmons and Ballentine were shot in the early hours of April 28.
During the preliminary hearing of the Mendez case, witnesses said Corey Ballentine, Dwane Simmons and three other members of the Washburn University football team were standing at S.W. 13th and Lane celebrating Ballentine's good fortune to be drafted into professional football playing on the New York Giants.
An exhilarated Ballentine had talked to the Giants about the draft and fielded questions from sports reporters.
"I was excited," Ballentine said. "It was great. Everyone was having fun."
Then a car pulled alongside the five men.
"The driver asked if we smoke (marijuana)," Ballentine testified. We said, no, we don’t smoke.
“As they were pulling away I could see the back of the car," Ballentine said. " Then I saw the car jerk, and I kind of heard it like someone was stomping on the brakes. So it came to a sudden stop and it kind of made a noise as it was stopping and the first sound I heard, I just ran.”
Gunfire exploded, first sounding like shots from one gun, and the rate of fire accelerated to sound like two firearms.
After he was bound over on those charges late on Monday, District Attorney Mike Kagay added three more counts of attempted murder and two more counts of aggravated robbery.
Before the shootings, the small white four-door car had been traveling north on S.W. Lane, then turned westbound onto S.W. 13th before approaching the football players.
“I got hit in my right butt cheek kind of in my pelvic bone," Ballentine testified Monday in Shawnee County District Court.
The bullet remains lodged in his right hip.
He has recovered and has joined the Giants a few weeks later.
Witnesses testified they heard 20 or more gunshots, but small police cones marked 15 shell casings scattered on S.W. 13th Street.