E-mail killing trial could be months away Carroll woman was found dead in N.C. a year ago

Defendant Glass still jailed

Both sides continue to research cases in Lopatka slaying

October 26, 1997|By Anne Haddad | Anne Haddad,SUN STAFF

One year ago, police followed a trail of sexually explicit electronic mail that led them to a newly dug shallow grave in front of a broken-down trailer in Caldwell County, N.C.

They had hoped to find Sharon Rena Lopatka, 35, of Hampstead alive. They hoped the messages Maryland State Police had retrieved from her computer saying she wanted to be sexually tortured to death were fantasy or at least not carried out.

Victor Lopatka reported his wife missing Oct. 20, 1996. Five days later, authorities unearthed her body and sent sheriff's deputies to arrest the trailer's owner, Robert Frederick Glass, at his office in nearby Hickory. Police think Sharon Lopatka died Oct. 16.

In the 12 months since then, a judge's gag order has imposed on the prosecution and defense the same silence that the Glass and Lopatka families have maintained in the case.

Glass sits in the Caldwell County jail in Lenoir, awaiting a trial that could be several months away, while investigators continue to mine the computer hardware and software that conducted the messages between Glass and Lopatka during their two-month correspondence. The trial has remained unscheduled while the prosecution and the defense research their cases.

Despite the possibility that Lopatka wanted to die the way she did, the prosecution and investigators are treating the case "strictly as a homicide," said a source in the North Carolina State Bureau of Investigation, which is assisting Caldwell County authorities.

Caldwell County District Attorney David Flaherty is seeking a first-degree murder conviction and the death penalty.

Defense attorney Neil D. Beach has called the death accidental and said the messages weren't meant to be taken literally.

"I think that the evidence will show that she died as a result of an accident during consensual sexual activity and that her death was not planned or intended by either party," Beach said last year, one day before the gag order was issued.

The outcome of a trial is likely to be somewhere in between, because both strategies could be legally flawed, said Thomas Hannah, a Hickory lawyer who has argued several capital cases as a defense attorney and former prosecutor.

If Beach can show that Lopatka participated in her death, a death sentence could be avoided, according to North Carolina law, but that is not technically a defense.

"If there's a defense here, the only one would be accident," Hannah said. "If it was an accident, it was unintentional and it was the result of lawful conduct."

And therein could lie the flaw, Hannah said. First, if Lopatka and Glass were engaging in sexual activity, it would be considered adultery and not legal in North Carolina, he said. Both were married to other people at the time; Glass is now divorced.

Second, if the evidence at trial shows that Glass in any way bound Lopatka in a manner that caused her to asphyxiate, it could undermine the "unintentional" part of the accident defense. The prosecution could contend that even if he didn't mean for her to die, he had to accept such a risk with that activity.

Available autopsy records do not disclose how Lopatka died, but a medical examiner has said the findings were consistent with someone who had been asphyxiated.

"They're probably going to try to get the jury to say, 'Disregard the law,' " Hannah said. The idea is to get the jury to believe Lopatka participated, which could lead them to choose a more lenient conviction than first-degree murder.

Hannah also said he sees a potential flaw in prosecuting Glass for first-degree murder.

"One key to first-degree murder that has to exist is malice," Hannah said.

Nothing investigators and prosecutors have released indicates that Glass had malice toward Lopatka. Police indicated she sought him out to torture her to death and that she might have tried to solicit others through Internet chat rooms before she found Glass.

"That would automatically take it down to second-degree murder," Hannah said, which in North Carolina would mean a maximum of 40 years in prison but usually eight years if the defendant has no criminal record.

When Flaherty got a grand jury to indict Glass on first-degree murder charges in February, he said he intended to seek the death penalty. Under North Carolina law, one of the aggravating circumstances that may be considered in sentencing someone to death is that the felony was "especially heinous, atrocious or cruel."

Hannah said that circumstance might apply even though it was shown that the victim wanted to be tortured, if the victim would have suffered pain and would have seen her death coming.

"The law would say ignore what she wanted and instead look at what she went through," Hannah said.

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