Man in bike death requests new trial

Mon June 01 2009
Posted May 31, 2009
8,009

Marvin Douglas Oberly is appealing his convictions for driving on the wrong side of a two-way highway and passing a vehicle on the wrong side, which resulted in an accident that killed a 21-year-old bicyclist. Even though he was given a suspended sentence, Oberly is asking a judge to review the case and grant him a new trial. The appeal lodged by Oberly's defense attorney, Gordon Liles, was submitted earlier this month without oral argument. A ruling has not been issued. Liles outlined several issues he said warrant a new trial, including the lack of a court reporter to record Oberly's December trial. Senior District Court Judge Joel Kamp kept notes of the proceeding, but the defense attorney contends Kamp's notes "are inadequate for a meaningful appeal." Other issues include the classification that a bicycle is a vehicle and that "the court should order a dismissal of this case for the failure to bring the defendant to trial in this cause within one year of the incident." Oberly, whose right eye is glass, has had several speeding tickets dating back from 1993 listed in court files in Des Moines County, one in Muscatine County and an infraction for unsafe approach to a certain stationary vehicle in Black Hawk County. Douglas Kenney, the bicyclist, was riding to work Nov. 9, 2007, when he was struck by Oberly's pickup in the 1700 block of Mount Pleasant Street in West Burlington. Kenney died shortly after being taken to the hospital. He had moved to West Burlington from Sparta, Mich., three months prior to the accident to live with his grandparents to raise money for college. Oberly maintained he did not see Kenney because the sun blinded him. Des Moines County prosecutor Jennifer Slocum addressed the issue of no court reporter, saying in court papers the state's criminal procedure involving simple misdemeanors "provides that proceedings shall not be reported unless a party provides a (court) reporter at such party's own expense." Slocum said Oberly and his attorney did not request a court reporter or did not say whether they wanted the proceeding electronically recorded. Other issues outlined in Liles' appeal were addressed in January. The timeliness of the filing of the charges against Oberly also was addressed by the court in November, one month before the matter came to trial. Since the charges are non-indictable offenses, there is no arraignment, but rather an initial appearance, which Slocum said is the "functional equivalent" of an arraignment. Oberly, court records indicate, made his initial appearance Sept. 2, and if the rules are followed, prosecutors have until this September to bring the case to trial, Slocum said. Kamp, in March, suspended what amounted to a 60-day jail sentence he gave the 63-year-old Oberly. He placed the man on two years unsupervised probation, tagged him with a $2,000 fine and suspended his license 360 days. Liles contends Oberly cannot be subject to the enhanced penalty "on two occasions for a single death." The attorney also noted the court failed to recognize the "defense of legal excuse or emergency," during the trial: Oberly's glass eye and the sunlight blinding his one working eye.