VERSAILLES — A prosecutor in the trial of a man charged with murder in the death of a 6-year-old Winchester boy told jurors Thursday that Lewis "Buck" Ballard wanted to keep the boy quiet after sodomizing him.
But a defense attorney for Ballard, 51, accused the boy's grandfather and said police did not conduct a thorough investigation.
Ballard, who is also charged with first-degree sodomy, could get the death penalty if convicted. Wesley Dylan Mullins' body was found Aug. 4, 2007, in a garage at his grandfather's home on Main Street in Paris.
Assistant Commonwealth's Attorney Keith Eardley said that Wesley's grandfather, Bobby Mullins, had been friends with Ballard's family for about 20 years, and that Mullins offered to let Ballard stay with him because Ballard was having trouble paying rent.
Wesley often visited his grandfather on weekends, and he was visiting the weekend he was killed.
Eardley said Wesley loved his grandfather and "was also fond of Lewis Ballard. He called him 'Uncle Buck.'"
The prosecutor told jurors that Bobby Mullins, who is expected to testify, went to bed while Ballard and Wesley played darts in the living room. The grandfather thought Wesley was in Ballard's room sleeping much of the day, Eardley said. But Bobby Mullins later became frantic when Ballard said the boy wasn't in his room.
Eardley and defense attorney La Mer Kyle-Griffiths referred to statements Bobby Mullins made to police about how he found Wesley. Bobby Mullins says he thought he heard Wesley call him from the garage, so he went into the garage and found the boy dead.
But Kyle-Griffiths asked jurors why the grandfather did not try to pick up Wesley if he thought the boy had just called his name.
"Buck Ballard is not guilty," Kyle-Griffiths started her statements to jurors. "Not guilty of this senseless tragedy."
The defense attorney said police "picked a suspect and ran with it" and did not collect as much evidence from Bobby Mullins as from Ballard.
Kyle-Griffiths said Bobby Mullins knew his grandson was dead most of the day and did not allow visitors into the home as he usually would. She said a van the grandfather drives wasn't searched for evidence.
"There can be no sense in the killing of a 6-year-old boy," Kyle-Griffiths said. "You are here to stop another senseless tragedy from occurring."
Eardley said spatters of blood from Wesley were found on Ballard's boots. Three sperm cells were found in an anal swab taken from Wesley, Eardley said, and a penile swab revealed a substance found in high concentrations in saliva.
The prosecutor said Ballard sodomized Wesley and wanted to keep the boy from telling.
"He was killed because he was a witness," Eardley said.
But Kyle-Griffiths said there were no sperm cells found in the anal swab. She said the substance found in the penal swab could have been from sweat or skin cells. She said the levels of the substance found in the penal swab don't correspond with saliva.
Before opening statements were delivered Thursday afternoon, Circuit Judge Rob Johnson granted a motion by the prosecution to amend the indictment. The indictment accused Ballard of killing Wesley "by repeatedly striking him in the head with a blunt object."
The amendment adds "and/or striking his head against a fixed object" to the cause of death.
Defense attorneys accused prosecutors of ambushing them just before the jury was to enter the courtroom for opening statements, and they requested a continuance. Kyle-Griffiths said the amendment required different experts.
But Commonwealth's Attorney Gordie Shaw argued that the amendment did not change the case.
Johnson said he was frustrated with prosecutors for not requesting the amendment earlier, especially after three days of jury selection, but he said it was legally permissible. The judge denied the continuance, saying he did not see how the amendment changed the case.
In heated exchanges with Johnson, Kyle-Griffiths then asked for more time to prepare her opening statements, which the judge also denied.
Prosecutors will start presenting evidence Friday morning. The trial was moved to Woodford County from Bourbon County last week in order to seat an impartial jury,