NORFOLK, Va. - A new trial in connection with the March 2013 death of Yorkville native Kristopher Klubert has been set for Nov. 5, 2014 in Norfolk (Va.) Circuit Court.
Klubert died from a gunshot wound to the head which occurred while at a fellow sailor's apartment in Norfolk, Va., just prior to the two having been scheduled to ship out on new deployments.
In March of this year, Greening had been found guilty of the two charges he was indicted on originally by a grand jury in Norfolk: second degree murder and the use of a firearm in the commission of a felony.
Greening's attorney argued the shooting was accidental.
The prosecution disagreed.
The judge hearing the case initially made a finding of guilty and immediately ordered Greening taken back into custody to await sentencing.
He had been free on bond most of the year awaiting the initial trial.
While awaiting sentencing, Greening's defense attorney, James Broccoletti, filed a post-trial motion for a new trial.
Broccoletti argued an apparent oversight by the medical examiner's staff was made when calculating the conclusive cause of death.
Norfolk Circuit Court Judge Junius P. Fulton ultimately approved the motion and subsequently vacated his earlier verdict and never recorded a sentence for Greening in connection with the initial trial.
Greening's attorney said, when contacted Friday, he decided to pursue a subsequent review of the original autopsy information because testimony offered on the stand by the medical examiner's staff member was substantially different than what he had expected to hear based on pre-trial interviews he said were held with that individual.
The second report included information on a hairline fracture of the skull and what its role in Klubert's death was thought to have been and a different conclusion being recorded than was reached and shared at the first trial.
Broccoletti's motion reportedly included the information that the medical examiner testified she believed a hemorrhage on the left side of the victim's brain was caused by blunt force trauma, not the gunshot wound.
The prosecutor in the case had argued Greening struck Klubert and then shot him.
On a post-trial basis Greening's attorney put the autopsy report and related testimony in front of a forensic pathologist for additional review.
Pathologist, Dr. Jonathan Arden, discovered a hairline fracture in the skull related to the gunshot wound and the hemorrhage, according to Broccoletti's motion for a new trial.
Additionally, in support of his call for the new trial, Broccoletti said he put the second autopsy finding in front of the Chief Medical Examiner for additional review and it brought forward his opinion that the hairline fracture should have been considered in the original finding and it would have had an impact on the conclusion reached by his staff and shared in court.
Ultimately, also according to the defense attorney, the witness from the medical examiner's office who testified in the initial trial agreed she had missed considering the hairline skull fracture and its role correctly in her initial conclusion.
An amended autopsy identifies the hairline fracture as a "plausible cause" of the hemorrhage.
The post-trial findings prompted the judge to vacate his initial verdict and move the matter back to what is essentially the initial point in the legal process where it will be brought before a different justice and the process repeated.
Greening had been free on bond prior to the initial verdict having been announced, but had been taken into custody after it was initially recorded and he awaited sentencing.
The judge's decision to vacate his initial finding on the matter made it possible for Greening to be released again on that same bond amount and conditions while awaiting trial.
The second proceeding will also be a bench trial, meaning a judge will hear the case and reach a verdict without any involvement in the process from a jury.
Officials with the prosecutor's office confirmed late this week that Greening faces the exact same charges as were central to the initial trial: one count each of second degree murder and the use of a firearm in connection with that crime.
The victim, Kristopher Klubert, 24, was at Greening's Norfolk apartment playing video games for a good part of the day prior to the shooting.
Greening faces a possible sentence on the second degree murder charge of from 5 to 40 years in prison.
If a guilty finding is ultimately made in the second trial a three year mandatory jail term would be expected to be attached to any sentence imposed for a finding of guilty in connection with the charge specifically he had used a firearm in the commission of the felony.
"Our office recognized that there is a change in conclusions drawn from the autopsy," said Amanda Howie, of the Commonwealth's Attorney's Office in Norfolk.
Which judge has been assigned the second trial was not immediately available, but Howie confirmed there is no plan to change either of the charges Greening is facing.
Klubert was the son of Yorkville residents Kevin and Valerie Klubert.
Loccisano can be reached at firstname.lastname@example.org