on May 16, 2014 - 11:47 PM
, updated May 16, 2014 at 11:58 PM
Unless police uncover some major new piece of evidence, no one will be criminally prosecuted for the hit-and-run incident that killed Evans resident Barry “Bob” Moss last December.
After hearing testimony for three weeks, an Erie County grand jury decided not to file any charges in the case – even though police say they are convinced that an Evans bar owner who owns the vehicle was the hit-run driver.
Moss, a 52-year-old father of three, was killed when a sport utility vehicle struck him on Route 5 in Evans on Dec. 22. Police said the driver who struck and injured Moss failed to stop and help, leaving him to die in the snow.
The grand jury’s decision not to file any charges in the case was confirmed for The Buffalo News on Friday by police, District Attorney Frank J. Sedita III and the defense attorney for Gabriele “Gabe” Ballowe, the owner of the SUV.
News of the grand jury’s decision was devastating for Moss’s family, including his mother and three daughters, Moss’s sister, Maria Wrafter told The News.
“We met with an assistant district attorney for about an hour, and she told us,” Wrafter said. “It was very tough to for our family to take. There were tears, screams, a lot of anger.”
Wrafter said the family does not blame the Evans Police or the district attorney’s office for what happened. She said the family believes Ballowe benefited by refusing to talk to police about the incident.
Similar frustrations were expressed by Evans Police Chief Ernest P. Masullo, who said police “left no stones unturned” in their investigation and were convinced that Ballowe was the driver. He said Ballowe refused to talk to police after investigators determined that it was her SUV that struck and fatally injured Moss.
“Our people worked very hard on this case, and we felt that we put together a very strong case. Every piece of evidence that we gathered leads to the owner of this vehicle as the driver of the vehicle,” Masullo said. “We are very disappointed.”
If there were any eyewitnesses to the fatal hit-and-run, no one has come forward, police said.
According to Masullo, police learned that, within a day or two of the late-night accident, Ballowe arranged to have her damaged SUV repaired at a collision shop in Dunkirk, about 20 miles south of Evans, rather than having it repaired at a shop closer to her home.
“To me, that tells you that somebody is trying to hide evidence,” Masullo said. “You should do the right thing. Come in, tell us what happened, take your lumps and live with the consequences. A lot of people are suffering as a result of what happened that night.”
Ballowe’s attorney, Thomas J. Eoannou, said he got a letter from prosecutors on Friday, informing him of the grand jury’s decision. He declined to comment when asked if Ballowe was driving her SUV when it struck Moss that night.
“When this investigation began, I asked the public to withhold their judgment about what happened. The Evans Police did a very exhaustive investigation. Now, a grand jury has listened to tons of evidence, and determined that no crime was committed by Gabriele Ballowe,” Eoannou said. “At the end of the day, the grand jury made the right decision.”
While declining to say who was driving the vehicle, Eoannou noted that, according to police, Moss was riding or walking a bicycle in the dark and in winter conditions when he was struck and killed.
“There was a bicycle involved, and if, in fact, a metal object was clipped by the SUV, the person driving might think they hit a road barrier, a road sign or something else metallic,” Eoannou said.
Does that mean that Ballowe was driving the SUV and noticed that it struck something made of metal?
“I’m not going to comment on that. We conducted our own investigation, and found that no criminal activity occurred,” the defense attorney said. “This was an accident.”
Ballowe, 48, is the owner of a popular Evans beachfront bar, the South Shore Beach Club on Old Lakeshore Road. She has never spoken to the media, Evans Police or Sedita’s office about the incident.
“She followed my legal advice to exercise her rights,” Eoannou said. “It happens every day in investigations all over America.”
Regardless of what suspicions are held by police, prosecutors or the victim’s family, Sedita said the grand jury has to base its decision whether to file charges on the evidence presented. He added that Ballowe has the legal right to refuse to answer questions about what happened that night.
“The grand jury is not a rubber stamp for what the police or a prosecutor might think,” Sedita said. “The hard part is that you might feel in your heart of hearts that somebody should be prosecuted, but if the grand jury does not feel the evidence is sufficient, there will be no charges.”
Asked about Ballowe’s refusal to answer police questions about the case, Sedita said: “Of course, she has a moral responsibility to talk to the police, but she doesn’t have a legal responsibility. The only way I could compel Gabriele Ballowe to testify in this case would be to compel her to appear before the grand jury, and give her immunity from prosecution.”
Wrafter told The News that police told her a witness told them Ballowe was visibly “drunk” in a Southtowns bar shortly before the incident.
“The police told us the witness offered to give Gabe a ride home, but she refused, and decided to drive herself,” Wrafter said.
When asked about that, Eoannou responded: “The Evans Police literally interviewed everyone that was with my client that day. The grand jury heard everything that happened and did not determine that she was driving while intoxicated that night.”
Both Masullo and Sedita refused on Friday to confirm or deny Wrafter’s account of what police told her family. Police told The News earlier this year that another witness told them he saw Ballowe’s SUV driving wildly near the accident scene shortly after Moss was hit. Police said the driver was so upset by Ballowe’s driving that he followed her SUV to her home.
The case has been the subject of controversy in Evans for months, with more than 150 residents posting lawn signs, “Justice for Barry Moss.” Supporters of the Moss family established a “Justice for Barry Moss” Facebook page that has been filled with comments highly critical of Ballowe and police.
If police obtain some valuable new evidence, prosecutors could ask a judge’s permission to again present the case to a grand jury, Sedita said. “It is rarely done, but it can be done, and it has been done in Erie County,” he said.
“We consider this an open investigation, and we will not stop investigating it until it is solved,” Masullo said. He asked anyone with helpful information to call Lt. Douglas Czora at 549-3600.
Moss’s daughters have hired Michael P. Caffery, a prominent Southtowns attorney, to represent them in a potential civil lawsuit against Ballowe.
Family members are “obviously very disappointed” with the grand jury’s actions, and are looking to move forward with the civil lawsuit, Caffery said on Friday.
“I believe the Evans Police and the DA’s office worked very hard on this case,” Caffery said.
He said that, in the civil courts, an individual can be held responsible for damages caused by his or her vehicle, unless the vehicle was stolen.
“One thing I do know about this case is that it was Ballowe’s vehicle that hit Mr. Moss, and that she never reported it stolen,” Caffery said.
The News asked Caffery, Masullo and Sedita if blood tests showed that Moss was intoxicated on the night he was killed. All three declined to comment. Eoannou said authorities have refused to tell him what Moss’s blood test showed.
“I can’t comment on that, but what I can say is, there is no indication that anything he did led to the accident,” Caffery said. “As far as we can determine, he was walking his bicycle on the side of the road when he was hit. If someone had stopped to help him after he was injured, he might have survived.”
Whether the driver that night was Ballowe or someone else, one thing is clear to Masullo. Whoever was driving the SUV was able to avoid prosecution by refusing to talk with police.
“That is our criminal justice system, love it or hate it,” Masullo said. “I’ve been a police officer for 36 years, and this ranks as one of the top three most frustrating cases I have ever handled.”