Brandon Blaine Berry, convicted of kidnapping and murder in the 2018 death of David Christen Lorenzo Rivamonte, 30 of Huntsville, is seeking a new trial, claiming juror misconduct.

Berry, who was received two life sentences in state prison, claims two days after the trial, on May 26, the court informed trial counsel and the District Attorney that the foreperson of the jury had engaged in inappropriate communications about the case with a member of the court’s staff prior to deliberations.

“The subject of said conversation was purported to be the nature of the foreperson’s relationship with the state’s key witness, Chevy Swinford,” Berry’s court-appointed attorney, Erin S. Atkins wrote in the motion for a new trial.

Atkins claims the jury member was not forthcoming during voir dire about the extent or nature of his relationship with Swinford, adding that the jury member “expressed that he was familiar with Chevy Swinford because he recognized him from a rehabilitation program.”

Atkins claims, based on the disclosure of the communication between the jury member and court staff member, the defense has been made aware that the relationship between the jury member and Swinford is more fraternal than he initially led the court to believe.

Atkins said the jury member and Swinford have been “tagged” together in multiple Facebook posts, made prior to the May trial.

“The failure of [the jury member] to disclose the true nature of his relationship with Chevy Swinford to the court amounts to juror misconduct and warrants the granting of a new trial,” wrote Atkins.

Berry was convicted of murder and kidnapping in a May trial. Authorities found the remains of Rivamonte in a wooded area near County Road 86 in Woodville after receiving information from another agency of a homicide committed. Berry was charged on Sept. 18, 2018.

According to testimony during the week-long trial, Rivamonte was autistic, and his family reported him missing on Sept. 5, 2018. Rivamonte came up on some people in Woodville, near Paint Rock River.

Evidence and testimony showed Berry beat Rivamonte and later transported him a short distance into Marshall County, where witnesses say he beat on the victim some more.

Finally, Berry took Rivamonte down the road in a truck and came back alone, where it was later learned Rivamonte’s body was in a blue tarp in the back of the truck and later buried in a wooded area.

Evidence showed Rivamonte was shot with a 380 pistol in the head.

Atkins said because the jury member in question spoke with a member of the court’s staff prior to the close of Berry’s case despite instructions from the court not to discuss the case outside of deliberations, Berry questions the impartiality of the juror and his ability to follow the court’s instructions.

“The conduct of the jury foreperson (and of the member of the court’s staff) denied Berry his Sixth Amendment right to a fair trial,” said Atkins.

The contract of the court staff member, a part-time, temporary employee, has since been terminated.

A hearing has been set for Friday, Sept. 10, at 1:30 p.m. Berry will attend the hearing virtually via Zoom.

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