Ex-wife: Man convicted of killing girlfriend 'didn't comprehend well'
By Mary Pickels
Published: Saturday, Nov. 17, 2012, 12:01 a.m.
The ex-wife of a Fayette County man on death row testified Friday that his reading skills were so poor she had to help him study for his commercial driver's license and file his paperwork on road trips.
A clinical psychologist testified that James Van-Divner, 64, is, in her opinion, mentally disabled.
VanDivner was found guilty in 2007 of the July 5, 2004, shooting death of his former girlfriend, Michelle Cable, 41, outside her home in Grindstone, Jefferson Township. VanDivner also shot Cable's teenage son, Billy, who survived a bullet wound to his spine.
VanDivner received the death sentence but was back in a courtroom Friday for the resumption of a hearing which began last month before President Judge Gerald R. Solomon.
His attorneys, Brent Peck and Mariah Balling-Peck of Uniontown, argue in their appeal that VanDivner is ineligible for the death penalty because he is mentally disabled. In addition, they contend several witnesses who were never called at trial dispute the testimony of the victim's daughter, Jessica.
Judith DiJoseph told Peck she was concerned when her then-husband told her around 1992 that he needed to take a test to get his CDL.
She said she did not think VanDivner would be able to take a written test.
“He didn't comprehend well,” DiJoseph said.
She read to him from the license manual several times a day for months, asking him questions.
She later helped to arrange for him to take an oral test.
Mary Christy, who formerly administered CDL tests, said the oral option was available for applicants who could not read well enough to take the written test.
Dr. Kristine Jacquin, acting dean in the school of psychology at Fielding Graduate University in Santa Barbara, Calif., evaluated VanDivner and testified as an expert witness for the defense.
Jacquin said she spent two days with VanDivner, and interviewed family and friends.
She said he told her about his childhood, “filled with a lot of unfortunate incidents.”
Testimony last month included that of a psychiatrist who said VanDivner was born with partial fetal alcohol syndrome and is mentally disabled.
Jacquin said she learned that he grew up impoverished, and may have suffered physical abuse. She said his family history showed multigenerational “intellectual impairment.”
She said he attended special education, typical at the time for children with IQs below 75.
At Peck's question, she said a person who is diagnosed with a mental disability can marry, have children and sometimes learn a trade.
Jacquin said she administered “malingering” testing, and his score indicated he was not faking his low intellect.
Jessica Cable testified at trial that she saw VanDivner grab her mother's hair, shoot her at close range and tell her, “There, you (expletive), I said I was going to kill you, and smile and walk away,” according to the appeal.
Several women testified last month that they watched the shooting from across the street from the Cables' residence. Both said VanDivner was 10 to 12 feet away when he fired the fatal shot.
On Friday, two more neighbors testified that Jessica Cable arrived on the scene after the shooting.
Victor Chamberlain Sr. and Kimberly Ropejko said they were not interviewed by police at the time of the incident.
Chamberlain said he heard what he thought were firecrackers outside his home, next to the Cables, on July 5 but did not go out to investigate until he heard voices.
He said he stood on his back porch and saw Jessica Cable on his side of a hedge separating the two properties.
“I heard her say, ‘He shot my mother, he shot my mother,'” Chamberlain said.
He estimated that was about five minutes after hearing the “pop” sound.
Ropejko said Michelle Cable and a man visited her on her porch on July 5, and the man, she said, made repeated calls to VanDivner, telling him that he and Cable were now a couple.
She testified that later in the day, as she drove to her home, she saw Jessica Cable in the bottom of her neighbor's yard, and that she then ran up an alley.
“(The shooting) had already happened. ... She (Jessica Cable) was screaming, ‘He killed my mother,'” Ropejko said.
Peck and assistant district attorney Doug Sepic told Solomon they each would need one more day to complete witness testimony.
Solomon did not immediately set a date to resume the hearing.
Mary Pickels is a staff writer for Trib Total Media.
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