Malmberg jury set; 1 charge dismissed

GRAND RAPIDS, Mich. (WOOD) - A jury of seven men and seven women, including two alternates, was seated Monday in the second-degree murder trial of a Grand Rapids man accused of killing his girlfriend's 2-year-old daughter.

Prosecutors accuse Jeffrey Malmberg, 40, of killing 2-year-old Jozlynn Martinez in February. Lawyers are expected to give opening statements in Malmberg's trial Tuesday.

Earlier Monday, the judge in the case dismissed a tampering with evidence charge against the 40-year-old defendant.

Judge Donald Johnston said the charge was ultimately secondary to the second-degree murder count -- and dropping it would avoid legal issues surrounding the fact that the only evidence of the charge is a statement from Malmberg. The body of 2-year-old Jozlynn was never found. Prosecutors said they plan to appeal that ruling.

The judge also ruled Monday morning that Malmberg's statements to a child protective services worker can't be used at trial. The worker was acting in cooperation with the police and didn't properly tell the 40-year-old defendant about his rights, Johnston said.

Before prospective jurors arrived in the courtroom, the judge said he wouldn't exclude those who have seen media coverage of the case for that reason alone. The question, he said, is whether the would-be jurors would be able to make a judgment based solely upon the evidence shown at trial.

And after they arrived, members of the jury pool were asked whether they would be able to decide fairly despite having seen media coverage. Most said they had seen some coverage but none said it would prevent them from making a fair decision.

In his questions for prospective jurors, the prosecutor handling the case mentioned the fact that the victim's body was never found and asked whether jurors were comfortable deciding a case based upon circumstantial evidence.

One juror was dismissed after she said based on her religion, she could not stand in judgment of another person.

Others were excused by lawyers in the case, including a woman who said she was married to a retired sheriff's deputy and a man who said the "beyond a reasonable doubt" standard was too low. He said he had to be 100% certain of guilt to make a decision.