Testimony heard in motions hearing for homicide case | AspenTimes.com

Testimony heard in motions hearing for homicide case

John Gardner
Glenwood Springs correspondent
Aspen, CO Colorado

GLENWOOD SPRINGS – A Garfield County sheriff’s deputy testified Thursday in Garfield County Court that first-degree murder suspect Heath Johnston told her that he wanted to get the trial over with and go to prison.

Deputy Valerie Lee testified that during one encounter, when she was transporting Johnston, 21, to the courtroom from the jail for a preliminary hearing on July 8, 2009, Johnston made that comment, and another to the fact that he did shoot his brother, Sam Johnston, 26.

“[Johnston] told me, ‘I did shoot my brother because he didn’t want to live anymore,'” Lee testified in court.

Thursday’s hearing addressed several pretrial motions filed by both prosecutors and the defense. It was also the second day of testimony in a motions hearing specifically addressing motions to suppress those statements Johnston allegedly made.

Also argued was a separate motion filed by the public defender’s office seeking to suppress evidence seized in a search of Johnston’s jail cell in November, during which deputies discovered a song allegedly written by Johnston containing threatening lyrics and gun violence.

The motions to suppress addressed statements Johnston may have made prior to being read his Miranda rights the night of the incident, and other statements such as the ones he allegedly made to Lee.

After Johnston’s alleged statements, Lee testified she advised him to not speak with her about any aspect of his case. But Johnston continued making incriminating statements anyway, she said.

Other statements Lee said Johnston made on July 8, 2009, included one in which he confessed to killing his brother after being “begged” or “badgered” over a long period of time to kill him.

Lee testified that after she advised Johnston not to talk to her about his case – because she didn’t want to become a witness in a high-profile case – he simply said, “It’s OK. I don’t care. I did it.”

“That is something you don’t forget,” Lee said in court. “And you take a step back and say, ‘Wow, that is something that has never happened to me before.'”

Testimony picked up where the court left off on March 10, with Rifle police Lt. J.R. Boulton testifying about the initial interrogation of Johnston on Dec. 15. Boulton’s testimony also regarded the motion to suppress statements by Johnston.

Public Defender Steve McCrohan argued that some of the statements allegedly made by Johnston that night were done so prior to being read his Miranda rights.

District Attorney Martin Beeson played for the court a 30- to 45-second digital animation depicting the alleged events of the evening in which Sam Johnston was killed, which public defenders want to suppress as well. The animation included audio of the interrogation between Boulton and Johnston the night of the shooting.

In the audio, Johnston allegedly describes in brief detail how he picked up the shotgun, which was leaning up against the wall, and then allegedly states, “I walked over … bang.”

The pathologist, who performed the autopsy on Sam’s body, determined that the animation would be consistent with the manner in which Sam was killed.

Prosecutors were using the animation to show that Heath Johnston had even the slightest amount of time to deliberate on what he was going to do, the consequence of which could be the difference between first-degree murder and a lesser charge.

Judge Gail Nichols of the Ninth Judicial District Court did rule on a couple of separate motions filed by prosecutors and defense regarding jury instruction. However, she did not rule on the motions to suppress evidence or statements at Thursday’s hearing. She will likely issue her ruling at the next scheduled hearing date in May.

Insanity plea withdrawn

Johnston has withdrawn his plea of “not guilty by reason of insanity,” and changed his plea in the case to a straight “not guilty” plea. His attorneys did so after a mental evaluation at the Colorado Mental Health Institute at Pueblo found him to be sane.

Beeson said that the withdrawal of the insanity plea obviously changes their focus in prosecuting the case.

“Sure it changes how we approach the case and how the case will be tried,” Beeson said. “But he has a right to do that. He’s done it, and we will adjust.”

In an interesting twist, Judge Nichols issued citations for two subpoenaed individuals who failed to show up for Thursday’s hearing. Those individuals reportedly lived next door to Johnston the night of the shooting and are crucial defense witnesses, according to Public Defender James Conway.

“This just adds to the mystery of who these people are and what they may have been doing at the crime scene,” Conway said.

Conway noted that at least one of the witnesses may have been the individual who made the 911 call the night of the shooting, and may have possibly given a false name to authorities.

According to the recording of the 911 call, the person who called 911 that night went into the house where Sam Johnston sat on the couch. The caller also told dispatchers that Heath Johnston was in his house sitting on the couch, crying.

However, Rifle Police Department Investigator William Jones said that he’s been unsuccessful in finding the person who made the 911 call.

“This is a serious matter, and we can’t have people in a case of this magnitude ignoring subpoenas,” Conway said.

Judge Nichols issued citations for the individuals to appear in court on May 11, and they will be required to testify at the next scheduled motions hearing at the end of May.

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