Brief of Defendant - Appellant


Defendant-Appellant was the defendant in the trial court and will be referred to by name or as Defendant. Plaintiff-Appellee will be referred to as the People, the State, or the prosecution. Numbers in parenthesis refer to folio numbers of the original record.

 

Statement of the Issues Presented

  1. Whether C.R.S. 1973, 16-11-1Q3, as amended, the Colorado death penalty statute, is unconstitutional in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article II, Sections 20 and 25 of the Colorado Constitution?

  2. Whether the Colorado death penalty is unconstitutional in violation of the Fourteenth Amendment to the United States Constitution and Article II, Sections 20 and 25 of the Colorado Constitution in that the State has failed to show that the death penalty is the least drastic means available of fulfilling a compelling state interest?

  3. Whether the imposition and carrying out of the death penalty pursuant to C.R.S. 1973, 16-11-103, as amended, constitutes a violation of due process in contravention of Article n, Section 25 of the Colorado Constitution in that the death penalty is arbitrarily inflicted?

  4. Whether the imposition of the death penalty pursuant to C.R.S. 1973, 16-11-103 constitutes cruel and unusual punishment in violation of Article II, Section 20 of the Colorado Constitution?

  5. Whether one of the aggravating factors for which the Defendant received the death penalty, that the offense was committed in an especially heinous, cruel, or depraved manner, is unconstitutionally vague and overbroad?

  6. Whether the death penalty imposed on the Defendant must be vacated since two jurors, Virginia Trenn and Jacqueline Huskey, were wrongfully excluded from the jury for cause on the basis of their general objections to the death penalty and in spite of the fact that neither juror was irrevocably committed prior to the trial to vote against the penalty of death regardless of the facts or circumstances that might emerge during the trial?

  7. Whether the trial court erred in not granting Defendant's motion for a directed verdict of life imprisonment since the prosecution failed to rebut a statutory mitigating factor beyond a reasonable doubt?

  8. Whether there was insufficient evidence of the aggravating factor that the crime was committed in an especially heinous, cruel or depraved manner?

  9. Whether the evidence presented was insufficient to support the jury's finding of the existence of aggravating factor (g), thus requiring vacation of the death sentence?

  10. Whether it was error for the trial court to disallow the testimony of witnesses Patterson and Stiff at the penalty hearing? Whether Mr. Botham was denied his constitutional right to a fair trial when the trial court denied his repeated motions for a change of venue, especially when it was evident that the massive publicity given this case within the confines of Mesa County made it impossible to select a fair and impartial jury?

  11. Whether the Defendant's Sixth Amendment right to a trial by a fair and impartial jury was violated when the trial court erroneously denied Defendant's challenges for cause to a number of prospective jurors?

  12. Whether the Defendant's Sixth Amendment rights to counsel and to a fair trial were violated when he was denied counsel for twenty-five days because the court erroneously refused to find him indigent?

  13. Whether the trial judge erred when he refused to disqualify himself after the Defendant filed a motion for substitution of judge which fully complied with the requirements of Grim. Pro. R. 21(b)?

  14. Whether the trial court erred in not granting Defendant's motion for a judgment of acquittal as to all four counts of murder in that the evidence was insufficient for a reasonable jury to conclude that Kenneth Botham had committed these crimes?

  15. Whether it was reversible error for the trial court to allow the testimony of Dr. Doell and Tom Montgomery since the testimony of each constituted inadmissible hearsay and was immensely prejudicial to the Defendant?

  16. Whether it was reversible error for the trial court to permit the introduction of evidence concerning the "strangulation" of Linda Miracle through the testimony of witnesses Ned Crawford, Jeanette Crawford, and Milo Vig and to incorrectly instruct the jury concerning that evidence which involved a prior unrelated incident to which the Defendant was connected solely through improper speculation, all over the Defendant's vigorous objections and all to the great prejudice of the Defendant?

  17. Whether it was reversible error to exclude the testimony of Patsy Murphy as such evidence was admissible as an exception to the hearsay rule as a relevant ante-incident statement of intention, design, or purpose?

  18. Whether it was error to allow the testimony of Dwain Jackson over the objection of the Defendant as such testimony was irrelevant, remote, and prejudicial?

  19. Whether it was error for the trial court to admit eight gruesome photographs into evidence and to permit the prosecutor to enhance that gruesomeness by presenting the photographs in a slide show all over the objection of the Defendant?

  20. Whether the Defendant's convictions should be reversed because the cumulative effect of the numerous errors at trial denied him his right to a fair trial?

  21. Whether the Defendant's conviction for first degree murder must be set aside in that it is inconsistent with the jury's findings that the killing of the Miracles constituted only second degree murder?

 

Statement of the Case


On November 8, 1975, Judge Harold P. Moss, of the Mesa County Court, signed a warrant for the arrest of Kenneth Herbert Botham, Jr. for the first degree murders of Patricia Jane Botham, Linda Diane Miracle, Troy Wayne Miracle, and Chad Gregory Miracle, in violation of C.R.S. 1973, 18-3-102. (15-17) The warrant was accompanied by an affidavit executed by Milo W. Vig. (18-71) Mr. Botham was arrested the same day and has been incarcerated since. (11411)

On November 10, 1975, a complaint was filed in the county court charging the Defendant with these same crimes, (72-74) and the Defendant appeared before the court that day. He was advised of his rights and the court ordered that he contact the Public Defender to determine if he was eligible for representation. (86~88)

Four days later, the Public Defender requested a hearing to determine whether the Defendant held any vested right, interest, or equity in the stock of the Tri-Star Corporation, arising out of a stock purchase agreement to which the Defendant was a party. (89-91) On November 17, 1975, the court ordered the Defendant to make efforts to obtain his own counsel. (158-60) After four private attorneys had determined that Mr. Botham did not have the financial resources with which to pay for his own counsel, (166-71, 175-83) the Public Defender requested that the court find Mr. Botham partially indigent and appoint the Public Defender's Office to represent him. (172-74) But, on November 24,1975, after a hearing, the court found that the Defendant was not indigent and refused to appoint the Public Defender. (184-86) The next day the court denied a request from the Public Defender to listen to the tapes of that hearing, and ruled that if the Public Defender wanted a transcript of the hearing he would have to pay for it. (189-91)

On November 28, 1975, the court received another letter from a private attorney who had discussed Mr. Botham's financial affairs with him and examined the stock purchase agreement. The attorney told the court that Mr. Botham did not have sufficient assets to pay the fees required. (195-97) That same day a minute order reflects that the court appointed counsel (no name is included) but only to prepare a report on the Defendant's assets for the court. (198-200) The record reflects the order appointing Gary Cowan to represent the Defendant on an interim basis was not issued until December 3, 1975. (201-03) A letter to Mr. Cowan the same day appointed him to represent Mr. Botham in all matters pertaining to criminal charges until Mr. Botham either obtained his own counsel or Mr. Cowan was relieved of the assignment by the district court. The court also requested that Mr. Cowan make a detailed inquiry into Mr. Botham's financial status as a basis for a final determination of his ability to hire his own attorney. (207-10)

On December 4, 1975, the court received a letter from Gary Cowan withdrawing from the appointment. In his letter, Mr. Cowan strongly disagreed with the method the court was employing as to Mr. Botham's representation. Mr. Cowan felt that the long delay and large amount of publicity detailing the court's proceedings to determine Mr. Botham's financial status had prejudiced his rights to a fair trial in Mesa County. Mr. Cowan stated that Mr. Botham's only assets were personal property and that he had no vested rights in the stock purchase agreement. (217-24)

On December 5, 1975, the court finally appointed the Public Defender's Office to represent Mr. Botham on a partially indigent basis. (323-24) When Mr. Cowan filed the requested report on December 18, 1975; he concluded that Mr. Botham, based on the Colorado Supreme Court guidelines, was indigent. (259-65)

Mr. Botham had filed a demand for a preliminary hearing on November 10, 1975, the date of his first appearance in court. That hearing had been continued numerous times due to the court's failure to appoint counsel. When Mr. Emerson, of the Public Defender's Office, filed his entry of appearance on December 11, 1975, he also filed a motion to continue the preliminary hearing, then scheduled for December 19, 1975, because of the need to interview numerous witnesses. (243-47) The preliminary hearing was rescheduled for January 13, 1976. (257-58)

On that date, the Defendant moved to close that hearing to avoid publicity as to previously undisclosed evidence. (359-64) The motion was denied. (364)

The information charging the Defendant with the same crimes was filed in the District Court of Mesa County on February 2, 1976. (373-92) On the same date, the Defendant was advised of his rights. (393-95)

The Defendant filed a motion for change of venue on February 13, 1976,(396-411) with exhibits thereto. (412-14) The People filed affidavits in opposition. (421-23) On the same date, the Defendant moved to close the hearing on the motion for change of venue to members of the press, electronic media, and the public. (424-32)

On March 4, 1976, a motion for free transcript of all county court proceedings was filed, (433-38) and a motion for discovery and inspection. (439-47) On March 5, 1976, the court deferred ruling on Defendant's motion for discovery unless it became necessary at a later time. (475) The court allowed the Defendant to have a transcript of the preliminary hearing only and deferred determination of payment for the transcript until after trial. (474-75)

The Defendant filed a motion for substitution of judge and affidavits, pursuant to Grim. Pro. R. 21, on March 15, 1976. (476-95) The court denied Defendant's motion two days later. (496-503) Proceedings were stayed while the Defendant filed an original proceeding in this Court.

When proceedings resumed on April 28, 1976, the Defendant moved to strike the prosecution's affidavits filed in opposition to the Defendant's motion for change of venue. (537-45) The Defendant filed additional exhibits in support of that motion. (546-48) After a hearing, the court denied Defendant's motion for change of venue on May 11, 1976. (561-72) On May 17, 1976, the Defendant filed a request for stay of execution of all further proceedings to give him an opportunity to seek reversal of the court's refusal to change venue in this Court. (573-78)

After this Court refused to issue an order to show cause, proceedings resumed and the Defendant filed a motion to strike the death penalty from consideration on August 25, 1976. (828-60) He also filed motions to select a jury from venire men outside Mesa County (denied on October 4th), (861-66) to dismiss counts charging murder in the first degree (denied on October 4th), (867-72) for a bill of particulars (partially granted on October 4th), (873-78) and to suppress statements and evidence. (879-87)

On October 6, 1976, prior to the hearing on Defendant's motion to suppress, the Defendant requested that the hearing be closed to the press. This request was denied, and at the close of the hearing, the Defendant's motion to suppress was denied. (967-69) A written ruling was filed on November 12, 1976. (1057-79) The motion to strike the death penalty, which the court had taken under advisement, was denied on October 21, 1976. (987-98)

On November 10, 1976, the Defendant filed four motions pertaining to voir dire (1020-42) and a motion for competency examination of a prosecution witness. (1043-48) On November 12, 1976, Defendant filed a motion to dismiss the charges against him because of illegal eavesdropping of attorney-client conversations in the Mesa County Jail. (1049-56)

Trial to a jury began on November 15, 1976. Voir dire was completed on November 30, 1976, and the taking of evidence began on December 1, 1976. On Sunday, December 12, 1976, the jury found the Defendant guilty of the first degree murder of Patricia Botham and the second degree murders of Linda, Chad, and Troy Miracle. (1313) On December 14, 1976, the Defendant filed a motion for a sentence of life imprisonment alleging again that two of the prospective jurors had been incorrectly excused because of their views against capital punishment. (1132-37) The penalty hearing began the same day and was concluded on December 15, 1976, (1308) The jury returned verdicts of no mitigating and two aggravating factors. (13 08-0 9)

Defendant's motion for new trial, or in the alternative for judgment of acquittal, was filed on January 14, 1977. (1333-76) A supplement to that motion was filed on January 24, 1977. (1377-82) On January 25, 1977, the court denied the Defendant's motion for a new trial and sentenced the Defendant, on Count I, to death; on Counts II, III, and IV, to three terms of not less than twenty nor more than thirty years in the Penitentiary, each of the sentences to run consecutively to the others. (1383-85) The Defendant was given credit against these sentences for 444 days of presentence confinement. (1390) A Notice of Appeal was filed on January 25, 1977. (1392-94)


Statement of the Facts


On August 22, 1975, Kenneth H. Botham, Jr. was sales manager of the Tri-Star Corporation in Grand Junction. (11015-16) He was also a professional photographer during his free time. He lived with his wife, Patricia, sons Thad, age three, and Thayer, age 5, at 1914 Ouray, Grand Junction.

Ken and Pat had been married for six years. (11211) Their marriage had been working well until Ken and Pat moved to California for a year. (11211) While there Pat was assaulted and Ken, due to immaturity and a lack of understanding, handled the incident so badly that their relationship was never quite the same. (11212) They returned to Grand Junction in 1971 and, as Ken became more successful and his job became more demanding, the two grew apart. (11213)

Ken met a woman at work who started doing photographic modeling for him - Marie Griffin (her name was changed to Marie Hernandez by the time of her testimony at trial). (11062-65) They began to see each other quite a bit, but their relationship was not intimate for the first year. (11066) The relationship continued in an on and off fashion up until August 22, 1975.

Linda Diane Miracle and her two children, Chad, age 3, and Troy, age 5, lived across the street from Ken and Pat. Linda was separated from her husband. The Miracle and Botham children played together, and Pat and Linda were friends. (11265)

 

Day Of The Disappearance


On August 22, 1975, Ken Botham went to work as usual in the morning. (11142) He planned to work a full day and then leave for Ouray and the Imogene Basin area for the weekend to do some mountain photography. (11143) These plans were reflected on the calendar he and Pat kept hanging in their dining room. (10028,11144)

Before leaving the office for the day, he telephoned Roger White of White Arms and Machine with reference to some photographic work Ken had done for Mr. White. (l1148) There was a possibility that one of the photographs would have to be retaken and if so, it would have to be done that day. (11148-49) Mr. White said that they would not know whether they needed to re-shoot until 6:30 p.m., and Ken arranged to meet him at his office at that time. (11149-50) Mr. White corroborated this sequence of events. (10177)

After the phone call Ken, who had free gasoline privileges at Tri-Star, filled his gas tank of his 1972 Toyota Landcruiser, a one-gallon can and a five-gallon can. (11448-49)  He went home and tried to eat and load his camera equipment quickly so he could get to White's by 6:30 p.m. (11150) The camera equipment he was taking was primarily large format cameras. (11151) He also took a backpacking tent and a sleeping bag. (11161) On photography trips he tried to camp out if the weather permitted, both to save money and to avoid having to hike long distances in the morning to the high mountain settings he photographed. (11162)

As Ken was eating dinner, Linda Miracle came over to ask if he would try and help her start her car. (11156) He walked across the street with her and was just getting into her car when her phone rang. (11157) When she went to answer it, Ken tried to start the car and all he heard was a click. (11157) He assumed it was a low battery. (11157) Because it was late, he did not offer to hang around. (11158) Instead, he took his jumper cables out of his own car and gave them to his wife. (11158) He told her what he thought was wrong with Linda Miracle's car and instructed her to use distilled water. (11158-59)

Ezra Tucker, who lived next door to Linda, confirmed that she often had trouble starting her car, and this trouble continued shortly before her disappearance. (11808) When she did have such trouble, she and Pat Botham would work on the car until they either got it started or gave up in disgust. (11809)

Just as Ken was leaving the house, Pat said that she had not been on more than one or two trips with him all summer and, as it was approaching the end of the season, she would like to go with him. (11153) Ken told her he could not wait as it would have taken another hour or so for her and the children to get ready, and he still had to stop at Mr. White's. (11154) He felt that if she had really wanted to go she could have mentioned it that afternoon when he had talked to her. (l1154)

Ken headed directly for White's when he left the house. (11159) When he arrived, he found he would not have to re-shoot the picture, so he left for Ouray. (11159-61, 11162)

At approximately 8:00 p.m., Reverend O. J. Holler, pastor of the church to which Ken and Pat belonged, and a friend of the Botham's, went to their house to pick up a record changer he had first called about. (9186-87, 9247) When he first arrived Pat was not home so he drove around a few minutes and returned. (9247) Pat and the children were home and fine. (9187) He stayed only long enough to get the record changer. (9187) While there, he did not see any dishes on the table and did not smell any food cooking. (9247)

A little after 9:00 p.m., Timothy Earl Tyree, an old friend of Ken's, and his wife stopped at the Botham house. (9330) The children were awake, and Thayer answered the door. (9331) Pat was munching on a cookie Tyree thought she had just baked. (9330-31) Tyree talked with Pat for five or ten minutes and left. (9332)

Norman Wilhelm had been dating Linda Miracle for most of the summer of 1975. (8801) He did not think Linda had been seeing anyone else at that time. (8833) During the week proceeding August 22, 1975, Mr. Wilhelm had given Linda a large sum of money to pay for an abortion, which she had on August 20th. (8834) Wilhelm had taken Linda to the hospital for the abortion, where she had registered under a different name. (8838-39)

Linda had invited him to come for dinner on the 22nd. (8791) When he arrived around 7:00 p.m., Linda was fixing a spaghetti dinner. (8792) He had driven to the house in his green Porsche. (8791) Troy and Chad were running in and out of the house, playing. (8792) When Linda and Wilhelm sat down to eat around 8:00 p.m., she first dished out small portions for the children, who went into the living room to eat. (8813) Sometime before 9:00 p.m., the children may have returned to the table to get a little more to eat. (8793, 8816, 8819-22)

The children went to bed around 9:00 p.m., (8821) and Linda and Wilhelm moved to the living room. (8794) During the time he was at the house, the two consumed approximately two-thirds of a half-gallon bottle of wine. (8828)

Linda received two phone calls while Wilhelm was there. (8802) The first, which came at 10:00 or 10:30 p.m., was from a friend of Linda's named Don. (8802) The second call, at 11:00 p.m., was long distance from her estranged husband Delbert. (8803)

Although Wilhelm had been in the habit of spending the night at Linda's house, he left that night at 11:30 p.m. because he was tired. (8842) Linda had been in a particularly happy mood and had asked him to stay, but he chose not to do so. (8843) He made plans to see Linda again on Sunday. (8853) When he left, Linda was wearing a blue jumper-type pantsuit with a white shirt underneath. (8804)

Ned Crawford, a neighbor of the Bothams and Linda Miracle, arrived home at 11:30 p.m. on the 22nd. (11784-85) There was a little green car parked in front of Linda's house. (11785) He had seen that car on prior occasions. (11786) It was a very noisy vehicle. (11786) Crawford was awake for awhile before he went to sleep, but he did not hear that vehicle leave. (11786-87)

Wilhelm stopped at a 7-Eleven after he left and then went home. (8796) His roommate, Jim Cunningham, did not return home until a little before 2:00 a.m. (8797)

By the time Ken Botham arrived in Ouray, it was dark. (11163) He had decided not to try camping because it had been raining between Montrose and Ridgeway. The road he had to take to Imogene and Yankee Boy Basin was not very safe in the dark, especially when muddy, and he did not want to sleep in the rain. (11163) Instead, he pulled into Polly's Motel and Campground in Ouray sometime after 9:00 p.m. (11164-65) When he walked in, there were a number of people in the lobby and the curio shop area and there was an elderly woman on the telephone behind the registration desk. (11165) It was obvious to Ken that the call was long distance, so he did not disturb her. He assumed she was the proprietor. (11166) In fact, this was Mrs. Adrian, a long-time guest from Texas who was in the habit of calling her husband in Texas every Friday night at 9:00 p.m. (11647-48, 8697, 8700) On that particular Friday night Harold King of Greeley, another guest at Polly's, had been talking to Mrs. Adrian as 9:00 p.m. approached. (11649) When she first called her husband at 9:00 p.m., the line was busy, and she was teased that her husband must be stepping out on her. (31649) Five or so minutes later, she called again and reached her husband. (11649) King recalled a man coming into the motel while Mrs. Adrian was talking to her husband. (11650)

Bob Grigger, who owned the motel with his wife Virgie, was in the lobby during this time. When Mr. Botham approached the desk Grigger, who was sitting in the lobby, asked if he could help, but apparently Ken did not hear him because he turned and moved around the lobby looking at the objects for sale. (8698)

When Mrs. Adrian got off the phone a few minutes later, she went back to her seat in the lobby. (11167) Ken went to the counter and started filling out a registration card. (8699) Mr. Grigger then came up to the counter and registered Ken. (8699, 11167) Ken paid at that time with a personal check, because he told Grigger he would be leaving early the next morning to take some photographs. (8704-05) He also borrowed an alarm clock from Grigger. (8704)

Grigger showed Ken to his room, on the second floor on the north side of the building, and returned to the lobby. (8704, 11168) After looking at the room, Ken drove his car around close to it and thinks he unloaded that part of his gear that was easily recognizable as photographic equipment. (11169) The equipment that was not so recognizable he left in the car. (11169) He recalls other people in the area while he was unloading. (11170)

Pauline and Norman O'Dell of Lakewood, Colorado, were staying at Polly's on August 22nd. Sometime after 9:00 p.m., the O'Dells went to the room of some people they had met from Arizona,(11612-14) While there, Mr. O'Dell noticed a Toyota Landcruiser in the parking lot. (U614-15) He noted the gear in the back and pointed it out to his wife. (11588,11616) Mr. King also noted the car and remarked on it to his wife. (11652-53) On the way to their room on the second floor, the O'Dells passed another room that was open and had photographic equipment on the bed. Mr. O'Dell remarked to his wife that this was almost an invitation to a theft. (11589-91, 11619-20)

After Ken unloaded the equipment, he shaved and may have showered. (11170) He returned to the lobby, planning to ask about a large photogenic quartz crystal. (11171) When he entered, Mr. Grigger asked if the room was all right, and Ken told him it was fine. (11171) Then, jokingly, Ken added that it looked like there was no place to hang a razor strop. (11171) Grigger recalled this comment. It was so unusual that he laughed and told Ken that he could drive a sixteen-penny nail in the wall if that would help. (8706-07, 11650-52)

Ken stayed in the lobby for fifteen or twenty minutes and then walked into Ouray proper. (11172) In town he stopped at a store named Photos and Fetishes. He squatted down on the sidewalk and looked in the window at some photos, trying to tell if they had been printed by the proprietor or sent to a professional processing house. He was interested in finding out whether the proprietor had a darkroom or not because he wanted a darkroom in which, to change the black and white film he had loaded in his camera and put in color film. (11175-76) While these changes could be done in other ways, it was much faster in a darkroom. (11176) As Ken was planning to take afternoon photographs at Imogene, he could have stayed in town in the morning if there was a darkroom available. (11176-77)

To the best of his recollection, it was somewhere between 11:00 p.m. and midnight when he was looking in this window. (11174) He saw a man coming toward him and, because he was worried that it might have looked strange for him to be peering in the window for so long, he asked the man if he knew if there was a darkroom in that store. (11178) The man said he thought not, but directed Ken to Joyce Jorgensen at the Ouray County Plain Dealer, who might have one. (11178) Ken then crossed the street and, because it was sprinkling lightly, he walked quickly and jogged back to the motel. (11179)

Steven Norris lived in Ouray in the summer of 1975. (10346) Mr. Norris was in the Long Branch Bar in Ouray twice during August of 1975. (10347-48) On one of those occasions, he had a conversation with a man about a darkroom. (10348) This occurred just as he was leaving the bar. (10348) To the best of his recollection, it occurred the first time he had gone to the bar. (10349) He had gone to see a band that was advertised, but they did not show up. (10349) It is possible, however, that the conversation occurred the second time he visited the bar. (10350) On both occasions, he was accompanied by Gloria Carpenter. (10350)

Mr. Morris could not remember the dates of his visits to the bar. (10352) The first time he went to the Long Branch was to hear a band named The Clear Ditch Ramblers. (10353) The band was not there that night because they had gotten into a bluegrass festival on the eastern slope. (10354-55) He arrived at the Long Branch at 9:00 p.m. or slightly earlier. (10355) While he thought he only stayed at the Long Branch for an hour that night, it is equally possible that he did not leave until sometime between 10:30 and 11:30 p.m. (10356,10385-88,10404-06)

The second occasion on which he visited the bar was exactly one week later. (10358) Again, he arrived at 9:00 p.m. or slightly earlier. (10358) He had gone to hear the same band, and they were to begin playing at 9:00 p.m. and did so. (10358-59) On that occasion, he left the bar at approximately 11:00 p.m. (10359) Mr. Morris was sure, however, that his second visit to the bar took place on a Saturday night because he later watched a T. V. program which was only on Saturday nights. (10373)

On the night he talked to this man, the man came up to him from behind, got very close, and then asked Mr. Morris if he knew where there was a darkroom. (10364) Mr. Morris stepped back and asked him what he meant. The man said a place where you have pictures developed. (10364) Mr. Morris said that he did not think there was such a place, and the man asked about a shop named Photos and Fetishes. (10364-65) Mr. Morris told him that they did not handle film, that it was a souvenir shop. (10365) Mr. Morris told him that possibly the variety store could have film sent out. (10365) He recalled that the night he spoke to this man it was wet out, having rained earlier. (10377)

Ken returned to his room at the motel. He may have showered then, or else did so in the morning. He went to bed. (11180)

Michael Larson lived with his parents on Ouray Avenue next door to the Bothams. (9640) He returned home at approximately 10:00 p.m. on the night of August 22, 1975 and watched television until approximately 1:15 a.m. when he went to bed. (9640-42) After he went to sleep, he was awakened by a scream. (9643) This was fifteen or twenty minutes after he went to bed at approximately 1:30 a.m. (9643) He got out of his bed and looked out the window in the direction of the Botham house, which is where he thought the scream had come from. (9644) He was, however, half asleep and was incapable of pointing out exactly where the noise came from. (9657) He saw that there was a light on in the front bedroom window of the Botham house but could not see anybody inside. (9644) Larson went back to bed and approximately ten minutes later there was another scream. (9645-46) This scream sounded more like that of a woman. (9646) Mr. Larson did not get up again. (9646)

Cora Heiner had lived next door to the Bothams at 1926 Ouray for three years. (9762, 9765) Mrs. Heiner testified at the trial that she went to bed at approximately 9:30 p.m. on August 22, 1975. (9768-69) She finally fell asleep at about 10:30 p.m. (9769) She did not look at the clock but guessed that it was around 1:30 a.m. when she was awakened by the Botham's dog barking eight or nine times. (9770) Twenty-five to thirty minutes later, she heard two sharp pops that came directly from the Miracle house. (9771) She got up to see what the disturbance was but everything seemed calm. (9771-72) She started back to bed but instead went to the kitchen and took a couple of Anacins because she had a headache. (9772) When she had first looked at the Miracle house after she heard the pops, the porch light was on and bright lights in the house were on. (9773) There is a big window in the front of the house, and the curtains were open. (9773) When she returned from the kitchen to the bedroom, she looked out the window and saw a man's head. (9774) He was bending down looking at the floor. (9774) She went back to bed and approximately thirty minutes later she heard a car start up either in front of the Botham's house or directly across the street. (9774) When it drove up and turned, the lights shone in her driveway and she thought it was her son coming home. (9774-75) She got up and went into the front room. The light was not in her driveway but there was a car in the Miracle yard, with lights on, and it was backed up close to the porch. (9775) The vehicle had a square back, and looked like a wagon. (9776) It resembled the Botham's car. (9776)

She stood looking out the window for a few minutes and finally saw a big tall man come out of the house carrying a big heavy bundle. (9776) The object being carried was wrapped into a robe or rug-looking piece of material. (9777) The man carrying it was more than six feet tall and was thin. (9777-78) He had a long, thin face and short cut hair. (9778) When the man stepped down off the porch, she saw his leg from just below the knee down. (9781) He was wearing a pair of brown pants that were rolled up a little at the bottom and he was wearing black walking-type boots. (9781) Mrs. Heiner thought that she had seen a similar looking leg on Friday, August 22nd when Mr. Botham was kneeling down working with something on the ground. (9783)

When asked to identify Mr. Botham in court, she looked around the courtroom and picked out Captain Joseph Earl Hicks of the Mesa County Sheriff's Department. (9767)

Mrs. Heiner's ophthalmologist, Dr. Frederick Schumann, testified that on August 22, 1975 Mrs. Heiner was suffering from glaucoma, cataracts, and senile macular degeneration of her left eye. (11824-27) She was also, under the best possible conditions, legally blind according to two different standards of measurement. (11831, 11833) In August, 1975, Mrs. Heiner was taking various medications prescribed by Dr. Schumann. (11835) Some of the drugs were myotic-causing the pupil of the eye to contract to allow less light to enter the eye. (11835-36) The side effects of Mrs. Heiner's medication included nausea, diarrhea, constipation, weakness, nervousness, dizziness, and confusion. (11837-38) Mrs. Heiner had had four operations to correct her vision problems by the time of trial. (9794-95)

Approximately one week after August 22nd. Mrs. Heiner talked to law enforcement officers about the night the four people disappeared. She told them she had gone to bed at 11:30 p.m. and was awakened later by a dog barking. She did not reveal any of the other details to which she testified in court. (9792-93)

Milo Vig, an investigator with the Mesa County Sheriff's Department, interviewed Mrs. Heiner on November 4 and November 5, 1975. (10229) On November 4th, Mrs. Heiner told Mr. Vig that she had been awakened at 11:00 p.m. by a dog barking. (10230) Then at approximately midnight, she heard two blasts which she characterized as possible gunshots. (10231) She then looked out the window and saw a vehicle start up and back in and saw someone loading something into it. (10231) The vehicle left after about twenty minutes. (10231) During that interview, she stated that the reason she had awakened in the first place was because she had seen car lights and thought it was her son coming from Utah, not because of any gunshots. (10232)

On November 5th, she contacted the police and said she wanted to clarify certain things in the statement she had made the day before. (10232) On that date, she said that she had heard two blasts sometime around midnight and that was prior to the time she had heard the dog barking. (10233-34) She made a particular point of that because she was worried that there might have been confusion the previous day. (10234) Vig's notes from both of those conversations reflect that Mrs. Heiner had described the vehicle as a station wagon or a pickup truck. (10235) Also, at no time during those two conversations did she make a point of the Defendant looking like the person , she saw that night. (10238) In fact, she gave no descriptions of the person she had seen. (10236)

Margie McConnell lived at 513 North 19th Street on August 22, 1975. (8870) The Miracle house was three houses and 275 to 300 feet from the McConnell's. (8872, 8891) While there were trees in front of Ms. McConnell's house, they did not obstruct her view down Ouray Avenue. (8873) There were no street lights between her house and the Miracle's house. (8903)

At approximately 1:00 or 1:30 a.m. on the morning of August 23, 1975, Ms. McConnell saw a vehicle without any lights which seemed to be stopping in front of the Miracle house. (8875) She knew the time because she was waiting for her son to come home and had been looking out of the window. (8875-76) She saw a man get out of the car and walk around it. (8878) He had either a blanket or a coat in his hands. (8878) When he got out of the car, he walked in front of the vehicle and started toward the Miracle house. (8879) The man in question was over six feet tall. (8879) He was slightly built and had short hair. (8879) He had the same type of build as Mr. Botham. (8882) It was, however dark, and she could not see his features. (8879) As she watched, her son arrived home and the vehicle without any lights drove away. (8880-81)

After Ms. McConnell's son arrived home, she went to bed. (8884) She had been dozing off and sometime afterwards an awful sound woke her up. (8884) She jumped so hard, she woke her husband. (8884) It sounded like somebody hollered, "Oh, no." (8884) Both Ms. McConnell and her husband looked out the window but could not see anything. They watched for a while but then went back to sleep. (8885)

Ms. McConnell described Defendant's Exhibit 3 as a photograph of the Botham and Miracle houses taken from just in front of her house looking east down Ouray. (8892-93) The photograph fairly and accurately depicted the view one would see from in front of her house looking down Ouray Avenue. (8893) There is a figure in the picture which she estimated as being a little past the Miracle house. (8894) Although she stated that she could not estimate the height of the person in the photo, the court ordered her answer stricken. The photograph in question was taken during daylight hours, and Ms. McConnell's observations on the morning of the 23rd were taken when it was dark out. (8902) Ms. McConnell agreed that at the preliminary hearing in January of 1976 she said nothing about the man's haircut and only testified that she had seen a male who was tall and slender. (8905-06)

Ezra Tucker lived fifty feet west of Linda Miracle. (11804) Mr. Tucker was familiar with Linda Miracle's station wagon. (11804-05) He could not say positively whether he saw it Friday night, August 22nd, but did see it in her driveway on Saturday morning. (11805-06) Mr. Tucker recalled telling a number of people that he believed he saw it Friday night, also in the driveway. (11807) His best recollection was that it was in the driveway Friday night. 11808)

Ken Botham woke up at 6:00 a.m. on August 23, 1975 and checked the weather. (11180-81) There was a broken cloud cover, and he decided to wait another half hour before he left. (11181) He went back to bed and got up again at approximately 6:30 a.m. (11181) He loaded his car and left the motel.

Mrs. O'Dell awoke at the motel at 6:00 or 6:30 a.m. on the 23rd and went out for some breakfast. (11591) Mrs. O'Dell thought that when she left for breakfast she saw the same Toyota Landcruiser that had been in the parking lot the night before, but she could not be positive. (11592)

When Mr. Grigger went to Mr. Botham's room at 7:30 a.m. on the 23rd, which was standard procedure for him, Mr. Botham and all his belongings were gone. (8710-11) One of the two double beds in the room was messed up. (8711)

When Ken left the motel, he proceeded to Yankee Boy Basin, which is about a thirty-five or forty minute trip from Ouray. (11181-82) He stopped at the Basin, which is where Coors shoots their pictures of pure Rocky Mountain spring water, but there was not enough water cascading over the rocks for good photographs, due to the late season. (11183) He then proceeded to the Imogene cutback, forded the stream, and went on to Imogene township. (11183) It was approximately mid-morning when he got to the township. (11184) At that point, the weather would have been fine for a normal outing but was not acceptable for Ken's photography. (11184-85) In shooting the type of film he was using, he could not tolerate any wind. (11185) With long shutter speeds, there would be subject movement. (11185) Also, he could not sell a picture if the sky was overcast, or had broken clouds, or washed-out so that there were no shadows in the picture. (11186)

Ken did not shoot any large format photos that day. (11187) He stayed in the mountains until approximately 1:00 p.m. and then returned to Ouray and then to Grand Junction. (11187) To the best of his recollection, he stopped and got a drink of water at a spring below Camp Bird Mine and stopped at Duckett's Market to get an apple and something to drink. (11188) He also stopped in Montrose for gas. (l1188) He had filled his car before he left Grand Junction and was not out of gas but stopped for more because he was not sure he had enough gas to make it all the way to Grand Junction. (11189) He paid for the gas by check, as he did for his motel room. (11190) It was not unusual for him to do that. (11190)

Mr. Botham did have extra fuel with him in the car but had forgotten the spout and had no means of pouring it into the gas tank. (11191)

After stopping at Montrose, he went onto Grand Junction. (11191) He arrived in the area at about 4:00 p.m. and stopped by the church to see Reverend Holler. (11192) Ken had been in charge of the church music for some time. In this capacity, he had to meet with Reverend Holler each week to coordinate the music for the service with Reverend Holler's choice of sermon topic. It was for this reason that he stopped at the Reverend's house on Saturday, the 23rd. (11193) He remained at the church approximately thirty minutes and then went home, to 1914 Ouray Avenue, Grand Junction. (11195-96)

When he arrived at his house, he saw his youngest son out in the front of the house on the sidewalk with only a shirt on. (13196) The child was three years old and normally wore diapers, but did not have any on at that time. (11197) When Ken saw this, he was "put out." (11198) He backed his vehicle up to the front door to unload his gear. (11198) His older child, Thayer, came from around the side of the house and wanted to know where his mother was. (11198) Ken responded lightly saying "I am sure she is around somewhere." (11199) Thayer, who was five at the time, said that he had not seen her all day, that she had not been there. (11199) He said that he had taken care of Thad and wanted to know if he had done a good job. (11199) He said he fed Thad that day, and he was not bad all day, even though he was alone. (11199)

Ken dropped the tailgate on his truck and opened the front door so that he could unload his equipment. He could see that the living room was a mess. (11200) There were peas on the floor, cookie crumbs on the carpet, and toys lying around at random. It was obvious the boys had not had any supervision. (11200-01) Ken did not go into the house. Instead he called to his wife. (11201) He then talked to Thayer some more. (11201) Mrs. Larson had been in her front yard and had just gone into the house. (11201) Figuring that was a good place to start, Mr. Botham went over and asked Mrs. Larson if she had seen his wife. (11201-02)

At approximately 4:00 or 4:30 in the afternoon, Mr. Botham came to Maurine Larson's door and asked if she had seen his wife Patricia. (8927) Mrs. Larson's husband answered the doorbell, and Ken asked him if he had seen Pat. (8928) Mr. Larson called Mrs. Larson and asked if she had seen Pat that day. (8928) Mrs. Larson responded that she had not seen Pat but had seen the children outside in the yard. (8929) Mrs. Larson was acquainted with Pat Botham but was not a close friend of hers. (8929) At the time he came to the door, Ken said that he had been in Ouray overnight and had returned home to find Thayer in the back yard. (8930) Thayer had said his mother had not been home all day, not even when he got up in the morning, (8930) Mrs. Larson asked Ken why he did not go and check with Linda Miracle, feeling that she would know Pat's whereabouts. (8931) He responded by saying, "Oh, I thought you folks were more reliable than Linda." (8932) The Larsons asked Ken if he had checked his own house, thinking he might find a note, and he said he had not been in his house. (8932-33)

After talking to various members of the Larson family, Ken went back and talked to Thayer some more. (11202) He then either went to the Larson's house again or they came over and met him halfway, and he told them that he felt he should call the police. (11202) He went into the house and checked the bulletin board where Pat would have left a note if she had gone out. (11202-03) He asked Thayer if he had played with Troy and Chad Miracle that day, and Thayer responded that Troy was not home or was asleep, and he had not seen Troy all day. (11203) The Miracle car was in the driveway. (11204) He went across the street and knocked on the door. (11204) There was no answer, and the front porch light was on. (11204) He tried the door and found it unlocked. (11204) While it was not his custom to do so, he opened the door and leaned in and hollered. (11204) He assumed that Linda Miracle was either asleep or not there, as it was not unusual for her to sleep during the day. (11204) Ultimately, he called the police. (11205)

Following his call to the police, Ken called Reverend Holler and told him that Pat was not home, there was no note, and the children were left unsupervised. (11207) It was highly unusual for Pat to be gone like that. (11207) She had left in the past without leaving word, but things were always in order at the time of her departure. (11207) Usually she left a note. (11207-08)

At the same time, Ken noticed that his ten-speed bicycle was in front of the Miracle home, as was the gas can that he had brought home that Friday evening. (11208) He had not left those items across the street. (11208) The last time he had seen the bicycle it was in the carport with his wife's bicycle. (11209) The bike was damaged. (11452) Ken had never seen his wife on the bicycle. (11452) She could not reach the pedals while sitting on the seat. (11452)

The first police officer to arrive was Sergeant Lane, and Ken had a long talk with him. (11205-06) Later, other officers arrived.
Reverend Holler arrived at the Botham house an hour after Ken called him. While Ken had appeared relaxed when he had visited with Reverend Holler earlier in the afternoon, he seemed to be nervous, upset, and generally at loose ends. (9260-63)

Reverend Holler went into the master bedroom and found that the covers on the bed were turned down over the foot of the bed. (9263) The pillows were arranged at the head and middle of the bed into a position for a person to curl up on the bed to read. (9263-64) There were two books on the bed, one laying open and one closed. (9263-64)

Douglas Kenneth Rushing, a Grand Junction police officer, arrived at the Botham house at 5:45 p.m. on August 23,1975 to investigate a missing person report. (9038) When he arrived, he talked to Sergeant Lane and went through the Botham house and surrounding area. (9039) The house was in some disarray, and there were cookie crumbs and things like that scattered around. (9065) There were cupboards open in the kitchen. (9065) He found no evidence of forcible entry and no evidence of a struggle. (9040) Rushing asked Mr. Botham to try and notice if anything of Mrs. Botham's was missing. (9077) Mr. Botham did say that there was one blue tennis shoe lying on the floor of the bedroom, but he could not find the mate to it. (9078) The only items of clothing that he noticed missing were some night clothes. (9078)

Looking at Mr. Botham that day, Rushing saw a small, fairly fresh nick on the right side of his face just below his right sideburn. He also had a small gash on his left index finger and there appeared to be a small speck of blood on his right earlobe. (9050-51) Ken told him that he had caught his finger on the tailgate of his car. (9083)

Rushing went to the Miracle house across the street. (9040) No one was home. (9041) There were no signs of anybody having been there recently, but the house was warm because two burners on the stove and the oven were on. (9041) The burners were on a low temperature. (9041) Not only was there no evidence of forcible entry, but the house itself was unlocked. (9041-42) On the dining room table there were three plates of partially consumed spaghetti. (9042) On the counter there was another plate of partially consumed spaghetti and a bottle of wine in the living room. (9042) The only lights on were the dining room light and the backyard porch light. (9043) The bed was made in the bedroom, and a lady's blue jumpsuit and a pair of underpants were in a pile on the floor. (9043, 9071) The house itself was untidy, but there were no signs of violence or struggle. (9043) Approximately three-quarters of the wine in the bottle was gone. (9043)

He found a purse belonging to Linda Miracle hanging on the closet door. (9044) There was a Ford stationwagon in the driveway of the house. (9044) Rushing went through the stationwagon and found a small child's shoe. (9086) It had a dollar and a dime in it and was under the right front seat. (9086) He went through the vehicle fairly thoroughly but did not find any adult shoes or sneakers. (9086)

 

The Discovery Of The Bodies


On September 26, 1975, at approximately 2:30 p.m., the Mesa County Sheriffs Department received a call from the Colorado State Patrol that the Delta County Sheriff's Office was requesting their presence at the Bridgeport area of the Gunnison River in Mesa County because a body had been found in that area. (8231) When Investigator Lawrence Smith arrived, he was taken approximately a half mile down from the road on a motorized handcar operated by the railroad to the point in the river where the body was located. (8233)

Linda Miracle's body was washed up somewhere on the bank of the shore, at a point in between the shore and a small island in the river. (8326) The water in which the body was found was approximately eight to ten inches deep. (8327) Dr. Thomas Canfield and Mr. Smith were the people who took the body out of the river that day. (8327) Wearing hip boots, they waded out into the river and examined the body. (8328) The body had not only been exposed to a long period of submersion but also to some period of time in the air and heat. (8362) It had decomposed and was very odoriferous. (8362) The lower abdominal contents and pelvic organs were completely destroyed by decomposition and the work of small animals. (8362) The body was bound with a piece of wire tied to a piece of metal. The wire was wrapped around her waist, and the weights were in the front portion of the body. (8363) The knot was tied on the side. (8363) The body was bagged and removed to the forensic science laboratory in Montrose where, because of the massive decomposition, odors, and aquatic life materials in the body, it was frozen to prevent further decomposition. (8363)

On October 2nd, Investigator Smith, along with a number of other law enforcement officers, took two boats and put them in the river above the Bridgeport bridge [which was two miles above the point where Linda Miracle's body had been found (8314)]. (8248) They floated approximately a mile and a half down the river from the bridge where they found the body of Patricia Botham. (8249) These officers had been in the same area several times between September 26th and October 2nd looking for bodies but had not found any bodies prior to the 2nd. (8250-51) Between September 26th and October 2nd, the river was dropping at a drastic rate. (8251) Mrs. Botham's body was found in a shallow area of rocks that was beginning to show as the water level went down. (8252) Her body also had an iron weight attached to it. (8252) She was wearing a faded red nightgown and no other clothing. (8252)

Dr. Canfield was called back to the river. (8372) The second body was significantly less decomposed. (8372) It was found more in the center of the river, and the air exposure had not occurred. A greater portion of the body was submerged and only a portion of the buttocks was elevated for the air and heat to get to. (8372-73) That body was also bagged at the scene and transported to the laboratory in Montrose. (8374)

On October 3rd, the bodies of Chad and Troy Miracle were found. (8254) Chad was wearing a red knit tank top and a pair of blue play shorts. (8255) His body was also weighted down by railroad iron tied with the same type of wire. (8255) Troy Miracle was found approximately five hundred yards down stream from the Bridgeport bridge, (8258) He was wearing a white turtleneck type of shirt and jockey-type undershorts. (8258) His body was also weighted in the same manner. (8258)

Canfield was again called to the river when the bodies of the two children were discovered. (8374) These two bodies were not as badly decomposed as the first, although decomposition was severe in all of the bodies. (8374)

 

The Cause Of Death


Canfield performed autopsies on all four bodies. (8377) Based on his autopsy of the body of Linda Miracle, Canfield was of the opinion that the cause of death was asphyxia secondary to obstruction of the respiratory system airway. (8383) He arrived at this conclusion because he found petechial hemorrhages in the conjunctiva of the eye, the mucus membranes of the pharynx and throat area, and the inside of the mouth. (8384-85) Such hemorrhages are consistent with a suffocation type of death, as well as certain other forms of death. However, Canfield found no evidence of those diseases which will cause such hemorrhages. (8386) He could not determine the exact method of asphyxiation. (8387) She died of suffocation due to the obstruction of her respiratory airway, and this was done with some sort of an instrument. (8387) He did not believe she was strangled because there were no marks of significant hemorrhage in her interior neck. (8387-88)

Canfield also found pre-death trauma. (8419) She had contusions and hemorrhage in the soft tissues of her upper chest. (8419) There was significant trauma to the pectoral muscles on both sides of her chest, but the trauma was greater on the right than the left. (8420) Such trauma is consistent with suffocation but not necessary to it. (8420-21)

Canfield also was of the opinion that the primary cause of death of Patricia Botham was the same as that of Linda Miracle: asphyxia secondary to obstruction of the respiratory system airway, or suffocation. (8391) He believed that she also was suffocated by some mechanical means. (8392)

The same type of pre-death trauma was found in the body of Patricia Botham. (8422) She had a large amount of trauma on both sides of the upper chest. (8422) There was acute damage to the soft tissues in the muscles with bleeding into those tissues. (8422) These findings were consistent with blunt trauma. (8422)

The evidence of blunt chest trauma which Canfield found in the two women has nothing to do, per se, with death by asphyxiation. (8511) It is consistent with suffocation simply because these bruises might show one way in which such suffocation might have happened. (8511-12)

The pattern of the hemorrhages found in both Patricia Botham and Linda Miracle were not such that Canfield could exclude drowning as a possible means of suffocation. (8521-22)

In Canfield's opinion, Troy Miracle died as a direct result of a gunshot wound to the head from a .22 caliber gun. (8393) The entrance hole was at the back of the skull. (8394) It was a fairly straight in-shoot wound and punched out a very neat clean round in-shoot hole. (8394) This hole measured a little less than six millimeters in diameter. (8394-95) Under a magnifying lens, small fragments of lead were found imbedded in the side of the skull. (8398) The hole is just off the left side of the back of the head.

The bullet passed through the cerebrum, causing massive cerebral trauma and hemorrhage. (8399) The out-shoot wound was similar but larger and came out of the inner side of the right eye. (8401) Canfield believes it was mostly likely that the bullet came from a handgun. (8414) He could not say with any more specificity what type of handgun it was. (8414) Other than the gunshot wound there was no pre-death trauma to the body of Troy Miracle. (8416) The gunshot wound was inflicted while Troy Miracle was alive. (8417) Had he been dead there would have not been any significant hemorrhage. (8417)

Canfield's opinion was that Chad Gregory Miracle also died from a gunshot wound to the head caused by a .22 caliber bullet. (8423, 8427) The bullet entered on the right side of the head, behind the ear. The major portion of the bullet exited the head, but Canfield did find three small fragments of lead consistent with bullets, which had broken off as the bullet went in. (8425-32) The gunshot wound was the only pre-death trauma that he found on Chad Miracle. (8432)

Based on energy dispersement patterns, Canfield believed that the shots were fired at both Chad and Troy Miracle from several inches to some feet away from the head. (8434) He could not be any more definite in his estimate of the distance because of the severe decomposition and purification of the tissues. (8434) While he thought it was a reasonably close shot, it did not appear to be a contact wound. (8435)

Canfield's conclusion that the gunshot wounds in the boys came from .22 caliber guns was based on four factors. The first is that the entry wound was not large enough to hold any caliber bullet larger than a .22 caliber. (8473) The second and third reasons were that there was lead filings along the edges of one wound and lead fragments of the bullet in the other wound. A metal jacketed bullet would not leave any lead fragments or traces of lead. (8474) Canfield had never seen a .25 caliber lead bullet but allowed that someone might be handling his own ammunition and thus making such a bullet. (8476) A hand-loaded .25 caliber bullet could make the same fracture patterns as those found in the two Miracle boys. (8476) Fourth, Canfield believed that the exit wound was consistent with a .22 caliber bullet. However, it is possible that a .25 caliber bullet could make such an exit hole. (8479)

 

The Time Of Death


In doing autopsies, there is a relation that can be found between the contents of the stomach of the victim and an estimation as to the time of death. (11984) Within the normal workings of a human body, the average stomach, containing an average meal, empties in two to four hours. (8480) Drugs, stress, fright, fear, disease, and inordinate amounts of food in the stomach can all effect the emptying time of the stomach. (8481) The two to four hour figure also assumes that the person involved is awake. (8482) Sleeping slows down the digestive process. (8482)

When food enters the stomach, hydrochloric acid reduces the stomach contents to "chyme," which is a semi-solid, more or less soupy material, which is then propelled through the duodenum into the small intestine for digestion. (8486)

Once death occurs, digestion itself stops, as the stomach stops the act of secretion of enzymes and hydrochloric acid. (8492)  However, the process of autolysis begins with death. (8492) In this case, the cells themselves die and release the juices they have been holding, which then dissolve themselves. (8493) Thus, after death, there are two things that could cause the foodstuffs to continue to break down. (8494) The one is the enzymatic action of the food itself. (8494) The second is a residual effect of the gastric juices already present in the stomach at the time of death. (8494) There is a third factor which is the bacterial action of the bugs that start growing in the stomach. (8494) Thus, the longer the period of time since death has occurred, the more difficult it is to identify the foodstuffs that were contained in the stomach at death. (8495)

During the autopsy of Troy Miracle, Canfield stated that his stomach was full. (8496-97) The stomach contained approximately 100 c.c.'s of red mushy material. (8497) Other people present told Canfield what Troy might have eaten prior to his death, and Canfield stated during this examination that the material he found was spaghetti and the red sauce that went with it. (8497-98, 8500) Spaghetti is a carbohydrate, and during a normal digestive process, carbohydrates will break down faster than proteins. (8500)
During the macroscopic examination on Chad Miracle's stomach, Canfield thought he was able to recognize a piece of potato. (8501) During these two autopsies, Dr. Canfield stated that based on the contents of the stomach he believed that death had occurred one to one and one-half hours after the children had eaten meals. (119 30-31)

Dr. John M. Wood, the Arapahoe County Coroner, reviewed the autopsy materials with respect to Troy Wayne Miracle. (11993-94) The autopsy report reflects that there was starchy carbohydrate material found in Troy's stomach. (11995) Carbohydrates are relatively easy to digest. (H995) The autopsy report reflects 100 c.c.'s of this reddish material were found in the stomach. (11996) That would be approximately fifty percent of the capacity of the stomach in an average child of that age. (11996) Those findings are consistent with an estimate as to the time of death of one to two hours after eating. (11996-97)

In these cases, if there were evidence that the child in question had consumed a relatively small meal, the fact that 100 c.c.'s of material were found in his stomach would be consistent with an even shorter period of time between consumption and death. (12002)

During Canfield's observation of the contents of the stomach of Patricia Botham, he stated there were 150 c.c.'s of semi-digested material consisting of corn, beans, and partially-digested meat products. (8502-03) According to two law enforcement officials present at the autopsy on Patricia Botham's body, Canfield stated that death occurred one to one and one-half or two hours after eating. (11905,11920)

Dr. Wood reviewed the autopsy report on Patricia Botham, which showed that approximately 150 c.c.'s of material were found in her stomach. (11998) This finding is consistent with death having occurred within two to three hours of consumption. (11999) It is not consistent with death having occurred four to five hours after consumption,(11999-12000) Dr. Wood reached this conclusion by taking into account the bulk of the material found, and the fact that there were obviously identifiable particles of food in the stomach such as beans and partially-digested meat products. (12000)

Although Dr. Canfield had made the above estimates during the autopsies as to how long after eating the two boys and Pat Botham had died, trial he would not testify to an opinion on this question. (8531)

No information was available as to the contents of Linda Miracle's stomach because by the time her body was recovered there was no stomach left. (8532)

 

The Investigation


Between the disappearance and the discovery of the bodies


On Sunday, August 24, 1975, Mr. Botham attended morning church services from 9:15 a.m. to noon. (9265-66) As the Botham children were staying with Reverend and Mrs. Holler, they invited Ken to stay and have lunch with the boys. (9286) He stayed at the Holler home until 3:00 p.m. and then returned for the evening service at 5:00 p.m. (9287-68)

Officers James Fromm and Doug Rushing, of the Grand Junction Police Department, went to the Botham residence that same day. Ken was not at home when they arrived but a note on the door said: "Grand Junction Police Department: The door is open. Go in and take anything you need." It was signed by Mr. Botham. (9094)

Fromm searched a file cabinet in the bedroom. (9095) While there were numerous photographs in the file cabinet, Fromm focused on one group in the third drawer which seemed to be more intricately packaged than the others in the cabinet. (9097-98) In that group, Fromm found two nude photographs of Marie Griffin. (9099-100) These were the only nude photographs he found. (9104) There were also many other photographs of Marie Griffin in which she was clothed. (9118-19)

Mr. Botham returned to his house around 4:00 p.m. The police officers did not tell him that they had removed the photographs of Ms. Griffin. (9101)

A neighbor of Marie Griffin, Georgia LeMarr, gave a statement to police on November 14, 1975, after she was aware that Mr. Botham had been arrested. (9135-37) She stated that on August 24, 1975, Mr. Botham arrived at Marie's house at 11:00 a.m. (9127) At approximately 1:30 p.m.; she saw Ken and Marie washing his car. (9127-28)

Marie Griffin was contacted by the police at 4:00 p.m. on August 24th. (11804) She had not known that anything was wrong until the officers asked if she was aware that Pat Botham and the Miracles had disappeared. (11084-85) She told police that she had not known about the disappearance and had not seen Ken since Friday at work. (11088) Nor had she heard from him over the weekend. (11088)

The police also contacted Bob Grigger in Ouray on August 24th to check and see if Ken had stayed at Grigger's motel on August 22nd. (8715)

During the week or so after the disappearance, Ken became convinced that the police were doing nothing to unravel the mystery. (11290) They told him they believed the women had just packed up and left. (11236) This made no sense to Ken, as Pat's purse, checkbook, and contact lenses were still at the house. (11286-87) Also none of her clothes except her nightgown, robe, and one shoe were missing. (11287)

Because he thought the police were doing nothing, he could not concentrate and his work was suffering. (11291) To alleviate this situation, he invited Reverend Holler to join him on an outing to Ouray, at which time he also planned to stop at Polly's and see if the police had checked out his story. (11291)

The two men took Ken's older son Thayer with them on the outing. (9197)

They stopped at Polly's Motel and told Mr. and Mrs. Grigger that Mr. Botham's wife was missing. (8718, 8752) When Mr. Botham asked if anyone had been checking on him, the Grigger's told him that the Colorado Bureau of Investigation (C.B.I.) had been there for that purpose. (8717) Mr. Botham said he was glad they were doing their job. (8717) During the trip, Ken and Reverend Holler discussed photography, Ken's whereabouts the previous weekend, and Mrs. Botham. (9209-10) They also discussed whether Mr. Botham should hire an elderly woman to come and live in the house as a housekeeper to take care of the boys. (9212-13) Reverend Holler told him he should give it a little more time to see what developed. (9213) Ken was worried that if the children had to stay in Reverend Holler's home for an extended period this would inconvenience Reverend Holler. (9253) He also talked about the disruption of the older boy's schooling if he stayed at Reverend Holler's and then had to be transferred to another school district. (9253)

On August 28, 1975, Patsy Miracle, Linda's sister-in-law, and Vince Jones, an ex-FBI agent who had been hired by the Miracle family to investigate the disappearance, were at Linda Miracle's house. (9144-46, 9160-61) Ken Botham drove up in front of his house and got out of his car. (9148) As Ken walked toward his house, he was met by his St. Bernard dog. (9148) Ken continued toward the house, and the dog ran to the back of Ken's car and began sniffing the rear bumper and leaping around. (9162-63) Ken came from the house and started hosing down his car, starting with the rear bumper. (9149-50, 9154-55, 9160)

During this time, the Grand Junction police had Mr. Botham under apparently intermittent surveillance. The first day of this tailing was September 8th when Officer Rushing followed Ken to a car wash where he washed his car. (9057) Then he went to Marie Griffin's house. (9057-58)

On September 10th, Rushing followed Ken to Marie Griffin's house at 10:00 or 10:30 p.m. Forty-five minutes later, Ken came out and put his car in the garage. Rushing left. (9058-59)

 

Between the discovery of the bodies and Ken Botham's arrest


When the four bodies were discovered, all were found to have weights attached to the bodies with white or off-white wire which had a copper core. Sheriff Leslie Williams took charge of the investigation as soon as the bodies were discovered. (9839-40) He decided that the media would not be informed that the bodies were bound with wire. (9843) Instead, he decided that the material used to bind the bodies would only be referred to as a ligature. (8264) The information about the wire was not released to the press until Mr. Botham was arrested on November 8, 1975. (9843) At the same time, Williams and Investigator Milo Vig directed officers to go to different places in Mesa County that handled this type of wire and try and match the wire taken from the bodies. (10128) The officers were instructed not to mention what the wire had been used for during the search. (10129)

In early October Frank Simonetti, the President of the Tri-Star Corporation, was contacted by officers on a Saturday. (11018) They came to his home and asked if he had any wire at the plant which matched a sample they had. (11020) They all went to the plant, and the officers looked around. (11020) While the officers did not say where the wire came from, Simonetti inferred it was connected with this case. (11021)

In October Investigators Vig and Rushing also contacted Kenneth DeWeese, who owned an electronic supply company, about some wire. (11025-27) While initially they did not explain the wire, later in the visit they mentioned that this was the wire which had been taken off the bodies found in the river. (11029-30) The six people who worked for DeWeese were also aware of this. (11032,11034)

John Burt Hayes, a co-worker of Mr. Botham, was aware in early October that the police had come to Tri-Star looking to match the wire which had been tied to the bodies. (11037-38) This was a topic of general discussion among Tri-Star employees, and Hayes may even have discussed it with Ken. (11038-39) Hayes heard the same story from his wife, who had also been shown the wire. (11039-40)

A piece of the wire was also shown to Marie Griffin by Investigator Rushing. (11091) She was not sure if Rushing had told her where the wire came from, but she was sure she had told Ken about the visit. (11094-95) Ken asked her what the wire looked like, but did not seem overly interested in it. (11095-96)

Additionally, Albert Cesario, a foreman for the railroad who discovered Linda Miracle's body on September 26th, was aware that the body had been bound with wire. (10939, 10943) This fact was discussed among the men he worked with, and he may have even told his wife. (10944, 10946)

On October 31, 1975, during an approximately eleven hour interrogation, Mr. Botham informed the officers that he was aware that the bodies had been bound with the type of wire in question. (10444) At 10:00 p.m., Ken gave Vig and other officers consent to search the storage shed at his home. (10135-37) Ken went with them, opened the shed for them, and said that there was some coaxial wire like that they were looking for in the shed. (10137) Ken himself searched the shed but could not find it. (10137-38) Ken then recalled that Pat had used some of the wire to tie her sunflowers to the fence. Later she had taken his wire cutters to remove the wire. (10139) As she removed it, she put some of the cut wire over the fence and some back in the shed. (10139)

Next door neighbors Floyd Larson and Jo Ann Ridder had both watched Pat Botham's sunflowers grow during the summer of 1975. Neither had ever seen those flowers tied to the fence with wire. (10278-82, 10324)

After the autopsies, Sheriff Williams released the information that the two boys had died of gunshots, but specifically decided not to release information about the caliber of the bullets. (9844-46) An order to this effect was given to all members of his department and all assisting agencies. (9846-47)

On October 4, 1975, Milo Vig sent Detective Tom Montgomery and Officer Robert Silva to Mr. Botham's residence to pick up all of his guns. (9854) That same day Montgomery went to Mr. Botham's home and, according to his instructions, asked Mr. Botham for all of his .22 caliber weapons. (9877) Mr. Botham gave him four .22 caliber guns. (9877, 9859-62) Milo Vig called Mr. Botham on October 8, 1975 and asked him to bring in the rest of his guns that the officers had forgotten to pick up. (9863) The next day, Mr. Botham brought in a .243 Savage and a .38 pistol. (9864) Vig admitted that when the officers went and only returned with .22 caliber weapons this would logically give the impression to a person that the police were only interested in .22 caliber weapons. (9872-73)

Investigator Lawrence Smith was given consent to search Mr. Botham's car on October 6, 1975. (9939) He removed some wire or side cutters from the glove compartment and sent them to the C.B.I. lab for tests. (9942-43)

At the C.B.I., Agents Claude Cook and Cordell Brown, experts in criminalistics, spent a great deal of time comparing cuts made in wire by Mr. Botham's wire cutters with the eight cut ends of the wire taken from the bodies. Both men arrived at the conclusion that one of the ends of each of the pieces of wire taken from the bodies of Pat Botham, Linda Miracle, and Chad Miracle had been cut with those wire cutters, virtually to the exclusion of all other tools in the world. (10610-11, 10622-23, 10644, 10718-19, 10719-20, 10722-23)

From Cook's examination of the various ends of the wire, it was not possible to tell when the various ends had been cut. (10684) And it was consistent with the evidence of erosion, which varied among the ends, that some ends could have been cut at different times than others of the ends. (10684) It was also possible, given the varying erosion of the two ends of the wire cut from Patricia Botham's body, that the end which Cook was able to identify as having been cut with this particular tool may have been cut by that tool some longer period of time prior to the event when they actually went into the water. (10687)

Having compared the knots in the wires found around the four bodies with knots in other material taken from the Botham house during the investigation, Cook found that while they were all non-slip types of knots there were inconsistencies between those taken from the Botham home and those found around the bodies. (10691-92) Cook reported, on December 12, 1975, that: "None coincided with the knots tied on the wire used to secure the bodies to the weights." (10691-92)

Brown microscopically examined the blades of Mr. Botham's wire-cutters when he first received them. He found a red spot which he delivered to serologist Marion Kamen. (10723-24) Mrs. Kamen determined it was blood but could not tell what species it had come from. (10764)

Brown also removed some white material about one-third the size of a match head from the blades. (10724-25) Using a gas chromatograph, he determined that the material from the blade had the same organic chemical composition as the white insulation taken from the wire around Pat Botham's body. (10729-30) There were, however, differences in the charts for the two samples which could be explained either by contamination of one or both of the samples or by the fact that the two samples were of similar but not identical composition. (10739)

After the bodies were discovered, the Bridgeport bridge nearby was inspected. (8289) Investigators found a six-inch darkened area on the planks near the center of the bridge and another of like size on the railing support. (8290-91) They chiseled off samples of these spots. (8292-93) There were also two parallel series of small dark spots which started from where the wooden planking began. (8294) At the very beginning of the bridge they found some hairs which were sent to the C.B.I, along with hair samples from all the bodies. (8295-96)

Nelson K. Jennett, a C.B.I. expert in hair, textile, and fiber analysis, concluded that one of the hairs found on the bridge could have come from Linda Miracle's head, and another could have come from Chad Miracle. (8552-58)

Marion Kamen tested the wood chips from the bridge and found that all were examples of human blood. (10757) As a result of her attempt to determine the blood groupings, she concluded the blood was either from group O or that the characteristics of the other groups had been destroyed by exposure to the weather. (10757-59)

James Groves, a special agent for the D. & R. G. railroad, was asked to look through the piles of discarded railroad irons which were in plain view from the road to the Bridgeport bridge, and had been so since at least May 1, 1975, to try and find broken pieces which might match the weights on the bodies. (8590, 8594, 8598-99) On October 4,1975, Groves took a broken piece to Dr. Canfield. (8802) It was the mate to the weight taken from Chad Miracle's body. (8603)

On November 3, 1975, Mr. Botham went to the office of Joyce Jorgensen, the owner of the Ouray County Plain Dealer, with Reverend Holler. (11939-41) Mr. Botham explained that he was trying to locate someone who had seen him in Ouray around midnight on August 22nd. (11942) He said he wanted to run an ad in the paper to try and locate this man, and Ms. Jorgensen helped him prepare the ad. (11942) Ms. Jorgensen asked how he wanted to be contacted if somebody answered the ad, and Mr. Botham gave not only his name and phone number but Milo Vig's name and phone number. (11943) Mr. Botham explained that he expected to be arrested momentarily, and when asked, said he did not have an attorney. (11943) As he did not, Ms. Jorgensen suggested that the ad contain the phone number of the newspaper in case it was a local person that responded. (11943)

Steve Norris never actually saw the ad in the Ouray paper. (10375) He was contacted by Gloria Carpenter and Christine Jorgenson who had seen it, and he in turn contacted Milo Vig. (10374-75)

 

The Arrest


On November 8, 1975, Investigator Lawrence Smith participated in the arrest of Ken Botham. (9963) The arrest took place approximately twenty miles south of Grand Junction on Highway 50, and approximately three-quarters of a mile from the road that turns off to the Bridgeport area. (9964) At the time he stopped Mr. Botham, Marie Griffin and Mr. Botham's two children were with him. (9964-65) Mr. Botham was driving his 1972 blue and white Toyota. (9965) Smith had followed him from Grand Junction, and Ken had been driving between fifty and fifty-five miles per hour. (9966)

 

Post-Arrest Evidence


John Brandt, who owned the Botham's house, rented it to his brother, Steven Brandt, on December 1, 1975 after Ken Botham was in jail. (9887) Steven went down into the crawl space under the house on December 25,1975 to fix the plumbing. (9915) Shining his flashlight around he saw a gun. (9916-18) He immediately called the police. (9918) The police felt the .22 caliber gun had slipped out from behind a piece of insulation. (9929)

Mr. Botham admitted that the gun in question belonged to him and that he had hidden it under the house. (11303-04) He did so because he knew it was stolen and not because he knew it to be the murder weapon in this case. (11304-05) Mr. Botham had paid thirty dollars for it from an employee of the Steven's Sporting Goods store. (11430-31) The man's name was Mike Tell. (11431) Mr. Botham bought the gun in September, 1967 in Grand Junction. (11431-32)

Officer Tom Montgomery had spoken with Pat Botham in late June or early July, 1975 and then removed Ken's handguns from the house. (9580) A week later, Pat called him crying. (9580-81) Having no legal right to hold the guns, Montgomery returned them. (9581) This gun was not among them because it was locked in the safe at the time.

Ken believed that Pat had had Montgomery pick up his guns because she was angry about Ken's relationship with Marie Griffin and wanted to get him in trouble. (11306-07) Montgomery checked to see if the guns were stolen and then returned them when this was not the case. (11307) But the gun in question had not been checked, and Ken knew it was stolen. (11307-08)

During the investigation into the disappearances, Ken did not want the police to find a stolen gun in his possession so he hid it while servicing the furnace. (11308)

Dr. William Doell was the family physician for Patricia Botham and her two sons from 1970 through 1975. (9825) Over strenuous objection, Dr. Doell testified that periodically during this time he had noticed bruise marks on Pat Botham. (9830) Dr. Doell had told her she should get a divorce. (9833)

Investigator Lawrence Smith not only searched Ken's car with Ken's consent on October 6,1975, but also searched it pursuant to a search warrant on November 13, 1975. (9977, 9967) During the first search, Smith was already aware that the Miracle boys had been shot to death. (10037) In addition to the wire cutters, he took scrapings from the back of the car because, among other things, he was looking for dried blood. (9978, 9983) He looked at the black mat but apparently did not see any dark spots or he would have taken the mat with him. (9991-92)

During the November 13th search, he did see dark spots on the mat, and took it with him. He also took some weather stripping from the top of the tailgate on which he also saw dark spots. (9968-69)

Marion Kamen tested the spots on the mat and found them to be group A blood. (10776-77) As of November, 1975, she estimated the blood could be no more than six months old. (10777)

Mrs. Kamen also found that Troy Miracle had group A blood; Chad Miracle had group O blood; and Ken Botham had group O blood. (10766)

Mr. Botham said that he could not explain the type A blood on the mat. (11378) He did know that Marie Griffin's son had been cut on occasion and he used to ride in the back of the truck, but he did not know the boy's blood type. (11378) Mr. Botham did not think, however, that the boy had cut himself within ninety days of the time it was found, when Mrs. Kamen said it probably had happened. (11378)

Milo Vig had first contacted Ken Botham on October 1, 1975 to tell him that the first body discovered was not his wife. (8616, 8618) Ken responded that he was glad but said that in his own mind he thought his wife was dead. (8618) Ken asked how badly the body they found was decomposed. (8618) He had been in the Gunnison River in that area several times and found the water was very alkaline and contained salt, much like sea water. He thought this would cause a body to decompose quite rapidly. (8618-19)

On October 22nd, Ken told Vig that he was very familiar with the Bridgeport area and the river, especially for boating. (8648) The last time he had been boating was in June or July, 1975 with Tim Tyree. (8649)

On that trip, Mr. Tyree said that he and Ken put the boat in the river a quarter mile above the Bridgeport bridge and floated down river to Whitewater. (9317) Driving to the river, they had to cross some railroad tracks. (9318) There were some coal cars on the side and piles of iron beside the road. (9318-19) Tyree asked Ken what he thought those piles were. Ken said they were probably pieces of iron used to splice railroad rails together. (9319)

Approximately a month earlier, in response to Tyree's prodding about the boat trip, Ken had taken out some landfall maps, and they had followed the course of the river down from Delta to Whitewater. (9320-21) During that discussion, they talked about the river. (9321) Ken described some of the deep places in the river and some of the holes in the river that are very dangerous. (9321)

Dwain Jackson was in a singing group with Ken Botham in late 1971. (9368) At one meeting, Ken asked why access to the bridge from Bridgeport had been cut off. (9369-70) Ken said that the bridge would be a good place to dispose of some bodies. (9371) Jackson commented that if you threw people in the river you had better tie them down. (9371) Ken asked what he would use to tie them down, and Jackson suggested wire because it probably would not decompose. (9372) They also discussed the fact that bodies tend to decompose and swell and come to the top. (9373-74) Ken said something about the perfect crime, and they discussed the fact that there was no such thing. (9374)

Ned and Jean Crawford, neighbors of the Bothams, told of an incident on June 14, 1975, which Mrs. Crawford characterized as "the night Linda was strangled."(9498) At 1:00 or 2:00 a.m., they were awakened by a loud, feminine scream. (9573) Mrs. Crawford jumped out of bed and looked out the window. (9499) Because the view was blocked by trees, she went to look out of the living room window. (9500) She saw Ken Botham carrying Linda Miracle across the street to his house. (9500) Mrs., Crawford stated this was no more than one minute after the scream. (9501) As he walked, Ken called Pat's name loudly two or three times. (9502-03) Pat opened the door, and Ken carried Linda inside. (9503) A rescue vehicle arrived shortly.

Milo Vig discussed this incident with Mr. Botham on both October 16 and October 22, 1975. Mr. Botham stated that he had been to Monarch Pass taking some photographs and got home at 1:00 or 1:30 a.m. (10047) When he went in the house, his wife told him to call Reverend Holler no matter what time it was. He made that call sometime after 1:00 a.m. (10047) After the call, he sat down on the couch and read the paper. (10047) While reading, he heard a scream. (10047) Approximately ten minutes later, he heard another blood curdling scream. He opened the door and turned on his porch light. (10048) He saw Linda Miracle's door open, and she came out onto the porch. (10048-49) Linda screamed to him for help. (10049) By the time he got over there, she had staggered off the porch onto the lawn. (10049) When he arrived, Linda was unconscious and was very cold and sweating. (10049) As she came to, she fought him off a little bit. (10049-50) Linda said to call the cops, but he did not think there was any reason to do so. (10050) After this, he called to his wife to call the rescue squad. (10050) He did not think Pat had heard him, so he picked Linda up and carried her across to his house and called the rescue squad himself . (10 05 0-51)

On June 15, 1975, Officers Robert Silva and Truman Haley visited Linda Miracle in the hospital while they were on duty. (11007-08, 11724) At first, both men talked to Linda. (11008) Then Silva left the room, and Haley stayed with Linda for another five or ten minutes. (U008-09) When they left the hospital, they went to Norm Wilhelm's apartment in the 1400 block of Wellington. (11010, 11724) Wilhelm was not home. (11725) Haley saw Norm Wilhelm on June 16, 1975 and threatened him by saying if he had been involved in this incident, he (Wilhelm) would go to jail. (11733-34) At this time, Haley was a sheriff's officer but jurisdiction for investigating the incident was not with the sheriff's office. (11734)

Truman Haley was a sergeant with the Mesa County Sheriff's Office in June of 1975. (11713) He continued in that capacity until October 13, 1975, when he left the office after being told to either resign or be dismissed. (11713-14)

Haley had a sexual relationship with Linda Miracle and had intercourse with her on three occasions: first at her house and then once in his car and once in her car. (11727) These occurred within a year of her disappearance. (11728) The last instance was in approximately March of 1975. (11729)

However, in an interview conducted by Detective James Fromm on September 5, 1975, Haley said that he had been having an affair with Linda for two years. (11876) Haley stated that the last time he saw Linda Miracle was August 7 or 8,1975. (11879) Haley also said that the last time he spoke to Linda Miracle was August 11,1975. (11879)

Haley was not aware that Linda had had an abortion until after her death. (11731-32) The last time he saw her before her death was the first or second week in August. (11732) She went to St. Mary's Hospital and asked Haley to appraise her car. (11732)

At one point Haley became aware that Linda Miracle kept a diary. (U736) He could not recall having seen the diary before, and when he first saw it, he took it. (11736-37) He took the diary approximately a week after the incident on June 15th. (11737) He recalled talking to the district attorney's office investigator on August 31, 1975 but could not recall having told him that he saw Linda's diary laying in her house the latter part of July and put it in his pocket. (11738) Haley denied it was July and said it was more likely the latter part of June. (11739) Haley did not recall telling Jim Fromm of the police department that if the diary ever became public he would be in trouble. (11739-40) Haley did not have Linda Miracle's permission to take the diary. (11740) He kept Linda's diary for about two or three weeks after he took it and looked through it. (11740) He wanted to see if there was anything in the diary which pertained to the incident on the 15th of June. (11740) There was not. (11740) He was ashamed to bring it back and tell her he had taken it. (11740) Working down in Fruita in the early morning hours, he set it afire and threw it into the Colorado River. (11742) He denied having told police officers that he had burned the diary. (11742-43) At the September 5th interview, Haley had told Fromm that he was concerned about Linda Miracle's diary because it contained written notes concerning his affair with her. (11880)

On Friday, August 22, 1975, Haley was on duty from 8:00 a.m. to 4:00 p.m. (11715) Haley left the sheriff's department at 5:00 p.m. and went to St. Mary's Hospital to meet his wife. (11717) He left the hospital between 7:00 and 8:00 p.m. and went home with his wife to bed. (11717-18) At 11:30 p.m., he arose and went to the sheriff's office. (11718) He took the marked patrol car from there and went to Fruita, where he relieved the city police and worked from midnight until 6:00 a.m. (11719)

Haley recalled only one call while he was on duty in Fruita. (11719) At 12:30 to 12:45 a.m., he went to a park in Fruita to investigate curfew violations. (11720) Haley could not find records to verify a second call from the Grand Junction Police Department that night about a drunk driver and would not comment as to whether he had told defense counsel about such a call at some earlier time. (11721-22)

On that date, Haley owned a .22 caliber pistol or revolver. (11722) He had since sold that revolver as well as most of his other handguns upon leaving the sheriff's department. (11722)

 

The Penalty Hearing


Dr. Thomas Canfield, who was previously qualified as an expert in pathology, performed the autopsy of Patricia Botham and concluded that she died as a result of asphyxia, secondary to an obstruction of the respiratory airway. (12485) Death was thus caused by suffocation. (12485) Additionally, he found a bruise of the major chest muscle-the pectoralis major-and bruises in the fatty tissue of the chest just above the breast. (12488) The trauma to Pat Botham's chest was "blunt" and was probably caused by a broad object, rather than a sharp object. (12489) Dr. Canfield could not determine the exact manner in which this blunt trauma occurred. (12491) Canfield believed the asphyxiation occurred through mechanical means. (12494)

Canfield described the three physiological stages that occur during asphyxiation: During the first stage, lasting one to two minutes, the body has lost the ability to acquire oxygen. The victim is struggling, and there is general hyperactivity of bodily functions. (12497-98) During the second stage, which lasts another two minutes, there is a loss of consciousness. (12499) The respiratory system continues to be hyperactive. There may be vomit which will get into the lungs. (12502) Canfield could not determine if this had happened to Mrs. Botham as there was decomposition of her lungs. (12503) The third stage occurs during the next two or so minutes. (12503) During this stage, all bodily systems fail, including the brain. (12503-04) Within eight or so minutes after obstruction, the person is dead. (12504-05)

Elsbeth Botham is the Defendant's mother. The Botham family lived in Connecticut for the first eleven years of the Defendant's life and then moved to Colorado. (12519-20) The Defendant did not have any siblings until he was twenty years old, when his sister was born. (12521)

As a child, the Defendant had many hobbies, although he focused on one at a time. (12522) He had a rock collection, pets, he read a lot, and had model airplanes. (12522) He was interested in music and took private voice lessons for six years, starting in junior high school. (12523) At the age of nine or ten, he became interested in photography. (12525) As he grew older, his interest and his equipment grew. After high school, he took photography courses at Mesa College. (12525) Also, due to his interest in planes, he obtained his pilot's license at fifteen or sixteen. While he studied flying, he took courses in chemistry, physics, and higher mathematics at Mesa College and obtained a commercial pilot's license. (12522-23)

Prior to receiving his pilot's license, he was totally absorbed in flying. He read all he could and, as with all his other areas of interest, he was more advanced in his approach to the subject than anyone else. (12527) Thus, his family could not really discuss his interests with him, as he always knew more than anyone else. (12528) This trait had been present since he was quite young. (12528)

The Defendant's social activities were very limited. He had very few close friends and never more than one at a time. (12526-27) His work with his hobbies was always solitary. (12529) He never participated in organized sports activities. (12529) When he lived in Connecticut, he was very involved in water sports. (12528-29)

Dr. John M. Macdonald was qualified as an expert in psychiatry. (12539) He interviewed the Defendant for a total of eight hours and twenty-five minutes. (12541) From the history he took from the Defendant, he learned that there was no family history of mental illness, suicide, or alcoholism. (12543) There had been one violent death in the family. His mother's adopted sister was killed by her stepson. (12543)

Regarding his early development, the Defendant stated that he had always been at odds with his father, who was a meticulous, careful, dominant person. (12543) The Defendant has had a problem with lying since he was in the sixth grade, but he is somewhat reluctant to talk about it. (12544-45) Mr. Botham said that this had started through his attempt to look better in people's eyes. (12545) The problem apparently continued to the present. Mr. Botham made many exaggerated claims about his accomplishments, and Macdonald found that one of the difficulties in examining him was in never being sure when he was telling the truth. (12548)

Mr. Botham graduated from high school at nineteen, in the top ten percent of his class. (12551) He claimed to have been involved in elaborate practical jokes during his school years. (12551-54)

Macdonald found that for a person his age (28) the Defendant has a fairly stable work record. (12557)

He married at twenty-one, after knowing his wife for four years. (12562) His wife had led a very sheltered life. (12562) A year or two after their marriage, while living in California, Mrs. Botham was raped. (12562) This created a problem in the marriage because Mr. Botham acted in a very immature manner and did not show sufficient understanding toward his wife. (12563) She was upset by this, and they were never again as close as they had been before she was raped. (12563)

In 1974, Mrs. Botham left him for a while, but subsequently returned. (12563) Mr. Botham denied ever having beaten his wife and could recall only one incident when she was bruised because he had rolled her out of bed. (12563) He admitted to being very domineering and to having lost his desire to please his wife. (12564)

Mr. Botham told Macdonald that in June, 1975, his wife had an abortion. (12564) He had not been having sexual relations with her, and suspected at least two other people of having relations with her. (12564) He did not discuss with her who she was involved with as he was trying to be gentle, in contrast to his earlier handling of the rape. (12564)

Mr. Botham described himself as a loner most of his life and as something of a perfectionist. (12566) He attended church regularly all his life and does not drink, smoke, or use drugs. (12567-68)

With reference to Mr. Botham's suicide attempt after having been convicted of these murders, Macdonald asked the Defendant why he had cut his right arm, when he is right-handed. The Defendant explained that he had intended to cut both arms and so started with the more difficult one. Once he cut his right arm, he had quite a lot of blood flowing. He had done this over a wastepaper basket, to avoid making a mess, and he did not go on because he was afraid he would make a mess. (12572-73) Dr. Macdonald found that at the time Mr. Botham was admitted to the hospital his blood pressure was 72 over zero and his pulse was 160. (12573-74) He received four units of blood. (12574)

Macdonald gave the Defendant a short intelligence test and found his I.Q. to be 125 at the minimum. (12574) During the testing, the Defendant refused to cooperate on two of the sections. (12575) Macdonald felt he expressed a number of strange, paranoid ideas. (12575)

Macdonald's impressions were that Mr. Botham has an obsessive personality, involving compulsive orderliness, precision, and stubbornness. (12577-78, 12580) Mr. Botham exhibited the usual obsessive traits of high moral standards and good work records, (12582) but Macdonald also found some traits usually associated with sociopaths, who are the opposite of obsessives. (12583) He does not believe that Mr. Botham is a sociopath. (12584) His lying, or disregard for truth, also is strange for an obsessive. (12586) If people who are obsessive are handicapped, it is in their relations with other people. (12587) Macdonald found an underlying core of hostility in the Defendant and believed him to have difficulty in relations with other people. (12587-88) He is also a very immature, dependent person. (12589) It was difficult to get information from the Defendant about his emotional relationships. (12592)

Macdonald found Mr. Botham to be significantly handicapped by his characterological problem. (12593) He does not believe that Mr. Botham is legally insane. (12597) He does have a psychiatric handicap. (12610) He is a psychiatrically sick individual. (12612)

Dr. Frederick Miller was qualified as an expert in psychiatry. (12650) He examined Mr. Botham for six hours and spent almost an hour with his parents. (12651) As a result of this, Miller formed a firm opinion that the Defendant is and has been a very troubled and emotionally sick young man for many years. (12653) Throughout his examinations, Mr. Botham denied that he was guilty of these murders. (12705)

Mr. Botham exhibits a severe obsessive-compulsive disorder, as well as other conditions. (12655) Miller found the Defendant's lying made evaluation difficult, and characterized this lying as "pseudologica phantasia."(12656) At points in his life he has had major difficulties differentiating between fantasy and reality. (12658)

The obsessive personality usually involves an isolation from emotions and an avoidance of emotional vulnerability. (12662) Thus Miller refers to the Defendant's response to his wife being raped, "He [the Defendant] says that he just thought it was unimportant, if you could regard one's wife being raped as unimportant. That is a rather distant person who does not have any emotional response available." (12669)

Miller also found evidence of paranoid thinking in the Defendant. (12675) While not being able to document it, he also had a "clinician's intuition" that Mr. Botham is very disturbed. (12678)

In Miller's opinion, Mr. Botham is not legally insane but because of significant duress he was impaired in his ability to appreciate his actions and to adhere to what would have been right in a social sense. (12687,12701)

 

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