Another date in the complicated pre-trial calendar of Kenneth Herbert Botham Jr. was set Monday, when a change of venue motion was scheduled for argument at 1:30 p.m. March 5 in Mesa County District Court.
Botham is charged with the first degree murders of his wife, Patricia, and of Mrs. Linda Miracle and her two sons, Troy and Chad, last Aug. 23.
The hearing date was set after Public Defender Bob Emerson told Dist. Judge William Ela he will file a motion seeking the change of venue within a few days.
Judge Ela told Botham he has until Feb. 13 to file the motion in court. He will have until five days prior to the hearing to file affidavits in support of the motion. Usually, in a change of venue hearing, the lawyer seeking the change collects affidavits to support his stand from numbers of people.
Emerson indicated that he also expects to file routine defense motions asking for discovery of evidence and a transcript of county court proceedings. He agreed to Judge Ela’s suggestion that those motions, along with other less routine ones he may decide to file, could be argued at an omnibus hearing (all heard at the same time). The date of that hearing will be set after the change of venue motions have been heard. Emerson indicated that the outcome of that hearing could affect what other motions he will seek.
Botham has not yet entered a plea. Emerson indicated that plea entry would be postponed until after the motion had been heard and ruled on.
Technically, the Monday afternoon hearing was an advisement to Botham of his rights. Judge Ela told him that he has the right against self-incrimination, the right to an attorney and a jury trial and the right to be released on bond, unless a hearing is held to show cause why bond should be denied.
Botham was placed on $500,000 bond at the time of his arrest last November and has remained in the county jail since that time. His bond was left unchanged by Judge Ela.
The judge told Botham that each of the four counts of which he is charged is a class one felony, carrying a minimum of life imprisonment and a maximum sentence of death. The judge also noted that the sentences could be imposed to run either concurrently (all at the same time) or consecutively (following one another), if Botham is convicted.
However, Dist. Atty. Terrance Farina told the judge in a conference at the bench with Emerson, and the judge subsequently told the court that there is some authority for the court to impose consecutive sentences, in the cases of four separate victims, even though all of the incidents arose from a single episode.
The judge also noted that confinement might be either the Colorado State Penitentiary or the state reformatory.
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