A further delay in the retrial of Kenneth H. Botham Jr., 33, on four murder counts, surfaced Friday.
The appellate divisions of the Colorado Public Defenders has petitioned the Supreme Court to rule that some evidence not admitted at Botham’s 1976 murder trial in Grand Junction should have been allowed.
Botham was found guilty of the first-degree murder of his wife, Patricia, 25, and the second-degree murders of their neighbor, Linda Miracle, 24, and her children, Troy, 5, and Chad, 3, in Grand Junction in August 1975. Botham has been confined in the state penitentiary since January 1977. The Colorado Supreme Court overturned his conviction on June 8 and ruled that there must be a new trial.
Norm Mueller, a special deputy public defender now in private practice, said Friday he had filed a motion asking the Supreme Court to rule whether testimony by Patsy Murphy should have been admitted at the trial. Mueller was a member of the appellate division staff which sought the reversal in the Supreme Court in September 1979.
Testimony by Murphy, a sister-in-law of Linda Miracle, would allegedly have shown that Miracle intended to see two men the night of the murder. Both men were questioned by officers after the murders and released. District Judge William Ela did not allow the testimony on the basis that it was hearsay.
The Supreme Court ruled that testimony by four other witnesses, to establish animosity between Botham and his wife and Botham and Miracle, should not have been admitted.
But, although the pubic defender also asked for a ruling that Murphy’s testimony should have been admitted, the court remained silent on that point. Mueller said he hopes to get a favorable ruling, allowing the Murphy testimony to be admitted at Botham’s next trial.
Mueller said he could not predict how long it will take the Supreme Court to act on the request. If the court refuses to rule, its decision should be known in a week or two.
If the court decides to “modify” its opinion, (adding a ruling either that the testimony should be allowed or should be denied) the decision could take a month or more, Mueller said. If the court calls for a full rehearing, both the defense and prosecution would be entitled to submit briefs, and it might take several months for the court to reach a decision.
District Attorney Terrance Farina said has been expecting the official notification of the court’s ruling all week. He said Tuesday that the prosecution had decided not to ask for a rehearing. However, he was not informed by the appellate division of the public defender’s office of its decision to ask for an additional ruling.
Farina said early this week that he does not plan to bring Botham back for the first stage of his retrial until he receives the official notification from the Supreme Court. That notification will not be sent until the court has decided what to do.
When the Supreme Court had not sent the official notification by Friday afternoon, Farina called court officials to ask why it had not arrived. He learned then that the public defender’s motion had been filed last Monday.