Two witnesses in a hearing to suppress evidence in the upcoming murder trial of Kenneth H. Botham Jr. appeared in Mesa County District Court this morning in an attempt to prove that Botham’s constitutional right have not been violated.
The hearing was expected to conclude sometime this afternoon.
Attempts to suppress evidence are based on the United States Supreme Court decisions in the Escobido and Miranda cases. Escobido provides that, when a search begins to narrow to a particular suspect, he must be advised of his rights. Miranda reaffirms Escobido and delineates what those rights are.
If the evidence was unconstitutionally obtained, the judge can rule that it must be suppressed in the trial.
Botham is charged with murder in the deaths of his wife, Patricia, and her neighbors, Mrs. Linda Miracle and her sons, Troy and Chad, on Aug. 23, 1975. He has pleaded innocent of all charges.
As the hearing opened this morning, Deputy State Public Defender Lee Foreman renewed a continuing request to have the press and public excluded from the hearing. As he has previously, Dist. Judge William Ela denied the motion.
“Matters I feel I have warned the media about – arguing guilt or innocence – have been carefully followed,” Judge Ela said. He indicated he would keep the hearings open “so long as stories are basically factual and not for trying the case, interpreting evidence or doing investigative reporting.”
Both Sheriff’s Deputy Milo Vig and Gerald Tesch of Westminster, from the Colorado Bureau of Investigation were questioned extensively this morning by Dist. Atty. Terrance Farina and Foreman.
Vig had been present for much of the investigation of the murders, after they were turned over to the sheriff’s office in late September, because the bodies had been found in the Gunnison River.
Tesch was present for one interview on Oct. 31 with Botham, which began at 1 p.m. and concluded, as far as Tesch knew, about 9:55 p.m. that day.
Talked several times
Vig testified that he had talked to Botham several times, as the four bodies were found and identified and that he had held a “general discussion” with him on Oct. 3. He said Botham had told sheriff's officers they “were welcome” to have weapons they asked for on Oct. 3. Vig also testified Botham was agreeable to a search of his home and vehicle. There was another discussion on Oct. 22, Vig said.
On cross-examination, Foreman asked if Botham had been advised of his rights, had informed him he was under investigation or suspected of a crime, when his car and home were searched.
Vig said that he had advised Botham he could have an attorney present and could refuse searches of his home and car. But he claimed the suspicion at that point was not focused on Botham.
At one point, Foreman asked about an Oct. 16 meeting, suggesting to Vig that the purpose was to develop information on the murder case.
“I’d call it a rap session,” Vig rejoined, noting that he had not advised him of his rights nor told him he was a suspect.
Advised Oct. 22
At an Oct. 29 meeting, Botham was advised of his rights, Vig testified. Vig also claimed that “about Oct. 29” was the first time any “hard evidence” pointed to the defendant.
Tesch testified that he had advised Botham at 1 p.m. on Oct. 29 of his rights and had him sign a waiver of those rights. He testified there had been “specific questions” for the next two hours and that Botham at one point had suggested calling an attorney. Tesch said he offered Botham the phone, but no call was made.
On cross-examination, Foreman asked Tesch if he had been fatigued at 9:55 p.m., and Tesch replied that he was. Foreman also brought out that several officers had questioned Botham during that nine-hour period and asked Tesch if several rest periods had refreshed him.
“Sitting out had no effect,” Tesch replied.
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