Evidence obtained prior to charges of first degree murder being lodged against Kenneth H. Botham Jr. will not be suppressed, Dist. Judge William Ela ruled Wednesday.
But he also told lawyers arguing the suppression motion: “In a case of this importance and complexity, I would be remiss if I hear it without taking notes. I am going to indicate I will deny the motion to suppress and to back it up with (written) findings and conclusions will take several days.”
Judge Ela’s decision came at the conclusion of a day-long hearing, in which Deputy State Public Defender Lee Foreman sought to prove the Botham’s constitutional rights had been violated during the investigation.
Innocent plea entered
Botham has pleaded innocent of four counts of murder in the deaths of his wife, Patricia, and her neighbors, Mrs. Linda Miracle, and sons, Troy and Chad, on Aug. 23, 1975.
Foreman claimed in summation Wednesday that, during investigatory procedures which began Oct. 4 (1975) and were “without color of warrant until Nov. 8” (the date of Botham’s arrest) the defendant’s rights under the Escobido decision were violated.
That U.S. Supreme Court decision provides that when an investigation begins to focus narrowly on only one person, that person must be warned of his constitutional rights.
Foreman claimed that at a relatively “early time” in the investigation, there were two requests for guns which Botham owned. He claimed that the “focus of attention as really intended by Escobido” was on Botham at that time.
“Initial illegality is not eliminated by subsequent warnings…Initial illegality cancels out intervening warnings,” Foreman contended.
Leans on Miranda
The public defender also leaned heavily on the Miranda decision, noting that the constitutional rights mandated in Miranda mention interrogation without lawyers.
He dwelt on the fact that Botham had not had a lawyer present at an Oct. 31 questioning which began at 1 p.m. at the sheriff’s office and which Botham left about 9:55 p.m.
Foreman noted that Deputy Sheriff Milo Vig had testified he was tired at the conclusion of a three-hour questioning session with Botham on Oct. 22.
“It is only fair to assume the defendant was suffering the same problem,” Foreman said. He said that the same situation prevailed at the Oct. 31 hearing, adding: “The psychological coercion is only too clear.”
Foreman also attacked the affidavit in support of the arrest warrant, detailing several items he claimed were misleading, incomplete and not tied down. He contended there is not enough left in the warrant when those items are taken out to support probable cause for arrest.
As Dist. Atty. Terrance Farina came forward to give his rebuttal, Judge Ela told him that he was “most strongly interested in the effect of (Botham’s) interrogation (on Oct. 31).”
Farina said he believed police and sheriff’s officers had conducted themselves in a highly professional manner during the entire investigation. He claimed that early contacts of officials with the defendant were not a focusing of the investigation on one person but the day-to-day contacts to be expected with the husband of one of the victims.
Farina said that officers had terminated the Oct. 22 interview, that there was a clear advisement of rights on Oct. 31 and that there was testimony Botham was “bright-eyed and bushy-tailed” at the ends of both interviews.
Did not call
Farina also said the defendant was given the right to leave at any time during the Oct. 31 hearing and that this did not indicate a “coercive procedure” or “custodial situation.” He noted that when Botham mentioned obtaining a lawyer during the Oct. 31 interview, he was given the phone to do so and then did not make the call.
Farina said testimony showed the defendant was “talking on a variety of subjects,” that he led officers on a search of his home after the nine-hour questioning, that he returned to the station with the officers and talked “for 30 to 40 minutes,” that officers had suggested the interview by terminated and that the defendant had then taken some of the officers outside to who them his new CB radio in his vehicle.
“These do not appear to be the actions of someone fatigued, who feels psychological pressure,” Farina said.
Based on investigations
The district attorney noted that the affidavit in support of arrest was based on direct or participating investigation by Vig, that information came from officers under his direction.
“The fellow officer rule is alive and well in Colorado,” Farina said, in allusion to a rule which allows law officials to give credibility to statements by fellow officers. Citizen informants’ names and addresses were also given and they are reliable as well, Farina said.
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