John Gardner
Post Independent Staff
Glenwood Springs, CO Colorado

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March 12, 2010
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Plenty of jockeying in Rifle murder case

GLENWOOD SPRINGS, Colorado - Heath Johnston sat hunched over, hanging his head, as he listened to a recording of his interrogation with Rifle Police Lt. J.R. Boulton, which occurred hours after he allegedly shot his brother, Sam Johnston, 26, on Dec. 15, 2008.

Only a few times did Johnston, 21, look at his image on the screen.

The recording was presented Wednesday in Garfield County District Court at an all-day motions hearing scheduled to address several pre-trial motions filed by both prosecutors and the public defenders office in the first-degree murder case.

Johnston is charged with killing his brother by shooting him in the back of the head with a shotgun.

Public defender Steve McCrohan filed a motion to suppress statements and evidence based upon an unlawful search and seizure the night of the arrest.

They also argue that Johnston was interrogated twice before Boulton began the actual interrogation process at the Rifle Police Department hours after his arrest.

According to the motion document, the defense argues that "officers interrogated Heath Johnston" before being taken to the police station, and that "Mr. Johnston was not advised of his Miranda rights during this interrogation."

Johnston waive his rights later at the police station in the presence of Boulton.

"Mr. Johnston's waiver of his right to counsel and right to remain silent was not voluntary in light of his prior, unwarned interrogations," the motion document states.

At the beginning of the official interrogation Johnston told Boulton, "I know all my rights" before he waived them.

The two Rifle Police officers who first responded to Johnston's house on Dec. 15, 2008, also testified at the motions hearing.

The defense questioned that the officers followed standard protocol, and did not read Johnston his rights before taking him into custody.

Both officers stated that Johnston made several statements regarding the shooting of his brother in written arrest reports.

The reports stated that Johnston, shortly after initial contact by police that night, made voluntary statements that he shot his brother.

Both officers testified that they were not interrogating Johnston at the time of the arrest, but were asking questions to gather more information, to assess the situation, and to determine if anyone else in the house needed emergency assistance.

Over the course of the next hour after his arrest, Johnston also made several other incriminating statements to police that were recorded during booking at the Rifle Police Department.

If officers read Johnston his rights, any incriminating statements he made could be used against him at trial.

The defense requested that any statements made before he was read his rights, should not be allowed as evidence against him in his trial.

Officer Dewey Ryan, one of the arresting officers, testified that he advised Johnston during booking at the RPD, "to remain silent."

"You advised him of only the first line (of the Miranda rights)," Public Defender James Conway asked officer Ryan.

"That is correct," Ryan stated.

"You didn't tell him that anything he said could be used against him?" Conway continued.

"That is correct," Ryan stated.

"Why didn't you read the full Miranda (warning), since you already told him he was in custody?" Conway asked.

"My intent was not to interrogate him at that time," Ryan said.

The motions hearing was cut short before all motions could be heard by the court Wednesday. Other motions to be addresses include a motion to continue the April 12 trial date.

McCrohan told Nichols that delays involving evidence testing, and acquiring an expert witness to testify on Johnston's behalf, have taken longer than expected. And, that another trial scheduled to end three days before the Johnston trial is scheduled to begin, does not allow defense proper time to prepare.

"I'm very concerned that if the motion is not granted, I will be ineffective in representing him," McCrohan said.

Ninth Judicial District Court Judge Gail Nichols said that the trial could be delayed as late as July or August, depending on the prosecution's and defense's schedules.

Another motion that was not addressed Wednesday was a motion to withdraw the defendant's not guilty by reason of insanity plea, which according to court records, McCrohan filed on March 5.

Judge Nichols said that the hearing could take another two days, and continued the hearing to resume Friday.

jgardner@postindependent.com


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The VailDaily Updated Mar 12, 2010 01:54PM Published Mar 12, 2010 01:54PM Copyright 2010 The VailDaily. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.