Rex Lain changes story twice in Nickels trial

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EPHRATA - Rex Lain changed his testimony twice in the David Nickels trial.

Lain said in a Monday hearing Nickels didn't offer him money to kill someone and changed his testimony a few hours later saying Nickels offered him $2,000.

Lain was originally scheduled to testify last week before revealing to prosecutors Nickels offered him $2,000 to kill someone. Grant County Superior Court Judge Evan Sperline decided to delay Lain's testimony to give defense attorneys Jackie Walsh and Mark Larrañaga a chance to question Lain about the new information.

Nickels, 31, Helena, Mont., is charged with first-degree murder and is accused of shooting Sage Munro outside of the Ephrata resident's home on Dec. 29, 2009.

During visits, Lain initially told police Nickels spoke to him about Lain's previous conviction for manslaughter, Deputy Prosecutor Tyson Hill said.

Walsh started the day arguing Lain shouldn't be allowed to testify about the offer, stating they needed additional time to investigate Lain's background, the Nickels' statement wasn't relevant, and the prosecutors should have received the information before now.

"Mr. Lain's testimony should not be allowed. It should not be allowed for him to claim Mr. Nickels accosted him about being available or being hired for murder, whether for money or not," Walsh said. "He gives no information about what the conversation is supposed to be about. There's no evidence to support this conversation concerned anyone associated with Marita Messick or Marita Messick or Sage Munro. There are no details offered by Mr. Lain that the conversation had to do with this specific case."

She argued the defense attorneys needed more time to investigate Lain's history with drugs and mental illness. Lain reportedly spent time in an inpatient drug treatment program and in a Wyoming mental hospital.

Walsh repeated an earlier argument, saying prosecutors should have known Lain had more in his history, and has an obligation to seek out the information to provide to defense attorneys.

"(Prosecutors) had a reason to know (about Lain's history,)" Walsh said. "We were in trial, post July 5, 2012, when the state finally gave us a table of criminal conviction data, but they knew that Mr. Lain had a criminal conviction ... The man was convicted of manslaughter. It's not a situation where there was a claim of innocence .... Any attorney worth their salt, doing homicide investigations can't avoid the question of whether mental illness is involved in the act."

Deputy Prosecutor Tyson Hill responded prosecutors informed the defense attorneys Lain would testify about meeting Nickels, telling the Helena, Mont., man about his conviction, and Nickels asking about it.

"At regular occasions Mr. Nickels would ask, 'What it felt like to kill someone? How it happened?' (and) ways to go about it," he said. "All those things were in play before Mr. Lain made his new revelation that he made last Tuesday."

Lain told detectives and later testified he changed his story because he didn't want to be involved in the case. He revealed the information since he was already involved in the case.

"Whether that's right or wrong is really irrelevant to the conversation," Hill said.

Hill argued the additional information the defense attorneys wanted doesn't have anything to do with the specific conversation between Lain and Nickels.

"Mr. Lain reported as far as his mental health history that he had been involved in an arson between when he was 16 and 18, and following the arson, he spent six months in some sort of state mental house," Hill said. "So we're talking about some mental health counseling that he got after an arson as a juvenile."

The history of drug use was relevant prior to the new information, Hill argued, saying the defense attorneys could have asked about it prior.

Judge Sperline ruled Lain would need to go through a hearing to determine what Lain would testify to about the offer.

"If he testifies, 'Yes it occurred,' that's substantial evidence. If he says, 'Gosh, my recollection is really weak about that. I'm not sure we had that conversation at all.' Then we're all wasting our time anyway," Sperline said.

Lain testified for the first time in the hearing, telling Sperline and the attorneys, Nickels asked him if Lain would kill someone for Nickels. He said in the hearing and later when he testified in front of the jury he met Nickels shortly after being released from prison for parole violations.

"(Nickels asked,)'How it felt? How (the murder) happened?'" Lain testified. "I remember playing pool with him at my dad's house and he asked me, 'If I would kill somebody for him.'"

When Hill questioned Lain during the first hearing whether Nickels ever mentioned a dollar amount for the murder, Lain replied he didn't "let if go that far."

Sperline ruled after the hearing Lain could testify about the conversation.

After lunch, Lain changed his story for the second time, telling a prosecutor's office staff member he remembered the offer of money. The announcement spurred a second hearing where Lain testified Nickels asked him if he would kill someone for $2,000 before Lain ended the conversation. He reported being confused when he was testifying earlier and forgot about the statement.

Sperline ruled he couldn't allow the prosecutors to ask about the $2,000, pointing out one of the definitions of perjury is giving two contradictory statements under oath, no matter what the reason is.

"If only one can be true, perjury is committed, regardless of which one is true," he said. "He wasn't just asked, 'Do you remember anything else?' or 'Were there any other specifics?' ... He was asked, 'Was there any mention of money?' and he said, 'No.' Now, to me, the integrity of this process demands that the court not give aid, if it can avoid it, to what amounts to perjury."

Lain finally took the stand in front of jury Monday afternoon, telling them about meeting Nickels, and their conversations. He testified Nickels asked about how it felt to kill someone, and Lain rebuffed the conversations, telling Nickels he didn't want to speak about it.

He repeated his earlier testimony, stating Nickels asked him to kill someone around Thanksgiving 2009, when Nickels and Lain were playing pool at Lain's father's house.

When Hill asked why he hadn't reported the information earlier, Lain said he didn't want to be involved. When Hill asked why Lain decided to say something now, the Wyoming man answered because he is involved.

"It's the truth of what happened," Lain said.

Lain also testified about a telephone call from Nickels after the murder, where Nickels asked him to confirm he was with Lain at the time of the murder. Lain didn't know he was on phone with police as well as Nickels at the time.

Walsh started questioning Lain about his previous conviction for forgery, pointing out the conviction preceded his conviction for manslaughter. She asked about his parole violations following his release, and his drug use when detectives spoke to him in 2010.

"During that time frame, when you spoke to detectives, in February 2010, you were using methamphetamines, right?" Walsh asked. "You can't say with any specificity whether you were using or not using on the very day you spoke to detectives?"

When Lain agreed, Walsh asked if the detectives took a recorded statement from Lain when they interviewed. Lain said they didn't.

"They didn't ask you to, did they?" Walsh asked.

Lain said police officers didn't.

Lain repeated his earlier testimony, saying he never told detectives or defense investigators about Nickels wanting to hire him.

"When you testified under oath, this morning, you indicated that Mr. Nickels wanted you to kill somebody, is that right?" she asked. "You were specifically asked whether or not, Mr. Nickels offered you any money to do that, right? ... When you testified this morning, you said, 'He never offered to pay you any money,' isn't that right? ... Then you came back after the lunch hour, and when you came back after the lunch hour, you were still under oath, right? ... So when you came back after lunch, you indicated Mr. Nickels had offered to pay you money, right?"

Lain quietly agreed to all of Walsh's questions.

Walsh also questioned whether Nickels had told Lain about any person in particular or had expressed any anger toward Munro.

"He never made any comments to you about a woman named Marita Messick, right?" she asked. "Never told you he was upset with Marita Messick and some other guy she was dating, right? ... He never said to you that he was interested in hiring you to kill Sage Munro, right? ... He didn't mention any gender of a person that he wanted you to kill, right?"

Lain agreed.