Witness says Libby wasn't with her

EPHRATA - Tosha Devyak testified Ian Libby was not with her when Sage Munro was murdered, after initially telling police he was.

David Nickels' defense attorneys Jackie Walsh and Mark Larrañaga continued with testimony about Libby. The attorneys claim Libby was responsible for shooting Munro outside of his home on Dec. 29, 2009.

Chief Deputy Prosecutor Ed Owens questioned differences between Devyak's statements to defense attorneys and the two statements she made to police.

Nickels, 31, Helena, Mont., is charged with first-degree murder in Grant County Superior Court. Prosecutors allege he shot Munro because the Ephrata man was dating Nickels' ex-girlfriend.

Devyak knew Libby for about four years while she was living in Ephrata, saying he would come to her home when he wanted to stop using drugs.

"We weren't normally friends," she said. "To him, I was his safe haven of a house. He would just randomly show up ... I don't do drugs, and I don't allow it (in my house.)"

Libby came to Devyak's house in the early evening of Dec. 28, 2009, after she hadn't seen him for months, she said. A short time after he fell asleep on her couch, Devyak went to bed.

She heard Libby's phone ring in the night, and could hear him speaking, but couldn't hear what Libby was saying, she testified.

When Libby came to her home, Devyak's daughter was not in the house, she testified; adding she wouldn't have let Libby in if her daughter was home.

Devyak woke between 5 a.m. and 5:30 a.m. to get ready to go to work a morning shift at Burger King, she testified. She needed to be at work by 6:30 a.m. to get ready for the store's opening at 7 a.m. When she left the house at about 5:45 a.m., Libby had left.

Within days of the murder, Devyak told police she saw text messages from Libby to Crystal Tycksen, stating Libby needed Tycksen's help.

"He was telling Crystal that he had done something, and he needed to get rid of something. He asked her to meet him at their spot," Devyak said. "She responded by asking, 'Beasley Hill?' and he said, 'Yeah.'"

When Devyak asked Libby what the messages were about, Libby told her it wasn't any of her business, she said.

Devyak met Libby before moving from the city, saying she saw him in the Ephrata Walmart parking lot.

"He reminded me that he was at my house on the night of Dec. 28," she said.

She found the statement odd.

Devyak was questioned by police after seeing Libby in the Walmart parking lot, she said. At the time, she was planning on leaving the city the same day, and told police Libby and her daughter were at her residence the morning of the murder.

She later told Walsh and a defense investigator Libby wasn't at the residence. Devyak explained giving the first statement because she didn't want to be involved in the case.

Moses Lake Police Chief Dean Mitchell testified about the anonymous tip he received less than two weeks after the murder. He explained he received the tip on Jan. 10 through a tip line set up for all anonymous tips. The tip line is about 10 years old, he said.

Mitchell testified to giving the tip to Detective Juan Rodriguez because Mitchell knew Rodriguez was part of the team.

Defense attorneys also called Eric Blewitt, a Miller's Crossing bartender. The bar was where Nickels allegedly confessed to Erick Alsager that he killed a man in Washington because he was dating Nickels' ex-girlfriend.

Blewitt described the bar as crowded the night Nickels reportedly confessed and it had a DJ playing music. He said he needed to lean across the counter to hear people's orders.

Owens questioned Devyak's contradictory statements to police and defense attorneys, asking the woman if she read the initial statement she gave police, stating Libby was at her house on the day of the murder.

When Devyak answered she read and signed the statement, Owens pointed out the portion of the statement saying it was done under the penalty of perjury.

"Did you know when you signed this paper, that the facts in there were not true?" Owens asked. "You knew the police were investigating the homicide of Sage Munro?"

Devyak agreed.

Owens asked about a section of the initial statement to police stating Libby slept on her bed.

"That you moved your baby to make that happen?" he asked. "And you testified earlier that your baby has never slept in that bed with you, is that right? ... And that's a true statement?"

Devyak said yes to Owens' questions.

Owens asked about Devyak's statement to the defense attorneys, questioning whether Devyak still didn't want to be involved.

"So with that same idea, did you start answering questions they had?" he asked. When Devyak answered it wasn't the same idea, Owens continued, "You still didn't want to be involved in this case? ... (You) didn't ever want to come back to Ephrata? ... (You) didn't want to come testify?"

Devyak agreed.

Owens turned to a third statement on Jan. 9, 2012 taken by police officers, which seemed to confirm her first statement.

"When the police came and talked to you on Jan. 9, 2012, was it your goal to be honest with them?" he asked. "And were you being honest with them?"

Devyak answered she was being honest in the third interview.

"Isn't it true that you told police on Jan. 9, 2012 that your daughter was home?" Owens asked.

Devyak answered she didn't remember what she told police.

When Owens asked if it would help her to remember if she read the statement, Devyak answered no.

When Grant County Superior Court Judge Evan Sperline asked how reading the transcript wouldn't help her remember, Devyak answered reading the questions was different than how they were asked.

Owens continued to ask about the differences, Devyak continued to say the third interview was confusing and she didn't understand what the officers were asking. The issue led to Sperline allowing Devyak to read a portion of the interview.

The section of the interview Devyak read started with her statement to the defense attorneys about the text messages asking Tycksen to meet him.

"(Chief Deputy Ryan Rectenwald asked,) 'Prior to that statement, Ian told you that it was about him stealing cocaine from some (gang members) and that they were mad at stealing it?' Devyak (replied), 'Yes,'" she read.

Owens pointed out other inconsistencies, asking if she told police in the final statement that she woke up to Libby's phone, and he told her about the murder.

Devyak answered she didn't remember or was confused by Rectenwald's questions.

In his cross examination of Mitchell, Owens asked the police chief if the agency receives a lot of tips.

Mitchell replied they do.

"Now is it fair to say that a lot of the tips go nowhere?" Owens asked.

The chief answered the majority of the tips don't go anywhere.

When Owens asked about the note Mitchell wrote Rodriguez stating Libby was their suspect, Mitchell answered he wasn't sure about the terminology.

"I did indicate that this person had been identified as your shooter, is what I said," Mitchell said. When Owens showed him the tip, Mitchell clarified, "I did (write,) 'This is your suspect from the Ephrata shooting.' ... I had never heard of the individual before."

When Owens questioned Blewitt if it was normally noisy on Saturday nights, the bartender answered it is usually noisy.

"Now people are talking, right?" Owens asked. "They're talking among themselves? I understand Miller's Crossing is a really popular bar there, so people are there having fun, talking to each other, but you said, 'You had to lean over and be 10 inches, 12 inches away to hear something,' right?"

Blewitt agreed he said it.

When Owens asked if Blewitt saw people sitting at the bar talking to each other, the bartender answered he did.

"You wouldn't know if they were having trouble, would you?" Owens asked.

Blewitt said he wouldn't know.

Owens turned to previous questions from defense attorneys about whether other people in the bar could hear Nickels' alleged confession. Alsager previously testified no one else reacted to Nickels' statement.

"Would you say it was noisy enough that night that two people sitting next to each other could still talk, but a person down the (bar) would have a little trouble?" Owens asked.

Blewitt answered people next to each other could talk if they were speaking loudly, but people further down couldn't, and the person sitting behind another person wasn't likely to hear their conversation.