Nickels may get new trial

EPHRATA - David Nickels may get a new trial based on the outcome of an upcoming Jan. 16 hearing.

Grant County Superior Court Judge Evan Sperline needed a hearing before determining if the outcome of the trial could have been different if the jurors heard additional evidence and if jurors didn't provide personal experiences.

A Grant County jury convicted Nickels, 31, of Helena, Mont., with first-degree murder in September, after a roughly two-month trial and nearly five days of deliberations.

The defense attorneys' argument for a new trial focused on two areas. The first was new evidence which allegedly pointed at Julian Latimer's involvement in the Dec. 29, 2009 shooting of Sage Munro. The second area was reported juror misconduct.

Attorneys Jackie Walsh and Mark Larrañaga presented declarations from four potential witnesses. Two of them focused on a conversation Latimer reportedly had with an acquaintance shortly after the shooting. Latimer allegedly told the person he saw Libby shoot Munro while they were searching Munro's truck for guns.

The testimony is tied to testimony Crystal Tycksen, Ian Libby's ex-girlfriend, wasn't allowed to give during the trial. Libby reportedly confessed to prowling the truck for guns.

Deputy Prosecutor Tyson Hill responded the new evidence didn't affect the prosecution's case against David Nickels, saying Munro's family and friends deserved closure.

"Our concern is whether or not the defendant had a fair trial, and everything in the case law says it's not whether it was a perfect trial, it's whether or not it was fair," he said. "Essentially if everything is true that the defendant is saying, where does that get us?"

He pointed out the new evidence needed to mean the jury would probably have reached a different verdict if they heard it.

"Not a single thing that the defense has mentioned is new evidence relating to David Nickels," Hill said. "The jury not only dismissed and discarded the defense's argument about Ian Libby, they had to find beyond a reasonable doubt that it was the defendant that murdered Sage Munro."

The second portion of Walsh's argument focused on alleged juror misconduct by three jurors. The first one she brought up was a juror which told an alternate juror she felt bad for Nickels since he was being tried in Grant County and "they will take care of him."

Walsh pointed out the jurors were instructed by Sperline to not speak about the case until they were deliberating.

"It was totally improper," she said. "It bothered (the alternate juror) so much that he brought it to the attention of the bailiff. No one ever came back to (the alternate juror) and said anything about it. He was never brought out in front of the parties to discuss this."

Walsh argued the prosecutors and defense attorneys should have known the juror made comments about the case.

The second incident involved an Ephrata juror who told the other jurors during deliberations she knew the Munro family, and most of the people in the courtroom during the trial were family members or friends of Munro during deliberations, Walsh said.

"In that instance she ends up offering extrinsic evidence to other jurors, and necessarily becomes a witness," she said.

A juror reported the statement to the bailiff, who told Sperline. The bailiff reportedly came back and told her she shouldn't be concerned about it. Walsh repeated the attorneys weren't told about the contact.

The final instance came when a Moses Lake juror offered an opinion on how methamphetamine addicts would act, reportedly based on her medical experience.

"We need all the jurors brought in to find out whether they considered this information because that renders this an unfair trial and an unfair verdict," she said.

Sperline remembered the bailiff speaking to him about incidents, saying the court doesn't have a method to record communications from the jury.

"The process typically involves the jury going out for a recess, and then the bailiff coming in the judge's chambers and saying, 'One of the jurors told me A B C,' and then the judge thanks the baliff for that information, and decides what to do about it," he said.

Sperline responded to the alternate juror's report by telling the jury not to speak about the case until they are in deliberations, he said.

"I believe that was the second or third time that the bailiff had advised me that (the juror) had made some comment and he had reminded her, 'You can not discuss the case,'" he said.

Sperline ruled because the statement was made to an alternate juror it couldn't have affected deliberations.

Sperline reported hearing about the concerns about the Ephrata juror, saying a juror asked the bailiff it was appropriate for the Ephrata juror to be on the jury because of her familiarity with the Munro family.

"The content of what (the Ephrata juror) is now alleged to have said about who the people were in the courtroom was not a part of that conversation," he said. "What I instructed the bailiff to tell the juror was that she did not need to be concerned about that ... The reason she did not need to be concerned was because it had been addressed by counsel in (jury selection.)"

Hill pointed out the Ephrata juror made the attorneys aware she knew Munro and his family, adding her statement during deliberations couldn't have affected the defendant.

"Harmony Smith came in and identified herself as a family member and was seen in the courtroom with the same group of people day in and day out," Hill said.

Her alleged statement in the jury room about knowing people in the courtroom wasn't evidence and couldn't have affected the verdict, Hill argued.

Hill argued the Moses Lake juror wasn't likely to have specialized training in dealing with crime scenes involving methamphetamine addicts.

Sperline started his ruling by addressing the new evidence the defense attorneys wanted to introduce. He rejected Hill's earlier argument about whether the evidence would have been admitted.

"I generally accept the defense recollection that Crystal Tycksen was not permitted to directly testify that Ian Libby said to her that he and Julian Latimer were prowling a guy's truck looking for guns, they were interrupted and Ian Libby shot the victim," Sperline said.

If Latimer's alleged statement was allowed, it would mean Tycksen could have testified about Libby's statement, he said.

"I don't believe it was error to exclude it when it was excluded," he said. "If (the new witnesses) are permitted to testify to newly-discovered evidence then the so-called confession to Crystal Tycksen probably would not be excluded."

Sperline ruled he needed to hear from jurors whether the statements from the two jurors affected deliberations. He pointed out the court system puts jurors into a conundrum.

"We tell them when they come in the door, 'You're not required to be a blank slate. We want you to bring along all of your life experiences, all of your expertise what ever it is,' and then in a certain way, the law says, 'But you can't share that with any other jurors during deliberations.'"

The jury instructions don't warn jurors about sharing their experiences during deliberations, he said. When a juror with specialized training says they don't agree with a piece of evidence, other jurors ask why the person doesn't agree.

"(The first juror responds,) 'Because of my medical background,' to that point, I believe, no error has been made," Sperline said. "What are the other jurors going to naturally ask, 'Well what is there in your background that makes you believe that this isn't true?' ... The law suggests if the juror answers that questions to the other jurors that juror is now introducing new evidence into the case."

The Ephrata juror's statement about the people attending the trial, and the Moses Lake juror's statements about knowing how a meth addict would act, interjected new items into deliberations, Sperline said. The issues required him to hold a hearing to examine the statements effects.