Nickels' attorneys move to dismiss murder charges

EPHRATA - David E. Nickels' defense attorneys claimed police and prosecutors ignored evidence casting doubt on whether he committed murder.

Nickels, 31, is accused of killing 35-year-old Sage Munro in December 2009. He is charged with first-degree murder in Grant County Superior Court, according to court records.

The Helena, Mont., man allegedly shot Munro once outside of Munro's Ephrata home, according to court records. Nickels reportedly was angry Munro was dating a former girlfriend of Nickels'.

Jackie Walsh, one of Nickels' attorneys, argued  that she couldn't provide an adequate defense for her client because the prosecutor's office and police didn't preserve evidence which pointed at another possible suspect. She made the argument during a motion to dismiss the charges Wednesday morning.

Deputy Prosecutor Tyson Hill responded to the arguments in a brief, as well as fielding questions from Judge Evan Sperline during the hearing. He stated the defense arguments may appear daunting, but it's a "deliberate attempt to replace substance with quantity in hopes that this court will suppress something or be tempted to dismiss on the pure volume of the allegations."

The defense's theory:

Walsh argued police ignored and failed to preserve evidence, which possibly pointed at Ian Libby, including footprints spotted near Munro's truck, information from Libby's phone and the phone number of a witness, who indicated Libby allegedly committed the murder.

She called the case against Nickels weak when compared against the possible case against Libby.

"It was obvious from the beginning that Ian Libby was another suspect, was a real suspect, in this case," she said. "There's evidence that an anonymous caller called into the Moses Lake tip line and indicated that Ian Libby is your guy."

Libby reportedly told his girlfriend he was going kill her, just like he killed "that guy," during an assault less than a month after Munro was shot. After the assault and the tip, Walsh said it is reasonable to assume Libby was a suspect in the case.

Walsh pointed out Libby allegedly sought an alibi from several people following the murder.

"We also know that Ian Libby ... liked to prowl cars, and we also know that (he was) interested in prowling Mr. Munro's car to look for guns," she said. "We also know from (Libby's girlfriend) that he requested that she drive him out of town."

A lot of the information was known by police and prosecutors, and they were in the position to preserve the evidence, Walsh said. The evidence would have allowed Nickels' attorneys the chance to present a better case.

Hill responded to portions of Walsh's argument in his brief, stating Libby's alleged attempt to seek an alibi came from a then Grant County sheriff's detective's notes. The notes stated: "Ian texted saying you have to be an alibi for me."

"Nowhere in Detective (Ryan) Rectenwald's notes did it indicate Libby was attempting to fabricate an alibi," Hill wrote. "The defense's claim that Libby murdered Sage Munro is based almost entirely on inadmissible hearsay ... When law enforcement performed follow-up interviews of the defense witnesses, a number of them claimed the defense misrepresented what they said or meant."

Arguments:

Hill and Walsh disagreed on whether the evidence, which was lost or destroyed, could have cleared Nickels of the charges. If it would have, prosecutors needed to preserve it, according to court records.

Defense attorneys argued the evidence would have cleared Nickels, and police and prosecutors knew it. Prosecutors argued the value of the evidence to the defense is unclear.

The first issue Walsh raised was that the detectives didn't preserve the initial 9-1-1 call from one of Munro's neighbors. The witness reported a time of about seven to 15 minutes after hearing the shot to when she made the phone call, Walsh said. The timing of the call is important because Nickels' cellphone was located by a Spokane cell tower about two hours after the murder, and it takes two hours to drive to Spokane from Ephrata in good conditions.

"We don't know anything about the context of the call," she said. "What we do know is that it is second nature for any police officer in any agency in anywhere in this state to preserve 9-1-1 calls, in particular, to preserve 9-1-1 calls in a homicide case."

Hill didn't dispute the recording was lost, but stated the call wasn't lost in bad faith, and the defense can't show their case was hurt by the loss of the recording.

"There is no indication that the time of the call would in any way be memorialized in the 9-1-1 recording," he stated. "The state is unaware of any 9-1-1 call where dispatch or the reporting party indicates the specific time of the call."

Hill argued the defense attorneys already had the log showing when the call was received, according to his brief. It also wouldn't help show the amount of time between when the witness heard the shot and when she called 9-1-1.

Walsh continued, saying officers failed to photograph shoe prints left in newly-fallen snow found near Munro's truck by the officers initially responding to the scene. The impressions could have shown Libby was in front of the home before the shooting.

"It's absolutely reasonable to infer that those shoe impressions belonged to the perpetrator," she said. "(The witness who called 9-1-1) said she didn't see anybody out in the street. She went outside."

Libby wears a size 12 shoe and Nickels wears a size 8 shoe, Walsh said, so the shoe prints might have shown Libby was near the truck, she said.

Hill argued the photographs were taken around Munro's truck after officers checked on Munro and contacted paramedics.

"Additionally, at a minimum, Munro and (the witness who contacted 9-1-1) had been in the area of the truck prior to the time (officers) arrived on (the) scene," he wrote. "Therefore, the footprints would only have been potentially helpful."

Walsh also questioned how police handled an anonymous tip left on a Moses Lake police tip line. The caller claimed Libby was responsible for the shooting.

Walsh wasn't provided a copy with the phone number of the caller printed on it clearly until roughly two years later, she said. She pointed out police didn't try to contact the person, saying it's potentially a lost witness for the defense.

"We have no ability to find out who that person was. Mr. Nickels is prejudiced by that," she said. "The state argues, 'Well, it's not likely it would have led to anything.' Are you kidding me? Of course it would have led to something. The first thing the caller says is, 'It's Ian Libby.'"

Hill argued it's not clear the caller would have provided any helpful information, or any information the state or defense attorneys hadn't already uncovered.

"It is worth noting that the call was left on Jan. 10, 2010, nearly two weeks after the homicide," Hill stated. "It is unlikely the caller had first-hand information to provide."

Hill pointed out it was tempting to defend his employer and the police from Walsh's arguments in speaking to the court, he relied on his brief for the bulk of his argument.

Walsh also brought up issues with the prosecutors handling evidence without informing defense attorneys and not reporting an interview with Libby's girlfriend.

Sperline is expected to make a decision on the motion at a later time.