Judge rules references to voodoo to be excluded as evidence in murder case

Voodoo or other religious practices of the defendant in an Osage County murder trial will be excluded from evidence unless the prosecution directly ties them to the commission of the crime, the court ruled Tuesday.

The ruling from Osage County Chief Judge Phillip Fromme came during a motions hearing in the case of James P. Harris, 30, who is charged with first degree murder in the death of 49-year-old James E. Gerety. Prosecutors allege Harris killed Gerety sometime between March 3, 2011, and April 20, 2011. Gerety’s death was discovered after Shirley Johnson, who lives in rural Carbondale, found a part of a skull while searching for mushrooms near her residence in March 2012.

During the Oct. 28 motions hearing, Harris’ attorney, James Campbell, argued that testimony about voodoo and other affiliations could be prejudicial to the defendant.

“The state is merely trying to slur or defame the defendant by use of these terms,” Campbell said. “They are not accurate and they do not have connection with my client. They were generally bandied about by one person and never reiterated by anyone else.”

Campbell referred to testimony that came from Bobbie Williams, 29, during Harris’ preliminary hearing in March. Williams had testified that Harris kept the victim’s head in a bag and “he talked to it”, and kept a voodoo doll with a photo of the victim taped to it in a bedroom of a residence they shared in Topeka.

“She made rambling statements on video, she made rambling statements on transcript,” Campbell said, noting the only other references to voodoo came from a detective that was repeating statements allegedly made by Williams.

Shawnee County assistant district attorney Jacqie Spradling, who is co-prosecutor on the case with Osage County Attorney Brandon Jones, said the state’s interest was not in implicating Harris in any particular activity, but the state has an interest in proving premeditation.

“The state’s evidence will be the defendant had a voodoo doll strung from his ceiling with the victim’s picture taped to the head of the voodoo doll, and that while referencing that doll the defendant announced he was going to kill in a certain manner the victim in this case,” Spradling said, noting that evidence supported the state’s theory of premeditation. “The practice he chooses or whichever religion he chooses is his business, but the proof of premeditation is ours, and because those two combine in this case, does not make the evidence of voodoo inadmissible.”

Campbell charged that Spradling’s statements were inaccurate and the witness had not met Harris until after Gerety’s disappearance.

“There is absolutely no factual basis in what the state just said,” Campbell said.

Fromme said he would grant the motion, but left it open for the prosecution to introduce evidence about the defendant’s religious practices if it had a “relationship to this particular crime and commission of this crime.”

“If in fact he believes in voodoo or practices voodoo or if he has those types of religious objects around, they shouldn’t be discussed as part of the trial,” Fromme said. “Unless it has to do with commission of this particular crime, I think we need to leave it out.”

Another of Campbell’s motions brought further discussion about the doll and sought to exclude Williams’ identification of the victim from a photo on the doll.

Campbell argued the law protected a defendant from single photo identification. The judge noted that case law cited in the motion referred to identification of a defendant, not a victim.

“In this case we’re talking about the witness identifying a picture of the deceased and whether there are safeguards required there,” Fromme said.

He said Campbell would have the right to cross examine the witness at trial and determine at that time if the evidence should be allowed. In denying the motion to suppress the evidence, Fromme said Campbell could renew his motion to disallow the identification if case law allows “protecting the defendant against witness identification other than his own.”

Another motion considered Tuesday requested exclusion of statements of a Topeka law enforcement officer about items observed in Harris’ vehicle during a traffic stop that occurred prior to Harris’ arrest on the murder charge. The motion said information about a defendant’s past criminal history was not allowable evidence.

Campbell said none of the items in the vehicle were collected as evidence and his client had not been charged with a crime at the time of the traffic stop. He said the use of the traffic stop and items in the trunk as evidence by the state “is to show because the defendant had contact with law enforcement or being engaged in some other improper activity, he should be implicated in this matter.”

Spradling argued the law cited by Campbell didn’t apply to a traffic stop.

“Contact with law enforcement officers is not a crime and it’s not a civil wrong,” she said.

Spradling read a list of the items observed in Harris’ trunk including a machete, folding saw, acid, ammonia, sickle, handcuffs, shovel, gas cans, wire and candles, and noted if it had been a crime to possess those things, “the defendant would certainly have been arrested for that at the time.”

Spradling said the evidence was “simply a notation and observation of these unusual items in the defendant’s trunk,” but also said all of the items were “material to the manner in which the victim died.”

Campbell argued, “They have no cause of death, they have no manner of death.”

At the preliminary hearing it was revealed the skull was the only part of Gerety’s body that had been found.

Fromme granted the motion to exclude evidence of prior crimes or civil wrongs. At the time of his arrest, Harris was in the Federal Correctional Institution in Texarkana, Texas, on a weapons violation.

The court also denied a motion to change the venue of the jury trial, with Campbell saying it would difficult for Harris to obtain a fair trial in Osage County.

“The impact in a small location where this offense allegedly occurred is greater,” Campbell said, comparing the crime rate of Osage County to that of Topeka.

He said the defense wanted to move the trial “out of the Topeka media area to the Kansas City media area” or to another county in the Fourth Judicial District that was outside of the Topeka area.

In his motion, Campbell said the case had received media attention, which included a web-based news site that created an animation of the alleged crime, and also was put in the public’s eye when the Osage County Attorney and Shawnee County District Attorney announced the charges during a press conference last year on Halloween.

Jones argued the burden was on the defendant to prove he could not obtain a fair trial in Osage County, and the burden had not been met. He noted an Osage County jury had been selected from a pool of 500 potential jurors in the 2012 trial of James Kahler in a quadruple homicide case, and there had been “no problem” seating 15 jurors, “many who had heard very little about it.”

Fromme said he thought there had not been a lot of media attention in the Harris case and it had not been “presented in a manner that keeps this case in the public eye at all.”

In denying the motion for change of venue, the judge said he would allow a special juror questionnaire at the time of jury selection to determine potential jurors’ prior knowledge of the case.

The court set 9:30 a.m. Dec. 1 as the date for a pre-trial conference. Harris’ jury trial is set to begin at 8:30 a.m. Jan. 5, 2015.

See related article here.


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