OCR Text |
Show Defense attorney asks high court to reconsider Turtle murder case by Christopher Smart The attorney for convicted killer Wesley Allen - Tuttle submitted a memorandum April 23 to the Utah Supreme Court asking that the case be reconsidered because the jury's verdict was based on testimony from a witness who had been hypnotized by investigators. Kenneth R. Brown, the former Summit County public defender who was appointed by Third Distric Court in Coalville to continue Tuttle's defense, on March 26 filed a motion for reinstatement of an appeal to the first degree murder conviction. Tuttle's earlier appeal to the Supreme Court was dismissed in November because he escaped from the Utah State Prison where he was serving a sentence of life imprisonment imprison-ment for the September 1983 slaying of Sydney Ann Merrick at the Summit Park 1-80 offramp. He was found guilty one year ago by a nine-woman, three-man Summit County jury. In his memorandum to the high court, Brown cites, among other things, the Utah Constitution: "The accused shall have the right... to appeal in all cases..." But Summit County Attorney Robert Adkins argued that Tuttle's appeal should not be reinstated to the Utah Supreme Court because he relinquished that right by escaping from prison. In a March 18 hearing, Adkins cited the Utah Supreme Court decision of the State of Utah vs. Brady, which held: "By escaping and remaining at large until he was involuntarily returned to custody, the appellant abandoned his appeal, and now stands in the same position as if no appeal had been taken." Brown, however, maintains in his memoradum that "one convicted of a capital felony is entitled to an automatic review by the Supreme Court," as outlined by Utah law. Further, Brown cites the U.S. Supreme Court ruling in the case of Mascarenas vs. the State of New Mexico, which held "a person convicted of a crime does not forfeit his right to appeal simply because he has escaped from confinement..." Beyond Brown's contention that Tuttle has an absolute right to appeal, he asks the high court to hear the case based on the eyewitness testimony of Matthew Fish, the only person to identify Tuttle at the April 1984 trial. Fish originally told police the man towing Sydney Ann Merrick's white Datsun up Parley's Canyon on Sept. 26, 1983, had a full beard, red hair and no tattoos. But following hypnosis and questioning by investigators investi-gators he identified Tuttle, who, according to Third District Court records, is incapable of growing a full beard. Tuttle has brown hair and numerous tattoos on his arms. Tn his memorandum, Brown states that Judge Philip R Fishier ruled against a motion to suppress Fish's testimony. Further, Brown states that Judge Philip T. Fishier ruled against a motion to suppress Fish's testimony. Further, Brown cites a ruling by Judge Fisher not to allow any evidence to be entered regarding the effect of hypnosis on the memory. Brown's assertion is that these decisions "denied Tuttle his right to a fair trial..." Finally, Brown argues that while Tuttle was convicted of first degree murder, the crime may not meet the statutory definition of first degree. "There is no evidence that the victim was tortured before death." According to Utah code, a first degree murder is one that is committed in an "especially heinous, hei-nous, atrocious, cruel or exceptionally exception-ally depraved manner..." Brown has been on record as calling the language "vague." |