Court rules on motions hearings

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By John Barnhart

    Bedford County Circuit Court Judge James Updike heard motions from defense attorneys, Tuesday, to keep certain items from being presented as evidence when their clients go to trial.
    One set of motions involved  Christopher William Petersen, of Hardy, who is facing a charge of attempted second degree murder. His defense attorney wanted to keep two photographs from being introduced as evidence saying that they were not necessary for the Commonwealth to prove its case and would prejudice a jury against their client.
    One photo showed Petersen holding a gun to his head. He sent it to his ex-girlfriend, the alleged victim. The other was a photo taken at the house where Petersen was arrested. There is blood on the floor in the photo, although the blood is Petersen’s and not the victims, who was not injured.
    Assistant Com-monwealth’s Attorney Timothy Griffin argued that he needed the photos to provide context for his case. The photo of Petersen holding a gun to his head shows why the ex-girlfriend came to the Bedford area — wanting to help him because she thought he was suicidal.
    Judge Updike denied both motions.
    “I do not find it to be prejudicial,” Judge Updike said of the crime scene photo. “You don’t sanitize the evidence.”
    He noted that there is no evidence of injury on the victim. There is evidence of injury on the defendant.
    Judge Updike agreed with Griffin. The photo of Petersen explains why the victim was here and also shows the defendant’s intent.
    Petersen’s defense also wanted statements made by Petersen to the deputy, who arrested him, before he was placed under formal arrest, to be suppressed.
    The deputy said he had been called to a residence because gun shots had been fired. The deputy met a neighbor who was taking cover behind an SUV and told him Petersen is a good shot. The deputy contacted Petersen by cell phone and   persuaded   him   to  come out.
    The deputy told Judge Updike that it was 1 a.m., he was alone as the back-up he called for had not yet arrived and Petersen appeared drunk. Out of concern for his safety, he first handcuffed Petersen and questioned him about the gun before putting him under formal arrest and reading him his Miranda rights.
    After personally questioning the sheriff’s deputy, Judge Updike denied the defense motion. He said the deputy had reason to suspect criminal activity was afoot because he had responded to a report of gunshots. He also had the neighbor’s statement.
    Judge Updike said that there is a public safety exception to the Miranda rule. That exception applied in this circumstance because the deputy needed to ask Petersen questions to protect public safety and his own safety. The deputy’s questions were not designed solely to elicit evidence, he said.

Joshua Caleb Kelly
    In the case of Joshua Caleb Kelly, a county resident, Carter Garrett, his defense attorney, wanted to suppress evidence gathered under a search warrant. Kelly is accused of felony obstruction of justice and manufacturing methamphetamine. Garrett argued that the warrant was not properly worded to allow the search of a detached garage that was, according to the investigator who did the search, approximately 15 to 20 feet from the house.
    Judge Updike denied Garrett’s motion. He said the curtilage of a house may be treated as part of the house. The curtilage of a house is the land immediately surrounding it, including any closely associated buildings and structures.
    Judge Updike said a search warrant authorizing the search of a house would also authorize the search of a detached garage even if it isn’t specifically mentioned. The authorization to search a main residence includes the house’s curtilage just as the curtilage is included as part of the area where privacy is protected.
    “I find that it is an area that should be included as the home itself,” Judge Updike ruled, noting that anybody would treat the detached garage as part of the house.