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9:35 PM Sun, Dec. 09th

Judge allows prescription drug evidence

Robert Reed

Robert Reed

KINGMAN - It came down to a decision of what to leave in and what to leave out.

Mohave County Superior Court Judge Steven Conn heard arguments Friday morning from both sides about 11 motions to preclude evidence in a murder case involving the death of Gary Shain on March 17, 2007.

Robert L. Reed, 63, of Kingman, is charged with second-degree murder in the case.

According to court documents, the Mohave County Attorney's Office filed 10 motions to preclude evidence in the case, including evidence from medical records, past police and sheriff's reports of possible domestic situations, the use of a chair similar to one at the scene of the incident or any records referring to a possible drug overdose or suicide attempt by Shain.

It also precluded any statements that refer to Shain as either a drunk or drug addict, testimony from a doctor about Shain's medical records or testimony about what kind of drugs he may have been prescribed.

Deputy County Attorney Ros Saciuk argued that medical reports, without the testimony of the actual doctors who made the reports, were hearsay.

He pointed out that Reed's attorneys, Public Defender Dana Hlavac and Deputy Public Defender David Corbett, did not list the doctors as witnesses to be called during the trial.

The question of the medical reports revolved around Shain's use of the prescription drug Zyprexa.

The drug is usually prescribed for patients who suffer from depression or bi-polar disorder.

There is some evidence that patients that stop taking Zyprexa could experience or return to a psychotic state.

According to court records, Shain was sent to the Kingman Regional Medical Center Emergency Room in September 2006 for a drug overdose or possible suicide attempt.

Records from the ER show that Shain had taken an overdose of Xyprexa. Veterans' Administration records show that Shain was prescribed the medication, but without testimony from the doctor who prescribed the drug the records are considered hearsay.

The ER records do not state why Shain was prescribed the drug. Doctors who did not treat Shain and were called to testify during the trial would have to speculate why Shain was prescribed the medication. This could confuse a jury and lead to prejudice, Saciuk said.

Saciuk requested that statements made by a witness and Shain about the hospital trip, which happened six months before the shooting, be ruled inadmissible because they were not relevant to the murder case and could prejudice a jury.

The records and statements have nothing to do with whether Reed shot Shain and Reed's claim of self-defense in the matter, Saciuk said.

He argued that police and sheriff's reports of possible domestic situations between Shain and his wife were inadmissible as evidence of Shain's character because the reports had no direct bearing on the murder investigation and no arrests were made in the reported incidents.

Introducing the evidence could prejudice a jury.

Statements referring to Shain as either a drunk or drug addict could easily prejudice a jury. Both sides agreed that these kinds of statements would be unacceptable.

Use of a chair that was similar in design to the one Shain's body was found in was not relevant to the case since there were already crime scene photos of the original chair, it could be misleading to a jury and cause speculation by witnesses and experts that testify, he said.

Hlavac argued that the defense was only planning to use the evidence to impeach witnesses that failed to tell the truth in the case.

"In that case we would have no choice but to use it if the witnesses were not truthful," he said.

Conn said repeatedly that he was uncomfortable ruling on the motions when the defense could not definitively state how they planned to use the evidence to support their case.

Hlavac said that Shane's wife had turned down several requests from the defense to be interviewed. The defense did not know what she might say on the witness stand and needed the evidence to impeach any untruthful statements she might make.

If she was completely truthful then the evidence would likely not be used in the case.

Corbett argued that the defense had simply notified the state that it might use the evidence in question in the case.

"This really opens up a can of worms and throws the case for a loop," Saciuk said.

"The last thing I want to do is preclude evidence that might be important to the trial," Conn said, but if he left the evidence in it would be at most an inconvenience and make the trial run longer.

He then ruled to allow the defense to establish that Shain was taking Xyprexa at some point in time and did not have the drug in his system the day of the shooting.

The defense is also allowed to describe what the drug is used for and what side effects it might have when a patient stops using it.

Conn ruled that the defense would not be allowed to use any evidence of the hospital trip for the drug overdose or possible suicide. He found that since the hospital trip occurred six months prior to the shooting that it had no relevance on the incident.

Conn also precluded a statement Reed made that the shooting was in self-defense after a trip he took to the emergency room for a possible suicide attempt. This did not rule out bringing up the motive for self-defense in other ways, though, he said.

Conn also denied the state's motion to preclude the chair. It is a common tactic to use similar objects for demonstrative purposes for a jury, he said.

As to the police reports, which showed possible prior acts of violence by Shane, Conn precluded any statements unless the state introduced evidence that the victim was a totally non-violent person.

Conn chose to wait to see what foundation the defense would create in the trial before ruling on whether to preclude the VA records from the case.

He then turned to the defense's motion to preclude five crime scene photos from the case because in some cases blood obscured some of the evidence.

Saciuk said he did not feel the photos were gruesome and the sole purpose of the photos was to show the wounds and stippling on the body.

One of the more gruesome photos, which showed a lot of blood, would only be used to contradict any claims that the body was tampered with.

Conn said he did not feel the photos, with the possible exception of one, were particularly gruesome. He denied the defense's motion to preclude the photos with the exception of the more gruesome. That photo could only be used if the defense raised the issue of possible tampering with the body.

The case goes to trial at 9:30 a.m. on Wednesday. The trial is expected to last four days.