A 9-year-old girl who may have witnessed her grandmother's fatal shooting is competent to testify at her mother's Franklin County murder trial, a judge ruled Tuesday.
Tashia L. Stuart's daughter understands the difference between truth and lies and has sufficient memory of the March 3, 2011, events, even though there were some discrepancies in her interviews, said Judge Cameron Mitchell.
His ruling comes weeks after listening to testimony from both sides on the issue.
Stuart, 39, is charged in Franklin County Superior Court with first-degree murder with aggravated circumstances. She has claimed self-defense, saying she shot Judy Hebert after her mother came at her with an ax.
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Stuart's estranged husband, Todd Stuart, was acquitted by a Franklin County jury last week of attempted first-degree murder and first-degree conspiracy to commit murder.
Prosecutors claimed he had a role in plotting Hebert's death, but jurors said the evidence was not there.
Hebert, 58, was shot twice inside her Salmon Drive home. Her death came 11 days after she suffered a neck injury when she was hit on the head by a 31.8-pound plastic bin that fell from the rafters in her garage.
The Stuarts, along with Tashia's then-7-year-old daughter, had moved into Hebert's Pasco home in January 2011. Todd Stuart went to California a couple days before Hebert was killed.
Last month, licensed psychologist Robert Halon testified for the defense about his analysis of two interviews conducted with Tashia Stuart's daughter at Kids Haven in Kennewick. He never met the girl.
Halon, of San Luis Obispo, Calif., said there is no way to tell what the child actually saw on the day of the shooting because some of the information the girl gave about things that happened is questionable -- including saying she saw goblins and fairies and could see through a door.
The daughter reportedly changed her story in a second interview staged five months later, saying she was lying the first time and claiming that she saw her mother shoot Hebert, then get the ax out of the garage and place it next to Hebert, according to court documents.
Halon told the court the child was intermingling fantasy with reality and it was impossible to know if what she said was reliable because there were no follow-up questions.
On Tuesday, Mitchell said that he wanted to make a record that he did not find Halon's testimony to be persuasive enough, and that he had concerns about the defense expert's objectivity and his motivation in taking the stand.
Mitchell referenced a statement Halon made that he would do anything he could to keep the child from testifying.
Stuart's daughter, who is from a previous relationship and now lives with her father, has mental and intellectual capabilities, Mitchell said. Any questions of influence on her statements can be addressed in cross-examination and closing arguments.
Stuart's trial had been set for Oct. 24, but on Tuesday defense attorney Peter Connick handed the court a declaration from forensic scientist Kay Sweeney explaining why they needed more time.
Connick explained that their expert believed he could not access evidence for analysis while co-defendant Todd Stuart's trial was going on. Now the expert needs 60 days to review them, including examining some items with a microscope, he said.
Lawyer Bob Thompson added they were unable to serve Todd Stuart with a subpoena and need at least six weeks to process that subpoena because he reportedly returned to California to work in Alameda County.
The October date no longer is realistic because of those details, attorneys said.
Thompson also told the court they have an offer letter to consider from prosecutors, and the state has not yet filed a conspiracy charge against Tashia Stuart but has threatened to -- which would change the dynamics of where the defense is in the case.
Deputy Prosecutor Dave Corkrum said the state was ready for trial, but the state also understood the defense issues because prosecutors were late in handing over blood spatter reports.
Corkrum said the trial must be delayed until late January because the state's forensic pathologist, Dr. Daniel Selove of Everett, is out of the country between Nov. 20 and Jan. 16.
The judge questioned why Tashia Stuart's lawyers did not subpoena her husband through his attorney, considering Todd Stuart was in the Franklin County jail for 218 days after his arrest in Oakland.
"Could we have? Yes. Did we get it done? No," Thompson admitted, saying he and Connick have been tied up with other cases and by the time they got it done, Stuart was gone.
The judge countered that the defense had "numerous opportunities" to serve him while he was in state custody.
Mitchell said he was "very loathe" to continue the trial date since it was set in April. At that time, Thompson assured the court the date would hold.
The case has been going on for 11/2 years, and Tashia Stuart has been in custody the entire time "so the court is reluctant to continue the trial date," Mitchell said.
However, the judge said he also was aware the defense has been requesting some information from prosecutors for a number of months.
Because Stuart was willing to delay her trial, Mitchell granted the request and set a new start date of Feb. 11.