Testimony given by Judy Hebert’s neighbor last week appears to have been new information to both the prosecution and the defense, a judge found Monday.
Franklin County Prosecutor Shawn Sant did not violate evidence rules by failing to provide those details to Tashia Stuart’s lawyers in advance of the murder trial because he didn’t know them himself, Judge Cameron Mitchell said.
Mitchell’s decision in Franklin County Superior Court means Stuart’s trial for the 2011 shooting death of her Pasco mother can move forward.
The defense had sought to get the case thrown out based on mismanagement by the prosecution or a mistrial declared. Lawyers Bob Thompson and Peter Connick also wanted Sant removed from the case, saying he now should be considered a witness.
The judge gave Thompson and Connick this morning to interview three witnesses and prepare for questioning them. Jurors are to return to court in the afternoon and testimony is to resume.
Stuart, 40, is charged with first-degree murder with aggravating circumstances and attempted first-degree murder.
She’s accused of killing Judy Hebert on March 3, 2011, inside the older woman’s Salmon Drive home. Hebert, 58, died from a single gunshot wound.
Stuart claims she was defending herself and fired the gun only after her mother came at her with a hatchet. The charge also involves an alleged attempt to kill Hebert the month before.
The trial started May 28, with the first evidence presented last Wednesday.
On Thursday, Tonya Amende testified that she became close friends with the victim after Hebert moved into the new neighborhood in 2007. In early 2011, Stuart, her then-7-year-old daughter and her husband moved in with Hebert.
Hebert was helping her son-in-law in her garage when a heavy bin of books and other items fell from the rafters and hit her on the head.
Hebert talked to Amende a few days later and said she was in pain, but said Tashia and Todd Stuart were taking care of her. However, in a later conversation, Hebert reportedly told her friend that she suspected the couple was trying to harm her, including switching her medications.
Hebert made a diagram of the garage showing the position of herself and Todd, and in that process noticed dust on the hood of the pickup in the garage and a disturbed dust trail in the rafters near where the bin had been, Amende told the jury. Hebert, the day before she died, walked Amende through what had happened to her inside the garage.
Amende — whose name was Tonya Blankenship when Hebert died — again took the stand Friday morning, but without the jury in the courtroom. Asked if she had shared the information about the dust with anyone before Tashia Stuart’s trial, Amende said she recalls talking to Sant about it sometime after her interview with Todd Stuart’s lawyer last July.
Todd Stuart was acquitted by a Franklin County jury of having any role in his mother-in-law’s death.
Thompson on Friday argued that Sant had a duty to share that information with the defense. Amende was not interviewed by Tashia Stuart’s attorneys in preparation for this trial.
Judge Mitchell put the trial on hold so both sides could prepare arguments on the issue during the weekend.
Sant told the court Monday that Amende never mentioned those details to him and that he was hearing it for the first time along with the defense. He said Pasco Detective Justin Greenhalgh was with him during a May 21 interview with Amende and can verify she never talked about dust in the garage.
Amende “merely repeated what she had in previous interviews,” Sant said, and the new information only came out once she was on the witness stand.
Sant said Friday that he only acknowledged to the court that the statements about dust sounded familiar because in her initial report, it was clear Amende had a lengthy conversation with Hebert in her home about what had happened in the garage.
He added that “for whatever reason,” she did not share this information before last week, but noted that when something is very close to a person they may only remember certain details later.
Sant also blamed the defense for not pursuing an earlier interview with Amende. When the defense investigator contacted her, Amende reportedly told him to go through the prosecutor’s office to set up an appointment.
“I feel it’s still important that counsel should have interviewed the witness, because if you don’t have an idea of what the witness is going to say, then how can you later say it’s a surprise?” he told the court.
The defense argued that Amende testified to a number of things that weren’t disclosed previously to Stuart’s lawyers. Connick claimed they “weren’t just random remarks,” but said the whole thing was developed in direct examination by Sant with the intent of getting those details before the jury.
Connick also pointed out that even though Sant said that Amende didn’t mention this information to him in an earlier interview, there is no written declaration denying the conversation.
“Now we’re in the position where we have to somehow try to unwind the clock or wind it backwards, and we can’t,” Connick told the judge.
After taking a 15-minute recess, Mitchell ruled it had not been established to his satisfaction that Sant was told these details earlier and failed to disclose them to the defense attorneys.
But Mitchell also said the lawyers have an ongoing obligation to provide new information to the other side as they come across it, and it isn’t necessarily the opposing party’s role to conduct interviews.
The judge said the prosecutor may be called as a witness if there is relevant information that can’t be obtained from another source. However, because Greenhalgh sat in on the recent interview with Amende, he can testify about what the neighbor did or didn’t say to Sant if the defense wants to rebut Amende’s testimony.
Mitchell said that means the defense cannot subpoena Sant as a witness, which would force him to be removed from the case.
Mitchell also ruled that since Amende told the jury that the victim was a “really sweet lady,” it opened the door so the defense can go into Hebert’s character to try to present evidence to the contrary.