Judge hears bid to suppress evidence in double-murder case

ST. GEORGE – Counsel for Brandon Perry Smith, who is accused of taking part in a 2010 double-murder, argued in 5th District Court Wednesday that the court should suppress a police interview in which they argue police failed to make Smith adequately aware of his right to have counsel present while being questioned.

The prosecution argues otherwise, stating the officer who interviewed Smith made him aware of his rights, and that Smith knowingly waived them.

This case turns on … whether or not this defendant understood his rights,” Gary Pendleton, one of Smith’s lawyers, said during oral arguments focused around a motion to suppress the police interview.

Pendleton filed the motion earlier this year, and argues that statements made by Smith to then St. George Police Detective Chris Traini “were obtained without complying with the mandate of Miranda (rights) … and in violation of the Fifth and Sixth Amendments of the Constitution.”

Brandon Perry Smith booking photo, December 2010 | Photo courtesy of the St. George Police Department
Brandon Perry Smith booking photo, December 2010 | Photo courtesy of the St. George Police Department

An evidentiary hearing concerning the matter was held in May in which the court watched a video recording of the interview between Traini and Smith. Traini also testified in court.

It is during the interview that Smith, 33, told Traini his side of events that transpired the early morning of Dec. 11, 2010, that resulted in the murders of Brandie Jerden and Jerrica Christiansen.

Smith is accused of killing Christian and has since been charged with first-degree felony aggravated murder and third-degree felony aggravated assault in connection with the incident.

He pleaded not guilty to the charges on March 25. If convicted, Smith could face the death penalty.

Before questioning began, Traini said he told Smith he had the right to remain silent, that his words would be used against him in court, and that he had a right to have an attorney present during questioning and that he could appoint one if he couldn’t afford one himself. Smith said he couldn’t afford a lawyer. Traini then proceeded to tell Smith to keep his rights in mind as they continued, he said.

During the interview, Traini said Smith nodded a few times and said “OK’ while being told his rights, leading the detective to believe Smith understood he was waiving his right to have a lawyer present.

However, Smith never expressly stated he understood that, nor did Traini confirm if he adequately understood, Pendleton said.

“Miranda is more than right to remain silent,” Pendleton said. “Miranda is the right to have counsel. … It’s the right to have someone at your side when you go into that interrogation.”

Smith was not adequately advised by the detective, Pendleton told the court, adding that the only thing his client verbalized concerning a lawyer was not being able to afford one.

That, along with some subtle nods, didn’t constitute Smith affirming an understanding that he waived his right to an attorney, Pendleton said.

Miranda is not some rote script … or incantation,” Deputy Washington County Ryan Shaum said.

As long as the primary elements of the Miranda warning are delivered by officers to suspects – the right to be silent, that their words can be used against them in court, that they have a right to attorney while being questioned, and that an attorney can be appointed to them – it doesn’t matter how it’s said, only that it is and that the suspects are made aware of it.

“In this particular case, Detective Traini satisfied Miranda,” Shaum said.

Shaum argued it was reasonable for the court to infer that Smith understood his rights based on his actions and words while being questioned.

As well, the state doesn’t require officers to ask clarifying questions, he said.

As for Smith’s saying he couldn’t afford a lawyer, Shaum said, that was simply a statement about not being ale to hire an attorney – not a request for one.

At no point did Mr. Smith say, ‘OK, I want an attorney,’” Shaum said, later adding, “The waiver was valid.”

Judge G. Michael Westfell, who presides over the case, said he would take the argument under advisement and render a written judgment, though he did not say when it would be issued.

Smith’s case stems from the Dec. 11 2010 slayings of Christensen and Jerden and the attempted murder of James Fiske. The victims were at Ashton’s home, helping Jerden and her boyfriend move out, when the incident occurred.

According to court documents and statements made during previous court hearings, Ashton, who had been cooperating with police as an informant, feared he had been exposed and felt his life was threatened.

Smith went to Ashton’s home and gave him a gun for self-defense after the two had talked over the phone. While there, an argument started between Jerden and Ashton that resulted in Ashton shooting Jerden and Fiske. Jerden was killed, and Fiske was wounded but managed to get away and call police.

Christensen had locked herself in the back of the home and was found by Smith. He is accused of beating the woman with a blunt object, strangling her and slitting her throat in an alleged attempt to keep her from testifying in court.

Asthon pleaded guilty to Jerden’s murder and the attempted murder of Fiske in September 2013 and is currently serving a life sentence in prison.

The defense has argued that Smith was manipulated by Ashton into killing Christensen; the state argues otherwise.

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