Defense asks court to grant new trial in capital case; judge to issue written order after review

Defense attorneys for David Joshua Wiggins urged the court to grant a new trial and to vacate the death sentence, arguing errors in both the guilt and penalty phases of the trial. The state opposed the motion, and Judge David D. Wolfe said he will review the filings and issue a written order.

At a hearing on the motion for new trial, defense counsel Robert Kurtz summarized several grounds for relief in the guilt phase: the admission of numerous photographs of the decedent that, he argued, were more prejudicial than probative; improper admission of 404(b) evidence through testimony by Brian Hudnall; and erroneous jury instructions that, the defense said, could have suggested to jurors a premeditated plan. Kurtz said the 404(b) testimony was vague and did not establish a timeframe; he quoted the Hudnall testimony in his presentation of the motion as containing the statement, "If anybody tries to arrest me, I'll smoke their ***."

Kurtz also urged relief based on closing arguments he said improperly appealed to jurors' emotions by invoking law enforcement themes. He said prosecutors' remarks equating jurors' mission with law enforcement and referencing a "thin blue line" were prejudicial. On mitigation in the penalty phase, defense counsel argued the court improperly limited testimony about the effect an execution would have on family and other mitigation evidence, citing supervisory case law that the defense said allows broad latitude to present mitigating proof. The defense also argued that the state introduced improper rebuttal proof in the form of photographs of tattoos obtained in jail that included phrases such as "death row ain't got no time for that, hell bound, crush your enemies, and show no mercy," and that the admission of those images was inflammatory and prejudicial.

The state's attorney responded that the contested items had been litigated at pretrial hearings and that the trial court had ruled on admissibility. The prosecutor told the court the photographs and rebuttal evidence were properly admitted and argued the 404(b) testimony was probative of the defendant's mindset. The state also said there were no contemporaneous objections in some instances and relied on additional briefing and case law, citing State v. Hester as part of its argument about limits on execution-impact testimony.

Judge Wolfe told counsel he was familiar with the trial record and the issues raised, said rulings and pretrial orders had been entered previously, and that he would address each argument in a written order. On the record the judge said he did not believe there was reversible error but that he would review the motions and issue a detailed written ruling.

No final ruling was issued at the hearing; the judge gave both sides leave to file and to await a written decision.

Direct quotes in this hearing were limited to courtroom counsel and the judge and are attributed here to the speakers who spoke on the record.