The attorney for accused wife-killer Tom DiBartolo wants to call witnesses during his trial who will point to other suspects in the murder.
Maryann Moreno also plans to call a Spokane dog handler whose scent-tracking hound searched the crime scene and found a trail leading in a direction DiBartolo said two men had run after the murder.
Whether Moreno gets to use those witnesses will be decided later this week. She argued her case Monday at a hearing before Spokane County Superior Court Judge Neal Q. Rielly.
Police arrested DiBartolo, a 42-year-old former Spokane County sheriff’s deputy, in January and charged him with first-degree murder in the shooting of Patty DiBartolo, 39.
The witness statements Moreno wants jurors to hear support DiBartolo’s account of what happened the night of Nov. 2 when the couple took a walk in Lincoln Park on Spokane’s South Hill.
DiBartolo told investigators two black men approached the couple near their van in the parking lot.
During an attempted robbery, he said, one man reached into the van’s glove box, grabbed a .38-caliber revolver and fired two shots.
One of those bullets struck Patty DiBartolo in the head; the other wounded Tom DiBartolo in the side.
During the trial, set to begin Oct. 20, prosecutors will say that DiBartolo planned the murder to end an unhappy marriage, collect insurance money and continue a relationship with another woman.
Prosecutors oppose Moreno’s use of witnesses suggesting other suspects exist.
Deputy Prosecutor Larry Steinmetz told Rielly that police interviewed Moreno’s prospective witnesses and found no reason to believe DiBartolo’s story.
Steinmetz argued that defense attorneys can’t just toss out suggestions of other suspects during a trial; they first must corroborate evidence of the witness’s possible role in the crime.
But Moreno said the 1995 trial in Spokane County of accused murderer Edward Maupin clearly established her legal right to call such witnesses.
The judge presiding over the Maupin case refused to allow testimony by a defense witness who would have told jurors that victim Tricna Cloy, 6, had been seen in the company of someone else after Maupin allegedly had abducted her.
In 1996, the state Supreme Court overturned Maupin’s murder conviction, saying the seriousness of the charge required the court to permit such testimony.
“We are asking the court to admit this testimony, which is at the heart of our case,” Moreno said Monday.
One of the witnesses she hopes to call is Sam McNeill of Spokane. He told an investigator that he drove two acquaintances, both black men, to a friend’s house the night of the murder.
McNeill said he heard one of the men say to the other: “You didn’t have to kill the bitch.”
Moreno said she has other witnesses who will say the two men, identified as Jerry Jones and Curtis Jones, made other statements after the murder indicating they were eager to leave town.
But Steinmetz told Rielly that police included Curtis Jones’ photo in a lineup presented to DiBartolo. The deputy ruled out Jones as one of the men who had killed his wife, Steinmetz said.
“Now the court is being asked to admit evidence when Mr. DiBartolo earlier denied Mr. Jones had a hand in the crime,” the prosecutor said.
Rielly also must decide whether jurors will hear testimony from dog handler Sid Hardy.
Hardy was asked by investigators shortly after the murder to have his tracking dog, Judge, search Lincoln Park for evidence.
Moreno said she wants to have Hardy testify that Judge - described by his owner as having “a perfect tracking record” - showed signs of finding the scent of someone who had reached into the DiBartolos’ van.
The dog reportedly was given a scent pad taken from the van’s glove box, then immediately tracked the scent in a direction southeast of the parking lot.
That’s the route DiBartolo told police the killers had fled.
Steinmetz maintains that the dog’s tracking at Lincoln Park is irrelevant because there aren’t solid reasons to believe any suspects are at large.
Moreno also is asking to move the trial to another county because of extensive pretrial publicity.
Rielly said he will wait until jury selection starts before deciding whether an impartial panel can be chosen in Spokane.