Attempted-murder appeal fails in court
Even with help from a lawyer, Bryan M. “Squirrel” James had no better luck Friday than he did in his attempted-murder trial last month.
James is still guilty, Spokane County Superior Court Judge Robert Austin ruled after hearing why Assistant Public Defender Stephen Heintz thought the conviction should be overturned.
James decided to give Heintz a try after a jury convicted him of two counts of attempted first-degree murder with a firearm when he told jurors he had no alibi and invited them to “get at it.”
Heintz tried to undo the damage with motions to reverse the verdict on grounds of insufficient evidence, and to grant a new trial because of alleged errors by Austin and Deputy Prosecutor Mark Cipolla.
Among other things, Heintz charged, Cipolla made an “emotional appeal” to the jury and exaggerated when he said James shot Richard Payne and Nicholas Schelin “numerous” times in the early morning of June 27 last year while they were walking in the 2600 block of North Crestline.
Only three shots hit the victims, although one caused two wounds, Heintz said.
Payne and Schelin told authorities that James drove alongside them, pointed a pistol at them and said, “Hey, homies.” Then, the victims said, James fired about a half-dozen rounds, hitting Payne in the thigh and Schelin in the arm and side.
Heintz complained that Cipolla’s closing argument at trial included “several statements indicating that these were violent offenses, that it was a scary situation, that Mr. James did this ‘for the hell of it.’ “
Cipolla’s statements “appealed to the jury’s fear of violent crimes, appealed to their passion against – prejudice against – violent crimes, and it really had an inflammatory effect on the jury,” Heintz argued Friday.
Other arguments Heintz raised Friday included what he said was inaccurate information Cipolla gave James about the standard-range penalty James faced if convicted as charged. He said Cipolla indicated the low-end of the range was 47 years, but Heintz calculated the range at 28.2 to 53 years.
An error in the jury instructions, caught just as the jurors were about to begin deliberations, wasn’t adequately corrected, according to Heintz. And a legal term wasn’t defined at the proper point in the instructions, he said.
Heintz said the errors he alleged were either constitutional violations or otherwise too serious to be ignored.
Cipolla said they weren’t errors at all, and Austin agreed. The judge said neither he, nor Cipolla did anything wrong at trial.
Heintz said he likely will appeal Austin’s ruling after James is sentenced next month.
James had planned to represent himself on a pending murder charge that was to have gone to trial Monday, but the trial is to be postponed and Assistant Public Defender Ken Knox is to represent James.
James is charged with first-degree murder, second-degree assault and first-degree burglary – each count aggravated by use of a firearm – as well as being a felon in possession of a gun in a Nov. 16 incident.
James allegedly accompanied Robert Tracy “Shorty” Spencer, 41, to an apartment at 128 N. Division, where Spencer had attempted to force a woman to let him be her pimp. Spencer allegedly attacked 40-year-old James A. Johnston, who had defended the woman, and James pulled out a pistol and shot Johnston to death while he wrestled with Spencer.