By Tim Eberly
District Judge John Warner today denied a prosecutor's request to delay the trial of a man accused of a Christmas party shooting.
Warner concurred with Jeremy Yellin, the defense attorney for 52-year-old Wilmer Cleveland Hart. Hart has pleaded not guilty to felony charges of aggravated assault and assault with a weapon.
"He wants to get this thing moving," Yellin told Warner, whose trial is set for May 22. "He's not a healthy man. He wants to fight this, prove his innocence and move on with his life. ... If they want to put somebody's liberty at stake, they better be ready to go. And we're ready to go."
Deputy Hill County Attorney Cyndee Faus asked for the delay because the state crime lab has not yet issued results of fingerprint and ballistics tests. The only results she has received from the Missoula lab a DNA test of blood on a .22-caliber semiautomatic rifle prosecutors say was used to shoot 38-year-old Randall Murphy in the chest is inconclusive.
"I understand the judge's frustration," Faus said after the hearing, "but this is the Montana state crime lab and they're handling cases from all over the state. They are very backlogged."
The case has been delayed several times. At Hart's Jan. 8 arraignment, Yellin asked that the pretrial hearing be delayed, saying he wanted to interview a large number of of witnesses.
At a March 4 pretrial hearing, Faus requested the hearing be rescheduled because she had not received the crime lab results.
Yellin said today he has had difficulty contacting one of the main witnesses, Tammie Herrera, Hart's former housemate.
More than 20 witnesses will be subpoenaed by the defense to testify at the trial, Yellin has said.
This morning, Warner asked Faus if she could use witness testimony rather than relying on the crime lab reports.
Faus responded: "Everybody (at the party) was extremely intoxicated. Very few witnesses remember what happened."
Faus will call Murphy to testify, but she said the victim "blacked out, so he doesn't have any recollection" of the Dec. 26 incident.
Prosecutors say Hart, who was released from the Hill County Detention Center on Feb. 1 after posting $2,500 bond, shot Murphy in the chest after an argument turned physical in the bedroom of his residence in Head's Trailer Court.
A half-hour after the shooting, at 2 a.m., officers found Hart hiding in a neighbor's shed, according to a criminal complaint filed in District Court.
The weapon used in the shooting was recovered Jan. 5 from underneath a neighboring trailer, Faus said.