Judge tosses incriminating evidence ahead of pot murder trial | TheUnion.com

Judge tosses incriminating evidence ahead of pot murder trial

Finley Fultz

A Superior Court judge has dealt a blow to the prosecution of a murder defendant, ruling that prosecutors cannot use a number of incriminating statements during his trial, set to start Tuesday.

Finley Fultz is the lone remaining defendant in the July 7, 2014, shooting of Isaac Zafft while he was caretaking a marijuana grow in Penn Valley. Codefendants Nathan Philbrook, 34, and Daniel Devencenzi, 33, previously took plea agreements and likely will testify during Fultz's trial.

Earlier this week, Fultz's attorney, Greg Klein, argued that Judge Thomas Anderson should toss incriminating statements made by Fultz to an undercover officer posing as his cellmate. According to Klein, his client's Sixth Amendment right to counsel was violated and therefore the covert questioning was illegal.

Anderson took it under submission in order to review more case law. On Friday, he sided with Klein, finding two separate issues of concern.

He found that during an initial interview with investigators, Fultz invoked his right to stop questioning and obtain an attorney. Any statements made after that point were thrown out, as were any statements made prior to a Miranda advisement.

Anderson also ruled to exclude statements made by Fultz to the officer posing as his cellmate. The officer posed as an inmate charged with the same offense as the defendant, and was trying to elicit incriminating information from Fultz, Anderson wrote in his ruling.

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And even though Fultz was Mirandized at booking, he was unaware that he was speaking to a law enforcement officer and therefore was not aware his statements could be used against him.

Going further, Anderson ruled that any statements made by Fultz to detectives after he spoke to the undercover officer must also be thrown out as "fruit of the poisonous tree."

During Friday's hearing, Anderson told Deputy District Attorney Jesse Wilson that he found enough connection between the jail cell confession and the subsequent interview, adding that Fultz was "pushed to talk" and then taken out of his cell to be interviewed.

Wilson has asked for a subsequent trial readiness conference, which will take place Tuesday, the same day as the beginning of jury selection. Opening statements to the jury are expected Thursday.

Contact reporter Liz Kellar at 530-477-4236 or by email at lizk@theunion.com.

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