Thursday, May 8th, 2008
By Margie Wuebker
Evidence suppression sought
Attorneys for a Chickasaw man accused in the traffic deaths of four area residents want Mercer County Common Pleas Court Judge Jeffrey Ingraham to throw out potential evidence in the case. They filed the necessary paperwork Monday afternoon.
Nicholas Schwieterman, 22, 90 S. Maple St., through Dayton attorneys Marc T. Ross and Scott M. Calaway, is seeking to suppress: blood and urine test results, which were positive for alcohol and cocaine; oral or written statements he made to law enforcement officers; DNA evidence seized from him and/or the vehicle he was allegedly in; and the wallet and identifying information therein also seized.
The attorneys' claims range from a warrantless search of the 1996 Pontiac Bonneville registered to Schwieterman's father to allegations that personnel at Mercer County Community Hospital in Coldwater were "not properly qualified to perform such forensic draws." Additionally, the Dayton legal team contends a complete unbroken legal chain of custody was not maintained from the point the blood and urine samples were taken to the time they were tested to prevent tampering, contamination, substitution or misidentification.
Ross and Calaway contend the samples were not drawn within three hours of the alleged offense and their client did not give "valid" consent. They also have complaints regarding how the tests were performed and the expertise of professionals conducting and overseeing the testing.
"Under the circumstances and given his physical condition, Nicholas Schwieterman did not give a knowing intelligent and voluntary waiver of his Miranda rights," the motion stated.
The legal team has rejected a request from the state to use up DNA samples taken from the Schwieterman vehicle for additional testing. Consequently, Mercer County Assistant Prosecutor Matt Fox filed a motion Tuesday requesting the court order Calaway and Ross to immediately provide a list of laboratories they would favor with the testing costs to be split between the state and the defense.
An accompanying affidavit from Mercer County Sheriff's Detective Chris Hamberg indicates Schwieterman allegedly denied being the driver in the March 15 accident but later stated he was. Kyle Schmitmeyer allegedly was in the front passenger seat
Air bags, fingerprints, hairs, fibers, biological material and other physical evidence was seized from the car.
Defense attorneys also filed a motion Monday to reduce Schwieterman's $2 million bond, which his father already paid. If reduced, the payer would be returned some of the money. A memorandum attached to the motion indicates a reduction would allow the family to pay increased costs including attorney, expert consultant and scientific fees.
Schwieterman's father, Robert, posted the required 10 percent bond - $200,000 - on April 11, which released Schwieterman from jail and put him on electronic house arrest.
Additionally, the attorneys want the June 9 trial date continued, adding "It is almost unheard of that a case of this size, magnitude and seriousness would be tried within two and one-half months of the actual incident."
Calaway and Ross stated the case involves over 500 pages of discovery produced by the state. They maintain additional time is needed to investigate all the allegations, to interview and to potentially secure expert witnesses and to seek independent testing.
Ingraham has not ruled on the motions as yet.
Schwieterman faces 16 charges - four counts of involuntary manslaughter, eight counts of aggravated vehicular homicide, two counts of operating a vehicle under the influence of alcohol and/or drugs of abuse and one count each of possession of drugs and trafficking in drugs - stemming from the deaths of 18-year-old Jordan Moeller, 19-year-old Jordan Diller, 19-year-old Jordan Goettemoeller and 19-year-old Bradley Roeckner, all members of the Marion Local High School Class of 2007.
Schwieterman reportedly failed to stop for a stop sign at the intersection of Brockman Road and County Road 716A near St. Sebastian. His westbound car struck a northbound vehicle driven by Moeller and registered to Diller's stepfather Don Heitbrink. The four young men were pronounced dead at the scene.
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