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Frazee attorneys want evidence excluded before murder trial

Posted at 6:30 AM, Aug 23, 2019

CRIPPLE CREEK — Defense attorneys for Patrick Frazee, the Florissant man accused of killing Kelsey Berreth last Novemeber, are asking the court to exclude certain evidence as the case heads toward trial in October.

Frazee, through his public defenders, filed a motion to suppress evidence based on a meeting he had with a Teller County Department of Human Services employee on Dec. 26, five days after his arrest. The employee, who took the stand during a motions hearing Friday, testified she met with Frazee to learn more about him as a parent to the daughter he shares with Berreth.

She followed a standard list of questions to learn that information, which is used to complete an assessment to place the child in custody. Ultimately, the couple's child was placed in the physical custody of Cheryl and Darrell Berreth, Kelsey's parents, while the criminal proceedings continue.

The meeting, however, included some pointed questions about what happened around Thanksgiving, the allege day of the crime, as well as if Frazee or Berreth had a history of substance abuse, abuse in general and/or neglect. These questions, according to Frazee's attorney Adam Stiegerwald, pose a problem as they are focused on criminal activity.

Frazee was not read his Miranda rights during the meeting, which lasted between 60-90 minutes. Stiegerwald said he nor his office were made aware of the meeting either. Furthermore, the 16-page assessment report was then delivered to a number of parties: Woodland Park Police Department, the Teller County Sheriff's Office, the Fourth Judicial District Attorney's Office and the Colorado Public Defender's Office. Stiegerwald argued the case worker was essentially working on behalf of law enforcement, though Lead Prosecutor Jennifer Viehman pointed out she is not a law enforcement employee and was only doing her job.

On those grounds, the defense is asking Judge Scott Sells to withhold that evidence. Sells said he will rule on that within the week.

Before trial, all parties must pan out the jury selection process. In their motions, the defense requested 300 potential jurors, while the state sought 250. Either way, that number will be dwindled to 44: 12 on the original jury with four alternates, plus 14 per party for peremptory challenges (dismissing a juror without reason).

Dan May, district attorney for the Fourth Judicial District, said his team, the defense and the court were focused on those details during a private Friday after the public motions hearing.

"When do you bring people in? How many do you bring in? How many do you think we'll be able to do a day? How long it'll take? It's just sort of that. That's worked out better in an informal setting. It's not unusual for a court to do that in an informal setting like that," May said.

The state filed a motion seeking an advance notice of the potential juror list that would've included the names and addresses of all jurors. Beth Reed, a prosecutor with the state, said that information would be used for investigation to ensure no one with a criminal history made it onto the jury, thus protecting the verdict.

Stiegerwald and Sells, though, saw this as an invasion of privacy. Plus, Stiegerwald noted the district attorney's office could benefit from law enforcement help while the public defender's office wouldn't receive that information.

Sells ruled the advance release of that list including just the jurors' names. He also placed a protection order on it, only allowing the attorneys, investigators and office staff working the case to see it.

In addition, Sells ruled in favor of the state in its request for advanced notice regarding an alternate suspect. Prosecutors want a heads up if Frazee's team plans to use an alternate suspect as a defense. Sells set a Sept. 16 deadline for the defense to decide whether to do this.

Last month, May and his team opted not to file a motion in pursuit of the death penalty for Frazee. He explained that decision Friday, saying the Colorado Attorney General's Office provided consultation in that decision.

"We looked at a lot of case law. The attorney general's office provided us quite a few cases from not only here but around the country on that particular aggravator in making that analysis," May said.

May said he was looking at the 'lying in wati' aggravator, which would suggest Frazee essentially waited and then ambushed Berreth. He said the state office felt the case wasn't strong enough for that.

Frazee is due back in court for a pre-trial readiness hearing on Oct. 18 at 9 a.m.

Below is our live blog from Friday's hearing.

11:45 a.m.

The courtroom is now closed to the media as attorneys discuss the jury selection process.

10:55 a.m.

Court is in recess.

10:51 a.m.

Judge Sells asked about consumptive testing being done in the case. A prosecutor said the "vast majority" of the testing is done. She also mentioned other evidence was submitted for consumptive testing, which is evidence that can only be tested once due to its size or material. News5 was told that the first piece of evidence was a tooth fragment discovered at the Frazee property.

Viehman said some other evidence was submitted as well. That evidence was not disclosed.

10:47 a.m.

Judge Sells has set a date of Sept. 16 for a hearing on the alternate suspect defense, unless there is a new discovery in the case.

10:46 a.m.

The parties are now discussing the motion to require the defense to endorse an alternate suspect defense.

10:44 a.m.

10:40 a.m.

Judge Sells has decided to allow the prosecution, defense and court to receive a list of the names of potential jurors. Both parties will have access to the names, but law enforcement will not. Sells cited privacy concerns for the potential jurors.

10:38 a.m.

Prosecutor Beth Reed argues there have been prior cases where jurors didn't disclose previous criminal behavior, and once that has been discovered, the rulings in previous cases have been reversed. She said she needs the additional information to avoid a similar outcome in this trial.

10:35 a.
Frazee's attorney said he doesn't want prosecutors to have advance knowledge of potential juror's names and addressed because he said prosecutors could use law enforcement resources to run a background check on those people, and his office would not be able to do that.

10:32 a.m.

Sells, prosecutors and the defense are now discussing the state's motion for advance notice of the juror list.

10:27 a.m.

Judge Sells has denied a motion by the state to file an advance notice of res gestae evidence. That motion would have allowed otherwise inadmissible hearsay evidence to be presented in the case. The state said it would have been in relation to solicitation to commit murder charges that Frazee is facing and additional hearsay evidence of Kelsey Berreth during the trial.

10:18 a.m.

Judge Scott Sells said he plans to decide whether to approve or deny the motion to suppress the Longmire-Frazee interview by next Friday.

10:15 a.m.

Viehman is arguing that Longmire is not a law enforcement agent who is not required to read Frazee his Miranda rights, and it was her job to determine who should get temporary custody of Frazee and Berreth's child.

10:11 a.m.

Frazee's attorney has now asked the court to suppress the information in the interview between Longmire and Frazee on the grounds that she steered the conversation to ask "incriminating questions" about certain dates related to the case.

He argued that a DHS employee asking questions that could be used against him in court violated his constitutional rights.

10:09 a.m.

Prosecutor Jennifer Viehman asked Longmire how she knew Thanksgiving was a critical part of the case, which was attributed to media coverage of the case. Questioning of Longmire is now complete.

10:04 a.m.

When asked by Frazee's attorney if she had specific information from law enforcement and if she asked him about allegations of child abuse and burning. She replied yes.

9:57 a.m.

Longmire said Frazee signed a release of information document, which was provided to Woodland Park police, the Teller County Sheriff's Office and the District Attorney's Office. She said Frazee's public defender was sent the document as well.

9:52 a.m.

Longmire described Frazee's persona as "respectful and engaged." She said he expressed interest in talking about his daughter's life.

9:50 a.m.

According to Longmire, Frazee told her he received a text from Berreth that said "Do you even love me." to which Frazee said he replied "Of course I do." He said he didn't get a reply back. According to Longmore, he said his calls to her phone went to voicemail.

9:44 a.m.

Longmire is now recounting details about what Frazee told her about communiction between him and Berreth. She said Frazee told her that Berreth and Frazee talked about their relationship three days after Thanksgiving, when Krystal Kenney said she was asked to send messages from Berreth's phone.

According to Longmire's notes, Frazee told her Berreth "lost it" during their conversation on Nov. 24, 2018 and that's why he wanted to keep their daughter.

9:40 a.m.

Longmire said she wasn't aware of the allegations against Frazee and didn't have access to search warrants at the time of her interview with him. She was asked if they talked about Thanksgiving, the day Frazee is accused of killing Berreth, and she said yes and said she asked him with the intent of learning where the daughter was.

9:35 a.m.

Longmire also said she spoke with Frazee about Berreth's relationship with Frazee's famiy and his and Berreth's custody arrangement.

9:34 a.m.

Longmire said she informed Frazee of his right to refuse to answer her questions, which contradicts what the defense team said in a motion filed on Monday.

9:29 a.m.

Longmire reports the meeting lasted between an hour and 90 minutes. She said she was there to learn more about the Berreth and Frazee's daughter. She also said Sheila Frazee and Patrick Frazee's sister, Erin Frazee, asked for custody of the daughter.

9:23 a.m.

The state is also asking Longmire to describe the interview and the room it was conducted in. She said it was the video advisement room at the jail. She said she thought he wasn't wearing handcuffs during the meeting because he was asked to sign paperwork.

9:14 a.m.

Longmire said she spoke with Patrick Frazee's mother Sheila Frazee and other relatives on the day of Frazee's arrest. She said her interview with Frazee was to serve him notice about the custody proceeding. She said she made an appointment and informed him about the process before visiting the jail.

9:09 a.m.

The state has now called Longmire to the stand. Prosecutor Jennifer Viehman is asking Longmire about how she handled the procedure in deciding the well-being of Frazee and Berreth's daughter, who was cared for by Frazee before his arrest.

9:07 a.m.

Much of the questioning to Sandefur centered around the room where the interview took place between Frazee and Mary Longmire, the DHS employee who interviewed him after his arrest.

9:03 a.m.

Teller County Sheriff's Office Sgt. Roger Sandefur has been called to provide testimony about Frazee's interview with an employee with the Department of Human Services at the Teller County Jail. That interview happened on Dec. 26, 2018, five days after his arrest. The defense wants Frazee's statements thrown out because the employee didn't check with Frazee's attorney before asking him to allow the release of documents from the Teller County Department of Social Services.

9 a.m.

Patrick Frazee has entered the courtroom. He is still wearing a ballistic vest for his protection.

Background information

First, prosecutors filed a motion to require the defense to endorse an alternate suspect defense "if he intends to present such evidence at trial." However, it's yet not clear what type of defense attorneys representing Frazee will attempt to use in his trial, and the defense has not specifically named an alternate suspect at this point.

It will also cover logistical details surrounding jury selection for his trial. According to the documents, the prosecution and the defense differed slightly in their requests in the jury selection process. Prosecutors asked for a jury pool of 250 people, while the defense asked for a pool of 300 people.

The defense also asked for a total of 80 to 90 people for the final stage of jury selection to seat the 12-seat jury, while the prosecution proposed between 70 and 80 potential jurors. The defense proposed 80 to 90, citing the need to have enough potential jurors when both sides can begin to exercise peremptory challenges. A peremptory challenge allows defense attorneys and prosecutors to dismiss a potential juror without providing a reason. Under the defense's proposal, it would allow the prosecution and the defense to pick 14 people who can be removed from the jury pool to seat the jury and the alternates.

Both prosecutors and the defense agreed to having four alternate jurors to the 12-seat jury.

Additionally, the defense filed a motion to suppress statements Frazee made to an employee with the Department of Human Services at the Teller County Jail five days after his arrest last December. The defense said the employee didn't check with Frazee's attorney before asking him to allow the release of documents from the Teller County Department of Social Services. The defense also said the woman asked Frazee questions, and they want those statements thrown out.

Frazee, 33, faces eight total counts, including two counts of first-degree murder, for the murder of Berreth, 29, who's been missing since Thanksgiving. She was last seen shopping at a grocery store in Woodland Park.

Through interrogation of a second suspect — Krystal Kenney, an Idaho nurse who admitted to dating Frazee — prosecutors allege Frazee used a baseball bat to beat Berreth to death inside her Woodland Park townhome. Kenney told police Frazee had her drive down, clean up the scene and assist in destroying evidence. She admitted to taking Berreth's cell phone to deliver a ping off a tower in Idaho in an attempt to deceive police.

Frazee's trial is currently scheduled to begin on Oct. 28.