Prosecutor challenges evidence in NAU killing
Last-minute motions aim to bar certain testimony
The prosecutor in the Northern Arizona University shooting-death case has filed a last-minute barrage of motions seeking to bar testimony about drug use and the hardcore partying reputation at the apartment complex where the fight began.
During the pretrial chess match that attorneys call discovery, prosecutors and criminal defense attorneys jockey to disallow or limit evidence and testimony that doesn’t help their case.
In Arizona, prosecutors often have the upper hand, given the state’s laws protecting crime victims.
The Arizona Republic has reported extensively on the case of Steven Jones, the NAU freshman who shot four students, killing one, during an October 2015 melee that started at a Flagstaff apartment complex and spilled onto the university campus.
His trial is scheduled to begin April 4 in Coconino County Superior Court in Flagstaff.
There is no question that Jones, now 20, fired the shots that killed Colin Brough, 20, and wounded the other three: Nick Piring, Kyle Zientek and Nick Prato, all 20 at the time of the shooting. At issue is whether he committed first-degree, premeditated murder or shot in self-defense.
The Republic also has reported that Jones had no alcohol or drugs in his system when he was tested eight hours after the shooting. Brough’s blood-alcohol content was three times the legal
limit, and he had a Valium-like drug and marijuana in his system. The other victims were also legally drunk, and two of them tested positive for marijuana as well.
The apartment complex where the fight started, known as “the courtyard,” had a reputation for rowdy parties and violence, and Jones blurted out remorseful remarks and expressed his fear to police and bystanders immediately after the shooting.
On Feb. 28, the prosecutor, Deputy Coconino County Attorney Ammon Barker, filed several motions to bar that information and expert testimony about it from trial.
Jones’ statements to police
In a filing captioned “State’s motion to preclude defendant’s self-serving hearsay statements,” Barker asked Coconino County Judge Dan Slayton to disallow statements Jones made to a student who took his gun after the shooting, saying that “even if uttered within minutes of shooting the four unarmed victims, (the statements) were concocted after a period permitting conscious reflection.”
Police reports say that Jones told the student he was acting in “self-defense.”
Jones told the first officer who arrived at the scene, “I’m the shooter,” and that he was “so scared.” He asked the officer to check on the others because they had been shot.
“Please help them, I’m so sorry,” Jones told the officer.
The officer put Jones into a patrol car, where the officer’s dashboard camera recorded him saying, “Why did they punch me?” and “Why did they chase me?”
Barker is seeking to keep such statements, made immediately after the shooting, out of court.
He characterized Jones’ statements to police first responders as fabricated excuses, though he wants to reserve the right to use them in the prosecution. And he claims they are “hearsay” — that is, secondhand accounts, which are not allowed in court.
“While the defense is barred from introducing these self-serving statements, the same statements, if offered by the State are admissible,” he argues in a court filing.
History of the courtyard complex
In another motion, Barker characterized descriptions of fights and wild parties at the “courtyard” complex as “rumors,” writing that “as far as the State can tell, this location did not have a reputation for disturbance more than the typical college living situation.”
The courtyard sits just off campus from a university student dormitory and parking lot where the shooting took place. The fight started when residents of the complex thought Jones and his friends were trying to crash a party there.
The Republic has reported the apartment complex received numerous visits from police and has posted videos of wild parties at the courtyard.
The newspaper also obtained a letter, written a month before the shooting, from university authorities to two fraternities, threatening them with sanctions if the disturbances continued. And, in fact, the fraternities were sanctioned after the shooting.
In 2015, the year the shooting occurred, Flagstaff police responded nearly two dozen times to various courtyard units at 262 E. Franklin Ave. Most of them were about disturbing the peace or follow-up visits to previous calls.
On Sept. 9 — exactly one month before the fatal shooting — police were called to the courtyard three times in a single day for noise-related complaints.
Police body-camera videos on several occasions show young men and women crowded into the center patio.
“It always blows up down here,” said a Flagstaff police officer during a response to a loud party call at the courtyard on Valentine’s Day 2015. “Every year. The one year I came down here, I got 150 people out of that unit. I’m dead serious.”
Alcohol, drugs, expert witnesses
Similarly, Barker asked that jurors not learn that Brough had a false ID on his person when he was shot, and he called the presence of the Valium-like drug alprazolam and marijuana in Brough’s system irrelevant and inadmissible.
“At the low doses these drugs were found, there is no ability to affirmatively say that these drugs negatively affected Colin’s behavior, or that the Defendant observed the effects of these drugs. In fact, Defendant never mentioned that Colin appeared to be intoxicated by drugs.”
In another motion, Barker denounced as “dubious” the findings of an expert witness retained by Jones’ attorneys to discuss the relationship between alcohol and aggression and how the other drugs interact with alcohol.
He asked the judge to disallow that testimony, as well as the testimony of a use-of-deadly-force expert retained by the defense to theorize whether the shooting was justifiable as self-defense.
And finally, as a hedge against leniency, Barker filed a motion informing the defense that even if the jury finds Jones guilty of the lesser crime of manslaughter instead of first-degree murder, the prosecution will seek an aggravated, or harsher, sentence because of the pain and suffering inflicted on the victims.
Jones’ medical records
The prosecution is seeking access to Jones’ medical records while he was in jail. Jones was hit in the face in the fight that preceded the shooting. And then he told police he was jumped by other students after shooting two of the victims.
Barker wrote that Jones declined medical attention at the scene, but Jones’ father, Warren, has since said in an interview with the prosecution that his son’s teeth were “knocked out.”
“Any medical reports obtained from the jail would shine light on Defendant’s claims that he received serious head injury, or that his teeth were knocked out,” he wrote.
The defense says those records are protected by law under physician-patient privilege.
When contacted by The Republic for comment, defense attorney Joshua Davidson said he and his co-counsel, Burges McCowan, would soon file their formal responses to the motions with the court. Barker declined comment. The motions are scheduled for argument on March 23 and 24. It will be up to Slayton to decide what evidence will be heard by the jury.
The judge also has ordered the two sides to sit down and discuss a possible out-of-trial settlement of the case.