Murder defendant tries to skip hearing

An Evergreen man tried Tuesday to get out of sitting through part of a weeklong pretrial hearing meant to determine what a jury will and will not see and hear in a deliberate homicide trial early next year.

Brandon Lee Walter Newberry, 22, asked to be excused from the courtroom and be allowed to go back to jail on Wednesday morning.

“I don’t feel good,” Newberry told Flathead District Judge Heidi Ulbricht. “I would rather be back downstairs.”

Flathead County Attorney Ed Corrigan offered to stop the proceedings and wait until Newberry felt better if he was legitimately ill. It is important for Newberry to be present in the courtroom, Corrigan said.

Ulbricht also offered to delay court proceedings and stressed that it was better for Newberry to be in attendance.

“You need to be able to assist your counsel before going through with these motions,” Ulbricht said.

 She inquired further about Newberry’s symptoms and he replied that he had a headache.

“I don’t understand what is going on up here,” Newberry said. “I don’t understand this court stuff.”

Ulbricht offered Newberry time to talk with his attorney, but he declined.

“We can just do it, your honor,” Newberry told the judge.

Attorneys then got to work on a second day of pretrial motions, with some of the court proceedings closed to the public.

Newberry is accused of killing his girlfriend’s 2-year-old son, Forrest Groshelle, on Feb. 18. According to court documents Newberry dialed 911 to report an unresponsive child. Newberry was allegedly heard screaming “It’s my fault, it’s my fault,” in the background of the call.

The child was declared dead at the scene. A medical examiner determined that Groshelle’s death was due to blunt force trauma to the abdomen.

Newberry allegedly told investigators that he was roughhousing with the child the day before.

Newberry’s trial was originally set for September but has faced numerous delays as attorneys battle over what will and won’t go before a jury. Ulbricht left most of the pretrial motions scheduled for this week open to the public, but a few were closed because of the high-profile nature of the case and concerns about tainting the jury pool.

Ulbricht denied a defense motion in November to move the trial out of Flathead County.

Newberry’s attorneys claimed that a different trial location was warranted because Newberry’s vehicle was vandalized shortly after Newberry was arrested with the words “Burn in Hell Brandon,” spray painted on its side. Newberry had to wear a bulletproof vest to his arraignment because of concerns about death threats that had been made against him, attorneys argued.

Ulbricht issued a carefully crafted court order on whether or not the public and media could attend the hearings, resulting in two open hearings on Tuesday and closed hearings Monday and today.

Open proceedings dealt with whether or not images and written content obtained during a search of Newberry’s cellphone will be admitted during the trial.

Public defender Greg Rapkoch argued that the search warrant was too broad and a search of the cellphone took images, text files, and search histories dating back to June 2014, well before the incident in question. Rapkoch said deputies had no probable cause to search files that far back and a sheriff’s deputy should have specified a time frame in the search warrant.

But FBI Special Agent Matthew Salcinski said the warrant was standard.

“I do occasionally see date ranges in warrants, but generally I don’t,” Salcinski said.

Flathead County sheriff’s deputy Kipp Tkachyk said he applied for a search warrant for Newberry’s cellphone after he conducted interviews with people who talked about a photograph prior to the child’s death that may have indicated abuse. People also told Tkachyk that they had corresponded and spoken with Newberry about the child’s death the day afterward. Tkachyk believed the phone might contain information about the circumstances of the child’s death.

“A lot of information may be obtained from a cellphone,” Tkachyk testified, saying that he did not order a search of all the applications on the phone, but instead focused on ones that are used for communicating or taking photographs.

Ulbricht did not immediately rule on the motion to suppress evidence obtained from the cell phone.

Also testifying Wednesday by telephone was Wendy Dutton, a psychologist the prosecution wants to present expert testimony about the characteristics of child abuse and child behavior.

Dutton has conducted more than 9,000 forensic interviews of children believed to have been abused. She also testifies in court three or four times per month in cases where she does not know the circumstances of the individual cases, but offers information to the jury about the hard-wired human response to abuse.

“I prefer not to know the facts of the case so I cannot tailor my testimony to fit the case,” Dutton said.

Dutton said during a trial she might talk about how a child might still show signs of love for a person who abused him or her. She also said she might explain how an abusive parent interacts with another abusive parent and give testimony about where bruises often occur in abuse cases.

“There are injuries that should raise concerns as to nonincidental bruises and then there are injuries that are more typical of childhood bumps and bruises,” Dutton said.

Public defender Vicki Frazier argued against Dutton’s testimony. She pointed out that Dutton has only examined bruises on live children and has no insight about how bruises might worsen as a corpse decomposes.

She also said that while Dutton might have extensive knowledge about how abusive families interact, she does not have any insight as to the dynamics of Groshelle’s family.

“Given you are testing blind, you don’t have a baseline for how this family interacted,” Frazier said.

Dutton said she still believes her testimony is valuable to juries who might include people who don’t understand why a child might not report abuse, show love for an abuser or know where incidental and non-incidental bruises occurred.

“I think that type of testimony is generally outside the knowledge of general lay people,” Dutton said.

Another witness will testify on Friday about Dutton’s possible inclusion at the trial.

Court proceedings today will be closed to the public. Friday’s testimony is open to the public.

All motions argued are still pending before Ulbricht.

Reporter Megan Strickland can be reached at 758-4459 or mstrickland@dailyinterlake.com.