Murder suspect seeks to suppress confession

A Rifle man accused of shooting his brother is seeking to have a purported confession to police suppressed based on the contention he hadn’t previously been advised of his constitutional rights.

Public defenders working on behalf of Heath Johnston, 21, also are claiming police unlawfully searched the home Johnston and his brother, Samuel, 26, were living in when Samuel Johnston was shot and killed Dec. 15, 2008.

The attorneys made the claims in motions filed in court in advance of a trial scheduled for April 12-30.

Heath Johnston faces a first-degree murder charge in the case and has been held since the shooting in Garfield County Jail in lieu of $2 million bond. He has pleaded not guilty by reason of insanity.

In a preliminary hearing in July, Rifle police Lt. J.R. Boulton said Johnston confessed to the shooting the same night, saying his brother had been unhappy and had begged to be shot. In the public defenders’ motion, they said Boulton had advised Johnston of his Miranda rights. However, they contend Johnston’s decision not to exercise those rights was invalidated by the fact he hadn’t been advised previously of his rights before making admissions when questioned by two Rifle officers at the shooting scene and then at the police station.

“Mr. Johnston’s waiver of his right to counsel and right to remain silent was not voluntary in light of his prior unwarned interrogation,” his attorneys said in their motion.

Johnston’s attorneys also are:

Challenging the admission of evidence they said was gathered from an “unlawful, warrantless” initial search of the home by police and two subsequent searches conducted under warrants obtained “based on statements made by Mr. Johnston that were taken in violation of his Miranda rights.”

Seeking to suppress statements he made to a deputy while being transported to court for his preliminary hearing. Citing a Rhode Island legal case, they said interrogation does not require direct questioning but also occurs when law enforcement creates “a situation that is intended to invoke an incriminating response.”

Challenging a jail deputy’s Nov. 11 seizure of “a song Mr. Johnston had been writing,” saying the song wasn’t contraband, and its confiscation was an invasion of privacy.

A motions hearing in the case is scheduled for March.


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