By Justin Cox
Killeen Daily Herald
BELTON – A Bell County judge will decide if the rights of a Harker Heights man charged with murder were violated during police questioning last June.
Defense attorneys for 29-year-old Joe Castillo filed a motion to suppress evidence at a hearing Tuesday in Judge Martha Trudo's 264th District Court. They requested that the taped questioning of Castillo, made while he was in police custody on June 15 of last year, be ruled inadmissible as evidence during his trial.
Steve Walden, Castillo's attorney, said that his client made repeated requests to speak with a lawyer during questioning by police. Those requests were not granted, he said, and Castillo was not allowed to have a lawyer present during the remainder of the questioning.
Walden said that represents a clear violation of his rights, as supported by Supreme Court rulings, and grounds for dismissal of that tape as evidence in Castillo's trial.
Castillo is charged with first-degree murder in the June 8, 2007, shooting death of 26-year-old Joshua Montague at the Hallmark Inn in Killeen and is scheduled for trial March 31. Castillo was in police custody a week later on a drug possession charge, which remains pending, when the interview was conducted.
The arrest affidavit states that Castillo confessed to the shooting in a written statement, and police say he confessed to the shooting on tape as well.
Before Walden played the tape for the judge's review, he called Killeen Police Department Detective Sharon Brank to the stand. Brank conducted the interview on the tape as the lead investigator into Montague's killing, and questioned Castillo on June 14 and 15.
Walden asked Brank if Castillo invoked his right for an attorney on multiple occasions while being questioned about his involvement in the shooting.
"I do not recall it because it did not happen," Brank testified.
Walden then showed the tape, which only included brief, edited segments from portions of Castillo's questioning, taken from two separate interviews, each of which lasted about two hours.
In the segments shown, Castillo emphatically requests to see a lawyer several times, and it appeared to directly contradict the testimony Brank gave only moments earlier.
"I want to talk to my lawyer, this is all bull –," Castillo said on the tape. "Just go ahead and get me my lawyer. This is bull– , cause you're f– around with me ? I want to talk to my lawyer so I can understand everything, he can explain everything ?"
"You don't want to talk to me anymore?" Brank asked Castillo. "I don't blame you for wanting a lawyer in here ? But if you want your lawyer involved, you're going to be charged with an offense."
After the segments were played to the court, Assistant District Attorney Mike Waldman stood up to object, arguing that the segments of tape shown misrepresented the situation and were spliced together to give a false impression of the situation.
"Judge, this is ridiculous," Waldman said to Trudo. "They've taken this completely out of context. It was in the context of him asking about taking a polygraph."
The defense argued that the moment a lawyer is requested, for any purpose, law enforcement officers are required to end the interview.
"Did you see your interview with Mr. Castillo?" Walden asked Brank, still on the witness stand.
"I saw parts of my interview," Brank responded.
Walden then followed up by asking her to confirm that Castillo asked for a lawyer.
"I disagree with you, sir," she responded.
Waldman said that the only way to resolve this issue is to play both tapes in their entirety.
The defense requested that the tape not be presented in open court, suggesting that if the tape is reported on by the media, it would contaminate the potential jury pool.
The prosecution argued that if the tapes are viewed from start to finish, it will be clear that Castillo never requests a lawyer during key portions of the interview, in which he allegedly confessed to being the shooter.
Judge Trudo said she will review the tapes privately and make a ruling at a later date.
Earlier in the hearing, Trudo granted a request by the defense to have further DNA analysis conducted on some of the physical evidence taken from underneath the fingernails of the victim.
The ruling came in spite of objections from the state as to its relevance.
"There's no question this defendant shot Josh Montague at close range," Waldman said. "(Collecting the substance under the fingernails) is just a routine thing they do. I don't see how it will be of any evidenciary value. We also conducted a sex kit on the victim as part of this routine, though there was no evidence of sexual assault. We have a trial date set; I've issued subpoenas, and I'm ready to go."
Trudo said the defense deserves to have that material tested if it can help its case.
"I imagine that may be something that they are going to use in trying to prove a self-defense case," Trudo said. "I'm going to allow them the opportunity to do that so they can provide the best defense for their client possible."
The new trial date was not set, and will be pending the results from the DNA tests.
Contact Justin Cox at email@example.com or call (254) 501-7568