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Judge issued second finding of negligence in Eric Azotea death penalty case, ruled it doesn't warrant dismissal

Becky Campbell • Jan 12, 2018 at 11:52 PM

ELIZABETHTON —Defense attorneys in a double homicide death penalty case didn’t get the dismissal they asked for, but a judge ruled there was “gross negligence” on the state’s part for failure to preserve a video showing the defendant’s girlfriend at Walmart the night of the killings.

It’s not the first negligence ruling against the state issued by Criminal Court Judge Stacy Street in the case.

Eric Azotea, 46, who faces two counts of first-degree murder, two counts of abuse of a corpse and tampering with evidence, was in a Carter County courtroom Friday for the hearing. The charges stem from the deaths of a Kingsport couple, 38-year-old Arthur Gibson Jr. and 22-year-old Amber Terrell.

The couple were last seen alive Jan. 7, 2015, and after they were reported missing, law enforcement tracked the two through cell phone records to the Pinecrest area of Johnson City.

Ultimately, the investigation led to Azotea being charged with killing the couple and trying to dispose of their bodies. Prosecutors filed notice in August 2015 they intended to seek the death penalty.

The case was scheduled for trial in September 2017, but was reset after the defense couldn’t complete their investigation for sentencing mitigation. In a death penalty case, if there is a guilty verdict, the case proceeds immediately to a sentencing phase in which the jury will hear evidence and vote for the death penalty or life in prison for a defendant.

Defense attorneys — Gene Scott, Lesley Tiller and Dan Smith — filed two motions last week asking Street to dismiss the capital murder charge against their client.

One motion was based on the state not obtaining a copy of a Walmart video that reportedly showed Kristen Jones, Azotea’s girlfriend, shopping during the time investigators believe Gibson and Terrell were either killed or when Azotea was allegedly trying to dispose of their bodies. The second motion was because the defense said the state ignored the judge’s order to provide, in writing, any evidence obtained that weighs in Azotea’s favor, any promises or leinency deals with potential witnesses or any prior convictions of any potential witness the defense could use to impeach that person’s credibility on the stand.

District Attorney General Tony Clark assured the judge there was no blatant disregard for the judge’s order, but that there were no deals made with potential witnesses except the blanket immunity offered to Jones. It was Azotea who crafted that deal when he was being interrogated by investigators about Gibson and Terrell’s death. Azotea promised to tell investigators everything that had happened if they promised to keep Jones from being prosecuted. Assistant District Attorney Dennis Brooks made that deal that very night and Clark has said he will honor it.

“Mr. Brooks and I sat down and talked about it and we believed that was handled,” Clark said. ”We did not intentionally disregard the court’s order, your honor.”

Street made it clear that the DA’s office was supposed to provide for the defense any information regarding evidence favorable to Azotea or promises to witnesses, even if none exists. He gave the state until Tuesday at 4 p.m. to have the information to the defense.

On the video issue, Scott called Investigator Mike Little to testify about his knowledge of the recording. Little said he went to Walmart in Elizabethton after having determined Jones had been there the night of Jan. 7, 2015. Little testified he watched a portion of the video that showed Jones wandering around the store shopping for standard household items like shampoo, conditioner, makeup and toilet paper.

Little said he was looking for any evidence that Jones purchased items that could be used to cover up or clean up a murder scene, but after determining Jones had not done that, he didn’t watch the remainder of the video. He did, however, tell Tennessee Bureau of Investigation Special Agent Brian Fraley that he would or had obtained a copy of the video.

That apparently never happened, but because Fraley believed it had happened, he included it in an investigative report and indicated a copy of the video was in the possession of the Carter County Sheriff’s Office.

Ultimately, Street ruled that while the failure to preserve the video was “gross negligence,” it was collateral evidence, at best.

“It is gross negligence on the lower end of the scale,” Street said. “We’re talking about a video to collaborate the statements of a witness in the case. In order for the court to dismiss the case, I would have to determine that a trial without this missing evidence would be fundamentally unfair. The trial can proceed without the video.”

At a motion hearing in December, Street heard testimony about how Fraley and Little obtained search warrants for Azotea’s residence based on cell phone data they obtained from the cell phone company’s phone locator information. The affidavits filed by filed indicated the cellphone records showed the exact location of Terrell’s cellphone to be Azotea’s residence the night they disappeared.

A defense expert testified in December the information in the warrants was flawed, and calculating the exact location of a cellphone based on cell tower pings, real time tracking and GPS coordinates was not possible. Ultimately, the state’s expert agreed, and said he would not have written the warrants to say Terrell’s phone was “at” the Azotea residence.

Fraley and Little both testified they based their warrants on information they understood to be correct. Street will allow the warrants and the evidence to be used at trial, ruling the defense had not shown investigators knowingly provided false information or that they were reckless, a state legal requirement. Street said if the two experts had written the affidavits in the same manner, that could have been a basis to suppress the search warrants.

“The court finds there was no attempt to deceive the court,” Street said in the December hearing, adding later in his ruling that “at most, those statements were negligent, not reckless.” Negligence, however, did not meet the burden required by law, he said.

After the hearing on Friday, attorneys in the case gathered in a secure location to pick names from a box to determine the order in which potential jurors will be called for questioning. Jury selection in regards to pre-trial publicity, scheduling issues and feelings regarding the death penalty will be held Jan. 29-31. Street said he will stagger the arrival times of groups of jurors so the pool of people doesn’t have to sit around waiting for a long period of time.

Street said he hopes to come out of that process with at least 300 potential jurors for jury selection the following week. Azotea’s trial is scheduled to begin Feb. 5 and continue through Feb. 16. During the trial, the jury will be sequestered at an area hotel.

Azotea has remained in custody since his arrest in April 2015.

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