Sutherland seeks re-trial

Sutherland seeks re-trial

Feb. 17, 2001

By Jim Mimiaga
Journal Staff Writer

A young man convicted of killing his own grandmother while she slept in her rural Montezuma County home more than five years ago has requested a new trial claiming insufficient legal counsel.

Chip Davis Sutherland, 23, is serving a life sentence for the chilling first-degree shooting murder of Ida Jean Wancura during a botched robbery attempt on Jan. 3, 1996.

During the attack, her husband, Wayne Wancura, also was shot and seriously injured by Antonio Velasquez, who is serving a 45-year sentence for participating in the violent crimes against the well-known ranchers.

But despite Sutherland’s alleged confession to the killing, his attorney, Curt Bobbitt, was so ineffective in defending him against the premeditated-murder charge that he violated his right to a fair trial, argued Sutherland’s new attorney, Alex Tejada.

At a hearing held before district court judge Sharon Hansen Thursday, Tejada called two witnesses who testified that Bobbitt performed poorly on behalf of his client during the trial, failed to cross-examine enough, did not file motions to suppress key evidence, and did not request a change of venue when heavy newspaper publicity warranted it.

"This was the most publicized case I’ve seen because the crime was very heinous against people beloved in the community," testified Tim Tuthill, the attorney appointed for Sutherland’s appeal. The appeal lost — in part, he said, because of Bobbitt’s lackluster performance.

"We found that the pre-trial publicity in the newspapers overwhelmingly biased the jury, yet no change of venue was ever requested," Tuthill said. "That made it impossible for a fair trial," he said, adding that a successful appeal was difficult because objections by Bobbitt "were few and far between" during the trial.

When asked by Tejada if Sutherland’s trial had a "reasonable probability" of turning out differently if he had had more adequate representation, Tuthill believed it would have.

If retried and found guilty of a lesser charge such as second-degree murder, Sutherland would face a less severe sentence. A re-trial in this case would require evidence of ineffective counsel that might have influenced the trial’s outcome.

Defending the trial and legal representation as valid, Deputy DA Katy Cabot cross-examined Tejada’s witnesses. She established that Bobbitt’s style of using few objections or cross examinations was consistent with his trial strategies in the past and that evidence against Sutherland was overwhelming.

When asked to describe his trial experience with Bobbitt, Tuthill recalled him as a "formidable opponent who was not stupid."

Velasquez’s attorney during his trial, Frank Viehman, testified that while working as Bobbitt’s supervisor in the public defender’s office, he became increasingly concerned about Bobbitt’s ineffectiveness in the courtroom prior to the Sutherland trial due to a family sickness and troubled finances.

The poor performance continued into Sutherland’s trial, he said. Bobbitt was later fired from the public defender’s office, according to court testimony.

Viehman said that in interviews, some jurors questioned the credibility of testimony given by Nicholas Hill, the third teenager involved in the incident. Hill plea-bargained to a second-degree murder charge, agreeing to testify against the other two defendants in return for a 20-year sentence.

Hill gave damaging testimony against Sutherland, stating that on three occasions Sutherland indicated his intention to kill his grandmother — thus indicating premeditation.

Cabot attempted to debunk Viehman’s and Tuthill’s testimony suggesting that Bobbitt was wrong to not argue that Sutherland’s mental capacity at the time of the murder had possibly been diminished by alcohol consumption.

That defense tactic could have been ignored on purpose, Cabot offered. "Would you agree that this defense is not popular with jurors — that being drunk somehow absolves a crime?" she asked.

"Your point is taken, and I agree in general, but I believe it was an issue the jury needed to know about," Tuthill said.

Tejada submitted as evidence two state-supreme-court rulings on grievances filed against Bobbitt in which he was disciplined for failing to represent his clients properly.

Bobbitt was not present at the hearing, which was continued until March 2, at 10 a.m., because of scheduling limitations in district court.