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Old 03-29-2006, 03:48 PM   #11
Blackbear
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http://www.dailyranger.com/headline1.htm
Prosecution, defense both
rest in child murder trial


By Walter Cook
Staff Writer
THERMOPOLIS — In a drastic move Monday, defense attorneys for Andrew John Yellowbear Jr., the man accused of the systematic beating death of his child in 2004, proposed a motion to dismiss all charges against their client, including charges for first-degree murder and accessory to murder.
“The way it’s charged, it’s almost like (the state) is asking the jury if he’s an accessory to himself — it’s very confusing,” Yellowbear’s attorney Diane Lozano told Judge David Park. “Either he did do it, or he didn’t do it.”
Park, a Casper judge who is overseeing the trial in the Hot Springs County Courthouse denied the motion after more than three hours of deliberation.
Said the judge, upon returning from his chambers, law book in hand, “There’s been sufficient evidence presented (for the charges), and this is a question of fact for the jury.”
The defense motion to dismiss came shortly after the state rested its case Monday morning, surprisingly without recalling its star witness Macalia Blackburn, the child’s mother, whom Yellowbear says is truly responsible for the abuse over the course of several weeks between May 15-July 2, 2004, that led to the death of the couple’s 22-month-old child, Marcela Hope Yellowbear.
The defense rested its case Tuesday morning (see related story).
Blackburn agreed to plead guilty to accessory to second-degree murder in exchange for testifying against Yellowbear, which she did Monday and Tuesday.
She was expected to testify again this week to discuss the abuse Yellowbear allegedly inflicted upon her during the course of their tumultuous three-year relationship, in which Blackburn became pregnant with the deceased child two months after the two began dating.
According to photos presented during the trial last week, the dead child exhibited varying colors of bruises over her entire body, indicating weeks of repeated abuse; cigarette burns and lacerations to her chest; a broken right arm; third degree burns to her hand and foot; a puncture wound piercing the underside of her chin; blood poisoning from feces entering two open, necrotic wounds on each of her buttocks; and hair loss and a scabbed-over wound on a portion of her spine due to allegedly being dragged around by her hair.
To the surprise of prosecutors, Park ruled Thursday that the testimony about Yellowbear’s alleged abusive ways toward Blackburn would be allowed, but only to explain why the woman lied initially to police after she brought the dead child to a Riverton emergency room late in the evening of July 2, 2004, telling them she, not Yellowbear, was responsible for the abuse that led to the death of the child.
Blackburn later told police she lied because she feared that Yellowbear would beat her.
She was expected to testify to that effect Monday, but Fremont County Attorney Ed Newell kept her from the stand.
Newell instead banked on the testimony of other witnesses including neighbors, crime lab experts, investigators and doctors presented March 20 through Monday.
Two defense witnesses
With their shot-in-the-dark motion denied by Park, Yellowbear’s lawyers called two Blackburn character witnesses, a Fremont County Sheriff’s Department detention deputy and a woman who once lived with Blackburn at her grandmother’s Arapahoe residence.
Just before the witnesses were called, Yellowbear attorney Vaughn Neubauer performed an act symbolizing the end of the prosecution’s case: while his fellow attorneys were discussing issues with Park in his chambers, Neubauer rolled up the projector screen on which prosecutors had used to show jurors the numerous graphic photos of an obviously abused Marcela Yellowbear taken shortly after her death, photos that, on numerous occasions, brought jurors and audience members to tears.
Sgt. Ron Blumenshine took the stand first for the defense, saying, after questioning by Lozano, “I would say she’s (Blackburn) not very truthful most of the time.”
Blumenshine said he was responsible for booking Blackburn shortly after her July 3, 2004, arrest. He added that he had been in contact with her 15-20 times over the course of her incarceration.
Natasha Washakie, who said she was Blackburn’s friend at one time, followed Blumenshine.
When asked by Lozano what the child was like during the time she spent with her in the summer of 2003, Washakie responded, in tears: “Marcela really liked attention. She was a baby ... she was a normal baby.”
“Did she ever get hurt?” Lozano asked.
“Yes,” Washakie responded. “I woke up one morning (and) thought I’d go down there (Blackburn’s room in the basement) and hold her (the child).
“I went down there and she had been sitting in a playpen and Macalia had been sitting there playing cards. I went to pick her up and she had a black eye — it wasn’t too dark but it was noticeable.
“I asked her: ‘What the hell happened to baby?’
“She said that she had fallen out of the (swing set) seat.
“I walked away with Marcela and took her up to our room. I didn’t say anything to Macalia.”
Washakie said she then approached other Blackburn family members in the household about the mark on the child.
“I said, ‘look, something’s happening to baby — you need to do something about it,’” she said. “People just, more or less, told me to be quiet. “A day or two later, she had a black eye on the other side.”
Newell didn’t totally absolve Blackburn of guilt for the child’s abuse, saying, “Both these parents were actively engaged in the abuse of this child,” but he argued that Yellowbear is responsible for the vast majority of the abuse.
During her testimony last Monday, Blackburn admitted to once slapping and once pinching the girl shortly after she regained de facto custody of the child through her grandmother — who gave the child up despite pleas from a family member, Littlehawk Blackburn, not to do so.
The Northern Arapaho Child Protection Services had taken the child away from Blackburn, but considered the case officially closed after it granted custody to the grandmother.
Earlier in the week, the prosecution team produced its own character witness for Yellowbear, the couple’s former Riverton neighbor, Teresa Bell, who testified that she once saw Yellowbear grab the child by the hair, twist her arm, and send her back into the couple’s apartment when she walked outside against Yellowbear’s wishes.
Bell said she did nothing at the time because she “didn’t want to get involved,” but later talked to police because the girl “needed justice.”
Closing arguments are expected to begin Wednesday. The jury will deliberate shortly thereafter.
If Yellowbear is found guilty, the penalty phase of the trial will begin, during which prosecutors and, in particular, the defense team will call witnesses testifying on or against the defendant’s behalf. Jurors will again deliberate following that portion of the trial.
Yellowbear could be put to death or imprisoned for life with or without the possibility of parole.
Several Yellowbear family members scheduled to testify in the penalty phase of the trial on Yellowbear’s behalf received threatening phone calls over the weekend, according to Lozano.
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