A new eyewitness has stepped forward, joining another who says she can identify the killer in the 4-year-old Woods Cross Motel 6 murder case.
But defense attorney Todd Utzinger wants 2nd District Judge Jon Memmot to bar both from testifying at the trial, arguing their testimony is unreliable.
Utzinger's client, 22-year-old Todd Jeremy Rettenberger, has spent the past four years in jail awaiting trial on first-degree felony murder and aggravated robbery charges in connection with the October 1996 killing of motel desk clerk Matthew Whicker.
Police say Rettenberger was one of a group who, on the evening of Oct. 29, 1996, robbed the motel of nearly $500 and fatally shot Whicker multiple times in the lobby of the facility.
But prosecutors have been heavy-laden on the road to trial, after the Utah Supreme Court in August 1999 ruled police used lies, threats and intimidation to coerce a confession out of Rettenberger. Those statements were ruled inadmissable.
During a pretrial hearing Thursday, Utzinger asked Memmot also to prohibit prosecutors from presenting testimony from Michelle Kelly and Barbara Dalling, who both told police they saw Rettenberger in or around the motel shortly before Whicker was killed.
The hearing was continued Friday to Dec. 14, when Memmot is expected to issue a ruling.
Kelly, who also testified at Rettenberger's preliminary hearing, said Thursday she was a passenger in a car driving past the motel when she saw Rettenberger running from the lobby to a waiting car, which sped from the parking lot without its lights on.
Dalling was contacted just this year, after an informant told Woods Cross police detective Bruce Timothy second-hand information that Rettenberger said a woman had seen him in the motel lobby. Timothy testified he identified Dalling though registration slips, and Dalling confirmed she saw a man "hanging around" in the lobby the night Whicker died.
Kelly and Dalling identified Rettenberger in a photo lineup as the man they had seen.
But Utzinger argued neither woman's testimony was reliable, and he purposely laid foundation to take the issue back to the Utah Supreme Court. There, Utzinger said he hoped to raise the standard by which eyewitness identifications are admitted at trial.
U of U psychology Professor David Dodd testified he believed Kelly had neither the time nor the proximity to accurately identify Rettenberger. A private detective working for Utzinger estimated the distance between the lobby and Kelly's vantage point at about 100 feet. He also estimated the time Kelly might have had to look at the man from her moving car at about three seconds.
Dodd also questioned the accuracy of Dalling's memory, given the nearly four years that had passed since the slaying.
Utzinger took issue with the photo lineup, arguing the lighting, framing and camera angle used in Rettenberger's photo was so unique compared to the others in the array that it may have been subtley suggestive to Kelly and Dalling.
"Mr. Rettenberger's picture is so distinctive that it is the functional equivalent of having one black person's picture with five white ones," Utzinger said.
Prosecutor William McGuire said jurors should be allowed to determine their credibility and that Utzinger's quest to set new eyewitness identification standards "reeks of judicial activism at its worst."
Rettenberger is scheduled to stand trial in January.
E-MAIL: jnii@desnews.com