(WAFF) - Attorneys representing a north Alabama man accused of killing his stepfather say key evidence could have been lost by investigators.
But the judge handling the case found no legal issues with it and is moving forward to trial.
Clarence Fearn is charged in the murder of George Woodard, Jr. He appeared before Madison County Circuit Judge Chris Comer to address a number of motions filed in the case Friday morning.
Fearn was arrested in 2014, five years after the killing. He is the victim's stepson.
Woodard was fatally shot several times in the driveway of his Madison County home on Debbie Blvd. at 5:30 a.m. on September 30, 2009.
Woodard was on the way to work at the Toyota plant when he was killed. He had been an assistant manager in machining for seven years at the time of his murder.
The hearing started with one of Fearn's lawyers, Joe Lampley, submitting to the court a handwritten letter he received from Fearn.
The letter stated that he is innocent and has been in custody for too long, adding that he does not want to have Judge Comer handle the case.
Lampley advised him that having the judge step aside and finding another circuit court judge to handle the case would cause even more delays and possibly set the trial back to 2019, but Fearn told his lawyer that he still did not want to have Comer as his trial judge.
Comer said there are no judicial canons that would require him to disqualify himself from the case.
During the hearing, the defense withdrew a motion to determine if a man named Tyson White was an accomplice to the murder.
They also took up several other issues, including Fearn's right to a speedy and fair trial, which Lampley says has been jeopardized by investigators.
Lampley called a neighbor who lives two houses down from Woodard to the stand on Friday. He was asked about footprints found in his backyard the morning of the killing.
The neighbor testified that he heard several gunshots, and shortly after heard his dogs barking at something in the backyard. When he went outside, he noticed footprints in the dew in the grass and saw that a plant had been trampled.
A single set of footprints went through the backyard. He said it looked like someone jumped over the fence coming from Woodard's house and cut through the yard to get to the street during a getaway.
The neighbor notified authorities at the crime scene set up around Woodard's house. They came down to his home to examine the footprints, measuring them and photographing them.
The crime scene investigator who took the photos was subpoenaed by the defense Thursday, but was not available at the hearing on Friday.
According to the defense, the footprint photos were not included in the discovery, which is a compilation of all of the evidence and documentation in the case.
"The photographs could be used to demonstrate the shoe size, type of shoe worn and/or the weight of the person who ran through the backyard right after the shooting. Due to the proximity between the shooting and the person running through the backyard, the footprints may very well have been left by the shooter," the defense wrote in a motion to dismiss due to spoliation.
The defense feels Fearn has been severely prejudiced by the inability to view potentially exculpatory information contained in the photographs.
"Defendant contends that his fundamental constitutional right to due process has been violated by the State of Alabama, and the indictment against him should be dismissed," the defense added in their motion.
The defense believes that the photos could help rule Fearn out as a suspect and that he should be able to have an expert examine them. Lampley said the judge should not let the case go forward if evidence has been lost.
Lampley noted the footprint pictures are important because when authorities searched Fearn's home they did not find any physical evidence, like shoes.
During the hearing, Fearn sat quietly in the courtroom with his hands and feet restrained, wearing a jail jumpsuit.
His attorneys pointed out that Fearn has been in custody for 40 months since his arrest warrant was issued.
The prosecution countered that most of the continuances have been on the defense's side.
The judge acknowledged that the case has lasted longer than anyone wanted due to the nature and the complexity of it, as well as Fearn's displeasure with his previous attorney.
But, Judge Comer said, there's been no negligence.
Comer told the defense that they made a good argument as to the investigative methods used, which is something they will be able to address with the jury. But that nothing egregious enough to warrant a dismissal.
He said the defense would be able to cross-examine multiple investigators during the trial about the footprints and photographs and make their case to a jury.
Comer denied the defense's request for funds to hire an expert to look at the footprints, calling it a redundant and unnecessary expense.
A motive in the case is unknown.
Fearn's trial is set for January 8, 2018.
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