Welton denied new trial

PALMER — A Palmer judge has declined to grant a new trial for Suzette Welton, convicted in 2002 of murdering her son, a ruling Welton’s attorney said he plans to appeal.

Welton remains in-carcerated at Hiland Mountain Correctional Center in Eagle River, serving a 99-year sentence.

In a 32-page ruling dated May 27, Superior Court Judge Eric Smith outlines and summarily dismisses all of Welton’s points raised in her petition for post-conviction relief.

“It’s a hard case,” said Michael Smith, the Stevenson, Wash.,-based attorney assigned by the Office of Public Advocacy represent Welton during the post-conviction relief process.

Smith disagrees with the judge’s ruling and intends to see the case through to appeal. The next step is to file an application for re-consideration, which he said he intended to do this week.

At trial, prosecutors said Welton, 44, took out life insurance policies on both her sons, then drugged the boys with sleeping pills, spread gasoline around the second story of their Mulchatna Drive home and set it ablaze. One son, Samuel Welton, 14, died in the fire. The second son, Jeremiah, survived.

Welton appeared before Smith in mid-April for a hearing on the matter, and over two and a half days her attorney argued her defense during her trial was inadequate. Michael Smith said the defense team of George Davenport and Greggory Heath:

• didn’t prepare her to testify and did not tell her she had the constitutional right to do so.

• failed to properly question her surviving son, Jeremiah, about his alleged recreational use of sleeping pills.

• presented the jury with multiple competing views of what might have happened the night the home burned.

• didn’t test carpet samples for the presence of fire accelerants.

• chose to take turns attending trial rather than both attending every day.

• didn’t obtain a security tape from Carrs for the day prosecutors alleged that, in the same purchase logged on Welton’s grocery store rewards card, she bought sleeping pills and a gas can.

As to whether Welton knew she was allowed to testify, Judge Smith sided with her defense attorneys and investigators who testified they told Welton she had such a right but advised against exercising it.

Were she to testify, said Heath, now a Palmer District Court judge, during the hearing, prosecutors would have been able to ask her about previous fires at homes she’d lived in and a false rape accusation she’d made prior to the fire. Absent her testimony, that evidence was barred from the trial.

As to Welton’s claims, “with all due respect to Ms. Welton, the court found her testimony utterly not credible. This finding is based on her demeanor, which was not conducive to a finding of truthful or at least accurate testimony,” Judge Smith wrote.

In a separate ruling, Smith sided with Heath and Davenport’s assessment of the possible effect of Welton testifying.

“If she performed at the trial as she did at the hearing before this judge, it would, as Mr. Davenport said, have been ‘horrendous.’” Smith wrote.

Writing about Jeremiah Welton’s testimony, Smith said it was a close call, but sided with Heath, who testified that not bringing up an admission Jeremiah made to investigators about his past use of sleep aids was a tactical decision. He had a surprise witness planned who would refute the teen’s assertion that he never used drugs, and didn’t want to tip his hand, Heath said.

As to the multiple theories issue, Smith said his reading of the trial transcripts led him to believe the defense actually settled on one theory, not multiple theories. The lawyers argued nobody knew what happened in that house and pointed to Samuel Welton as being the most likely culprit for starting the fire, Smith wrote.

Even if they had presented one theory, Smith wrote, that doesn’t mean they were incompetent. There is an obvious danger in presenting just one theory — what if the jury doesn’t buy it? Smith said they might conclude they have to side with prosecutors.

The carpet samples Smith also found harmless, noting prosecution experts themselves testified they couldn’t find any accelerants on the fibers.

“It is difficult to understand why it was incompetent for the defense attorneys not to do their own tests,” Smith wrote.

As to her attorneys’ attendance at trial, Smith wrote Welton couldn’t prove Heath and Davenport had affected her trial adversely by taking turns attending.

“As the testimony of the attorneys made clear, they believed that they were able to do a better job because they did not have to be in court every single minute,” Smith wrote.

The final issue, that of the security tape, Smith dismissed as inconsequential — defense investigators testified that by the time they learned of the receipt for the purchase, the store had already recorded over the relevant tape.

In his application asking Judge Smith to reconsider his decision, Michael Smith took issue with the judge’s conclusions on two points – the preparation of Suzette Welton to testify and attorneys’ handling of Jeremiah Welton’s testimony.

On the first point, the attorney pointed out that Judge Smith ignored the lack of any written account of Welton’s preparation to testify. He also took issue with the conclusions Judge Smith made about Welton’s demeanor as they were based on her answers to questions wholly unrelated to her attorneys’ efforts to prepare her for trial.

On the issue of Jeremiah Welton’s testimony, Michael Smith pointed out that the trial attorneys could not remember ever seeing the piece of the teen’s police interview in which he admits to using sleep aids. Therefore, to say that on the one hand nobody remembered the admission but, on the other hand, they omitted it from trial for tactical reasons is illogical, the attorney wrote.

“An attorney practicing at least as well as a lawyer with ordinary training and skill in the criminal law understands that impeaching credibility collaterally is not as effective as impeaching with a witness’ own statement(s),” Michael Smith wrote.

Contact Andrew Wellner at andrew.wellner@frontiers-man.com or 352-2270.