Defense lawyer in Dystiny Myers case says evidence wasn’t presented that could have affected whether death penalty charges were brought

The defense attorneys for murder suspect Ty Michael Hill argued Thursday that crucial evidence wasn’t handed over by prosecutors before a preliminary hearing. Attorneys say that evidence may show 15-year-old Dystiny Myers was dead at a home in Nipomo before her body was taken to Santa Margarita, where it was found partially burned in September 2010.

Defense lawyer Bill McLennan argued in San Luis Obispo Superior Court, alongside his co-attorney Tom Allen, that Jason Greenwell, one of the five defendants charged in the murder of Myers, told investigators that the teen was dead before the body was taken to Santa Margarita in the back of a truck.

McLennan argued that the evidence helps disprove that kidnapping and torture occurred — the special circumstances alleged that allow the prosecution to charge the death penalty for Hill, the only defendant facing that charge.

Prosecutors allege that Myers was kidnapped and tortured while being taken to Santa Margarita. But San Luis Obispo County Chief Deputy District Attorney Tim Covello countered the contention of McLennan and Allen, saying Greenwell’s interview with District Attorney’s Office investigator Isabel Funaro doesn’t show that he knew Myers was dead.

And, in fact, in the same interview, Covello said Greenwell told Funaro that he might have seen Myers moving in the back of the truck.

Judge Barry LaBarbera ruled against the defense’s motion to remove the possibility Hill could face the death penalty.

LaBarbera said that other statements made, according to testimony at preliminary hearings, seemed to indicate that Myers may have been moving in the truck and thus alive.

Enough evidence was presented to allow the charges as filed, LaBarbera said.

The judge also said the prosecutors don’t have to show all the evidence to the defense at the preliminary stage anyway, though they must closer to the trial date in August, under state law.Myers, who was from Santa Maria, was killed on Sept. 26, 2010, after being beaten, bound and partially burned, according to prosecutors.

Pleading not guilty to murder charges are five defendants: Cody Lane Miller of Fresno; Greenwell of Nipomo; Frank Jacob York of Nipomo; Rhonda Maye Wisto of Nipomo; and Hill, of Santa Maria. McLennan said the interview Greenwell gave to Funaro wasn’t made available to Hill’s defense attorney at the time of the preliminary hearing and should have been.

But Covello wrote in an opposition to the defense motion that Funaro asked a series of questions to Greenwell that make it unclear whether he was responding to an inquiry about whether Myers was dead or not.

Here is the exchange, according to Covello’s court filing:

Funaro: Did you think she was dead at that point (at the Nipomo home)? ... Was she still moving? Could you tell if she was breathing? Her eyes open?

Greenwell: No. You couldn’t really see her eyes but

Funaro: How come?

Greenwell: There was tape over them?

Funaro: Ok.

Greenwell: but yeah.

McLennan argued that Greenwell’s “but yeah” comment referred to her being dead at the Nipomo home, while Covello argued his first answer to the question was “no.”