Published: May 16, 2008 12:47 am            

Murder hearing delayed

FAIRVIEW — A preliminary hearing scheduled Thursday for a man accused of shooting and killing his brother last year was postponed a month due to issues raised in court prior to calling witnesses.

The hearing for Kristan Newton, 28, who was charged with second-degree murder Dec. 3, 2007, al-ready had been postponed for a month to allow prosecutors time to file motions and arguments in the case.

As Associate District Judge N. Vinson Barefoot began the hearing Thursday, Newton’s attorney, Michael R. Collins, raised two issues with the court.

Collins said District Attorney Hollis Thorp and Assistant District Attorney Tim Haworth had reconstructed the crime scene with members of the Major County Sheriff’s Office, which made them witnesses because they participated in the investigation. Collins also said those who recreated the crime scene at Newton’s residence did so without a search warrant.

Collins said Haworth, who is prosecuting the case, should recuse himself from the case.

“You can’t be a prosecutor and a witness simultaneously,” Collins told the judge.

Haworth said recreation of the crime scene did not require a search warrant because investigators were not on the residence’s curtilage — the immediate area surrounding the home.

Haworth said four factors are used to determine curtilage: distance from the home, whether the area is enclosed, the nature of use of the area and steps taken by a resident to protect the area from observation by passersby.

“The defendant takes no steps to prevent access to that area,” the assistant district attorney said. He referred to the area where the reconstruction was done as an open field.

Vinson vacated the court to discuss the issues with the attorneys for more than half an hour before sending the hearing into recess.

Major County Sheriff’s Office Deputy Jason Caywood, who responded to the 10:23 a.m. Nov. 23 shooting two miles north and one and three-quarters miles west of Ames, prepared the affidavit given to prosecutors.

According to an affidavit, Caywood arrived after emergency responders and secured a gun and bullet casing found beside a pickup from which responders were pulling a man.

Caywood asked emergency responders what had happened, and he was told Kristan Newton had shot his brother, Braden Newton, in the head, according to the affidavit.

Caywood saw Kristan sitting on his knees in his front yard, covered in blood and crying, the affidavit states. Kristan said his brother had a history of beating him up, according to the affidavit, and it happened again that morning.

Kristen said his brother came by that morning asking him to help fix a fence, and he said he would after he had a truck tire fixed, which made Braden mad, according to the affidavit.

Newton surrendered to the Major County Sheriff’s Office Dec. 5 and posted a $50,000 bond.

No date was set for the next hearing.