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Written by: Elizabeth Larson

Published: 13 January 2009

CLEARLAKE – Jury selection in a Clearlake murder trial is set to begin Jan. 21 after a judge ordered Tuesday that the trial would move forward despite prosecution concerns about the availability of a key witness.

Eighteen-year-old Erik Michael McPherson of Clearlake will go on trial this month for the May 2008 stabbing death of Nicolai Chukreeff, also of Clearlake.

On Tuesday Judge Stephen Hedstrom heard a motion filed by Senior Deputy District Attorney John DeChaine, who requested that Hedstrom dismiss the case because DeChaine held that a key prosecution witness would not be available for the trial if it began this month.

DeChaine called the female witness “foundational” to his case against McPherson. He explained that the woman had allegedly driven McPherson to the Harbor Lite Motel in Clearlake. There, Chukreeff was stabbed once in the chest following an alleged confrontation.

The woman told investigators that she sat in her car waiting for 30 minutes when, according to DeChaine, McPherson allegedly came running back to the car with someone chasing after him – reportedly Chukreeff himself. McPherson is then alleged to have jumped into the car and demanded that the woman drive off.

She and McPherson then allegedly drove around during the middle of the night, with the woman telling officials that he was attempting to hide things in the bushes, DeChaine said. They they went back to her home, where McPherson allegedly put his clothes in garbage bags before disappearing into the night.

The issues with the woman's availability arose late last month, said DeChaine.

It was then that the woman allegedly stabbed herself in the chest with a knife in what appears to have been a suicide attempt.

Now living in Massachusetts, the woman was rushed to a Boston-area hospital where she underwent open heart surgery to repair an injury to her heart as well as a collapsed lung. She later required followup surgery due to internal bleeding.

During the more than two and a half hours of arguments on the motion Tuesday, DeChaine and defense attorney Stephen Carter argued whether the woman was recovered enough to take part in the trial.

DeChaine said not having her testimony could damage his case. He told the court that, if the case was dismissed, he intended to refile charges against McPherson the same day. That would allow the case to be presented at a later time when the woman was recovered enough to travel west.

Carter called DeChaine's motion a “fallback position” that he was using because he couldn't justify getting a continuance for the trial. He also called DeChaine's plan to seek a dismissal and to refile “a problem.”

McPherson, Carter argued, has a constitutional right to a speedy and fair trial. Dismissing the case and then refiling it over the witness issue would be a blatant attempt to undermine that right.

“That's the true basis of our objection to this motion to dismiss,” Carter explained.

The time to schedule McPherson's trial ran out on Tuesday, said Carter.

Carter said his private investigator found that the witness ahadn't decided whether or not she intended to cooperate with the prosecution and testify.

On Monday, the defense and prosecution had met with Hedstrom in chambers, during which time the judge had offered to get one of the victim's doctors on the phone to discuss her ability to travel. Carter said that DeChaine hadn't been interested in pursuing that discussion.

The defense's attempts to track down the witness also were meeting with limited success, said Carter. He and his law partner and wife, Angela Carter, had requested the woman's contact information from DeChaine but had yet to receive it. Stephen Carter also accused DeChaine of stalling his attempts to receive the witness' medical records.

“It's not OK what they're doing,” Carter said of the prosecution, who he suggested was trying to delay the trial because they didn't like how it was shaping up.

Carter said a dismissal or continuance could cause problems for the case at the appellate level, where he's found murder cases thrown out because of similar delaying actions.

DeChaine said his reasons for seeking the dismissal were simple: Based on the available information, the prosecution couldn't move forward with its case unless its key witness was available at the start of the trial.

He denied trying to stall the defense, which also had filed a motion it later dropped accusing him of prosecutorial misconduct, allegedly because he withheld information. “I haven't tried to hide the ball here.”

Carter, in rebutting DeChaine, accused him of “negligent and lame” attempts to get the court information on his dismissal motion.

He said DeChaine's real motive was to reevaluate the evidence, including the defense's allegations that another man is responsible for Chukreeff's murder.

“What the prosecution wants, your honor, is more time because they think they might lose,” said Carter.

Carter said the prosecution isn't supposed to seek dismissals in order to prolong a case. They're supposed to pursue “justice – always justice,” not just a conviction.

Hedstrom called a break until later in the afternoon and asked DeChaine to provide the Carters with medical information on the key witness.

Following the break, DeChaine reported he had the opportunity to speak with the witness' doctor, who submitted an electronic declaration testifying to the woman's current condition.

Looking at the declaration, Carter said the doctor had placed no travel restrictions on the woman, which meant she could come to give testimony right away, and wouldn't have to wait at least a month, as DeChaine originally had estimated.

DeChaine argued that Carter was minimizing what the doctor said, explaining that the woman's condition still needs to be stabilized. She's being treated for a pulmonary embolism – a blockage of a pulmonary artery – and needs to have her medications checked twice weekly, which DeChaine called “not insignificant.”

He maintained that he still wasn't comfortable with moving forward with the case due to his concerns about the womans' condition.

In making his ruling, Hedstrom said the reasons for the witness' possible availability issues are very serious. “This is no minor thing,” he said. “Apparently, she stabbed herself.”

A witness in the case could be subjected to serious stress, said Hedstrom, adding that she clearly has other issues.

However, Hedstrom felt it was reasonable for the woman to have one of her regular checkups, then to fly out to California, give her testimony and then return home to Massachusetts.

Some case dismissals are appropriate, said Hedstrom. Based on certain merits, “This court was fully prepared to grant a dismissal.”

However, the main factor of whether or not the woman could attend the trial changed with the new information from the doctor, said Hedstrom. For that reason, he couldn't find substantial reasons to support the prosecution's dismissal motion.

“Therefore that motion is denied,” he said.

The defense and prosecution have given varying estimates of how long the trial could last – from six to eight weeks.

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