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Defense raises mental health, evidence issues in Nelson case


MONTEVIDEO -- Darek Nelson's first court appearance since his arraignment in May on a first-degree murder charge focused largely on motions concerning what can be presented at a trial.

Yet Friday's hearing on whether probable cause exists for the charges against him also brought poignant testimony by the first police officers on the scene.

Montevideo Police Officer Angela Milo witnessed what may have been the most lethal of the 33 knife wounds that took the life of Vinessa Lozano, 18, on the night of Jan. 13.

As she pulled up in the parking lot of the Montevideo Pizza Ranch in her squad car, the officer testified that she saw a male standing over a female lying on her back.

"He looked at me, then he crouched down and stabbed her in the chest area,'' she said.

Milo exited the squad car, and with her gun pulled, twice ordered the man to drop the knife. After the second command, Milo said he dropped the knife and while lying on his stomach, turned to her " ... and said I could handcuff him now.''

Nelson, 25, faces a possible sentence of life without the possibility of release on the first-degree, premeditated murder charge. He is also charged with second-degree murder and two separate second-degree assault charges.

The criminal complaint charges that Nelson attacked Lozano from her back as she left the restaurant where the two of them worked. He planned to kill her if she rejected his interest in her, it alleges.

Defense attorney Greg Holmstrom filed motions with the court to enter a guilty plea to second-degree murder, as well as motions to suppress statements allegedly made by Nelson after he was taken into custody.

Although he acknowledged that case law on the subject is far from settled, the defense attorney told the court that his client should have a legal right for consideration of parole due to a mental illness. Holmstrom said that his client suffers from Asperger's syndrome, which he described as a mental illness.

Prosecutors David Gilbertson, Chippewa County attorney, and Robert Plesha, with the Minnesota Attorney General's office, filed motions opposing the second-degree plea.

They also filed a motion asking the court to prohibit the defense from raising the Asperger's diagnosis in the trial. It is a syndrome and not a mental illness, according to the prosecutors.

The National Institutes of Health website says Asperger syndrome is an autism spectrum disorder, "one of a distinct group of complex neurodevelopment disorders characterized by social impairment, communication difficulties and restrictive, repetitive, and stereotyped patterns of behavior."

The defense filed a motion to suppress an audio recording of statements made by the defendant while he received medical care for cuts on his hands at the Granite Falls Hospital on the night of the stabbing. Nelson had not been informed of his Miranda rights, although he was clearly in custody at that point, said the defense attorney.

The defense also wants to suppress an approximately 1½-hour-long, recorded interview conducted with Darek Nelson by Montevideo Police Sgt. Ken Schule on the night of the stabbing. The defense attorney argued that it is not clear that Nelson consented to waiving his rights after hearing his Miranda rights read to him by the sergeant.

A video was played in court of the beginning of the interview, and Officer Schule testified that Nelson both nodded his head and verbally said "yes'' to questions about waiving his rights.

The defense withdrew a motion seeking to suppress as evidence the knife that authorities allege Nelson used. Described as a black hunting knife with a six-inch blade, it had been moved from the parking lot to the top of a squad car before being secured as evidence at the scene.

Officers Milo and Schule both testified the knife was lying alongside the victim's legs. It was moved by a third officer because it was in the way of officers and emergency medical responders who were attempting to save Lozano's life, according to Schule. The victim was conscious as the aid was started, Milo testified.

Tom Cherveny

Tom Cherveny is a regional and outdoor reporter with the West Central Tribune in Willmar, MN.

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