Truck involved in Scully Park shooting held as evidence

[August 12, 2009]  Logan County State's Attorney Michael McIntosh responded to a flier that is making its way around Lincoln.

The flier is in reference to the July 20 gunfight with Lincoln Police Department officers at the southwest corner of Scully Park. A lone gunman, Michael C. Knuth, aka Tattoo, exited a truck driven by John Newlun and entered into a gunbattle with officers.

Newlun, the owner of the truck, was immediately cleared of any wrongdoing, as he was attempting to drive Knuth away from the park area and his home when police stopped the vehicle and the altercation began.

The one-page, standard-size sheet is signed by Teresa and John Newlun and asks "citizens to call the assistant state's attorney, John Wright," incorrectly noting Jonathan Wright. Although the flier does not specifically state what the Newluns are asking for, the text makes it clear that they are trying to get possession of their truck, which has been held in law enforcement custody at an undisclosed location as forensic evidence.

The flier continues with these statements:

"July 20^th My truck was shot up by police.

July 24^th Chief of Police Stuart Erlenbush took us to take some pictures of our truck. He told us that all evidence had been removed: They were just waiting for the state to match each bullet with each gun. He was even touching things with his bare hands.

July 31^st John Wright finally returned our phone calls and told us he was just waiting for the defense attorney to sign off on the truck.

August 3^rd Wright would not return our calls.

August 4^th Wright would not return our calls.

August 5^th Wright would not return our calls. Illinois Victims Advocates called and told us they were keeping our truck. John Wright will not contact us to tell us.

If you feel this is unfair please contact John Wright at (phone number)."

At the bottom of the flier is a picture of the Newluns' truck from the passenger side, showing eight clearly marked and discernible bullet holes.

McIntosh, checking his calendar, said that Wright was on vacation from Aug. 1 through Aug. 9. "Members of my staff had several conversations with Teresa Newlun during that time frame and explained to her that Wright was on vacation," he said.

In regard to the Newluns wanting their truck back, McIntosh wanted to make it clear that by law he has to hold the truck as evidence.

"I have to hold it," he said. "I have no discretion here." He cited Illinois Criminal Procedure 5/116-4 to prove his point:

"Preservation of evidence for forensic testing.

(a) Before or after the trial ... in a prosecution for an offense defined in Article 9 of that code ... unless otherwise provided herein under subsection (b) or (c), a law enforcement agency or an agent acting on behalf of the law enforcement agency shall preserve, subject to a continuous chain of custody, any physical evidence in their possession or control that is reasonably likely to contain forensic evidence..."

McIntosh explained that Article 9 refers to charges of murder or attempted murder. Knuth has been charged with attempted first-degree murder, aggravated discharge of a firearm, and felon possession/use of a firearm/weapon.

"I have to follow the law just like everyone else," McIntosh said as he pointed to the statute.

The law doesn't allow forensic evidence to be released after a conviction or guilty plea is entered either. Section (b) of the statute states that evidence shall be kept until the completion of the sentence, including the period of mandatory supervised release.

That paints a grim picture for the Newluns getting their truck back anytime soon.

"We could have to keep this for an indeterminate period of time," McIntosh said.

When asked if that could be years, he said, "Yes."

McIntosh pointed out that even if Knuth's defense attorney waived the truck as evidence in a trial, there is nothing to keep Knuth from later filing an appeal of not being defended properly, or in the case of a normal appeal of a conviction, evidence including the Newluns' truck could come into play as evidence. He said that it is necessary to keep the truck in custody.

The one "out" that the Newluns might have, according to McIntosh, is that after a conviction or guilty plea, according to section (c) of the statute, a judge can rule at an evidentiary hearing that the truck carries no significant value as forensic evidence and the judge then orders the state's attorney to release the truck.

On Tuesday, Knuth waived his right to a preliminary hearing and is scheduled to go to trial on Sept. 21.

At best, the Newluns are looking at getting their vehicle back several months down the road. At worst, they might not get their truck back until it is eligible for antique vehicle plates.

[By MIKE FAK]

(LDN article, July 20-21: Shooting at Scully Park)