Hearing to determine issues in double homicide

·7 min read

Jun. 10—The competency of a Lake Tansi man charged with fatal shooting of his estranged wife and her friend outside the county school bus maintenance garage in September 2018 will be argued during a hearing set for June 22.

But, competency is not the only issue pending. Also important to the case is a defense motion on whether statements made immediately following the shooting, during medical transport and hours after release from the hospital can be heard by a jury.

Warren John Nostrom, 76, was indicted by the Cumberland County Grand jury in January 2019 on two counts of first-degree murder in the deaths of Joy Nostrom, 58, and her friend, Mark Gunter, 54, of North Carolina. The Nostroms were in the midst of divorce proceedings when the shootings occurred.

The case has been slowed down in the justice system because of a series of defense motions filed Nov. 1, 2019, by Nostrom attorney Howard Upchurch of Pikeville. Among those motions was the issue of competency of Nostrom.

Months later the COVID-19 pandemic hit the country and the Tennessee Supreme Court issued orders shutting down jury trials and most in-person hearings. Earlier this year, those restrictions were relaxed and a hearing was held last month before Judge Gary McKenzie. That hearing was continued so that witnesses on the competency hearing could testify in person.

Upchurch indicated he would call two expert witnesses and Assistant District Attorney Philip Hatch told the court the state would rely on the testimony of one competency expert.

The defense on June 22 is expected to call Dr. Stephen Montgomery.

Montgomery on June 19, 2020, diagnosed Nostrom with "major depressive disorder, recurrent, severe without psychotic features," and major neurocognitive disorder.

Montgomery went on to state while Nostrom was competent to stand trial and to assist in his defense, Nostrom's cognitive functioning was declining and would likely continue to decline because of his age and other health issues. Montgomery concluded that Nostrom's competency could change if he continues to decline in health.

On Sept. 19, 2020, a second opinion was obtained by Dr. Malcolm Spica, who wrote he found Nostrom, "mildly confused, forgetful and unable to recall specific aspects of his past." He associated with with early onset of dementia.

He concludes that due to a declining condition of several issues, Nostrom should be declared incompetent to stand trial.

Hatch countered with examination reports of Nov. 1, 2019, and April 2021, by Dr. Marsha Slatten. Both examinations came to the conclusion that Nostrom "currently meets the minimal standards of competency in that he has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding..."

Judge McKenzie is expected to hear from these experts in the upcoming hearing.

The other major issue is the suppression of all statements Nostrom made during his emergency treatment, transportation to the hospital and later the Justice Center, and days following the shooting deaths.

Hudson and Upchurch claim that Nostrom was suffering from the effects of the gunshot wound that creased his head and because of that and medicine he received coupled with his age and unrelated medical issues, was not able to understand his rights against self-incrimination.

The motion also suggests Nostrom was not properly advised of his rights.

Hatch painted a different picture of what happened. The state refers to Nostrom's spontaneous utterances and that law enforcement on more than one occasion told Nostrom he should not be making statements until he was advised of his Miranda rights.

Nostrom responded to investigators that he knew his rights because he had previously worked in law enforcement and that Nostrom did initial and sign a Miranda waiver.

On Nov. 1, 2019, Upchurch notified the court he was filing the following challenges to the state's case against Nostrom. Those were echoed by co-counsel Sam Hudson's motions filed five days later.

They include:

—Motion to sever the two charges requiring separate trials for the death of Joy Nostrom and the death of Gunter.

—A motion to ban use by prosecutors of information from orders of protection that had been put in place during the contested divorce proceedings.

—A motion to ban use by prosecutors of information from the ongoing divorce proceedings.

—Ban use of some photographs of the bodies of the two persons fatally shot.

—Motion to suppress statements made by Nostrom to state and local investigators made while he was being treated for a shooting injury and on the day he was returned to the county and jailed.

—A request for individual voir dire examination of potential jurors instead of the routine questioning of prospective jurors in an open setting.

In the motion to separate the two first-degree murder charges, Upchurch alleges the single indictment accuses his client of two "separate and distinct" deaths and to try both at the same time. Last month Upchurch told the court, "I don't see how I can get around both..." He questioned whether a jury could make a fair determination with facts from both cases presented at the same time.

He asked the court to order separate trials for each victim.

Hatch responded in his answer that around 2:30 p.m. Nostrom traveled to the bus garage and that Gunter was shot and killed in a gated area outside the garage, and seconds later, Joy Nostrom was shot in the same parking lot.

Evidence will show the same weapon was used in both shootings and with those conditions, the Tennessee Rule of Criminal Procedure states both offenses "shall be joined the same indictment, presentment or information..."

On the issue of prohibiting the state from introducing evidence obtained from orders of protection that had been filed, Upchurch argues in his written motion that filings found in requests for orders of protection are "hearsay and inadmissible" according to the Tennessee Rules of Evidence.

The defense attorney adds that the prejudicial affect on such evidence being presented outweighs the value the evidence would have on the case against his client.

The same argument is presented in Upchurch's motion to ban any information gleaned from divorce filings as being hearsay, especially since the divorce had not been settled or subject to trial in civil court.

The filings have the potential of exposing the jury to claims of bad acts made by Joy Nostrom against Warren Nostrom, are not admissible under the rules of evidence and would adversely affect Warren Nostrom's right to a fair trial.

Hatch responded that while he would agree that evidence of prior bad acts is not admissible as "propensity evidence," the acts may be admissible under limited purpose of proving motive or intent.

Upchurch's motion on the use of photos is based on him not challenging the location of the victim's bodies and that the two died from gunshot wounds. He seeks to ban use of photos of the bodies lying outside the bus garage and during the autopsies prejudicial to his client.

A large issue is raised in Upchurch's motion that all statements made by Warren Nostrom while receiving medical treatment at the scene, during transportation to Cumberland Medical Center and Erlanger Medical Center along with statements made after medical treatment was received by banned from use.

Upchurch claims that the statements were obtained in violation of Nostrom's rights to have an attorney present during questioning or whether he understood his right to not incriminate himself because of the treatment Nostrom received for a gunshot wound that grazed his head.

Upchurch is also asking the judge to allow for individual questioning of potential jurors because of the nature of some questions that he anticipates asking that could prove embarrassing to some.

Those questions will seek to determine which potential jurors personally experienced or were exposed to infidelity, domestic abuse, dishonest and untruthful spouse or domestic partners and assaults or threats of assault.

"The questioning of jurors collectively and in a group will preclude a prospective juror exposed to such past life events from answering questions honestly and candidly," Upchurch wrote in his motion.

Hatch countered this motion lacked statutory or constitutional right of individual questioning of prospective jurors.

In a previous request of list of potential state witnesses, Hatch provided Nostrom's attorneys with 40 names. Not all will be called to testify. The trial is expected to last several days.

The hearing June 22 will begin at 1 p.m.

Michael Moser may be reached at mmoser@crossville-chronicle.com

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