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No intox defense for Curtis Fry, attorneys request

BY OLIVIA MORAN | FEBRUARY 27, 2009 7:30 AM

Prosecutors requested on Thursday that a judge order the attorneys for Curtis Fry to not use intoxication as Fry’s defense in the killing of a 75-year-old Iowa City man.

Police arrested 22-year-old Fry — of Wilton, Iowa — in February 2008 and charged him with second-degree murder for allegedly beating Patrick McEwen to death in McEwen’s South Van Buren apartment.

In the motion, Johnson County chief prosecutor Janet Lyness and county assistant prosecutor Meredith Rich-Chappell asked a judge to also instruct the defense not to use “testimony regarding [Fry’s] ability [or intent] to strike, beat, or otherwise injure Jerome Patrick McEwen” as affected by his drinking.

The defense should also omit testimony that Fry was suffering from a blackout caused by his alcohol consumption the night of the killing, which would disprove the argument that Fry acted intentionally, the attorneys wrote.

They requested that testimony about acts of violence by McEwen also not be used. Lyness and Rich-Chappell concluded testimony regarding books, magazines, writings, videos, DVDs, computer programs, computer games, computer printouts, or video games in McEwen’s apartment should also not be presented as evidence.

The prosecutors argue that in order for Fry’s intoxication defense to be relevant, his attorneys must prove McEwen provoked Fry into acting. To present evidence of provocation, Fry must file a notice he plans to rely on self-defense, and he has yet to do so, Lyness and Rich-Chappell stated.

Police reported Fry was heavily intoxicated the night of the incident, which was Fry’s 21st birthday. His attorneys, public defenders Peter Persaud and Quint Meyerdirk, filed an intoxication defense in October 2008.

“The state is not aware of any specific acts of violence by Jerome McEwen or any evidence that he had a reputation for violent behavior,” the prosecutors wrote.

Lyness did not return calls seeking comment on Thursday.

Autopsy results showed McEwen died from blunt-force to his head and other parts of his body. There were also defensive wounds on his hands.

Fry’s final pretrial conference is set for today at 1:30 p.m., and his trial is scheduled for March 9. He faces 50 years in prison if convicted of second-degree murder.


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