Lawyer: Police failed to obtain waiver before questioning hit-and-run suspect

jsowell@idahostatesman.comJune 27, 2014 

Alex Cole Thackery

Alex Cole Thackery, accused of striking a bicyclist in downtown Boise last October and leaving the scene, did not waive his Miranda rights before police questioned him, the Meridian man's attorney claims in a court filing.

Defense attorney Annie McDevitt is asking Fourth District Ada County Judge Melissa Moody to bar introduction of Thackery's statements to police when her client goes on trial Sept. 30. She claims Thackery was coerced into talking with officers.

Thackery, 19, from Meridian, allegedly ran a red light at 7:05 a.m. on Oct. 17 and struck a woman riding her bicycle through the intersection at Eighth and Myrtle streets. The bicyclist, who was never publicly identified, suffered a laceration to her head and an injury to her wrist and was knocked unconscious.

Thackery continued driving about a mile and a half, parked and returned to the scene of the wreck. At 7:46 a.m., he called 911 and reported to a dispatcher that he had struck a bicyclist. McDevitt said her client was hysterical during the call and cried then and during questioning by police, according to court documents.

He is charged with felony leaving the scene of an accident resulting in injury and misdemeanor careless or inattentive driving.

Boise police Cpl. Scott McMikle informed Thackery of his Miranda rights, that he did not have to answer questions and that if he chose to he could have an attorney present.

McMikle asked Thackery if he wished to give up his right to speak with an attorney and to have one present during questioning.

"I don't know," Thackery answered, according to McDevitt's motion.

"You don't know?" McMikle asked.

"No," Thackery responded.

In order for a defendant's answers to be admissible in court, he must make a valid waiver of his rights. That wasn't done in this case, McDevitt contends.

According to excerpts of an evaluation by Craig Beaver, a Boise psychologist retained by the defense, Thackery lacked the ability at the time of police questioning to "knowingly and intelligently" waive his Miranda rights.

McDevitt described her client as "highly distraught" throughout his time at the scene and she said officers acted as though they were trying to comfort him while working to pry information from him. Beaver said Thackery would agree or "parrot" back information suggested by officers regardless of its accuracy.

McDevitt said McMikle and Cpl. Lance Nickerson planted in Thackery's head that the victim had suffered a laceration and a concussion to her head and then asked Thackery if he thought the bicyclist had been injured.

"Mr. Thackery at first says 'no,' but then responds with something regard a concussion," McDevitt wrote. "Given his mental health diagnoses and susceptibility to police influence, his statements cannot be said to be voluntary."

Lynn Hightower, spokeswoman for the Boise Police Department, said she could not comment on the allegations.

The defense had asked the court to seal the motion including these accusations. Moody denied the request, saying there wasn't a legal justification for keeping the information private. She did allow Beaver's evaluation to be filed under seal. Excerpts from the evaluation were included in McDevitt's motion.

A hearing to discuss whether Thackery's statements to police will be allowed to be admitted as evidence will be held July 10.

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