Nicholls trial now in hands of defense
Prosecutors on Tuesday rested their case against a father on trial on arson and firstdegree murder charges after playing tapes of phone calls he made from jail.
In those calls, Timothy Nicholls talks to his current girlfriend about the plan to torch the family’s house at 4107 Undimmed Circle.
The taped calls were played for jurors a day after they were read a transcript of Nicholls’ testimony to a grand jury in 2005 in which he denied setting the fire that killed his three young children in March 2003.
In an Aug. 17, 2005, phone call from the El Paso County Criminal Justice Center, Nicholls told his girlfriend that he and and his wife, Deborah Nicholls, who separated shortly after the deadly arson, had planned the fire.
Nicholls says on the recording the home burning had “been planned since we picked up the kids at my mom’s after we got back from California.”
That vacation was two weeks before the fire.
He promised his girlfriend he was going to file for divorce soon and that his wife couldn’t be compelled to testify against him about anything that occurred while they were married.
After prosecutors rested, defense attorney Dennis Hartley immediately asked 4th Judicial District Judge David Miller for an acquittal.
Miller denied the request, saying a reasonable jury might be able to convict Nicholls on the evidence presented.
Miller then advised Nicholls of his right to testify, even if Hartley had advised him not to.
Nicholls asked one question: If prosecutors could ask him questions outside the scope of what Hartley would ask him on direct examination.
Deputy District Attorney Will Bain said he’d have “about 150 questions” to ask Nicholls, even if Hartley didn’t raise those issues, including Nicholls’ prior statements to the grand jury that indicted him.
Miller told Nicholls that prosecutors would be able to ask questions about anything concerning the 19 criminal charges.
Hartley’s first witness was John Lentini, a certified fire investigator, who testified about analysis of fire debris from the Nichollses’ Village Seven home.
Lentini said it is his opinion that the tests the Colorado Bureau of Investigation did on that debris showing the presence of accelerants were flawed. He also testified that the fire started in an oversized chair in the living room — disputing a prosecution expert who testified Monday that the fire had to have been started by multiple pieces of burning furniture.
The false readings, Lentini said, came from the various chemicals in carpet and plastics in the home.
“They mischaracterized it as foreign material,” Lentini said of the CBI tests. “It was so vanishingly small, it should have never been reported.”
On cross examination, Bain characterized Lentini as a hired gun for the defense who rarely testifies as a prosecution expert and that his conclusions failed to take into account Nicholls’ version of how the fire started and spread.