Defense seeks to block emotional testimony in theater shooting trial

CENTENNIAL — Jurors will hear heartbreaking testimony from Ashley Moser about the night she and her 6-year-old daughter, Veronica Moser-Sullivan, went to the movies.

But attorneys for the Aurora theater shooting gunman urged a judge to prevent Moser from telling them some of the worst details about her injuries, Veronica’s death and the loss of her pregnancy.

They also asked the judge to block prosecutors from showing Moser a picture of Veronica, the youngest of the 12 people killed at the Century Aurora 16 theater on July 20, 2012.

Arapahoe County District Attorney George Brauchler on Wednesday told District Court Judge Carlos Samour Jr. that he plans to call Moser to the stand Friday. Prosecutors have said they expect that day to mark the end of their case.

Also Wednesday, Samour dismissed Juror 267 after he found that she had not been completely forthcoming about knowing witness Maria Carbonell, who testified on Day 6. Samour has now dismissed two jurors this week, after the dismissal of three jurors last week.

Nineteen jurors remain on the panel — 14 women and five men. Seven of them are alternates, but only the judge and attorneys know which ones.

LIVE BLOG: Live updates from The Denver Post staff and others inside the courtroom

Tamara Brady, one of the attorneys representing James Holmes, listed more than a dozen facts or descriptions expected to be revealed during Moser’s testimony. She described the details as horrific, at times pausing while relating them to the judge.

The emotional weight of the testimony is what makes the details inappropriate, Brady said.

“The death of a child strikes a particular chord for the jury,” she said.

Snippets of how Veronica died have come up in previous testimony.

Kaylan Bailey described babysitting Veronica that day and the spangly sandals she gave her. Security video from inside the theater’s lobby showed the little girl wearing the sandals as she walked past.

Also, officers cried on the witness stand as they described carrying Veronica out of the theater. Photos from her autopsy were shown.

Brady argued that the additional details from Moser would be unnecessarily repetitive and would prejudice the jury unfairly against Holmes, who faces the death penalty. In some instances, the testimony would not be relevant to the heart of the case, in which Holmes has pleaded not guilty by reason of insanity, Brady said.

Brauchler argued that the testimony is extremely relevant.

Moser originally thought the Batman movie they were there to see was a cartoon — explaining why a 6-year-old was at a midnight premiere, Brauchler said — and she was later worried that the violent film would scare Veronica.

Veronica asked to sit in her mother’s lap during the movie, but Moser’s pregnancy made it uncomfortable.

Brauchler argued that Moser’s last words to Veronica explain why she was sitting in the seat where she was shot: “You’re a big girl. You can sit in your own seat.”

Details about Moser’s injuries, ongoing treatment and the 16 months she spent at Craig Hospital after the shooting show how she is living with the impacts from the shooting, Brauchler said. Moser had to learn how to hold a spoon again and make a sandwich.

Preventing her from testifying about those details would be denying Moser an opportunity to do what other survivors called to the stand have done, Brauchler said.

Seventy people were injured in the attack. Dozens have been called to testify since the trial began April 27.

“I agree with Ms. Brady. It is a horrific thing to deal with the murder of a child,” Brauchler said. “That is what the allegations are in this case.”

But Brady argued that asking Moser to share those details is an effort by prosecutors to draw out emotion from jurors and not an effort to present relevant evidence. She also asked the judge to block prosecutors from showing Moser a photograph of Veronica during her testimony.

“I think the point of (the picture) is so that Ashley will start crying,” Brady said. “Everyone in this courtroom will be heartbroken to see Ashley shown a picture of her daughter.”

She forcefully told the judge that the photograph is not relevant.

“It is inexplicable to me that we could go through the testimony of this mother and not show her a picture of her daughter,” Brauchler responded. “Showing her the picture has to be something we allow.”

Samour deferred his ruling.

Jordan Steffen: 303-954-1794, jsteffen@denverpost.com or twitter.com/jsteffendp