Holston bid to examine dump truck draws fire from driver

11:10 am | June 24, 2013

The potential for a civil lawsuit by Tiffani Holston against the driver of the dump truck that stuck and killed her 4-year-old son last October could affect Holston’s case in criminal court, where she is accused of aggravated child neglect and first-degree murder.

The attorney for the driver of the truck that struck and killed 4-year-old Joshua Holston objected  to a motion in court Friday for an expert to examine the vehicle, saying it could violate his client's Fourth Amendment rights in an expected lawsuit.

The attorney for the driver of the truck that struck and killed 4-year-old Joshua Holston objected to a motion in court Friday for an expert to examine the vehicle, saying it could violate his client’s Fourth Amendment rights in an expected lawsuit.

Holston and her assigned counsel, public defender Melanie Sellers, appeared in Carter County Criminal Court Friday to discuss several motions filed by the defense attorney on her client’s behalf and an arrest warrant accusing her with violating the conditions of her bond.

One motion, asking Judge Robert Cupp to allow Seller’s expert witness to examine the Kenworth dump truck that crushed toddler Joshua Holston as he crossed Broad Street, was opposed by the attorney of the vehicle’s driver and owner, Terry Joe Kyte.

Sellers said she hoped to conduct a visibility test from the cab of the truck similar to the examination conducted by the Elizabethton Police Department during its investigation of the incident, but Knoxville attorney Terrill Adkins said approving the motion would violate Kyte’s Fourth Amendment protection against unreasonable searches and seizures of his property.

Adkins said he was hired to represent Kyte shortly after the October incident when it was believed a civil case would be filed by the boy’s family, and said he still believes a lawsuit will be filed against his client.

“I don’t understand how visibility is even relevant to the charges,” Adkins argued. “It seems to me like they are attempting to establish some neglect or intentional act on the part of the driver, who was not charged or cited by the police department at all.”

At a January hearing of a motion filed by Sellers to dismiss the case, Elizabethton Police Department traffic investigator Douglas Combs testified that an examination of the truck showed Kyte could not have seen the small boy as he ran ahead of his mother into the busy intersection.

Police allege Holston was holding a dog under one arm and talking on a cellphone, not paying proper attention when Joshua ran ahead into the busy intersection. They charged her with aggravated neglect, saying the death warrants a first-degree murder charge, but Sellers insists her client did not knowingly endanger her son and says the incident was a tragic accident.

She said she has no control over Holston’s civil actions, and said denying her expert permission to conduct independent testing on the truck would violate the defendant’s constitutional rights to examine evidence to be used against her in court.

“Ms. Holston has an absolute Sixth Amendment right to present a case, and if it means that I need to subpoena Mr. Kyte to bring that dump truck down here to the parking lot, I think I’m entitled to do that,” she said.

Sellers said Assistant District Attorney Dennis Brooks extended an offer to her client in the case, but said Holston’s decision regarding whether or not to take the offer is contingent on her ability to independently reconstruct the accident.

Neither Brooks nor Sellers would discuss the potential plea deal Sellers referred to, citing an agreement made by both attorneys in January to not discuss the case with news media.

Cupp, facing a court session abbreviated by the closing of the courts, declined to hear the attorney’s arguments on the motions.

He did recall an arrest warrant filed by Alternative Community Corrections Program caseworker Jim Lengel alleging that Holston tested positive for painkillers, violating the conditions of her release.

Sellers said Holston attended counseling to help her overcome depression, anxiety and post-traumatic stress disorder, and is taking medications to help her with those disorders.

“She has family support set up and she’s dealing with those issues,” the attorney said. “If incarcerated, she would have to go ‘cold turkey’ and all that treatment will fall behind.”

Cupp set Holston’s next court date for July 16, when he said he will have time to properly consider the pending legal matters.

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