CRIPPLE CREEK • Prosecutors on Friday moved to flush out Patrick Frazee’s possible defense at his upcoming trial, seeking advance notice if his attorneys plan to blame someone else for the apparent murder of his fiancee Kelsey Berreth.
Fourth Judicial District Judge Scott Sells granted a motion by the prosecution and gave the defense until Sept. 18 to declare if they plan to accuse an alternate suspect at trial.
Colorado law requires the defense to make such notification so that prosecutors have the opportunity to prepare for the attack.
More on decision against seeking death penalty. DA Dan May says prosecutors thought they could argue “lying in wait,” potentially making #PatrickFrazee eligible. But AG’s Office said it wouldn’t survive “half time.” @csgazette— Lance Benzel (@lancebenzel) August 23, 2019
After the hearing, District Attorney Dan May said he wanted to ensure the step is taken, even though rules call for it.
Whether Frazee, 33, intends to argue that someone else is guilty of the alleged Thanksgiving Day murder of Berreth, 29, remains unclear. A gag order prevents attorneys from discussing their theory of the case, and their pre-trial motions thus far have been played close to the vest, offering few clues about what they intend to say in Frazee’s defense.
Damaging testimony is expected from his former girlfriend, Krystal Lee Kenney, who says that he admitted blindfolding Berreth with a sweater and beating her to death with a baseball bat in her Woodland Park condominium.
Kenney has pleaded guilty to evidence tampering and acknowledged that she cleaned blood from the murder scene and participated in a coverup in which she drove with Berreth’s phone to Idaho to make it look like Berreth had left Colorado — saying it was all Frazee’s idea.
Sells’ order came at a morning motions hearing in Cripple Creek where little else of substance was decided. The defense did not object. Frazee, in a green-striped Teller County jail jumpsuit and a bullet-resistant vest, did not speak.
The judge also heard testimony and arguments related to the defense’s effort to toss out incriminating statements that Frazee made Dec. 26 to a Teller County Department of Human Services worker.
While being quizzed about his toddler daughter at the Teller County jail days after his arrest, Frazee claimed that he'd had repeated contact with Berreth in the days following Thanksgiving, when she was allegedly murdered.
The defense argues the statements shouldn’t be admissible because Frazee was in custody at the jail, and the DHS worker asked incriminating questions.
Prosecutors countered that the employee, Mary Longmire, was trying to find the best possible placement for Frazee’s daughter while he was jailed, and that Longmire followed the law in how she distributed the confidential information.
“She was not working at the behest of law enforcement or knowledge of law enforcement,” prosecutor Viehman said. “She was doing her job.”
The visit by DHS was prompted by a report from Woodland Park police that the toddler girl could have been exposed to violence on or around the holiday.
The toddler, who authorities say she was in another room at the time of the killing, is now in the custody of Berreth’s parents.
After the hearing, May elaborated on his office’s decision not to seek the death penalty against Frazee, saying that the Colorado Attorney General’s Office advised that it didn’t believe the case involved a necessary aggravator under the statute.
May said his office believed it could make the case that Frazee lay in wait before the killing, which could make him eligible, but the attorney general’s office said the argument wouldn’t make it “past half time.”
Frazee is due to return to court for a pre-trial hearing on Oct. 18, 10 days before the start of his trial.
Charged with six counts, including first-degree murder and solicitation of murder, Frazee faces a life sentence in prison if convicted of the top charge.