DENVER A Colorado police officer's description of a purported smirk made by accused theater gunman James Holmes minutes after his arrest cannot be used at trial because the officer had an unreliable memory, a judge ruled on Friday.
Arapahoe County District Court Judge Carlos Samour Jr. ruled as inadmissible Aurora police Officer Justin Grizzle's account that Holmes replied with a "self-satisfying offensive smirk" when the suspect was asked if he had an accomplice.
"Officer Grizzle's recollection of pertinent events is not sufficiently reliable," Samour wrote in an order.
Holmes, 25, is charged with first-degree murder and attempted murder for opening fire inside a cinema in the Denver suburb of Aurora during a July 2012 screening of the Batman movie, "The Dark Knight rises".
The shooting spree left 12 moviegoers dead and 70 others wounded or injured.
The one-time neuroscience graduate student claims he was insane at the time of the rampage.
Prosecutors plan to seek the death penalty if he is convicted.
The judge's ruling follows a series of evidentiary hearings this month ahead of the trial, which is scheduled to begin in early February. Grizzle testified about his encounter with Holmes at a hearing this week.
Public defenders are challenging nearly all the evidence amassed against their client.
Samour noted in his 19-page ruling that other officers on the scene did not recall seeing Grizzle question Holmes.
Grizzle did not mention the smirk in his initial report and only made the claim months later, Samour added.
Even if the smirk encounter did occur, Samour wrote, it was "ambiguous ... (with) no communicative value and must be treated as silence."
Separately, Samour ruled that a search of Holmes's wallet, which defense lawyers also sought to suppress, was lawful.
(Refiling to drop extraneous word in first paragraph)
(Editing by Alex Dobuzinskis and Ken Wills)