Court Won’t Review Bid to Drop Tyberg Murder Count

The state Supreme Court has refused to consider a request to dismiss a murder charge against Charles Tyberg, the deputy sheriff’s stepson accused of killing a San Diego police officer in February, 1983.

Tyberg’s attorney, Clancy Haynes of Santa Ana, said he was contacted by the court late Wednesday and informed that the justices would not review his petition to have the charge against his 20-year-old client dismissed for lack of evidence.

“It wasn’t a ruling on the petition’s merits,” Haynes said. “It was just word that they weren’t going to review it.”

In a related ruling earlier this week, the 4th District Court of Appeal rejected efforts by prosecutors to move Tyberg’s retrial from Orange County to San Diego. The decision by the appellate court upheld an earlier ruling by Superior Court Judge J. Perry Langford, who maintained that he lacked jurisdiction to grant the San Diego County district attorney’s office a change of venue.

Tyberg was convicted of first-degree murder three years ago in the slaying of Officer Kirk Johnson during a joy ride in his stepfather’s patrol car in San Clemente Canyon. Johnson was shot five times in the neck and chest. After a trial in Orange County--where the proceedings were moved because of extensive pretrial publicity--Tyberg was sentenced to 27 years to life in prison. He has been in custody in the Orange County Jail ever since.

Last June, however, the conviction was reversed by the Court of Appeal. The justices said homicide detectives feigned friendship to trick the youth into confessing to the killing, and one officer told Tyberg, then 16, that “we’re here to help ya.”

Tyberg’s second murder trial is scheduled to begin Tuesday in Orange County Superior Court, although Haynes has filed motions seeking a delay in order to review documents previously unavailable to the defense.

In December, Haynes attempted to persuade Superior Court Judge Raul Rosado to dismiss the murder charge because the only evidence linking the youth to the killing was the confession, and it has been ruled inadmissible.

“It was clear to us that without that confession, which was clearly obtained illegally, they did not have sufficient evidence of guilt,” Haynes said. “We’re sorry the court didn’t have the time or inclination to take a long look.”

In the long-running battle over the locale for the second trial, prosecutors had argued that the proceedings should be returned to San Diego because community interest in the case has waned significantly in the four years since Johnson was gunned down. Deputy Dist. Atty. Paul Morley said a recent survey commissioned by prosecutors indicated that familiarity with the case and emotions about it have faded.

“Years of tradition and law say that trials are supposed to be held in the communities in which the crimes arise,” Morley said. “They should only be moved if there is a reasonable expectation that a person might not get a fair trial. In this case, we’re talking about nearly four years that have elapsed.”

Haynes, however, said another survey conducted by the defense three weeks ago suggested that “a fair trial would still be all but impossible in San Diego.”

“Our survey showed that almost 50% of the population down there--without any other information--believe he is guilty,” Haynes said. The attorney also noted that a trial in Orange County is “more convenient” for him because his law practice is there.

The appellate court, in a ruling that puzzled Morley, found in favor of the defense, ruling that prosecutors had shown “no abuse of discretion” in challenging the earlier decision by Judge Langford.

“It’s too bad,” Morley said. “We’d consider an appeal to the state Supreme Court, but it would take months, and we’re anxious to get this matter to trial as quickly as possible.”