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James Holmes trial: Lawyers debate whether Colo. gunman's post-rampage "smirk" is evidence

CENTENNIAL, Colo. Minutes after the gunshots subsided in the deadly Colorado theater attack, a handcuffed James Holmes said nothing and only smirked when he was asked whether he had an accomplice, a police officer testified.

That alleged smirk was Holmes' way of saying he was satisfied with what just happened inside the theater, prosecutor Karen Pearson said during a pretrial hearing Tuesday. She argued the officer should be allowed to testify about it at Holmes' trial next year.

The defense argued that because Holmes said nothing at the time he allegedly smirked at the officer, his response was silence, and a suspect's failure to answer an officer's question can't be used as evidence by the prosecution.

"This was nothing more than silence, and it should be analyzed as such," defense lawyer Kristen Nelson said.

Rick Sallinger of CBS-4 in Denver reports that security was tight around the courthouse, complete with explosive-sniffing dogs.

Holmes is accused of slipping into a suburban Denver theater in July 2012 and opening fire on more than 400 people who were watching a midnight showing of a Batman movie. Twelve were killed and 70 injured.

Holmes, then 24, had just quit a Ph.D. program in neuroscience at the University of Colorado, Denver. He was arrested outside a rear emergency exit of the theater as bloodied and screaming victims fled.

Holmes pleaded not guilty by reason of insanity to more than 160 counts of murder and attempted murder. His lawyers say he was in the grip of a psychotic episode.

Untreated mental illness an imminent danger?

Prosecutors are seeking the death penalty.

At Tuesday's hearing, Aurora Police officer Justin Grizzle described Holmes' expression as "a self-satisfying offensive smirk." That drew an objection from the defense.

Arapahoe County District Judge Carlos A. Samour Jr. overruled the objection and said he would allow the description as evidence at the hearing.

But Samour expressed reservations about admitting it during the trial, saying the word "offensive" seemed subjective. He did not say when he would rule.

The impact that Grizzle's description would have on the jury's eventual verdict is hard to measure. Holmes' lawyers have acknowledged he was the shooter, and the trial is expected to focus on whether he was legally insane at the time of the shooting.

Dan Recht, a longtime Denver defense attorney who is not involved in the Holmes case, said Holmes' lawyers are fighting to suppress Grizzle's account because they see it as unfairly prejudicial.

"The smirk itself is arguably not relevant at all to the issue of Holmes' sanity," Recht said.

Prosecutors and defense lawyers routinely refuse to comment on the case, citing a judge's gag order.

Holmes did directly answer at least one officer who asked whether he had an accomplice, according to testimony Tuesday.

"I asked if anybody else was with him, and he said no," Aurora officer Aaron Blue testified.

Blue said Holmes also told him, without being asked, that there were bombs in his apartment that were rigged to explode if officers tried to enter. Holmes called them "improvised explosive devices," Blue said.

Bomb experts defused the explosives, and there were no detonations or injuries.

Officers had not read Holmes his Miranda warning- "anything you say can be used against you" - when they asked him whether he had an accomplice.

The defense argued that violated Holmes' constitutional rights, and anything he told the officers before they read him his rights, about two hours after the shootings, shouldn't be used at trial.

CBS-4's Sallinger reports that prosecutors claimed it was not necessary to read Holmes his rights, calling it a "public safety nightmare." Prosecutors said the questions were legal and that officers urgently needed to know if another shooter was on the loose.

Holmes is scheduled to return to court Wednesday for arguments on whether evidence seized from his car and computer equipment can be used at trial.

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