A Riley man facing second-degree murder for the death of his 6-year-old daughter was in the Riley County District Court Tuesday afternoon in Manhattan for a motions hearing.
Joshua Mall, 39, was allegedly driving with a blood alcohol content of 0.13 when he collided with another vehicle and then struck a tree on the evening of Oct. 5, 2015, near the 2400 block of Tuttle Creek Blvd. in Manhattan.
His daughter, Madilyn, was a passenger in his vehicle and died in the wreck.
The legal BAC in Kansas is no greater than .08.
Mall’s trial is set for Aug. 23-26.
Tuesday, Judge David Stutzman heard testimony from Riley County Police Detective Joseph Ehrlich, RCPD Capt. Josh Kyle and RCPD Patrolman Jacob Wilson.
Mall’s defense argued that his previous history shouldn’t be submitted to the jury. In 2001 Mall pleaded guilty to a charge of vehicular homicide in Larimer County, Colo. As a part of his plea agreement in that case, prosecutors dropped two counts of driving under the influence.
The defense also took issue with the manner in which the RCPD took Mall’s blood at the hospital. It said Mall did not give consent for that draw.
Stutzman’s answer to these pretrial motions should be available next week, Senior Deputy County Attorney Barry Disney said.
Still, Tuesday’s testimony provided more detail on that evening as Mall sat in the courtroom quiet and desolate.
Ehrlich, the lead detective on the case, confirmed to Disney that two blood samples had been drawn — one by the hospital and one later by the RCPD.
Kyle also confirmed Erhlich’s statements.
But it was Wilson — first on the scene — who provided the most detail.
Wilson described the wrecked pickup he saw “wrapped” around the tree and the numerous bottles — some broken — around the wreck. He said there was a distinct smell of alcohol at the scene and that many bottles resembled those used for wine.
Wilson said he found Mall in pain holding his neck and back. Wilson said when he approached the vehicle Mall had told him, “I’m fine, check on my daughter.”
Wilson said an off-duty fire fighter was there and attending to his daughter, but she was found to be unresponsive and “appeared deceased when I saw her.”
The woman Mall ran into told Wilson that he’d been behind her and was driving aggressively before he accelerated and collided with the rear of her vehicle, sending her to the median uninjured and Mall’s vehicle violently into a tree.
Wilson quoted Mall on the day of the accident saying the “vehicle appeared out of nowhere.”
Wilson said the inside compartment of Mall’s pickup — a 2001 Ford Ranger — was “hard to see inside of” after the wreck.
Mall had suffered a broken neck and had to be transported out of Manhattan that night for further treatment.
At the hospital, Wilson described a scene full of hysteria — especially when family arrived and after Madilyn’s death had been confirmed.
“It became very chaotic and we needed more officers,” Wilson said. “The mother of the daughter had threatened to kill Mr. Mall.”
When Wilson found Mall in the hospital, he found a man who was suicidal, depressed, irate and aggressive.
Mall had to be restrained by nurses.
Wilson testified that he smelled the odor of alcohol on Mall’s breath and had admitted to drinking at the hospital.
“He had slurred speech and watery, bloodshot eyes,” Wilson said.
Disney concluded the afternoon and said the Colorado case to the jury would not set prejudice — as Mall’s defense argued — but would show them that Mall was aware of the consequence of the actions of drinking and driving a vehicle.
The case will move to pretrial proceedings on Aug. 11.