A judge set to preside over the trial of a prominent Casper businessman accused of sexual assault decided Wednesday to exclude some pieces of potential evidence taken from the man’s phone, saying law enforcement did not have probable cause to seize a voicemail left by the defendant’s wife.
Judge Daniel Forgey also disallowed evidence that would show the camera on Tony Cercy’s phone was triggered in the early morning hours of June 25, when he is alleged to have assaulted a woman on a couch in his Alcova house. An entirely black image is all that was captured by the camera.
Cercy is set to face three felony charges of sexual assault. The woman told investigators she woke to him performing oral sex on her.
Cercy has pleaded not guilty and his trial is set to begin Monday in Natrona County District Court.
In Wednesday’s three-and-a-half hour hearing, District Attorney Mike Blonigen argued for the exclusion of expert witnesses the defense is expected to bring to rebut testimony that will be brought by the prosecution. Forgey ruled against that argument, saying Blonigen could argue to strike testimony when it is brought at trial.
Forgey also rejected a defense motion that called for a hearing to examine a psychologist’s proposed testimony before trial. Defense attorneys can object to the psychologist’s testimony at trial if they think it is not appropriate, the judge said.
Forgey then ruled on the motion brought by defense attorneys in January to suppress evidence taken from Cercy’s cell phone. Law enforcement officers took the phone shortly after the alleged assault. A different judge issued a search warrant for Cercy’s phone and the phone of another person who was present at the Alcova house on the night before the alleged assault.
The warrant was “very broad,” in part because it was written to cover two phones, Forgey said.
A call log taken from the defendant’s phone and a log of text messages sent and received in the days surrounding the alleged assault can be presented at trial, Forgey said.
The judge then closed the courtroom for about 45 minutes to hear a motion relating to sealed evidence.
After reopening the courtroom, Blonigen and defense attorney Jeff Pagliuca argued briefly about whether it would be appropriate to strike potential jurors solely on the basis of their responses to questionnaires. It soon became clear that not all of the completed questionnaires had reached Cercy’s defense team. The court clerk said she would work Wednesday night to ensure defense attorneys receive all of the questionnaires.
Forgey said the issue will be taken up again at 3:30 p.m. Friday.
Cercy is also represented by Pamela Mackey, who practices in the same Denver law firm as Pagliuca, and local attorney Ian Sandefer.
At a January hearing, Forgey excluded other pieces of evidence offered by prosecutors, including an allegation that Cercy assaulted a stripper and paid her to keep her from going to police. Cercy was never arrested or charged in relation to that allegation.
Forgey also disallowed some proposed evidence presented by defense attorneys at the January hearing, including an ostensible video reenactment of Cercy’s accuser’s allegations.
Cercy was arrested in July. He remains free on a $100,000 cash bond.