Jury selection continued Tuesday in the first-degree murder trial of Engre Brown, charged in the death of Benjamin Merscher of Sequim in Clallam County Superior Court, Port Angeles.
Clallam County Prosecutor Deborah Kelly said Judge Ken Williams would impanel jurors by today and that she could make her opening statement in the trial that could last two weeks.
On Monday, Kelly and defense attorney Thomas Weaver debated whether Merscher’s blood alcohol level could be introduced as evidence.
Weaver alleged Merscher’s blood alcohol measured 0.05, but Williams ruled that the issue would be decided outside the presence of the jury after it is selected.
It was Brown’s reported blood alcohol level of 0.18 – more than twice the legal limit of 0.08 and over the 0.15 level for extreme drunken driving – that led Kelly to file the count of first-degree murder by extreme indifference charge on top of vehicular homicide charge Brown first faced.
Brown is accused of crossing the center line of traffic on U.S. Highway 101 at about 1 a.m. Oct. 8 near Kitchen-Dick Road and colliding head-on with Benjamin Merscher’s vehicle, killing him.
Washington State Patrol troopers also said Brown had been driving that night without insurance and without a valid driver’s license, something she reportedly has a record of doing in Clallam County the past eight to nine years.
More than two-dozen spectators filled the courtroom, some wearing "Friends of Ben" lapel buttons. Williams banned the buttons, emphasizing, "Spectators are to be spectators."
Brown, who was seriously injured in the wreck, walked into the courtroom using a cane, wearing a gray-
and-white striped jail
jumpsuit and wearing shackles.
As for Merscher’s blood alcohol level, Weaver argued that it should convince the jury to decide that Brown showed not extreme indifference but "ordinary indifference."
Kelly argued that Merscher "had no chance" to avoid Brown’s oncoming car and that it was she who was on trial, had been ordered not to drive, was driving 85 miles per hour and crossed the center line.
The prosecutor also said that Brown had "stormed off" after a fight with her boyfriend who took one set of her car keys, so Merscher’s blood alcohol level makes no difference.
Kelly said Brown’s conduct proved her mental state on Oct. 7.