Unknowing witness jailed by district attorney will be released

SALT LAKE CITY — It's been four years since Deon Lomax Clopten went to prison for the 2002 shooting of Tony Fuailemaa outside Club X-Scape.

Andre Hamby, who prosecutors say is "an important eyewitness" to the shooting, testified at an early hearing and moved on with his life.

He never knew that the Utah Supreme Court overturned Clopten's conviction in late 2009. Nor did he know that prosecutors had subpoenaed him to testify in Clopten's new trial. He had moved back East, found steady employment and moved on.

That is, until he became aware that a material witness warrant had been issued for his arrest, leading him to turn himself over to the U.S. Marshals Service, which handcuffed him and sent him to Utah, where he's been sitting in jail for the past three weeks.

Deputy Salt Lake County district attorney Fred Burmester explained his plight to 3rd District Judge Randall Skanchy, stating that the state doesn't want Hamby in custody but can't risk not having him show up at trial.

"I believe he's a necessary witness," he said. "I don't have anything against Mr. Hamby. He's been very courteous, but I've got to have him for trial."

Hamby said he remembers getting a phone call about the upcoming trial but had "so much on my mind" that he didn't realize what the call meant until it was "too late." Before Hamby could continue explaining, Walter Bugden, an attorney sitting in the courtroom waiting on a different case, stepped up to asked the judge if he could represent Hamby at "no cost to anybody." He met with Hamby and clarified to the judge that Hamby didn't intentionally avoid appearing.

"He did appear at the preliminary hearing, and the District Attorney's Office lost contact with him before trial," Bugden explained. "Mr. Hamby probably didn't live at the address where they served the subpoena."

Bugden went on to tell the judge that he and Burmester worked out an agreement that would allow Hamby to return to his home state and go back to work, as long as he provided detailed contact information that will help prosecutors locate him. Burmester requested only that Hamby stay in Utah long enough to be present when Clopten's new trial date is scheduled later this week.

"The prosecutor was more than fair," Bugden said after the hearing. "I just wanted to make sure that (Hamby) is treated fairly. I don't think he'd done anything wrong. He had no idea the new trial had been ordered. I was just worried he'd be held indefinitely."

Clopten, meanwhile, is being held in prison on a charge of failing to stop at the command of an officer, a third-degree felony, pending a new murder trial, Burmester said.

e-mail: emorgan@desnews.com