Prosecutors ultimately won a daylong battle Wednesday over a videotape that may picture the killer of a Circle K convenience store clerk.

Defense attorneys for Ernest Gabriel Hernandez, 27, spent most of the day at a preliminary hearing before 3rd Circuit Judge Elanor S. Van Sciver attacking the quality, authenticity, content and acceptability as evidence of a store surveillance camera tape that shows clerk Tod J. Menuey, 26, walk from behind the counter out of the camera's view, followed by a Hispanic male customer.Less than one minute later, the tape shows a Hispanic male return to the cash register, wearing a Circle K employee's smock. The camera then shows the man stopping at the two cash registers, putting something in his back pocket, stooping at a video display and then leaving the store.

The tape then shows three other customers enter the store one by one over the next few minutes. One of the customers, Craig Bennett, testified at the hearing that he and the other two customers began searching the store for the clerk when one of the other two found him in the bathroom with a gunshot wound in the back of his head.

Evidence and the testimony of several customers who visited the store, at 1692 W. North Temple, indicate Menuey was shot early Jan. 23, about 30 minutes after midnight. Hernandez was arrested four days later after clips and still photographs from the tape were released to Salt Lake area media.

Defense attorney Brooke Wells said the tape constituted hearsay and violated state rules of evidence if admitted. Either she or co-counsel Richard Uday objected each time Salt Lake County Attorney David Yocom or prosecutor Robert Stott went to show a portion of the video-tape.

Their objections to the court's use of the tape Wednesday followed their earlier request that the court order the media not to print or broadcast selections from the surveillance tape. Van Sciver denied that request several weeks ago.

Five Salt Lake homicide detectives, the police department's video technician and two Circle K managers and one employee were questioned about the videotape, camera and recording equipment.

One of Wells' major arguing points was that the tape being viewed was a copy and not the original. The original surveillance tape, detectives testified, had become jammed inside the store's video recording machine. Once removed by partially disassembling the machine, the tape would not rewind or play in other VCR machines until after police video technician William Cawley removed the tape spools from the cassette and placed them in a new cassette. Copies of the tape were then made to protect the frail original, Yocom said.

The tedium of the questioning about the tape and other factors leading to Hernandez's arrest, including the method used to record a latent fingerprint on a foam coffee cup found inside the store, led Hernandez to comment to a bailiff that the proceedings almost put him to sleep, even though he could face the death penalty if found guilty of the capital homicide charge against him.

Hernandez was arrested at about 2:30 a.m. Jan. 27 at 217 S. Foss St. (1530 West), where he was staying with a woman who said she met him three nights before at a bar on State Street. Edna Silva, 22, who now lives in Nevada, identified Hernandez in the videotape as a man known to her as Jessie Miranda. When prosecutors asked her if the man she knew as Jessie was in the courtroom, she identified Hernandez.

Van Sciver said Silva's testimony was enough probable cause for her to accept the videotape as evidence over the defense attorneys' objections.

The point of Wednesday's hearing was for the judge to determine whether Hernandez would be bound over to district court for trial on the capital homicide charge. Van Sciver postponed closing statements in the hearing until Friday at 4 p.m.