Judge: Officer can't testify about James Holmes' smirk, but DA can use evidence found in his wallet

AURORA, Colo. - The judge in the Aurora theater shooting case ruled Friday that jurors won't hear testimony about a smirk James Holmes allegedly made in reaction to a police officer's question after his arrest.

Yet, in separate ruling, Arapahoe County District Court Judge Carlos Samour said evidence seized from the accused gunman's wallet will be allowed at trial.

During an Oct. 15 hearing, Officer Justin Grizzle recalled questioning Holmes outside the Century 16 Aurora right after he'd been arrested in the shooting rampage on July 20, 2012.   

Grizzle said he asked Holmes if anyone else was helping him or if he was alone.

"He didn't say anything. He just smiled at me -- a self-satisfying, offensive smirk," Grizzle said.

Prosecutors wanted to include the officer's testimony about the defendant smiling at trial, saying that it is a non-verbal statement, not a non-response.

The defense objected to including Grizzle's description, saying, "This was silence. This particular response is so ambiguous, it holds no probative value."

Samour agreed, writing in his ruling that he also has "concerns about the reliability of Officer Grizzle's recollection of pertinent events."

"Officer Grizzle's characterization of the defendant's smile as 'self-satisfying' and 'offensive,' in addition to being speculative, would allow the prosecution to assert that the that defendant's smile is evidence of his mental state and his sanity," the judge said in his ruling. "However, evidence of the defendant's smile is neither reliable proof of his mental state not proof of his sanity."

Allowing the officer's testimony about Holmes' "alleged smile" would pose "the significant danger of unfair prejudice and misleading the jury," the judge added.

But the judge admitted as evidence what police officers found in Holmes' wallet, including his driver's license and credit cards. And those items led police to a widening trail of evidence.

An officer said he found Holmes' wallet during a pat-down search. The officer said he looked inside the wallet to find a driver's license so he could confirm the suspect's identity.

When police asked Holmes if he had any other weapons, Holmes volunteered he had "improvised explosive devices at his house" that would not "go off unless [police officers set] them off," according to court records.

Police learned Holmes' address from the license and that lead them to the booby-trapped apartment.

The credit cards from the wallet led investigators to guns and ammunition that Holmes had purchased for the attack, court records state.

The credit cards could also link Holmes to two paid online dating accounts that contained the tagline, "Will you visit me in prison?"

The defense argued the wallet search was illegal because police didn't have a warrant. They wanted any evidence police were led to because of what they found in the wallet to be tossed out.

But the judge agreed with prosecutors that no warrant was needed because the wallet was seized during the arrest.

Holmes has pleaded not guilty by reason of insanity to charges of killing 12 and injuring 70 in the 2012 attack. Prosecutors and defense lawyers have been debating evidence that could be used to undermine the insanity claim, including indicators that Holmes knew the shootings were wrong.