James Matlean, facing a first-degree murder charge in the shooting death of his former girlfriend's ex-husband, is set to appear Monday before District Judge Michael Gibbons.
After a day-and-a-half of testimony, Senior Judge Steven McMorris determined Tuesday there was probable cause 36-year-old Benjamin Oxley was murdered Feb. 21, 2008, and that Matlean was the perpetrator.
Most of the testimony in the preliminary hearing came from Dawn Oxley, 38, the victim's ex-wife who shared her residence with the 23-year-old Matlean prior to the murder and for 17 months afterward until August 2009.
Matlean was charged with first-degree murder with a deadly weapon.
Dawn Oxley has been granted immunity from prosecution as long as she testifies truthfully in the case and participates in the investigation.
It will be up to Gibbons to determine if Oxley complied with the agreement.
Much of her testimony in the preliminary hearing centered on how much she knew about Matlean's alleged plans and her role in Oxley's death.
Questioned by Matlean's attorney Ken Stover on Tuesday, Investigator Jonathan Storke testified there was enough information to support numerous charges against Dawn Oxley including first-degree murder, principal to murder, soliciting murder, aiding and abetting a murder and accessory after the fact.
Oxley admitted she withheld information before the immunity agreement was signed in February, but denied she told Matlean to murder her ex-husband or knew his plans.
"When he told you it was done, you didn't get upset? You made him your lover for the next 17 months and didn't help the police?" Stover asked.
"That's close," Oxley said.
"If a man wakes you up while you're sleeping on the couch, and informs you he just killed the father of your daughter, how could you feel safe with him in your home with your children?" Stover asked.
"He's just involved in murdering my ex-husband," she said. "He's not going to hurt me or my children if he's standing right there."
She also testified she wasn't sure if Matlean killed her ex-husband.
She stopped short of calling her 18-year-old son a liar for his testimony Nov. 4 that Matlean and Oxley drunkenly discussed murdering her ex-husband to free her from child support obligations and so she could regain custody of her daughter.
"I would say he's mistaken," she said Tuesday. "His interpretation of what happened could be totally mistaken."
At the conclusion of proceedings Tuesday, Prosecutor Tom Gregory asked McMorris to bind the case over to district court.
"I ask you to make a finding, but not to go beyond that finding or the role of magistrate," Gregory said.
Gregory said it is the "sacred" responsibility of a jury to determine the credibility of evidence presented at trial.
"It's not the job of a magistrate to usurp that function," Gregory said.
"You're asking me not to comment on the evidence," McMorris said.
"I am asking you not to discuss in detail the credibility of witnesses. You've seen but a small portion of the evidence," Gregory said.
Stover said determination of credibility still rested with the judge in deciding whether to bind the case over.
McMorris said it wasn't up to him to determine guilt or innocence.
"I feel compelled to make a couple of observations for the benefit of Dawn Oxley," McMorris said.
He alluded to Storke's "view of the potential criminal participation of Dawn Oxley in this matter."
"If she's not truthful, she is in jeopardy of still being charged in a first-degree murder. She's been dancing around the edges of the truth and rather evasive. A jury will make its own determination.
"There is no doubt Mr. Matlean should face the trier of fact in this case," McMorris said.
Stover also brought up the fact that a witness from Nov. 4, former Douglas County Jail inmate Eric Thompson, died before he had a chance to cross examine him.
Thompson was out of custody on a charge of attempted burglary.
He testified that while in jail he shared a cell with Matlean. He claimed the defendant had confessed to Oxley's murder because Dawn Oxley didn't like her ex-husband.
Thompson's death Nov. 17 is under investigation by the South Lake Tahoe Police Department.
South Lake Lt. David Stevenson said there was no indication of criminal wrongdoing.
El Dorado County Sheriff's Coroner Larry Olsen said Wednesday no cause of death had been determined pending autopsy and toxicology reports which could take up to two months.
"The district attorney made a deal with the devil," Stover said after the hearing. "Dawn Oxley has not testified truthfully to her responsibility to Ben Oxley's murder. It's an affront to his widow Melissa Oxley that she (Dawn Oxley) still carries his last name."
Gregory said following the hearing that he has 30 days after filing the criminal information against Matlean to decide whether to seek the death penalty.
"It's a big decision," he said.
He said he couldn't comment on the immunity agreement with Dawn Oxley, describing it as "legally, a very complicated issue."
Benjamin Oxley was shot to death Feb. 21, 2008, as he slept in his Wildhorse home.
Matlean has been in Douglas County Jail since last December on a probation violation. He was charged with the Oxley murder in June.
Dawn Oxley also is in custody for probation violations.
In the past two years, she has been convicted of two counts of driving under the influence, domestic battery and arrested for possession of a dangerous drug, and contributing to the delinquency of a minor.
She served six months in Douglas County Jail for the DUIs after she violated terms of her release by drinking.
She went back to jail June 22 for a week for drinking in violation of her release on the first domestic battery charge.
Her probation was revoked Sept. 7 after she admitted drinking vodka and a second domestic battery offense.
She was sentenced to 160 days in jail with credit for time served. Her release date was set for Feb. 8.
