WAVERLY - The man accused of suffocating a 15-month-old girl and his family have a history of mental illness, according to the defendant's older brother.

Attorneys for Joseph Boose Jr., 28, of Waterloo, also argued Monday that their client suffers diminished capacity. In their view, that fact should negate the prosecution's theory that Boose acted willfully, deliberately and with premeditation in committing first-degree murder.

Boose is charged in the April 2001 death of Emily Garrison. He entered a plea of not guilty.

Attorneys argued parts of their case Monday in Bremer County Court outside the presence of jurors.

Defense attorney Michael Bandy stated Boose several times during a videotaped interview with law enforcement officials said he did not mean to kill the baby. Officers made the recording after Boose apparently offered a surprise confession in December 2003.

Garrison was the daughter of Boose's former girlfriend, Elizabeth Freeman, then Elizabeth Graf. Boose was staying at Freeman's apartment in Waverly when the little girl stopped breathing.

"The state hasn't provided evidence that he willfully killed Emily Garrison," Bandy said Monday.

Under Iowa law, a person commits first-degree murder if their actions match any of several circumstances. Those include acting willfully, deliberately and with premeditation and killing a child while endangering or assaulting a child.

Judge Stephen Carroll denied the defense team's request to limit the circumstances jurors can consider, however. Judge Carroll later told jurors they could only apply the defense of diminished capacity when considering whether Boose acted willfully.

William Kelly, Boose's brother, told jurors he noticed "quite a bit" of mental illness in Boose. He cited depression, anxiety and "up-and-down" moods. Kelly also testified Boose has taken anti-psychotic medication.

Bremer County Attorney Kasey Wadding attempted to counter the claim.

"Were you aware that the source of his anxiety stemmed from suffocating Emily Garrison?" Wadding asked Kelly.

Other witnesses called by the defense spoke of a bloody incident that occurred at the apartment complex just weeks before the child's death.

Sandra Harriman lived down the hall from Freeman and Boose at Rolling Meadows in April 2001.

"I heard running and screaming up and down the hallway," Harriman said.

"I'm very nosy, so I went and looked," she added.

Harriman and maintenance man Dennis Strauser reported seeing red hand prints and blood smeared on the pale yellow walls, on doorknobs and on the carpet.

"It was actually pretty much on all three floors more or less," Strauser testified.

Strauser, who talked with police at the scene and helped clean up the mess, told jurors that he understood Boose had lost his temper and beat his head and hands on the walls.

Prior to the testimony, Wadding told Judge Carroll he thought talking about the incident in front of the jury served no purpose.

"That one incident is an intent to try to invoke sympathy," Wadding said. "It does not create a defense."

Wadding added Boose, in response to charges stemming from the incident, pleaded guilty to assault.

Wadding reminded jurors of a statement by Boose written down by officers. Boose said he suffocated Garrison "to her last breath," according to the document.

The defense was expected to call additional witnesses today, including a doctor who diagnosed Boose with mental illness. Boose's trial was delayed numerous times in the past four years because of questions about his competency.

Contact Karen Heinselman at (319) 291-1581 or Karen.heinselman@wcfcourier.com.