THE 13TH JUDICIAL DISTRICT ATTORNEY S REPORTER Serving Cibola, Sandoval, and Valencia Counties Lemuel L. Martinez District Attorney Cibola County 515 W. High Street PO Box 637 Grants, NM 87020 (505) 287-1297 Sandoval County 711 Camino Del Pueblo PO Box 1750 Bernalillo, NM 87004 (505)771-7400 Valencia County Ron P. López Chief Deputy District Attorney 101 S. Main Street #201 PO Box 1919 Belen, NM 87031 (505) 861-0311 Contents: Offices: Martinez Message p 1 Legal Brief p 2 High Profiles p 3-4 District News p 5 8 Summer 2016 Martinez Message These summer months have flown by. During this time I have continued to speak at different organizations and senior centers about the criminal issues that afflict our communities. I would like to thank you for taking time from your busy schedule to allow me to speak with you. The Sandoval County Office hosted the Rio Rancho Chamber Business After Hours event on July 19. Thank you to the following businesses for their donations. Your contributions made the evening a success. Club Rio Rancho provided appetizers, Music provided by our very own Michael Tapia, Door prizes provided by Ponderosa Winery, Starbucks, Chili s, Einstein Bagels and to the Sandoval County DA employees, your dedication to the community is deeply appreciated. Now that school has started, please watch for school buses and school zones. Once again my offices will be working with truancy officers of our local schools in Cibola, Sandoval and Valencia counties. The goal of the truancy law is to ensure that every student attends school regularly. Truancy is any intentional unauthorized absence. It is not illegal for Red Rock of Jemez, Sandoval County a child to miss school. It is illegal for a parent to knowingly allow a child to be absent without cause. Students who are chronically absent fall behind and drop out of school. Community members promoting education and school attendance helps build a healthy future for our children. I will continue my efforts in speaking to community organizations who wish to learn more about ongoing concerns in the community. To make arrangements for me to speak at your organization please contact: Yvette Gurule at Yvette Gurule@da.state.nm.us 0r please call 505-771-7413. Stay safe this Labor Day Holiday! Sincerely, Lemuel Martinez, 13th Judicial District Attorney 1
Legal Brief: The Impact of Birchfield v. North Dakota in New Mexico The Impact of Birchfield v. North Dakota in New Mexico Birchfield is a case, pertinent to our DWI prosecutions, which came down from Supreme Court of the United States (SCOTUS) on June 23rd of this year. The basic holdings are that a blood test is significantly more intrusive than a breath test in a DWI case and therefor require a warrant in a DWI investigation, and states cannot impose a criminal penalty on a person for refusing to submit to a blood test. When SCOTUS granted certiorari on Birchfield it granted cert on two other, similar cases as well. One was another case out of North Dakota; Beylund, and one a case from Minnesota; Bernard. All three B s were arrested on drunk-driving charges. In Birchfield, the officer advised the defendant of his obligation under North Dakota law to undergo blood testing and advised that refusal to do so would lead to criminal punishment. Birchfield refused and was charged with a misdemeanor violation of the refusal statute. The refusal statute imposed criminal sentences ranging from a mandatory fine of $500 to fines of at least $2,000 for repeat offenders and possible imprisonment of at least one year and one day. Birchfield plead guilty to the refusal, but his plea was conditional: while he admitted refusing the blood test he argued that the Fourth Amendment prohibited criminalizing his refusal to submit. The ND Supreme Court affirmed Birchfield s conviction. SCOTUS reversed. In Beylund, the defendant consented to have his blood drawn and later argued that he agreed only because of the coercive nature of the threat of criminal sanctions. Beylund was facing the same criminal sanctions that Birchfield faced. The ND Supreme Court affirmed Beylund s conviction. SCOTUS remanded for the ND Supreme Court to decide the case in light of the Birchfield decision. Finally, in Bernard, the case from Minnesota, where refusal to submit to chemical testing (and in this instance, breath testing) could result in criminal penalties from no more than 90 days imprisonment and up to $1,000 in fines for a misdemeanor to seven years imprisonment and $14,000 in fines for repeat offenders, the defendant refused and his refusal was not found to violate the Fourth Amendment because the MN Supreme Court reasoned that a breath test would have been a valid search incident to arrest. SCOTUS affirmed as breath tests are not as invasive as blood tests. I went to trial a few weeks ago on a DWI 3rd. The facts of my case were similar to Beylund. My defendant was arrested after questionable SFSTs, breathed a.05/.05, told the officer he was on prescribed narcotics for Schizophrenia and gave his consent to be blood tested. Defense argued Birchfield saying that the defendant felt coerced by the threat of criminal sanctions if he refused to submit to blood testing. In New Mexico we have the typical administrative sanctions that most states do, and that Birchfield upholds as reasonable, wherein a person s license and privilege to drive are revoked for a year or longer depending on the history of the person s DWI record. It can be argued, and was at the motion s hearing before my trial, that New Mexico doesn t have criminal sanctions, or make it a crime in and of itself to refuse to submit to blood testing. The argument is that before any criminal punishment in the form of fines or loss of freedom can result from a refusal, a DWI must first be proved. Once the DWI is proved up, the refusal simply aggravates the charge and enhances the sentence. I argued further that the nature of the sanctions imposed for a refusal in New Mexico distinguish our laws from those in North Dakota because the sanctions in ND curtail a person s freedoms so much more than ours. Unlike ND, where refusal ensured criminal sentences ranging from a mandatory fine of $500 to fines of at least $2,000 for repeat offenders and possible imprisonment of at least one year and one day, for a DWI 1st here, a person faces only 48 hours in jail as a sentence enhancement, for a DWI 2nd only 96 hours and for a DWI 3rd only 30 days. Furthermore, we impose no criminal sanctions for refusing to submit to chemical testing in felony cases. In my case, the Magistrate in Cuba ruled that he would allow the blood results in evidence despite the ruling in Birchfield because the New Mexico Implied Consent Act that officers read to a DWI arrestee says nothing explicitly about criminal sanctions and is therefore not overly coercive. He ruled this was also because our sanctions require a conviction on the underlying DWI before a refusal can even be considered to have criminal consequences. In other words, it is not a crime in and of itself to refuse to submit to blood testing in New Mexico. Perhaps in the future, we will not be able to aggravate the underlying DWI. Remember, this is only for blood tests. One can see how another magistrate may have come to the opposite ruling. This is an issue upon which reasonable minds can differ and I think we will see this go to the Court of Appeals here in New Mexico. By: Jescia Hyland, Assistant District Attorney Sandoval County Sandoval County District Court 2
High Profile New Cibola County District Cibola County: State v. Ruben Romero (Serious Youthful Offender), Grand Jury Indictment charge: First Degree Murder (Willful and Deliberate), Trials are expected to begin the summer of 2016, DDA R. David Pederson, ADA's Brandon Vigil and Stephen O'Brien, prosecuting State v. Delilah Baca, Grand Jury Indictment charge: Tampering with Evidence, DDA R. David Pederson, Trials are expected to begin the summer of 2016, ADA's Brandon Vigil and Stephen O'Brien, prosecuting State v. Rudy Valencia (Serious Youthful Offender), Grand Jury Indictment charge: First Degree Murder (Willful and Deliberate); Tampering with Evidence, Trials are expected to begin the summer of 2016, DDA R. David Pederson, ADA's Brandon Vigil and Stephen O'Brien, prosecuting State v. William Allen Crisp, Grand Jury Indictment charges: Attempt to Commit a Felony, to wit: First Degree Murder (Willful and Deliberate); Aggravated Battery against a Household Member (Great Bodily Harm) or in the Alternative: Aggravated Battery against a Household Member (Deadly Weapon); Tampering with Evidence, Pre-Trial Conference is scheduled for August 4, 2016 and Jury Trial is scheduled for August 22, 2016. DDA R. David Pederson, prosecuting State v. Damon Perry, Criminal Information Charges: Second Degree Murder; Aggravated Assault (Deadly Weapon); Abuse of a Child (Does Not Result in Death or Great Bodily Harm); Aggravated Assault (Deadly Weapon), Competency Pending, DDA R. David Pederson, prosecuting State v. Eric Smith, Indicted charges: Involuntary Manslaughter (Unlawful Act); Abuse of a Child (Does not result in Death or Great Bodily Harm) (3 counts); Tampering with Evidence, DDA R. David Pederson, prosecuting Sandoval County: State v. Andrew Romero, charged with the murder of Rio Rancho Police Officer Gregg Nigel Benner. Set for trial in Valencia County September 2016. CDDA Ron Lopez, DDA Barbara Romo, ADA Sonya Duke prosecuting. State v. Tabitha Littles: Plead guilty to harboring a felon and conspiracy to commit armed robbery, for exchange for her testimony against co-defendant Andrew Romero, Sentencing called for 20 1/2 years mandatory: 16 years in prison followed by 41/2 years of probation. Ron Lopez, Barbara Romo and Sonya Duke prosecuting. State v. Roberto Rodriquez; charged with multiple counts of first degree criminal sexual penetration for molesting his daughter; entered a plea on the eve of jury trial; pending sentencing; he is facing 21 to 34 years incarceration. Jessica Martinez and Andoni Garrotte prosecuting. 3
High Profile cont... Valencia Valencia County County District Court Court Sandoval County: State v. Sammy Jimenez-Perez, State v. Alberto Rodriguez, State v. Omar Castillo, Grand Jury Indictment for Murder (First degree/second Degree/ Manslaughter), First Degree Kidnapping, Conspiracy to Commit First Degree Kidnapping, Tampering with Evidence, Extreme Cruelty of Animal, Conspiracy to commit Extreme Cruelty to Animals, Receiving or Transferring Stolen Motor Vehicle, Conspiracy to Commit Receiving or Transferring Stolen Motor Vehicle. Set for jury trial in November 2017. Troy Davis and Jessica Martinez, prosecuting State v. Sergio Chavez-Aguirre (Jury Trial Verdict). Convicted of the following charges: 3 Counts Aggravated Battery on A Household Member (without Great bodily harm), 3 Counts Aggravated Battery Against A Household Member (Deadly Weapon), Aggravated Battery Against A Household Member (Great bodily Harm), 7 Counts Abuse of a Child Intentionally Caused (no Great Bodily Harm), Intimidation of a Witness, Criminal Sexual Penetration. Sentenced to 22 years incarceration in the Department of Corrections. Jessica Martinez, Teague Williams, prosecuting State v. Matthew Woll, Aggravated Assault on a Peace Officer (Deadly Weapon), Aggravated Assault Upon a Peace Officer (Deadly Weapon), Resisting, Evading or Obstructing an Officer. Pending jury trial. Valencia County: **State v. Abraham Flores (Jury Trial Verdict); Convicted of the following charges: 4 counts of CSC of a Minor in Third Degree (Position of Authority), 2 counts of CSC of a Minor in Second Degree (Person in Position of Authority), 1 count of CSP of a Minor. Defendant was remanded into custody after the verdicts were read. Defendant received a 45 year sentence. 20 years to be served in the Department of Corrections. **Julia Clark Downs and Julia White prosecuting State v. Jordan Hurd: (Jury Trial Verdict); Convicted of the following charges:2 counts of first degree murder and one count of Agg. Batt (DW), Defendant received 2 life sentences plus 4 years, Bryan McKay prosecuting State v. Daniel Olguin: Plead guilty to 3 counts of aggravated Assault Upon a Peace Officer (Deadly Weapon) (3rd degree felony) with counts running consecutively to each other. Julia Clark Downs prosecuting. State v. Nicholas Myers State v. Rachanda Myers, Grand Jury Indictment 2 counts of Child Abuse (No death or GBH), Aggravated battery (great bodily harm) Case is on the November 28th, 2016 docket, Frank Baca prosecuting ** Correction from Spring Newsletter Julia White 4
District News:Rio Rancho Regional Chambers After Hours July 19, 2016 5
District News: DA Employee Arrested Reyna Aragon, District Office Manager for the 13th Judicial District Attorney s Office, did a little time for a lot of good. She went behind bars on June 23, 2016 to benefit the Muscular Dystrophy Association. Reyna raised $1,418.00 for the cause. The association fights to free children and adults from muscular dystrophy, ALS and related muscle debilitating life-threatening diseases. Thanks to everyone who donated! The association will also be having a Muscle Walk on September 10, 2016 at 5:00p.m. at the North Domingo Baca Park (Wyoming and Paseo). If you would like to participate in one of these events or to make a donation, you can visit the website at https://www.mda.org/office/albuquerque or call 505-828-1331. 6
District News: Pre-Prosecution Diversion School Supply Drive: Mr. Lemuel Martinez and the Pre-Prosecution Diversion program are proud to announce that approximately 80 backpacks filled with school supply items were collected to donate to those children in need this school year. These items were donated across our district by defendants on the PPD program. Bernalillo Elementary, Carroll Elementary, San Felipe Pueblo Elementary, Jaramillo Elementary, and Tome Elementary are of the five schools that these items were donated to. The program is ecstatic that we had such a great turnout and that many of the programs defendants participated in this drive. Keeping up drives that help out our community is a major focus of the program and as the warm weather is coming to and end and the cold is returning the program will soon begin our Clothing Drive. This drive will run through December of this year. If anybody would like to donate a new jacket(s) to the program, please leave your donation with the PPD Director, Desiree Lovato. The program will be accepting infant through adult sizes. 7
District News: Happy Labor Day. Enjoy your day off to relax Labor Day originated by the Knights of Labor and the Central Labor Union. Oregon was the first state to make it a holiday on February 21, 1987. In 1984 it became a federal holiday. Labor Day is observed the first Monday of September. All government offices and many businesses are closed. The District Attorney s Office will be closed Monday September 5, 2016 in observance of Labor Day. Welcome to the 13th!: Julia Petrucelli, Assistant Trail Attorney, Valencia County Craig Meo, Investigator, Valencia County Jacqueline Hanon, Clerk, Valencia County Coming Soon Cibola County is getting a new Judicial Complex. Cibola County Office, DA s Office, Cibola District Court, Cibola APPO Office and DWI Compliance 700 E. Roosevelt Ave, Grants NM 8