OFFICER INVOLVED SHOOTING TRIAL REVIEW AND EVALUATION

OFFICER INVOLVED SHOOTING TRIAL REVIEW AND EVALUATION STATE V. KEITH SANDY, D-202-CR-2015-00104 STATE V. DOMINIQUE PEREZ, D-202-CR-2015-00105 ISSUED FEBRUARY 24, 2017 OFFICE OF THE DISTRICT ATTORNEY SECOND JUDICIAL DISTRICT STATE OF NEW MEXICO RAÚL TORREZ DISTRICT ATTORNEY

TABLE OF CONTENTS INTRODUCTION... 1 PROCEDURAL HISTORY AND FOCUS ON THE TRIAL RECORD... 2 FACTUAL EVIDENCE CONSIDERED BY THE JURY IN THE TRIAL... 3 ANALYSIS OF APPLICABLE LAW AND JURY INSTRUCTIONS GOVERNING THE TRIAL... 7 ANALYSIS OF JURY S APPLICATION OF THE LAW TO THE EVIDENCE... 10 CONCLUSION... 11

INTRODUCTION The Office of the Second Judicial District Attorney has completed its review of the investigation and subsequent prosecution at trial of the officer-involved shooting in which Albuquerque Police Officers Dominique Perez and Keith Sandy fired shots that resulted in the death of James Boyd. Specifically, senior prosecutors in the office have reviewed and analyzed the original shooting event, the subsequent law enforcement investigation of the event, and the record of the October 2016 jury trial on the charges against Officers Perez and Sandy. The purpose in reviewing the history of the original shooting and subsequent trial was to determine whether that record supports commencing a new trial of these officers or whether the charges against them, to the extent not already dismissed, should now be dismissed. This analysis has focused on determining the likelihood that a second trial would yield a substantially different result than that reached at the first trial a deadlocked jury with a vote of nine for acquittal and three for conviction. The review has demonstrated that, given the evidence the jury would consider and the law governing the use of force by a police officer, a second trial by a jury likely would not result in a verdict that either Officer Perez or Officer Sandy used unlawful force. Therefore, the District Attorney has determined that further prosecution of this case is not warranted and all charges currently pending in the Second Judicial District Court will be dismissed. This conclusion is based on the criminal law standard of proof at trial that a jury considering the facts and law would be unlikely to find beyond a reasonable doubt that the force used by Officers Perez and Sandy in the discharge of their duties was unjustified. The conclusion is not based on and does not relate to any civil standard of proof, nor does it intend to limit administrative actions by the Albuquerque Police Department. 1

PROCEDURAL HISTORY AND FOCUS ON THE TRIAL RECORD The timeline from event through the trial was as follows: March 16, 2014: Officers Dominique Perez and Keith Sandy are involved in an officer-involved shooting resulting in the death of James Boyd. January 12, 2015: Informations are filed in the Second Judicial District Court charging Officers Perez and Sandy with First Degree Murder (Willful and Deliberate), Second Degree Murder (Firearm Enhancement) and Manslaughter (Firearm Enhancement). April 9, 2015: The Second Judicial District Attorney s Office is disqualified from prosecuting the cases against Officers Perez and Sandy. April 16, 2015: Randi McGinn is appointed as special prosecutor. June 22, 2015: Amended Informations are filed in the Second Judicial District Court charging: o Officer Perez with Second Degree Murder (Firearm Enhancement), Voluntary Manslaughter (Firearm Enhancement), Involuntary Manslaughter (Firearm Enhancement), and Aggravated Assault (Deadly Weapon)(Firearm Enhancement), and o Officer Sandy with Second Degree Murder (Firearm Enhancement), Voluntary Manslaughter (Firearm Enhancement), Involuntary Manslaughter (Firearm Enhancement), and Aggravated Battery (Great Bodily Harm and/or Deadly Weapon) (Firearm Enhancement). August 3-7 and 17-18, 2015: A Preliminary Hearing is held before Judge Neil Candelaria to determine whether there is probable cause to proceed to trial on the charges in the Amended Informations. August 24, 2015: Judge Candelaria issues a Probable Cause Determination and Bind-Over Order charging: o Officer Perez with Second Degree Murder (Firearm Enhancement), Voluntary Manslaughter (Firearm Enhancement), and Aggravated Assault (Deadly Weapon)(Firearm Enhancement), and 2

o Officer Sandy with Second Degree Murder (Firearm Enhancement), Voluntary Manslaughter (Firearm Enhancement), and Aggravated Battery (Great Bodily Harm and/or Deadly Weapon)(Firearm Enhancement). September 19-October 11, 2016: The cases were tried before a jury, Judge Alisa Hadfield presiding. The jury was unable to reach a unanimous verdict on the charges, and a mistrial was declared by Judge Hadfield. The jury was polled, and the results were nine for acquittal and three for conviction. January 13, 2017: Special Prosecutor Randi McGinn and her associates are allowed to withdraw. January 17, 2017: The court issues an order allowing entry of appearance by Newly-elected District Attorney Raúl Torrez for the State. January 17, 2017: District Attorney Raúl Torrez enters the case. While the review underlying this report encompassed available information from all of the above events, it focused on the evidence that the jury considered at trial and the law it was instructed to follow by the court. The focus was on the events and outcome in the trial because, as a matter of both law and practicality, the format, available evidence, and jury instructions in any subsequent trial would be essentially the same as that in the first trial. Accordingly, the following sections of this analysis set forth the evidentiary facts that the jury heard and considered in their deliberations and the law that the court instructed the jury to follow. FACTUAL EVIDENCE CONSIDERED BY THE JURY IN THE TRIAL Mostly in the form of video footage from the various police officers lapel video cameras, the jury was able either to see or at least hear most of the 3-hour standoff with Mr. Boyd. The following summarizes what that video footage showed, as supplemented by testimony from the officers and documents introduced into evidence. At approximately 3:53 p.m. on March 16, 2014, Albuquerque Police Dispatch received a telephone call from 812 Piedra Vista Rd. NE, reporting a homeless camp set up for the past month on a nearby mound in the open space to the east of the residence. At 4:24 p.m., the caller advised that a person had returned to the camp. Open Space Police Officers John McDaniel and Patrick Hernandez were dispatched at 4:30 p.m. to 3

investigate. Officers McDaniel and Hernandez drove to a nearby trail head and walked to the camp. Once there, they made contact with the person, later identified as James Boyd. The officers observed Mr. Boyd lying in a tent but could see only one of his hands. Officer McDaniel told Mr. Boyd to show them his other hand, but Mr. Boyd refused to comply until the officers drew their duty pistols and ordered him to show his other hand. Officer McDaniel then gave repeated orders for Mr. Boyd to come out of the tent. When Mr. Boyd came out of the tent, both officers spotted a folding clip knife attached to Mr. Boyd s pocket. Officer McDaniel told Mr. Boyd to turn around so that he could pat him down for weapons. Mr. Boyd became agitated, put his hands in his pockets, and pulled out two knives in a threatening manner. Both officers backed away from Mr. Boyd and repeatedly ordered him to drop the knives. When Mr. Boyd refused to comply and threatened to kill the officers if they came toward him, they called for backup. Mr. Boyd talked about being in Special Forces and the government and said that he felt the officers were attacking him. After about ten minutes, Mr. Boyd placed both knives in his pockets with the blades still extended. They remained talking until back-up officers and a sergeant arrived. Officers McDaniel and Hernandez were then relieved and redeployed to perimeter positions. In response to the request for back-up, approximately eighteen additional law enforcement officers arrived over the next two hours. Because Mr. Boyd s encampment was located near a residential area and popular hiking trails, some officers were posted to provide a secure perimeter. Several officers arrived with less than lethal means at their disposal, including K-9, Taser shotguns (which emit an electrical charge), bean bag shotguns, and flash-bangs. Video and testimony showed that further attempts to negotiate with Mr. Boyd began immediately and continued. As reported by civilian witnesses and by a number of officers who were present, negotiations with Mr. Boyd were unproductive. Mr. Boyd appeared psychologically unstable and made repeated threats to kill officers if they approached him. At one point, an officer was recorded asking How are we going to resolve this? Tell me. Mr. Boyd replied I don t know if we can. I think someone s going to get hurt, killed, I don t know. When speaking with officers, he would become agitated and pull the knives from his pocket and brandish them. He would then return the knives to his pockets, with the blades still out, where he could quickly grab them again. This behavior was repeated a number of times while officers attempted to reason with him. While he would agree to leave the camp site, he repeatedly refused to give up his knives. According to the statements of the involved officers, the tactical situation evolved until K-9 Officer Scott Weimerskirch, Detective Rick Ingram, and Officer Keith Sandy were the officers closest to Mr. Boyd. Officer Weimerskirch continued to try to negotiate with 4

Mr. Boyd, who continued to threaten officers and refuse to give up his knives. The sun set at 7:15 p.m., and it was getting dark when officers made the decision to take Mr. Boyd into custody. At this point Officer Dominique Perez had been approaching the team, and testified that he observed that Mr. Boyd was becoming more agitated. Officer Perez then moved closer to support the others. At approximately 7:30 p.m., Officer Sandy tossed a flash-bang in front of Mr. Boyd in order to disorient him. The flash-bang bounced into a crevice to the right of Mr. Boyd, where it detonated without having the desired effect on Mr. Boyd. After the flash-bang detonated, Officer Weimerskirch released his K-9 and, at the same time, Detective Ingram fired two rounds from his Taser shotgun. The Taser rounds struck Mr. Boyd but had no apparent effect on him. The dog ran towards Mr. Boyd, but had only brief contact with him before breaking off and focusing on a discarded backpack. Officer Weimerskirch ran forward to gain control of the dog while others repeatedly ordered Mr. Boyd to get on the ground. Officer Sandy moved up to cover Officer Weimerskirch, who was kneeling on the ground trying to control his dog and had not drawn a weapon. Figure 1. Mr. Boyd arms himself with two knives from his pockets as Officer Weimerskirch approaches to control the K-9 and Officer Sandy moves to cover Officer Weimerskirch. As the jurors saw in the video footage, Officers Sandy and Weimerskirch were approximately nine feet in front of and down-slope from Mr. Boyd, at which point Mr. Boyd again pulled out his two knives. 5

Figure 2. Mr. Boyd armed with two knives as Officers Sandy and Weimerskrich are approximately nine feet downslope. Officer Perez, approximately twenty feet from Mr. Boyd, and Officer Sandy, standing over Officer Weimerskirch, testified that they feared that Mr. Boyd was going to stab the officers in front of him, and that they therefore made the decision to use deadly force to protect the lives of the two officers. Almost simultaneously, Officers Perez and Sandy shot Mr. Boyd, who fell to the ground. Officers approached to take Mr. Boyd into custody, and found him still clutching a knife in each hand. Two seconds passed from the time Mr. Boyd pulled out his knives to the first shot. Mr. Boyd died later at the hospital. 6

Figure 3. Officers approach and find Mr. Boyd still holding the two knives. ANALYSIS OF APPLICABLE LAW AND JURY INSTRUCTIONS GOVERNING THE TRIAL After the jury watched video evidence and heard testimony establishing the facts summarized above, they were instructed by the court as to the law underlying the criminal charges against the defendants as well as the law supporting any defenses the defendants may have against the charges. Jurors in any case are bound by oath to follow the court s jury instructions and to consider only the evidence presented at trial. As such, the evidence presented in the trial together with the instructions from the court defined the universe of information the jurors were allowed to consider in their deliberations. Understanding how that universe of information led the jurors to a deadlocked result is central to the question of whether a second trial is warranted, as the jury in any subsequent 7

trial would hear substantially the same evidence and be bound by the same instructions from the court. A second trial against Officers Perez and Sandy would be presided over by the same Second Judicial District Court judge, the Honorable Alisa Hadfield. There is no reason to believe that Judge Hadfield, faced with the same facts and likely the same arguments by counsel, would rule differently on any procedural, evidentiary, or dispositive motions brought in a second trial than she did in the first trial. Further, Judge Hadfield presumably will follow the law of the case doctrine, which in this context can be described as the practice of courts to continue application of earlier decisions in the same proceeding and not to re-decide what has already been decided. In short, the evidentiary and legal landscape of any subsequent trial would essentially mirror that of the first trial. In particular, substantially the same jury instructions would presumably be given in a second trial. The following instructions from the trial directed the jury to consider or not to consider certain information. The first such instruction was for the primary charges against the two defendants, Uniform Jury Instruction 14-210, given to the jury in the following form: For you to find the defendant guilty of second degree murder as charged in Count 1, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime: 1. The defendant killed James Boyd; 2. The defendant knew that his acts created a strong probability of death or great bodily harm to James Boyd; 3. The defendant did not commit justifiable homicide by a public officer or employee, or act in defense of another; 4. This happened in New Mexico on or about the 16 th day of March, 2014. Elements 1, 2, and 4 of this instruction were not contested at trial. The third element, however, which the State had the burden to disprove, embodied the primary defense theory in the case. Because this instruction was given, the court also was required to give the following instruction, UJI 14-5173, a restatement of NMSA 30-2-6, which describes the defense of justifiable homicide by a public officer: Evidence has been presented that the killing of James Boyd was justifiable homicide by a public officer or employee. 8

The killing was justifiable homicide by a public officer or public employee if: 1. At the time of the killing, the defendant was a public officer or employee; and 2. The killing was committed while the defendant was performing his duties as a public officer or employee; and 3. The killing was committed while overcoming the actual resistance of James Boyd to the discharge of the legal duty to arrest James Boyd for the felony crime of aggravated assault on a peace officer; and 4. A reasonable person in the same circumstance as the defendant would have reasonably believed that James Boyd posed a threat of death or great bodily harm to the defendant or another person. Again, the State at trial did not and could not contest the first three elements of this defense. The jurors therefore necessarily focused on the fourth element as the standard for police conduct by which they were to judge the actions of the defendants. The jury also was given UJI 14-5172; Justifiable homicide, defense of another. Although similar to the defense set forth in UJI 14-5173, which is available only to public officers and employees, UJI 14-5172 was presented as a separate defense and thus provided the jury with another standard by which to judge the conduct of Officers Perez and Sandy. Two additional jury instructions, which presumably would be given again in a second trial, further constrained the jury s consideration of the State s evidence and theory. The first, Instruction No. 16, was as follows: The availability of less-lethal tools at the scene is not relevant to your determination of whether the elements of justifiable homicide by a public officer or employee have been met. The second, Instruction No. 18, was as follows: Whether the actions of the person being defended played a role in creating the need to use force is not relevant to your determination of whether the elements of justifiable homicide by a police officer and/or the elements of justifiable homicide in defense of another have been met. 9

ANALYSIS OF JURY S APPLICATION OF THE LAW TO THE EVIDENCE At trial, the defense argued that the killing of James Boyd was both justifiable homicide by a public officer and justifiable homicide as defense of another. Once these defenses had been raised, the burden was on the State to prove beyond a reasonable doubt that the killing of Mr. Boyd was not justifiable. The jury heard testimony that the officers at the scene were informed that Mr. Boyd had a history of violence involving law enforcement and corrections officers, and that he had earlier assaulted two open space officers with knives. During a lengthy stand-off where officers tried to negotiate with him, Mr. Boyd repeatedly told them that he would not be taken into custody, would kill any officer who approached him, and would not give up his knives. Indeed, the defense presented video evidence showing that different officers on 33 separate occasions told Mr. Boyd drop his knives, and that Mr. Boyd on 19 separate occasions told the officers he was going to kill them. In the initial encounter with the open space officers, Mr. Boyd committed the felony offense of aggravated assault upon a peace officer. From that point forward the police were obligated to arrest Mr. Boyd and take him into custody. Under the State s theory as presented at trial, the police officers handled this effort badly and, in so doing, created or at least aggravated the standoff situation with Mr. Boyd. The State further argued that, even after the lengthy standoff, the use of non-lethal means of subduing Mr. Boyd should have been exhausted before the use of firearms was justified. The State s argument under these theories was nullified by the court s jury instructions 16 and 18 set out above. But, even in the absence of these two instructions the jury had ample evidence to consider that undermined these theories. The mistrial outcome, with a vote of 9 to 3 in favor of acquittal, strongly suggests the evidence did not support the State s theory of a policecreated situation. Additionally, although they were told that this was irrelevant to the question of whether the shooting of Mr. Boyd was justified, the jury was shown evidence of multiple attempts by the police to use non-lethal force to subdue Mr. Boyd. Specifically, the jury watched hours of video in which the police were attempting to negotiate with Mr. Boyd, as well as video of the use of a Taser shotgun, a flash-bang, and a police dog as non-lethal tools before any shots were fired. The mistrial outcome again suggests that a majority of the jurors found this evidence to support the defense theory. 10

The final evidence was video footage of the actual shooting and the immediately preceding actions by officers and Mr. Boyd. The State had the burden of proving that, in that moment, neither Officer Perez nor Officer Sandy could have reasonably believed that Mr. Boyd posed a threat of death or great bodily harm to any of the officers present. The jury saw video of Mr. Boyd, within nine feet of and standing at a higher elevation than Officer Weimerskirch and once again pull his knives from his pockets. All of the officers present, including Officers Perez and Sandy, testified that they believed Mr. Boyd posed a threat of death or great bodily harm to either themselves or another officer. On cross examination, the prosecution s own expert conceded that if Mr. Boyd moved his feet, the officers were justified in shooting. The jury considered this evidence in light of the State s burden of proof. Nine members of the jury believed that the State failed to prove beyond a reasonable doubt that the killing of Mr. Boyd was not justified under the law. CONCLUSION The jurors in the trial of the charges against Officers Perez and Sandy deadlocked, resulting in a mistrial. Polled afterwards, nine of the twelve jurors indicated that they favored acquittal of the defendants. In other words, a majority of the jurors believed that the State did not prove beyond a reasonable doubt that the killing of Mr. Boyd was unjustified under the facts and circumstances of this case. Although a second trial would be before a different jury, that jury would consider the same evidence and be obliged to follow substantially the same instructions on the law as were given in the first trial. The review underlying this report has revealed no reason to believe the case against Officers Perez and Sandy could be tried better or more exhaustively at a second trial or that a second jury would reach a different outcome than was reached by the first. Based on this review I have determined that it is not in the interest of justice for the Office of the Second Judicial District Attorney to reinstate charges against Officer Dominique Perez or to pursue a retrial of Officers Perez or Keith Sandy in this matter. All charges currently pending in the Second Judicial District Court will be dismissed. RAÚL TORREZ District Attorney 11