Joshua Gutierrez pleads to voluntary manslaughter for To’Hajiilee shooting

  • Joshua Gutierrez  pleaded guilty ahead of a grand jury indictment
  • The plea sets his sentence at 12 years, but final acceptance is at the discretion of the sentencing judge
  • He pleaded guilty to charges of voluntary manslaughter and discharging a firearm

See past stories or the case write-up

ALBUQUERQUE, N.M. — A To’Hajiilee man pleaded guilty Thursday, Oct. 15, 2020, in federal court to voluntary manslaughter and discharging a firearm for fatally shooting another man in an early-morning incident on March 29, 2020, on the reservation.

Joshua Gutierrez, 21, appeared via Zoom from a Cibola County detention center before Magistrate Judge Paul Briones who accepted Gutierrez’s guilty plea to a criminal information and set sentencing before a District Court judge at an undetermined time.

According to the plea deal, it is binding and Gutierrez will be sentences to 12 years. Final acceptance of the plea was deferred until sentencing by the district court judge, according to the form minutes.

Federal agents charged Gutierrez with murder in the death of Llewyn Platero, 36, on March 30, and Gutierrez has been in detention since.

The Route 66 Casino. Photo by Ken Lund/Flickr. CC-BY-SA

Gutierrez was staying at his girlfriend’s house on March 29 in To’Hajilee when guests of his girlfriend’s father including Platero, identified as “John Doe” in charging documents, and Platero’s brother, identified as “MK” began to scuffle, Assistant U.S. Attorney Allison Jaros said. Jaros signed the plea deal.

“My girlfriend entered the room and told them to leave,” Jaros said, reading aloud the facts of the case from Gutierrez’s point of view. “Shortly thereafter I armed myself with a handgun and began walking down the hallway. John Doe exited the room. As we passed each other in the hallway, John Doe swung at me. I shot John Doe in the chest.”

Gutierrez pointed the firearm at MK and another witness, JL, telling them, “I’ll shoot you too!” according to MK, FBI agent Dibiassi Robinson’s affidavit for a criminal complaint alleged. JL allegedly told MK “he’ll do it!”

MK and JL drove Platero toward Albuquerque, dialing 911 and stopping at the Route 66 Casino, according to Robinson.

Gutierrez “fled” the house on foot, Robinson wrote, and was found at his own home 1 1/2 miles away.

Another man, JG, told Robinson that Gutierrez “confided in him that he had shot DOE,” he wrote.

“JG told GUTIERREZ to ‘lay down, the cops will be here,'” Robinson wrote.

After being read his Miranda rights, Gutierrez allegedly told investigators he shot John Doe because he attempted to “assault” him and that the gun he used was at JG’s house. A .380 caliber pistol and one spent cartridge were found at that house.

Gutierrez’s plea deal waives any claim of self-defense, Jaros said.

When Briones asked Gutierrez if he felt he had enough time to talk about the case with his public defender, Sylvia A. Baiz, Gutierrez said, “Yeah, somewhat.”

Briones asked Gutierrez several additional questions about Baiz’s representation in which Gutierrez responded positively. With the plea deal, Gutierrez waives any appeal attempts except on the grounds of his representation.

Baiz said Gutierrez reached the plea deal ahead of a grand jury indictment deadline, which she said would have brought additional charges against Gutierrez.

Jaros said Platero’s family listened into the hearing, and would speak at sentencing.

Gutierrez’s next hearing was not scheduled at the conclusion of the plea hearing.

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Wheeler Cowperthwaite contributed to this report.

Continue reading “Joshua Gutierrez pleads to voluntary manslaughter for To’Hajiilee shooting”

Appeals court suggests no double jeopardy in Scott Bachicha case

• A Court of Appeals judge suggested the appeal be dismissed as Scott Bachicha does not face a double jeopardy violation
• Judge Brett Loveless stayed the case pending the appeal
• The case has been going on for over three years and was initially dismissed after a prosecutor missed deadlines

ALBUQUERQUE, N.M. — The Court of Appeals filed a proposed disposition that Scott Wade Bachicha’s right against double jeopardy would not be violated if prosecutors moved forward with a firearms enhancement in the involuntary manslaughter case against him.

Scott Bachicha

In a proposed summary disposition filed on Sept. 10, 2020, Court of Appeals Judge Miles Hanisee wrote that the New Mexico Supreme Court rejected the basis of the double jeopardy claim Ramczyk used in State v Baroz, where the supreme court found that a firearms enhancement did not violate double jeopardy even though the use of a firearm is an element of the charge.

“Given the holding in Baroz, we propose that the firearm enhancement in this case does not violate double jeopardy,” Hanisee wrote. “Accordingly, we propose to reverse the district court’s order dismissing the firearm enhancement.”

District Judge Daniel Ramczyk dismissed the firearms enhancement in an order on Nov. 20, 2019, following a hearing. Prosecutors James Grayson and Mia Rubin then filed an interlocutory appeal of his decision on Jan. 29, 2020. The case has been stayed since the appeal was filed.

According to a flow chart provided by the Court of Appeals, Bachicha’s attorney has 20 days to file a memo in response. The court could then issue another notice or issue an opinion. Once an opinion is issued, his attorney could file a motion for a rehearing.

The case

Bachicha, 35, allegedly shot and killed girlfriend Mindy Stuart, 30, with a shotgun blast to the neck on April 16, 2017. In court documents, Bachicha’s attorneys argue the shooting was purely accidental but Albuquerque Police Department detectives initially charged him with an open count of murder, followed by a grand jury indictment on a charge of first-degree murder on May 2, 2017. (Read more details about the case in the write-up.)

After Second Judicial District prosecutor John Duran missed a series of deadlines, he dismissed the case without prejudice on Feb. 12, 2018 and then brought a new indictment on charges of involuntary manslaughter with a firearm enhancement and tampering with evidence, on Dec. 4, 2018. He left the case after Bachicha’s attorney tried to call him as a witness.

On April 17, 2020, District Judge Brett Loveless granted a stay in the case, requested by Rubin, pending the outcome of the appeal on the firearms enhancement.

Among the motions that are now stayed pending the appeal is a speedy trial motion Maestas filed on Jan. 10, 2020.

“In this case, the nearly three-year delay from Mr. Bachicha’s arrest on April 16, 2017 and charging to the present trial setting of March 26, 2020 (total: 1,066 days) is simply unconstitutional,” he wrote.

Also pending is a motion to suppress statements as involuntary.

No further hearings are scheduled in either the appeal or in the case proper.

Continue reading “Appeals court suggests no double jeopardy in Scott Bachicha case”

Judge rules Trudy Martinez has no right to in-person pre-sentence interview

  • Judge William Johnson wrote Trudy Martinez has no right to an in-person interview with the probation officers preparing her pre-sentence report
  • Martinez pleaded guilty in March 2020 to voluntary manslaughter and a firearm enhancement
  • Alonzo Padilla’s motion does not appear in court records and he did not respond to questions about the possible improper sealing of his motion

See the case write-up

ALBUQUERQUE, N.M. — Trudy Martinez, 29, of Twin Lakes, has no right to an in-person interview with the federal probation officers tasked with preparing a pre-sentence report and determining the range of her suggested sentence, a federal district court judge ruled.

Trudy Martinez

Martinez pleaded guilty on March 16, 2020, to voluntary manslaughter and a firearms enhancement for shooting her sister-in-law Cornelia McCabe with an AR-15 on April 26, 2019. She faces a sentence of 10 to 15 years.

In an Aug. 18, 2020 order, District Judge William Johnson wrote he would grant Alonzo Padilla‘s motion to continue sentencing the case, but only because there was good cause and not because he agreed with Padilla’s position that Martinez was entitled to an in-person interview. He continued sentencing until Nov. 30, 2020.

“To be clear, Defendant is not entitled to an in-person interview with Probation for the purposes of completing her PSR,” Johnson wrote. “In fact, the Court finds her insistence on an in-person interview to be unreasonable, especially when she cites no legal authority which would require an in person interview, or even that an interview is required at all.”

Padilla filed a motion on July 21, 2020, and in it said that he wanted a 90-day continuance “in order for an in-person presentence interview to be conducted given ‘the serious nature of this case,'” according to a response in opposition filed on July 23, 2020, by prosecutor Thomas Aliberti.

Padilla’s motion was numbered 36 and does not appear in the court docket. It also does not appear that Padilla filed a motion, or for permission to seal his motion to continue the case. Padilla, a public defender, did not return a request for information about his motion.

Writing in New Mexico In Depth, Jeff Proctor illuminated a pattern and practice by prosecutors and public defenders to improperly seal documents in federal criminal cases, contrary to local and federal rules on sealing procedures.

“Judges, not lawyers, are supposed to decide which documents are made available to the public and which should remain secret through an established protocol based in part on decades of case law: Attorneys must submit a written request asking a judge to seal records and a judge must consent before records are sealed,” Proctor wrote.

At the heart of Padilla’s request, which may be sealed in violation of court rules, is the demand that she be interviewed in person by probation. In-person interviews are problematic because of the coronavirus pandemic, according to court filings.

“The Court has no way of determining how long the pandemic and the corresponding ban on in-person visits at the Santa Fe Detention Center will last, or when an in-person interview can be safely conducted in the foreseeable future.” Johnson wrote.

Probation officers are “routinely” interviewing people in other criminal cases, leading Johnson to be at a “total loss to understand how Defendant is prejudiced if she’s interviewed by Probation with her
counsel participating utilizing videoconferencing or telephonic equipment.”

Johnson wrote he was admonishing Padilla that he will not grant further continuances solely because she wants an in-person interview.

“The PSR will be completed, with or without Defendant’s cooperation,” Johnson wrote. “The Court will consider Defendant’s ability to participate waived if she refuses to cooperate unless the interview is conducted in-person.”

Johnson wrote that Padilla also asked for more time to interview members of Martinez’s family, on the Navajo Nation, who are disproportionately impacted by the pandemic.

Sentencing is currently set for 9:30 a.m., Nov. 30 in the Cimarron courtroom in Albuquerque and will likely be available via video conference.

According to the plea deal, Martinez intentionally killed McCabe during a sudden quarrel and therefore, without malice.

One of McCabe’s children told investigators she witnessed her mother’s killing and that Martinez first pushed her mother before going back to her truck to retrieve an AR-15 carbine, which she then loaded in the house, FBI Agent Jeffrey Wright wrote in an affidavit for an arrest warrant. McCabe is referred to as “Jane Doe” in his affidavit.

“DOE attempted to take the rifle away from Martinez,” Wright wrote. “As DOE approached MARTINEZ at the entrance to the Hogan, MARTINEZ pointed the rifle at DOE and fired the weapon two times. The first round missed DOE, but the second round struck DOE in the abdomen, after which DOE fell to the floor.”

See the case files on Google Drive or on Document Cloud or See the full case write-up.

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Judge stays ABQ involuntary manslaughter case for prosecution appeal

• Prosecutor John Duran initially dismissed murder charges after he missed a series of deadlines
• Judge Brett Loveless overruled the order of the previous judge in the case to allow the case to continue, even though the case has been going on for over three years
Scott Wade Bachicha is now facing a charge of involuntary manslaughter

See the full case write-up

ALBUQUERQUE, N.M. — After years of delays that lead to an initial dismissal of a murder charge, an Albuquerque man will have to wait even longer for his day in court after a judge ordered a stay in his case while prosecutors appeal a dismissal of a firearms enhancement.

Scott Bachicha

Scott Wade Bachicha, 35, allegedly shot and killed girlfriend Mindy Stuart, 30, with a shotgun blast to the neck on April 16, 2017. In court documents, Bachicha’s attorneys argue the shooting was purely accidental but Albuquerque Police Department detectives initially charged him with an open count of murder, followed by a grand jury indictment on a charge of first-degree murder on May 2, 2017. (Read more details about the case in the write-up.)

Second Judicial District prosecutor John Duran missed a series of deadlines and dismissed the case without prejudice on Feb. 12, 2018 and then brought a new indictment on charges of involuntary manslaughter with a firearm enhancement and tampering with evidence, on Dec. 4, 2018.

Bachicha’s attorney, Raymond Maestas, filed a motion to dismiss the firearms enhancement on Oct. 8, 2019. District Judge Daniel Ramczyk dismissed the firearms enhancement in an order on Nov. 20, 2019, following a hearing. Maestas also tried to call Duran as a witness and have the Second Judicial District Attorney’s Office removed from the case.

After Ramczyk dismissed the firearms enhancement, prosecutor Mia Ulibarri filed a motion for Ramczyk to reconsider his dismissal of the firearms enhancement on Nov. 18, 2019. He denied that request and prosecutors James Grayson and Mia Rubin then filed an interlocutory appeal of his decision on Jan. 29, 2020.

On Jan. 31, 2020, Rubin filed a motion to stay the case pending the appeal of the firearms enhancement.

Ramczyk heard that motion on Feb. 12, 2020 and orally denied the motion, but never filed a written order. On Feb. 21, 2020, Ramczyk recused himself from the case, but listed no reason.

District Judge Brett Loveless was assigned to the case on Feb. 27, 2020, after three other judges recused themselves and on March 11, 2020, Meastas again argued against the stay.

On April 17, 2020, Loveless granted the motion to stay the appeal. According to the docket, all proceedings are suspended.

“Inefficiencies may result from ruling on Defendant’s pending motions as they may dispose of the case without approval from or knowledge of the appellate court,” Loveless wrote. “This Court will not rule on those matters while the appeal is pending.”

Among the motions that are now stayed pending the appeal is a speedy trial motion Maestas filed on Jan. 10, 2020.

“In this case, the nearly three-year delay from Mr. Bachicha’s arrest on April 16, 2017 and charging to the present trial setting of March 26, 2020 (total: 1,066 days) is simply unconstitutional,” he wrote.

Also pending is a motion to suppress statements as involuntary.

No hearings or pleadings have been filed in the prosecution’s appeal of the firearm enhancement dismissal.

Continue reading “Judge stays ABQ involuntary manslaughter case for prosecution appeal”

Woman pleads guilty in 2019 Twin Lakes killing

  • Trudy Martinez pleaded guilty to voluntary manslaughter and a firearm enhancement
  • Martinez shot her sister-in-law, Cornelia McCabe, in the abdomen in Twin Lakes, in front of at least one of the woman’s children
  • She faces a minimum sentence of 10 years and a max of 15 years
  • Sentencing is tentatively set for Aug. 24, 2020

See the case write-up

ALBUQUERQUE, N.M. — A Twin Lakes woman pleaded guilty, March 16, 2020, to voluntary manslaughter and a firearm enhancement for shooting and killing her sister-in-law with an AR-15 in April 2019.

mug of Trudy Martinez
Trudy Martinez

Trudy Martinez, 29, of Twin Lakes, will spend at least 10 years in prison for killing Cornelia McCabe, 36, her sister-in-law. She is identified in court documents as C.M.

Martinez pleaded guilty in front of federal Magistrate Judge Paul Briones who deferred acceptance of the plea to the district judge sentencing her in the case, according to the minutes.

When she was first arrested, Federal Bureau of Investigations agents charged her with an open count of murder.

Federal prosecutor Thomas Aliberti signed the plea deal and filed the criminal information charging her with voluntary manslaughter and the firearm enhancement. Voluntary manslaughter carries a maximum sentence of 15 years while the firearm enhancement carries a minimum 10-year sentence.

According to the plea deal, Martinez intentionally killed McCabe during a sudden quarrel and therefore, without malice.

One of McCabe’s children told investigators she witnessed her mother’s killing and that Martinez first pushed her mother before going back to her truck to retrieve an AR-15 carbine, which she then loaded in the house, FBI Agent Jeffrey Wright wrote in an affidavit for an arrest warrant. McCabe is referred to as “Jane Doe” in his affidavit.

“DOE attempted to take the rifle away from Martinez,” Wright wrote. “As DOE approached MARTINEZ at the entrance to the Hogan, MARTINEZ pointed the rifle at DOE and fired the weapon two times. The first round missed DOE, but the second round struck DOE in the abdomen, after which DOE fell to the floor.”

Sentencing is tentatively scheduled for Aug. 24, 2020, at 10 a.m. in the Cimarron Courtroom in Albuquerque in front of District Court Judge William Johnson. It was moved to August after Martinez’s attorney, Irma Rivas, filed an unopposed motion to push out the sentencing date because Martinez wants her pretrial interview to be in person but the coronavirus pandemic has eliminated in-person visits at the Santa Fe County Detention Center, where she is being housed.

Continue reading “Woman pleads guilty in 2019 Twin Lakes killing”

Trudy Martinez: Cornelia McCabe — 4-26-2019

Suspect: Trudy Martinez

Victim: Cornelia McCabe, 36

Charges: Open count of murder pleaded down to voluntary manslaughter

Status: Guilty plea to voluntary manslaughter with a firearm enhancement

Date of incident: April 26, 2019

Investigative agencies: Federal Bureau of Investigations

Location: Twin Lakes, McKinley County, Navajo Nation

Relationship to victim: Sister-in-law

Federal Magistrate case number: 19-mj-01109

Federal District case number: 20-cr-00972

Prosecutor: Thomas Aliberti

Prosecuting agency: U.S. Attorney’s Office

Defense attorney: Alonzo Padilla

 

Summary

On April 26, 2019, Trudy Martinez fatally shot her sister-in-law, Cornelia McCabe, 36, in the abdomen with an AR-15 before fleeing with her children, according to court documents. On May 9, FBI agents arrested her in Gallup on a murder warrant.

On March 16, 2020, Martinez pleaded guilty to voluntary manslaughter and a firearms enhancement. There is no agreement as to the sentence. Sentencing is tentatively set for Aug. 24, 2020 in Albuquerque.

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The shooting

On April 26, 2019, Trudy Martinez, 28, of Twin Lakes, allegedly shot her sister-in-law, identified in court documents as McCabe, 36, once in the abdomen with an AR-15 assault-style rifle in her Twin Lakes home, Federal Bureau of Investigations Agent Jeffrey Wright wrote in an affidavit for an arrest warrant dated April 30.

mug shot of Trudy Martinez
Trudy Martinez

Investigators talked to McCabe’s daughter who told them she came home from school and saw Martinez outside the house, cleaning up the yard, before she went into the house, Wright wrote.

“She was upset and complained that no one was helping her clean,” Wright wrote. “DOE was inside watching over her children. C.M. observed MARTINEZ enter the home and push Doe. The two began to have a physical altercation. Martinez yelled at DOE and DOE’s children to leave the house.”

McCabe saw Martinez walk outside and get the carbine from a truck parked nearby. Martinez allegedly brought it into the house and loaded it, he wrote.

“DOE attempted to take the rifle away from Martinez,” Wright wrote. “As DOE approached MARTINEZ at the entrance to the Hogan, MARTINEZ pointed the rifle at DOE and fired the weapon two times. The first round missed DOE, but the second round struck DOE in the abdomen, after which DOE fell to the floor.”

Martinez allegedly pointed the gun at the girl and yelled something at her. She ran next door to her grandmother’s house and the girl’s aunt, referred to as E.T., went back to the house with her to take care of McCabe, he wrote.

In her own interview, E.T. told investigators that she was at her house making jewelry with her husband. Sometime during the evening, one of the children ran to her and said that “Trudy shot my mom,” he wrote.

“The children explained that their mother (DOE) was laying on the floor in her house,” Wright wrote. “E.T. did not hear a gunshot, but noted that music was playing while she worked on the jewelry.”

When she went to the neighboring house, McCabe was sitting against a bed, awake and talking, he wrote.

“DOE stated ‘Trudy shot me,'” he wrote. “DOE than said that she needed to go to the hospital.”

Near Twin Lakes, NM on U.S. Highway 491. Photo by Steve Lyon/Flickr. CC BY-SA

E.T. told investigators that Martinez was in the attached home, shouting “What the fuck are you looking at?!” Wright wrote.

“She then stated to E.T., ‘she was beating me up,'” he wrote. “MARTINEZ explained to E.T. the altercation originated with the trash.”

E.T. then told other family members to get the truck, which they drove to McCabe’s house. They loaded her into it and drove to the gas station in Tolikai to meet the ambulance, he wrote.

“E.T. noted that approximately two weeks prior to the shooting, MARTINEZ was outside her home shooting a gun,” Wright wrote.

McCabe’s daughter also told the investigators the carbine used was the same kind that police officers were carrying at the crime scene and that Martinez would shoot the rifle at the back of the house.

That same day, investigators spoke to G.M., identified as Martinez’s brother. He told them Martinez called him after the shooting.

“MARTINEZ told G.M. that she had ‘done something wrong,'” Wright wrote. “G.M. asked MARTINEZ what was it that she had done. MARTINEZ responded that she had ‘shot Corn.’ ‘Corn’ is a nickname used by DOE.”

Martinez’s niece, K.M., said she had previously talked to Martinez about the AR-15 and that she had posted a photo of herself holding it on Facebook.

Fugitive

While Wright only applied for arrest warrant on April 30, 2019, the following day, the FBI offered a $1,000 reward for information on Martinez’s whereabouts.

FBI spokesman Frank Fisher wrote that Martinez fled from the scene of the killing with her children, a 10-year-old girl, a 9-year-old girl and a 5-year-old boy.

“She should be considered armed and dangerous,” Fisher wrote.

FBI agents arrested her in Gallup on May 9, 2019, according to a press release.

Court proceedings

Arraignment and detention

On May 14, she was ordered held without bail by federal Magistrate Judge Steven Yarbrough and she waived a preliminary hearing.

Martinez waived a preliminary hearing and grand jury presentment seven times, the last on Feb. 21, 2020.

Plea

On March 16, 2020, Martinez pleaded guilty to a criminal information charging her with voluntary manslaughter along with a firearms enhancement.

Mug shot of Trudy Martinez from the Santa Fe County Detention Center
Trudy Martinez

Voluntary manslaughter carries a maximum sentence of 15 years while the firearms enhancement carries a minimum sentence of 10 years.

Federal prosecutor Thomas Aliberti signed the plea deal and and it was accepted by federal Magistrate Judge Paul Briones, although final acceptance was deferred until sentencing by a district court judge, according to the minutes.

According to the plea deal, Martinez intentionally killed McCabe during a sudden quarrel and therefore, without malice.

Martinez’s sentence is at the discretion of the sentencing judge but prosecutors agreed she is entitled to multiple reductions in the sentencing guidelines because she accepted responsibility.

Both prosecutors and Martinez’s defense attorney can argue for whatever sentence they want, according to the plea.

Pending sentencing

Sentencing was set for Aug. 24, 2020, at 10 a.m. in the Cimarron Courtroom in Albuquerque in front of District Court Judge William Johnson.

On April 13, 2020, Martinez’s attorney, Irma Rivas, filed an unopposed motion to push out the sentencing date because Martinez wants her pretrial interview to be in person but the coronavirus pandemic has eliminated in-person visits at the Santa Fe County Detention Center, where she is being housed.

On July 21, her new attorney, Alonzo Padilla, appears to have filed a motion under seal to push out her sentencing until probation officers could interview her in person.

District Judge William Johnson admonished Padilla and wrote that Martinez has no right to an in-person interview and set sentencing in the case for 9:30 a.m., Nov. 30, 2020.

Editor’s note: An earlier version of this story referred to victim Cornelia McCabe as C.M., the initials used in court documents, because her name was not available when the story first published.

See the case documents on Google Drive or Document Cloud

Scott Wade Bachicha: Mindy Stuart — 4-16-2017

Suspect: Scott Wade Bachicha

Victim: Mindy Stuart, 30

Charges: Initially first-degree murder, charge dismissed; re-indicted as involuntary manslaughter and tampering with evidence

Status: Pending

Date of incident: April 16, 2017

Agency: Albuquerque Police Department

Location: 2437 Madeira NE, Albuquerque

Magistrate case number: T-4-FR-2017-002202

District case for murder (dismissed): D-202-CR-201701625

District case for involuntary manslaughter: D-202-CR-201804094

Appeal case for firearms enhancement: A-1-CA-3878

Judicial district: Second judicial district

Prosecutors: John Duran, Mia Ulibarri, James GraysonMia Rubin

Prosecuting agency: Second Judicial District Attorney’s Office

Summary

On April 16, 2017, Scott Wade Bachicha, 32, allegedly shot live-in girlfriend Mindy Stuart, 30, in the neck with a shotgun, killing her.

During an interview with a police detective, Bachicha allegedly said the gun went off accidentally, he panicked and threw it on a near-by roof.

Despite his claims of the killing being an accident, he was charged in Albuquerque Metro Court with an open count of murder.

On May 2, 2017, he was indicted by a grand jury for first-degree murder and tampering with evidence. On Feb. 12, 2018, prosecutor John Duran dismissed the case without prejudice after the judge denied a motion to extend the deadlines for scientific evidence that same day.

According to a defense motion to dismiss, the Albuquerque Police Department failed to analyze the ballistics evidence and prosecutors refused to let a defense expert analyze first, because APD wanted the first chance.

On Dec. 4, 2018, he was indicted, this time for involuntary manslaughter and tampering with evidence and a jury trial is tentatively set for March 16, 2020.

While first-degree murder carried a life sentence, involuntary manslaughter and tampering with evidence are fourth-degree felonies with a maximum sentence, each, of 18 months.

Trial on the charge of involuntary manslaughter was set for March 16, 2020.

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The incident

On April 17, 2017, Albuquerque Police Department officers were dispatched to a house in the 2400 block of Madeira NE in reference to a shooting, Detective Andrea Ortiz wrote in a criminal complaint for Scott Wade Bachicha’s arrest.

Shortly after officers arrived at the scene, they arrested Bachicha on a count of open murder for allegedly killing his live-in girlfriend, Mindy Stuart.

Officer Jacob Perea, dispatched at 6:35, was flagged down by three neighbors standing in front of the house.

Scott Bachicha

The neighbors, Fletcher Johnson, Tamika Johnson and Brian Garcia, told Perea that they had been told to come to the house by Bachicha. He had allegedly told them someone shot Stuart.

“Officer Perea made entry into the home and he advised he observed broken glass and blood near the front entrance,” Ortiz wrote. “The officer advised he observed Scott Wade in the living room and Scott was covered in blood. Officer Perea advised he saw a female who was lying on a mattress that had been placed in the living room.”

Stuart had a large amount of blood pooling under her head.

“Brian Garcia told the officer that Scott Wade had moved Mindy Stuart from the couch in the living room to the mattress before the arrival of officers,” Ortiz wrote.

Perea searched the house and found a Glock pistol case and two shotgun shells near Stuart.

“Officer Perea advised he saw a large fist size hole in the sheet rock near the victim,” Ortiz wrote. “This hole had blood around it. Rescue arrived on scene and pronounced the victim deceased.”

Perea read Bachicha his Miranda rights, including his right to remain silent, and Bachicha allegedly agreed to talk to him and alleged that that someone shot Stuart.

“Scott told him he and Mindy had been watching a movie and he fell asleep,” Ortiz wrote. “He was awakened by Mindy shouting ‘What the fuck?’ and he then heard a loud bang. Scott advised he saw a shadowy figure leaving the home.”

Several people who were outside when they heard the gun go off said they saw no one fleeing the area or from Bachicha’s house.

“The only person they saw exiting the residence was a male subject who appeared to be covered in blood,” Ortiz wrote.

Ortiz walked through the house, after getting a search warrant for it.

“I noticed several blood drops throughout the residence,” Ortiz wrote. “The back door facing north appeared to have blood on the door handle. On the exterior side of the door had smudge marks also appearing to be blood.”

He then went to the Albuquerque Police station to interview Bachicha, who was in custody. He read Bachicha his Miranda rights again and again, Bachicha allegedly agreed to talk.

“Scott advised he and his ‘wife’ Mindy returned to their residence after Easter celebration,” Ortiz wrote. “He fell asleep on a mattress located in the living room while his wife was watching television.”

Bachicha allegedly said he woke when he heard a gunshot.

“He turned toward the couch and noticed Mindy was bleeding from her head,” Ortiz wrote. “He saw a dark shadow exit his residence out his front door. Scott couldn’t locate his cell phone and was in a panic, exited his residence, and ran to Brian’s residence requesting they telephone 911.”

After Ortiz alleged that Garcia told officers that Bachicha had recently bought a shotgun, that they found shotgun shells at the house and that no one was seen leaving the house after the gunshot went off, Bachicha allegedly began to cry.

“(He) advised he was messing around with his shotgun while seated on the mattress in the living room,” Ortiz wrote. “Mindy was seated on the couch directly behind him. As Scott manipulated the shotgun it suddenly discharged. Scott turned around and saw Mindy had been shot on the right side of her neck.”

Bachicha allegedly told Ortiz that he panicked, held Stuart in his arms, but knew that she was already dead, then took the shotgun and the spent shells and left out the back door.

“He threw the shotgun and the shotgun shell on the roof of the building directly west of his residence and across his
back alley,” Ortiz wrote. “Scott returned inside his residence and ran out his front door to request assistance from his neighbor Brian. He advised he did not wipe down the shotgun. The interview was concluded.”

PC - Scott Bachicha - 4-17-2017

Dismissed and re-indicted

After the Albuquerque Police Department failed to test ballistics by deadlines imposed by the court and the prosecutor, John Duran, refused to allow a defense expert to test the evidence before the Albuquerque Police Department, Bachicha’s defense attorney, Christopher Dodd, filed a motion to dismiss the case on Feb. 7, 2018.

Following a hearing five days later, Duran dismissed the entire case against Bachicha without prejudice, meaning the charges could be re-filed.

Duran did just that, after securing a new indictment, this time on charges of involuntary manslaughter and tampering with evidence, on Dec. 4, 2018.

Although prosecutors did not write their rationale for either dismissing the murder case or for bringing the new charge of involuntary manslaughter, according to a July 18, 2019 motion to disqualify the Second Judicial District Attorney’s Office from prosecuting the case, Detective Andrea Ortiz previously testified that the shooting had an “upward shot trajectory” and that would match Bachicha’s statements that the shooting was accidental.

“The investigation (criminalistics and OMI) revealed an upward trajectory of as much as 19 degrees,” defense attorney Raymond Maestas wrote.

Maestas was trying to get the the Second Judicial District Attorney’s Office removed from the case because, he alleged, a witness gave a statement to Duran that he had not previously disclosed and he wanted to call Duran as a witness.

He withdrew that motion on Aug. 30, 2019, after prosecutors wrote that they would not call that witness.

The case had been set for a tentative trial of March 16, 2020.

Dismissal of firearms enhancement

On Oct. 8, 2019, Meastas filed a motion to dismiss the firearm enhancement accompanying the involuntary manslaughter charge.

He wrote that the firearms enhancement is not supposed to be applied to an involuntary manslaughter charge, per a 1993 decision by the New Mexico Court of Appeals in State v. Franklin.

In that case, the Appeals Court found that the firearms enhancement was subsumed within the charge involuntary manslaughter and keeping the enhancement would constitute double jeopardy.

Prosecutor Mia Ulibarri wrote in a response that, in this case, the firearms enhancement didn’t constitute double jeopardy because ” there is no charge by the State for the misdemeanor of negligent use of a firearm.”

District Judge Daniel Ramczyk dismissed the firearms enhancement in an order on Nov. 20, 2019, following a hearing.

After Ramczyk dismissed the firearms enhancement, Ulibarri filed a motion for Ramczyk to reconsider his dismissal of the firearms enhancement on Nov. 18, 2019. He denied that request and prosecutors James Grayson and Mia Rubin then filed an interlocutory appeal of his decision on Jan. 29, 2020.

In a docketing statement, Grayson wrote that Ramczyk should have been following precedent set in State v. Baroz, but did not state what precedent in Baroz the judge was supposed to follow.

Case stayed pending prosecution’s appeal

On Jan. 31, 2020, Rubin filed a motion to stay the case pending the appeal of the firearms enhancement.

Ramczyk heard that motion on Feb. 12, 2020 and orally denied the motion, but never filed a written order. On Feb. 21, 2020, Ramczyk recused himself from the case, but listed no reason.

District Judge Brett Loveless was assigned to the case on Feb. 27, 2020, after three other judges recused themselves and on March 11, Meastas again argued against the stay.

On April 17, 2020, Loveless granted the motion to stay the appeal.

“Inefficiencies may result from ruling on Defendant’s pending motions as they may dispose of the case without approval from or knowledge of the appellate court,” Loveless wrote. “This Court will not rule on those matters while the appeal is pending.”

Among the motions that are now stayed pending the appeal is a speedy trial motion Maestas filed on Jan. 10, 2020.

“In this case, the nearly three-year delay from Mr. Bachicha’s arrest on April 16, 2017 and charging to the present trial setting of March 26, 2020 (total: 1,066 days) is simply unconstitutional,” he wrote.

Also pending is a motion to suppress statements as involuntary.

No hearings or pleadings have been filed in the prosecution’s appeal of the firearm enhancement dismissal.

Appeals court proposes overturning dismissal

In a proposed summary disposition filed on Sept. 10, 2020, Court of Appeals Judge Miles Hanisee wrote that the New Mexico Supreme Court rejected the basis of the double jeopardy claim Ramczyk used in State v Baroz, where the supreme court found that a firearms enhancement did not violate double jeopardy even though the use of a firearm is an element of the charge.

“Given the holding in Baroz, we propose that the firearm enhancement in this case does not violate double jeopardy,” Hanisee wrote. “Accordingly, we propose to reverse the district court’s order dismissing the firearm enhancement.”

According to a flow chart provided by the Court of Appeals, Bachicha’s attorney has 20 days to file a memo in response. The court could then issue another notice or issue an opinion. Once an opinion is issued, his attorney could file a motion for a rehearing.

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