BERNALILLO, N.M. — A 35-year-old Cuba man received a four-year sentence, June 17, 2019, for beating to death his roommate with a baseball bat in 2017.
Kimsey Barboan
Kimsey Barboan pleaded guilty in Bernalillo District Court to charges of voluntary manslaughter, unlawful taking of a vehicle and DWI third offense.
According to court documents, Barboan beat Anthony Martinez, 61, of Cuba on Dec. 16, 2017, and left him for dead in their home, where he was discovered two days later by a friend who was looking for work.
Because of the time he already spent in custody (1.5 years), he only has to serve just over two years in prison.
According to the plea, Barboan’s killing of Martinez was done as “a result of sufficient provocation.” Court documents do not state what Martinez did to sufficiently provoke Barboan.
ALBUQUERQUE, N.M. — A 28-year-old Shiprock man pleaded guilty to second-degree murder, Oct. 31, 2019, for the stabbing death of a 32-year-old Navajo Nation tribal member at the beginning of the year.
According to the plea deal, Joe admitted killed Brett Micah Morgan by stabbing him 10 times in the chest and neck on Jan. 3, 2019.
The plea deal, signed off on by federal prosecutor David Cowen, states Joe would only receive a 15-year sentence, although any time spent on supervised release after serving a prison sentence would be up to the sentencing judge.
According to the minutes from the plea hearing, Magistrate Judge Kirtan Khalsa accepted the plea but deferred final acceptance to the “final disposition hearing” in front of a district court judge.
On Aug. 1, 2019, John Lodgepole allegedly went to the house of a woman he knew in Nenahnezad, near Fruitland, and became verbally abusive toward her and Michaelene Warren, 43. Later that night he allegedly came back, threw the Warren to the ground and kicked her in the head multiple times. He staved the back of her head in with a cinderblock and beat her ankles with a cane, according to the plea deal. Investigators found a bloody bat near the scene, according to an affidavit for a criminal complaint.
San Juan County Sheriff’s deputies found Lodgepole in the parking lot of a chapter house across the street from the house, covered in blood. He was initially charged with murder, according to the complaint. The case was sealed, despite Lodgepole’s arrest, according to the court docket.
On Oct. 9, 2019, a federal grand jury indicted Lodgepole on a charge of voluntary manslaughter and he was arraigned on Oct. 25. The case was unsealed a day earlier.
On Nov. 3, 2020, Lodgepole pleaded guilty to a single count of voluntary manslaughter. The plea deal sets his sentence at 6 to 8 years.
On Aug. 24, 2021, District Judge Kea Riggs sentenced to 7 years in prison. Lodgepole will spend an additional three years on supervised probation after he is released from prison.
(Note: This story has been updated to reflect the victim’s name)
San Juan County Sheriff’s deputies responded on Aug. 1, 2019, to a house south of the Chapter House in Nenahnezad, after the owner called 911, Federal Bureau of Investigations Agent Jordan Spaeth wrote in an affidavit for a criminal complaint.
A view from the Indian Service Route 36 near Nenahnezad. Photo by Gene Selkov/Flickr.
The homeowner, identified by her initials of E.L., told deputies she was drinking with the Michaelene Warren, identified in court documents as M.W. (YOB: 1975) or Jane Doe, when John Lodgepole threw Warren to the ground and started kicking her in the head, he wrote.
“Lodgepole then fled the residence and E.L. contacted 911,” Spaeth wrote. “Deputies were notified a short time after arrival that Jane Doe was pronounced dead at the scene by Emergency Medical Personnel.”
Deputies found Lodgepole in the parking lot of the chapter house. He was covered in blood, he wrote.
Deputies detained him and Navajo Police officers arrested him when they arrived on scene, he wrote.
When investigators spoke to E.L., she said Lodgepole arrived at the house earlier that night and was verbally abusive toward her and Warren. As the night went on, he threw Warren to the ground and kicked her in the head.
Outside the house, investigators found a bloody metal baseball bat and shoe prints near where Warren’s body was found and resembled the soles of Lodgepole’s shoes.
The field investigator with the Office of the Medical Investigator found three wounds to Warren’s head, including one that likely fractured her skull.
Spaeth charged Lodgepole with murder.
San Juan County Sheriff’s Corporal C. Decker wrote in an incident report that medics found Warren was dead when they arrived and it appeared brain matter coming out of the side of her head.
The woman at the house kept telling Decker that “he wouldn’t stop kicking her,” then went to find Lodgepole at the Chapter House, Decker wrote.
The plea deal offers a slightly different set of facts than what investigators initially found.
Lodgepole wrote in the plea deal that he punched his mother’s friend in the head and face 10 times because she called him names and threatened him. After throwing her to the ground, he took a cinderblock and “smashed the back of her head.”
“When I noticed that Jane Doe was still breathing, I took the block, placed it under her feet and used a cane to strike her ankles for approximately five or six times,” according to the plea deal.
“There were broken skull bones, bleeding around the brain, bruises of the brain and swelling of the brain,” they wrote. “Other injuries included scrapes and bruises of the extremities and scrapes of the torso.”
Her blood-alcohol content was 0.25.
Indictment
Although Lodgepole was arrested on Aug. 1, the court docket does not show that he was ever arraigned or assigned a lawyer until two months later, when prosecutors indicted him, on Oct. 9.
The complaint for his arrest, and the entire case, appears to have been sealed until Oct. 24, 2019, the day before he was arraigned on the indicted charge of voluntary manslaughter, a downgrade from murder.
Nothing in the court record indicates why Lodgepole would have been arrested, and held without bail, without being arraigned or assigned an attorney, or why the case would have been sealed, even though he was arrested.
Magistrate Judge Steven Yarbrough accepted the plea, although he deferred final acceptance until sentencing in front of a district court judge, according to a plea minutes sheet.
Lodgepole wrote in a plea deal that he punched his mother’s friend in the head and face 10 times because she called him names and threatened him. After throwing her to the ground, he took a cinderblock and “smashed the back of her head.”
“When I noticed that Jane Doe was still breathing, I took the block, placed it under her feet and used a cane to strike her ankles for approximately five or six times,” according to the plea deal.
The federal charge of voluntary manslaughter is defined as the unlawful killing of someone without malice and “upon a sudden quarrel or heat of passion.” It is a downgrade from first- and second-degree murder.
According to the indictment, Lodgepole killed Warren “upon a sudden quarrel and heat of passion, and therefore without malice.”
Lodgepole was initially charged with murder by Spaeth.
According to federal law, first-degree murder is done with “malice aforethought” and is “every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing.”
In the plea deal, Lodgepole said he took the cinderblock he used to bash in the back of Warren’s head, put it under the legs and beat her ankles with a cane after he saw she was still breathing.
According to federal sentencing guidelines, a judge can increase a sentence beyond the sentencing guidelines if the perpetrator’s behavior was “unusually heinous, cruel, brutal, or degrading to the victim.”
“Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation,” the guidelines state.
How the grand jury that indicted Lodgepole reached the conclusion that voluntary manslaughter was the appropriate charge is a mystery as grand juries are secret. The prosecutor’s signature on the indictment is inscrutable, although Ruiz-Velez is the only attorney listed on the docket.
However, multiple articles articulate how grand juries will follow the lead of the prosecutor presenting the case to them. In the case of Breonna Taylor, a grand juror said that homicide charges were never even presented to them.
University of Dayton Law Professor Susan Brenner wrote in a 1996 article that “the federal grand jury has become little more than a rubber stamp, indiscriminately authorizing prosecutorial decisions.”
“The complete prosecutorial control over the grand jury — particularly over the flow of information and grand jury procedure — solidifies the grand jury’s dependence on the prosecutor,” the anonymous author wrote.
Lodgepole is tentatively set to be sentenced at 3 p.m., April 14, 2021, by District Judge James Parker, according to a hearing notice. The hearing will be held virtually, via Zoom. No courtroom is listed on the hearing notice, entered on Feb. 10, 2021.
District Judge Kea Riggs sentenced Lodgepole, 22, to seven years in prison for killing Michealene Warren, 43, of Nenahnezad, during a virtual hearing on Tuesday, Aug. 24, 2021. Lodgepole will spend an additional three years on supervised probation after he is released from prison.
According to the sentencing minutes, Lodgepole addressed the judge, as did Warren’s sister, Miracle Yellowman. What she said is not memorialized in the minutes. His entire sentencing hearing took just 27 minutes. Lodgepole did not physically appear for his hearing.
On July 6, 2019, Jodie Martinez, 33, allegedly slammed head-on into a truck on State Highway 53, outside Zuni. The crash killed her son, Christian Molina, 9, and left a woman in the opposite vehicle with severe injuries. Martinez allegedly tested positive for methamphetamine and allegedly admitted to using meth four days before the crash, according to an affidavit for a search warrant.
When Zuni Police Department officers arrived, they found the Christian Molina, 9, not breathing and unresponsive, either lying next to the Explorer or being held by Martinez. Rock also describes the Explorer, an SUV, as a truck. Molina, Martinez’s son, is neither named nor given an age in court documents.
“The child was later pronounced dead at the scene,” Rock wrote.
Martinez’s boyfriend, identified as C.R., was also in the Explorer when it crashed while Martinez’s son was in the rear passenger-side seat. Rock does not write how old the boy was. In the search warrant, Rock refers to Martinez as “J.M.” with a year of birth of 1986.
The driver of the truck allegedly Martinez crashed into received minor injuries while the passenger, his wife, “sustained serious injuries and was flown to Albuquerque, NM for medical treatment,” Rock wrote.
Rock wrote that Martinez allegedly told officers at the scene and investigators, later, two different stories about how the crash happened.
Rock wrote:
“J.M. told the officers she had fallen asleep at the wheel while driving westbound on Highway 53. When she woke up, she was in the opposite lane of travel. J.M. saw a blue pickup truck travelling in the opposite direction and tried to avoid the vehicle but was unable to react in time causing her to crash into the vehicle.”
Her story allegedly changed. Rock wrote:
“In a subsequent interview, J.M. stated a cell phone fell. J.M. reached down to pick it up and looked up and saw a truck coming. J.M. stated the truck was just there, there was no avoiding it.”
In an interview with Agent David Loos, both Martinez and her boyfriend allegedly admitted to using methamphetamine at least four days before the accident. Zuni police officers arrested Martinez, collected her urine and it tested positive for methamphetamine.
Zuni Police officers also searched the SUV and found a green backpack that had an alleged homemade pipe with burn residue.
Following the indictment, she was arrested on Jan. 17, 2020, in Gallup, by Loos, according to the arrest warrant.
She first appeared in court on Jan. 21, 2020, where she was ordered held without bail pending a detention hearing by federal Magistrate Judge Jerry Ritter. Federal public defender Mallory Gagan was appointed to the case and Ritter arraigned her on Jan. 22, 2020. Martinez pleaded not guilty.
On Jan. 29, 2020, Martinez waived her right to a detention hearing and Ritter ordered her held without bail.
Martinez pleaded guilty on Aug. 3, 2020, to a single count of assault causing great bodily harm. Federal Magistrate Judge Laura Fashing accepted the plea but deferred final acceptance until sentencing in front of a district court judge. The plea sets her sentence at 18 to 24 months.
Federal prosecutor Raquel Ruiz-Velez put forward the plea and agreement to sentence.
According to the plea Ruiz-Velez offered, a sentence of 18 months to 2 years is the “appropriate disposition.” It takes into account Martinez’s “acceptance of responsibility” and states her sentence should not be further decreased.
Although Martinez ostensibly took responsibility by taking a plea and admitting to causing her son’s death, she is only pleading guilty to injury the unidentified woman in the opposing vehicle and the admission of facts does not say why the crash happened. She wrote that she “merged” into the lane for oncoming traffic, crashing into a truck traveling in the opposite direction and as a consequence, Christian Molina died.
The admission of facts outlines most of the narrative in the affidavit for a search warrant including:
Martinez told the police officers who first responded that she fell asleep at the wheel
Police found methamphetamine in her vehicle
She told federal agents, after she was discharged from the hospital, that she used methamphetamine four days prior to the crash
That she told those agents she was talking to her mother on the phone before the crash, dropped it when she hung up, went to pick it up and when she looked up, she was in the opposing lane
That she tested positive for methamphetamine on July 7 and July 8, 2019, two and three days after the crash, respectively
Martinez does not write what actually happened, or what actually caused the crash, in the plea deal. Nor does she say what happened in her response in the civil case, calling what happened an “error in judgement.”
Sentencing memos
In her sentencing memorandum, Ruiz-Velez wrote there were evidentiary issues with the case. While prosecutors allege Martinez was high on methamphetamine when she crashed, and she tested positive for the drug after she crashed, she never admitted to getting high the day of the crash, four days before. She wrote:
“The drug test revealed that Defendant had methamphetamine in her system. Id. According to investigative reports, ‘the swabs used to drug test [Defendant] were sent to the Las Cruces Forensic Laboratory weeks later in an effort to determine the amount of methamphetamine [Defendant] had in her system.’ DBN 749. The swab samples were analyzed, but there were no ‘indications of any drug on them.’ DBN 751. However, the fact that drugs could not be identified ‘does not mean that no drugs were present,’ it is just that the forensic scientist could not ‘detect them.’ DBN 750. Although the evidence shows that Defendant was under the influence of methamphetamine, the level of methamphetamine in Defendant’s system could not be detected.”
Martinez brought methamphetamine back into the Zuni tribal jail after she was released to attend her son’s funeral. She tested positive for methamphetamine prior to being released and three days later when she returned, Ruiz-Velez wrote.
Ruiz-Velez wrote a two-year sentence is appropriate because it would fall within the normal sentencing guidelines for the charge she pleaded guilty to: assault resulting in serious bodily injury, even though if she had pleaded to involuntary manslaughter or both charges, her sentence guideline would be higher.
Martinez’s attorney, Gagan, is asking for the minimum sentence, 18 months, and that Martinez not be required to go into in-patient drug rehabilitation.
Martinez started work at the Ohkay Owingeh Housing Authority in 2007 and stayed for 10 years and even gave a TED talk about the restoration of the pueblo buildings. In 2017, she lost her job due to “tribal politics, — certain powerful individuals in the community did not want her, not an enrolled tribal member, to have the position,” Gagan wrote.
After she lost her job, her marriage “crumbled” and she left her children with her husband and moved in with her cousin and started using cocaine, and then methamphetamine.
“She just never quite got back on her feet,” Gagan wrote.
Sentencing guidelines
If Martinez had pleaded to the charge of involuntary manslaughter, been found guilty of it, or pleaded to both involuntary manslaughter and the assault charge, her sentencing guidelines would have put her sentence at a lot longer than just two years.
The sentencing guidelines put involuntary manslaughter at a “base level” of 22. A plea deal reduces that by three points, bringing what would have been her level down to 19.
Involuntary manslaughter involving a the reckless operation of a means of transportation carries a higher base level than other forms of involuntary manslaughter.
With a sentence range of 19, the guidelines put her sentence at 2 1/2 to 3 years, assuming little or no criminal history.
Martinez has a pending case in Santa Fe District Court on a charge of embezzlement of a motor vehicle.
On Nov. 20, 2020, Federal District Judge Kea Riggs accepted the binding plea deal, proffered by prosecutor Ruiz-Velez, and sentenced her to two years in prison during a hearing on Nov. 20, 2020. She said there will be a “zero-tolerance policy for substance abuse” during her three years of supervised release following her release from person, according to a minutes sheet.
Although Martinez will get credit for the 304 days she spent in jail since she was charged in federal court, she will not receive credit for the 91 days she spent in a tribal jail, Riggs ordered.
Acceptance of the plea, and dropping the charge of involuntary manslaughter, was a decision left up to Riggs, who accepted it.
Insurance settlement
The father of Martinez’s son, Samuel Molina, filed a lawsuit against Martinez over the insurance payout from their son’s death, on Aug. 12, 2020.
Samuel Molina, appointed the personal representative for his son’s estate, received a $50,000 settlement from an unspecified insurance policy. The lawsuit filed in August was to declare that Martinez was not entitled to any of that money.
Martinez “abandoned” Christian Molina under New Mexico law and because she caused his death, she was not entitled to any of the insurance proceeds under the Unlawful Acts Doctrine, Grayson wrote.
“I am opposed to signing a document implying that I abandoned our son,” Martinez wrote. “There are statements made in the Declaratory Judgement that are inaccurate and quite frankly false. At the time Samuel and I shared custody through a mutual agreement due to our separation. I was not an absent parent.”
It is not clear what “inaccurate” or “quite frankly false” statements Martinez objected to. The complaint for declaratory judgement makes no mention of custody arrangements.
“Unfortunately, and with my deepest regret, I had an error in judgement which I will have to live with for the rest of my life,” Martinez wrote. “No amount of financial gain will every satisfy the tremendous loss we have experienced.
Martinez wrote she refused to “sign any document implicating the termination of parental rights, the abandonment of my son Christian Molina, or any other demeaning allegations.”
On Sept. 22, 2020, Grayson filed a notice of dismissal with prejudice because “all matters in controversy have been compromised and resolved,” even though Martinez “strongly denies the claims and allegations made in the Complaint for Declaratory Judgement.”
On April 16, 2019, Mateo Maestas, 22, of Cuba, and enrolled member of the Acoma tribe/Navajo nation, crashed in Laguna into a car driven by a Monica Murray, 43, of the Laguna Pueblo, on State Road 124 (Old Highway Route 66). He was drunk. As a result of the crash, Murray died. Her two children, in the car, survived. On April 18, he was arrested on charges of involuntary manslaughter, DWI and reckless driving.
On Sept. 5, 2019, Maestas pleaded guilty to the manslaughter charge under a plea deal that specified his sentence would be between five and eight years and it was accepted by federal Magistrate Judge Laura Fashing.
On Jan. 23, 2020, Federal District Judge Dee Benson sentenced Maestas to six years in prison and allowed him 60 days to self surrender. Maestas was arrested a month later for violating the conditions of his pretrial release.
(Note: This story has been updated with victim Monica Murray’s name. She was not named in court documents.)
The crash and indictment
On April 16, 2019, Monica Murray, 43, of the Laguna Pueblo, was driving west on Old Highway Route 66, also known as State Road 124, when Maestas, driving a black Ford sedan, either tried to turn onto Yellow Hill Road or tried to make a U-turn in the intersection, Bureau of Indian Affairs Agent Marcelino ToersBijns wrote in an affidavit for an arrest warrant, submitted to the court on April 18. The lead investigator was BIA Agent RoAnna Bennett.
Laguna Pueblo by ANOXLOU/Flickr
While turning, Maestas’s car slammed into Murray’s car, forcing it off the road and into a small wash on the side of the road.
The crash was initially reported by an unknown woman. The two children in the car were reported to have received serious injuries and the driver was dead when investigators arrived.
State Police Capt. Troy Velasquez told ToersBijns that he was the first officer to arrive at the scene and he checked on Maestas, who said he wanted to get out of his car and wanted help. Velasquez told the federal investigator he saw multiple beer cans in the car and Maestas smelled like alcohol. He made no mention if Velasquez checked on the woman or her children or what their status were.
Laguna Police Officer Keith Riley told ToersBijns that he arrived at the scene “minutes after it occurred” and also spoke to Maestas and asked him how much he drank.
“(He) replied he had too much to drink,” ToersBijns wrote. “MAESTAS was asked what he had to drink and MAESTAS replied margaritas.”
At the hospital, a “presumption blood results” showed a blood-alcohol level of 0.28, over three times the legal-per-se limit is 0.08. According to his plea deal, his blood-alcohol content was later determined to be lower, at 0.19.
According to a sentencing memorandum by his attorney, Britany Schaffer, Maestas was abandoned at his vehicle the night of the accident “in the middle of nowhere by his friends” following a “minor argument.”
“He made a terrible error in attempting to drive back to safety, one for which he will be haunted by for the rest of his life,” Schaffer wrote. “He called out for help to one of his loved ones, but he was too far away to be able to help.”
One of the children, L.R., suffered “liver lacerations and spleen injuries.” She was unrestrained in the back seat.
Schaffer does not write how Maestas was in danger that he needed to drive, drunk, to safety.
Although the criminal complaint was filed on April 18, Maestas was not arrested until May 22 and on May 29, he was released and placed on house arrest, according to court records.
The Office of the Medical Investigator only provided a deputy field investigation following a request for Murray’s autopsy report.
Field investigator Robert Hays wrote in the field investigation that the children in the car with Murray were easily extricated.
“Ms. Murray was still trapped in the drivers (sic) seat, seat belted in and encased by the vehicles (sic) steering column, doorway and dash; all airbags were deployed,” Hays wrote.
He wrote Murray “was a large woman” and appeared to have hit something in the car because “her abdomen fat tissue was all around the front compartment.”
It took over an hour to extract her body from the car, Hays wrote.
She wrote that Maestas drove because his friends left him at his car following a minor argument.
“He made a terrible error in attempting to drive back to safety, one for which he will be haunted by for the rest of his life,” Schaffer wrote. “He called out for help to one of his loved ones, but he was too far away to be able to help.”
Schaffer does not write how Maestas was in danger, or what he was in danger from, that he needed to drive, drunk, to safety, or what safety he was trying to drive toward.
The presentence report, which isn’t public, suggested a sentence of 2 1/2 to 3 years, she wrote.
Schaffer wrote that she wants Browning to give Maestas a sentence at the low end of the plea agreement.
“Mr. Maestas has a criminal history of zero: that is, prior to this case, he has never been convicted of a crime, other than a single speeding ticket,” she wrote. “He is young, hard-working and educated, and aspires to help others in his future as he has been doing during his counseling sessions while this case has been pending.”
He is the grandson of Wilson Joe Chiquito, who was killed in his home. The Federal Bureau of Investigation’s investigation into his killing is still unsolved.
“Although there is no excuse for his actions on the date of the accident, Mr. Maestas was heavily impacted by the loss of his grandfather, and, at the time when this accident occurred, he had unfortunately fallen into a pattern of using alcohol in an unhealthy manner. He was forthright with his probation officer when he discussed his drinking habits, and that he ‘was struggling with alcohol use,'” Schaffer wrote.
Prosecutor Elisa Dimas wants Browning to give Maestas a sentence above the maximum of eight years agreed to in his plea deal because of his “uncharged conduct,” Schaffer wrote. This is because of the injuries to Murray’s children.
One child, L.R., received “liver lacerations and spleen injuries.” She was unrestrained in the back seat.
According to Schaffer’s sentencing memo, Dimas’ request for Maestas to receive a sentence above what she agreed to in the plea agreement is document 45, which does not appear on the public court docket. There is no explanation as to why the document is being kept secret and there are no entries indicating it was sealed, or that either the defense or prosecution requested it be sealed.
According to Schaffer’s memo, Dimas wants Maestas to be sentenced to at least a maximum of eight years and one month, one month above what was allowed in his plea deal, although it is not clear if she is seeking a sentence above that and her request is not on the public docket.
Maestas also wrote a letter to Browning and Murray’s family. Although he wrote that he feels sympathy for the woman’s family and he regrets the decision he made, because it killed Murray, much of his letter is about the unsolved killing of his grandfather.
Sentence
Federal District Judge Dee Benson sentenced Maestas on Jan. 23, 2020, to six years in prison, during an hour and 20 minute hearing in federal District Court in Albuquerque.
According to the sentencing minute sheet, Dimas asked for an 8-year sentence during the hearing and Maestas’ defense attorney, Britany Schaffer, asked for a 5-year sentence.
According to the minutes, four members of Maestas’ family addressed the judge: M. Vigil, L. Castillo, M. Pablo and J. Maestas.
Maestas also addressed the court, but the minutes contain no information to what anyone said.
Three people also spoke in court on behalf of Murray. M. Valdez spoke on behalf of her family, M. Garcia spoke as a member of the victim’s family and R. Garcia spoke as the guardian of the dead woman’s children, according to the minutes.
Maestas was originally supposed to be sentenced by a different judge. No records indicate why Benson, normally a judge in Utah, sentenced Maestas.
No court documents illuminate why Benson settled on the sentence he did.
Release violations
After Benson gave Maestas 60 days to turn himself in to begin serving his prison sentence, Maestas’ attorneys requested he be allowed to return to his home pending his self-surrender, which Benson granted. Since Dec. 6, 2019, Maestas was living at a halfway house in Albuquerque. Before that, he had been on house arrest.
On Feb. 26, 2020, a federal judge with an illegible signature ordered Maestas arrested, which he was, on March 3, 2020, in Albuquerque.
“Defendant failed to comply with conditions of release: alcohol use, failed to report contact with law enforcement and failed to comply with travel restrictions,” according to the warrant.
Federal Magistrate Judge Paul Briones revoked the conditions of his release on March 5 and ordered he be sent to prison to begin serving his sentence.
Zachariah Joe first attacked Brett Micah Morgan after visiting with him and another man at a house in Shiprock. After being tackled to the ground, he locked Morgan and the other man, only identified in court documents as B.M., out of the house. He then found a kitchen knife and stabbed Morgan 10 times in the chest and neck, killing him, according to court records.
Joe pleaded guilty on Oct. 31, 2019 to a single charge of second-degree murder, according to court records.
The binding plea deal states he will receive a sentence of 15 years. However, the magistrate judge in the case has deferred acceptance of the plea agreement until sentencing by a district court judge.
On Jan. 14, 2021, Judge James Browningsentenced Joe to 15 years, per the plea agreement, followed by three years supervised release. He also ordered Joe pay Morgan’s family $6,546 in restitution.
Roundy referred to Morgan in court documents initially as “B.M.M.,” then by “John Doe.” The other identifiers Roundy included were Morgan’s year of birth, 1986, and that he was a Navajo Nation tribal member, as is Joe.
Although Roundy only identified Morgan as “B.M.M.” in court documents, he was identified in his obituary in the Farmington Daily Times. In additional to the correct initials, his obituary states he was born in 1986 and he died on Jan. 3, 2019, all details that match with Roundy’s affidavit. The obituary has been archived here via the Internet Archive and here as a PDF.
Roundy wrote someone interviewed B.M., who said Joe had been texting with Morgan while Morgan and B.M. drank at a Shiprock house. During the evening, Joe texted Morgan that he left work, at Burger King, and wanted to come over.
When Joe showed up, he was drunk and upset about being fired, Roundy wrote.
“Joe continued his tirade about losing his job throughout the evening and at one point, JOE violently struck John Doe in the face with the back of his hand, sending John Doe back towards the wood burning stove,” Roundy wrote, citing the interview with B.M.
Joe tried to attack the prone victim but B.M. punched Joe several times in the head and wrestled him to the ground long enough for Morgan and B.M. to get of the house. Joe locked the door from the inside. Morgan and B.M. could hear him searching through kitchen drawers and cabinets in a “violent” manner, Roundy wrote.
“B.M. then became upset feeling that his home was being invaded, and subsequently ran to the known residence of JOE and broke a window,” Roundy wrote. “B.M. then returned to his residence approximately five minutes later and found John Doe on the ground just outside the door bleeding.”
Joe was standing over Morgan. At some point two other people, identified as “D.T.” and “V.B.” arrived and drove Morgan to the hospital. Navajo police then arrested B.M. for breaking Joe’s window.
Roundy wrote that the Office of the Medical Investigator found that Morgan suffered from 10 “puncture and/or laceration wounds.” He was pronounced dead at the Northern Navajo Medical Center.
Roundy wrote that someone interviewed D.T., who said that he arrived at the house with V.B. and saw Joe kicking Morgan on the ground, outside the house. D.T. got out of the car and pushed Joe back from Morgan, saw he was unresponsive and heard Joe say that Morgan “was stabbed.”
D.T. then kept Joe at a distance and tried to get Morgan to his feet but realized he was bleeding, put him in a car and drove him to the hospital, he wrote.
D.T., who also lived at the house, later realized a kitchen knife was missing from a drawer, Roundy wrote.
V.B. said during an interview that when she arrived with D.T., she did not notice anything in Joe’s hands.
In the plea deal, Joe attested that he initially hit Morgan. B.M. threw Joe down, but eventually Joe locked them out of the house.
“I located a knife in the residence and armed myself with it,” the plea deal states. “A short time later, I exited the residence and confronted John Doe. I started a fight with John Doe and I stabbed John Doe with the knife approximately 10 times in his chest, side and neck.”
In the plea, he admitted that his stabbing caused Morgan’s death.
“While I stabbed John Doe, he begged for me to stop, but I did not,” the plea deal states. “In doing so, I acted with callous and wanton disregard for human life.”
The U.S. Attorney’s Office for New Mexico only published a press release on the case after Joe pleaded guilty and did not publish one after he was arrested.
According to the autopsy report by pathologist Matthew Cain, Morgan has 10 “sharp force injuries” to the head and torso.
“Several stab wounds to the torso injured ribs, lungs, liver, and heart – lethal injuries,” Cain wrote. “A stab wound of the neck injured soft tissue and neck muscle but the spinal cord was uninvolved.”
Two of the stab wounds “injured” the small bowel and Morgan also suffered from blunt trauma, including abrasions, skin tears and bruises in the face, torso and his arms and legs. He died from his stab wounds.
On Oct. 31, 2019, Joe pleaded guilty to second-degree murder, before he was indicted by a grand jury. He previously waived his right to a preliminary hearing, on Jan. 9.
The case had been continued multiple times because the prosecution and Joe’s defense attorney, Melissa Morris, were trying to reach a plea in “pre-indictment negotiations,” according to the docket and an Aug. 16 motion to continue the grand jury presentment. The plea was also signed by federal prosecutor David Cowen.
The plea agreement states Joe will receive a sentence of 15 years, although the sentencing judge can decide how much, if any, time Joe should spend on supervised release after serving his sentence. She can also levy a fine.
According to the plea, the possible maximum sentence for second-degree murder is life imprisonment.
The plea agreement states the 15-year sentence considers Joe’s acceptance of responsibility and that 15 years is the “appropriate disposition.”
In the plea agreement, Joe attested that he locked Morgan and B.M. out of the house, he found a knife and then confronted Morgan.
“I started a fight with John Doe and I stabbed John Doe with the knife approximately 10 times in his chest, side and neck. These stab wounds caused John Doe’s death. While I stabbed John Doe, he begged for me to stop, but I did not. In doing so, I acted with callous and wanton disregard for human life.”
Sentencing date set
Over a year after he pleaded guilty to second-degree murder, Joe will be sentenced to 15 years in prison during a virtual hearing at 3 p.m., Jan. 14, 2021 in the Vermejo courtroom in Albuquerque by District Judge James Browning.
Browning’s only discretion will be in how long Morgan will be on supervised release after serving his prison sentence. Magistrate Judge Kirtan Khalsa initially accepted the plea in October 2019.
Sentencing memorandums
Cowen and Morris both submitted sentencing memorandums imploring Browning to accept the binding plea deal, which mandates a sentence of 15 years for Joe.
Cowen wrote in his sentencing memorandum that Morgan was Joe’s close friend, and cousin, and that his death was “completely avoidable,” although he never specifies how it was avoidable. At the onset of the case, he worked with Morris to “investigate what took place with the goal of working towards a reasonable outcome.”
Cowen wrote that the sentencing guidelines for Joe put his sentence much higher, at just under 20 to to 24 years, but the decrease in sentence will avoid a trial. He wrote:
The proposed plea agreement avoids forcing the victim’s family, who is also Defendant’s extended family, to testify about the facts outlined above. One of the victim’s family members voiced an opinion that the family did not agree with the stipulated 15-year sentence, PSR ¶ 102, but in finalizing the plea agreement the government received support to resolve the case with this proposed 15-year sentence from the victim’s mother and stepfather. This support naturally came with emotion and a realization that no term of imprisonment would bring the victim back to the family.
The plea and 15-year sentence will allow the victim’s family “an opportunity to reconnect with the Defendant’s side of the family,” Cowen wrote.
Joe’s familial history was a childhood of physical abuse perpetrated by his alcoholic father, he wrote.
“According to Defendant’s mother, he unfortunately inherited his father’s tendency to become angry when he drinks alcohol,” Cowen wrote.
Joe had a history of misdemeanor convictions from age 18 to 21, which appear to be two drunk driving arrests and a charge of assault on an officer. He was never convicted of a felony but the convictions gave him a criminal history category of IV, he wrote.
Morris wrote in her sentencing memorandum for Joe that he has been drinking since he was 13 and when he drinks, “his personality changes and he sometimes does things that he would not do otherwise.”
Although his family is “saddened and confused by his actions,” they are still supportive of him. Joe never intended to kill his cousin and does not know how the events leading up to his brutal stabbing resulted in it, she wrote.
“Mr. Joe respectfully submits that this offense, like every other criminal offense he committed in the past, is the product of the disease of alcoholism, which in turn may be the product of his traumatic childhood experiences and his family history of alcoholism,” Morris wrote.
Joe’s maternal aunt, Fremina Funmaker, submitted a letter on behalf of Joe and asked that the judge make a decision that “will allow him to seek mental well-being and self-development through sentencing.”
Aunt Tiva Esplain wrote that Joe is not a violent person and he has made large and small mistakes in the past and that alcohol caused him to stab his cousin 10 times.
Cousin Jerilyn Frank wrote that Joe is one of the “funny guys” and has a contagious laugh.
Joe’s mother, Miranda Begay, wrote that Joe and Morgan were “two peas in a pod” and there was not a day that went by when they had not communicated with each other. Without access to alcohol, Morgan would have never died.
On Jan. 14, 2021, Browning sentenced Joe to 15 years, per the plea agreement, followed by three years supervised release. He also ordered Joe pay Morgan’s family $6,546 in restitution.
On Oct. 18, 2018, Joey Unkestine crashed a 2002 Ford Explorer on Highway 53 on the Zuni Pueblo, killing his brother, Elison Unkestine and his girlfriend, Katherine Edaakie and injuring his girlfriend’s son (D.G.). He was allegedly drunk.
His blood-alcohol level was later measured at 0.35 and he was estimated to be driving between 74 and 93 mph on a 55-mph-limit road.
He pleaded guilty and per a binding plea deal, District Judge Scott Skavdahl sentenced Unkestine on Oct. 18, 2019, to the three years, 10 months in prison.
The incident
Joey Unkestine was driving between 74 and 93 mph on Highway 53 on the Zuni Pueblo, after he had been drinking extensively, when he rolled his 2002 Ford Explorer, killing his girlfriend and brother and injuring his girlfriend’s 9-year-old son, D.G., according to his plea agreement.
Zuni Pueblo, eastern edge. Photo by Joseph Novak/Flickr
Opioids and methamphetamine were also found in his system, although he claimed he used no drugs that day. The brother and girlfriend had also been drinking while he was driving. D.G. received “only scrapes and bruises,” Mendenhall wrote.
Unkestine had several prior convictions “involving alcohol” but all of them were tribal, Mendenhall wrote.
Indictment
On March 18, 2019, a grand jury indicted Unkestine on two counts of involuntary manslaughter and one count of child endangerment, according to the indictment.
Plea
On June 20, 2019, Unkestine pleaded guilty to the charges. Mendenhall and defense attorney Irma Rivas signed the plea deal. Federal Magistrate Judge Jerry Ritter accepted the bindingplea agreement.
According to the plea agreement, Unkestine would only receive a sentence of three years, 10 months, with probation up to the sentencing judge. Ultimately, he received two years of probation when prosecutors asked for three.
According to Mendenhall’s sentencing memorandum, three years, 10 months is the “upper-guideline sentence” and reflects the seriousness of the offense.
Because the two people in the car were drinking, their deaths do not warrant a sentence at the top of the sentencing range. However, the child being placed in danger did warrant the lengthier sentence, as did his history with alcohol, he wrote.
Mendenhall did not write why, specifically, he agreed to a three year sentence for the deaths of two people, one of which left a child without his mother. However, he noted that both he and the defense minimized the uncertainty that comes with a trial.
Sentence
Federal District Court Judge Scott Skavdahl sentenced Unkestine on Oct. 18, 2019, to the three years, 10 months stipulated in the plea agreement and two years probation, a year less than requested by the prosecutor, according to the sentencing minute sheet.
No investigative documents appear in the court record.
According to the local rules and federal rules, documents are only supposed to be filed under seal for good reason and a record of the motion to file a document under seal is supposed to appear on the court docket, as outlined by Jeff Proctor in New Mexico In Depth.
According to Mendenhall’s sentencing memorandum, the only document that was docketed but is not public is #27, the pre-sentencing investigation report by the probation department.
However, according to the docket, entry 28 was also sealed, as were 30 and 31. In addition, documents 34-36 appear to be sealed with no motions for sealing and no record of sealing, a process which is supposed to warrant a judge’s approval.
Office of the Medical Investigator Field Investigator Maria Olivares wrote, in a field investigation, the SUV was heavily damaged and Elison Unkestine had been ejected from it and his right hand was amputated.
In Edaakie’s field investigation, Olivares found Edaakie’s body was in the east-bound lane.
LAS CRUCES, N.M. — District Court Judge Douglas Driggers sentenced Taylor James Enriquez to 19 1/2 years, July 6, 2018, the maximum sentence after he pleaded guilty, April 10, 2018, to charges of second-degree murder, false imprisonment and aggravated battery causing great bodily harm. Driggers’ sentence was the maximum under the plea deal.
Enriquez stabbed Alberto Nunez in the neck with a broken bottle, killing him, on Feb. 26, 2017, according to court documents.
Taylor Enriquez
He also attacked Manuel Lopez Polanco, who had injuries to his face. The attack on Lopez Polanco was the basis of the aggravated battery charge.
According to the plea agreement, signed by prosecutor Rebecca Duffin, Enriquez was going to face a maximum sentence of 19 1/2 years in prison and that the sentences for each crime would run consecutively, or one after another. His defense attorney, James Baiamonte, agreed that he would argue for a minimum sentence of 15 years followed by five years of supervised probation while prosecutors would argue for 19 1/2 years.
On July 9, 2018, Driggers sentenced Enriquez to the maximum allowed, 19 1/2 years. Although second-degree murder carries a maximum sentence of 15 years, Enriquez was also sentenced to the maximum sentences on the charges of false imprisonment and aggravated battery.
On Feb. 15, 2018, Tavis Washburn, 27, crashed into a truck pulling out of the Littlewater Express on Highway 491 near Littlewater, while speeding. The crash killed his brother, Orlando Wadsworth, and severely injured his 2-year-old son. Eight months later, Federal Bureau of Investigations agents charged him with involuntary manslaughter and assault on a minor resulting in serious bodily injury. When his blood was tested at the hospital, he had a blood-alcohol level of 0.285, over three times the legal limit.
On July 12, 2019, Washburn pleaded guilty to a criminal information, filed the same day, charging him with involuntary manslaughter and child abuse. According to his plea deal, his sentence would range from just under 6 years (71 months) and 10 years, the minimum mandatory sentence if he had been convicted of assault on a minor resulting in serious bodily injury.
On Feb. 13, 2020, federal District Court Judge Martha Vazquezsentenced Washburn to the minimum under the plea, just under six years, followed by supervised release for three years.
The incident
Shiprock Pinnacle. Photo by DiAnn L’Roy/Flickr
On Feb. 15, 2018, Tavis Washburn went to see his brother, Orlando Wadsworth, at his house in Sanostee to “have some drinks,” he told investigators, according to an affidavit for a criminal complaint written by FBI Agent Kalon Fancher.
Wadsworth wanted to go to Shiprock to pick up his EBT card, or benefits debit card, so Washburn buckled his 2-year-old child into a child seat in the back of a red Kia and drove to Shiprock. When they finished, Washburn wanted to pick up his “common law wife” from her work at the Littlewater Express gas station, so he sped, an estimated 75 yo 85 mph in a 45-mph zone, Fancher wrote.
One woman, only identified by the initials L.B., told Navajo Nation Criminal Investigator Wilson Charley that she was going about 65 mph when a red Kia passed her, then hit the raised center concrete median, causing sparks to come from the tire, around 10 p.m., Charley wrote in an investigation report.
The red car crested a little hill, then five seconds later, she came on the crash scene. A black truck “was being thrown across the northbound lane and it landed on the east side of the roadway,” Charley wrote.
L.B. stopped and ran to the red car and found two men in the front seats and a baby in the back. Washburn, whom she identified as a man with long hair, was trying to get out of the driver’s side window. The 2-year-old, Washburn’s child, was crying, while Washburn kept yelling he was OK, then started yelling for his brother after he got out, Charley wrote.
According to L.B.’s account, a woman, later identified as K.C., came up and started yelling that it was car her, her husband and her baby involved in the crash, then removed the baby from the car seat while Washburn argued with her, Charley wrote.
Navajo Nation Police Officer Ty Joe arrived at the scene of the crash and found Washburn walking around, his face covered in blood. Washburn was obviously intoxicated and smelled like alcohol. He denied driving and claimed another man, only identified by the first initial “H,” was driving and “took off running after the crash,” Charley wrote.
The rest of the man’s name is redacted.
Joe saw Wadsworth was pinned against the passenger-side door frame and it had to be cut for him to be removed and the 2-year-old had been removed from his car seat prior to police or medics arriving, Charley wrote.
While Joe was trying to render medical attention to Wadsworth when Washburn walked away and later returned in a black Dodge Avenger and claimed he was injured. Joe told the person driving him to drive him to the Northern Navajo Medical Center, Charley wrote.
The child was flown to the hospital first, followed by Wadsworth, because he had to be extricated. The 2-year-old child suffered a lacerated liver, a collapsed lung, a left arm fracture and a broken left leg, he wrote.
According to a sentencing memorandum, K.C. told prosecutors that their son’s left leg bones “have not grown at the same rate as the right leg bones, resulting in his hips being uneven.” However, “it is not clear” if the child will have his future movement ability affected or if he will require more treatment.
Washburn’s blood-alcohol content, after the crash, was 0.285, over three times the legal limit, according to the memo.
The person in the black truck, a GMC Sierra, that Washburn hit, identified in court documents by the initials A.J., told Charley and Fancher that the night of the crash, he got off work at 3 p.m. He ran a few errands in Farmington before driving back to the Navajo reservation and stopped for gas in Shiprock before driving south to Sanostee, around 9 p.m., Charley wrote.
A.J. told investigators he remembered driving past the weigh station, 2-3 miles north of the Littlewater Express Store, and nothing after that, other than being woken up and his mother taking him to the hospital in Shiprock, he wrote.
However, he admitted to drinking three 12-ounce cans of Bud Light before he was crashed into, Charley wrote.
Two people, S.B. and K.C., the mother of the 2-year-old/Washburn’s girlfriend (also referred to as his common-law wife and as his wife in court documents)t, were working at the Littlewater Express Store the night of the crash, Charley wrote.
S.B. told Charley that around 9:30 p.m., K.C. was on the phone with her boyfriend, Washburn, and worried he was drinking with their son. Around 10 p.m., the last customer left. It was A.J., who got into his black truck. Her boss called and asked about him and she said he was just leaving the store, he wrote.
“(S.B.) said she was looking out the store window when she noticed a car traveling southbound at a very high rate of speed,” Charley wrote. “(S.B.) said it was almost instantly when the car hit the black truck as it was pulling out of the store’s parking lot.”
Still on the phone with her boss, she screamed it was AJ who was involved in the crash. K.C. ran out of the store, asked S.B. where the crash was, then ran to the crash site. S.B. would see and hear a woman at the site of the crash, yelling for help, Charley wrote.
“(S.B.) said she went back into the store to get her phone and when she came back out (K.C.) was running back to the store yelling she couldn’t make it over the fence,” Charley wrote. “(K.C.) was yelling that it was her car and her baby.”
S.B. saw K.C. run to the crash scene. She then started banging on the car and cussing at someone before opening the door and slapping her boyfriend. She brought the baby back into the store after being driven by someone with the initials S.P., (who name is otherwise redacted in the documents,) Charley wrote.
S.B. went to the crash scene with her boss and saw K.C. in someone’s car with her baby. S.B. called for medics and told them the baby needed medical attention. Washburn followed K.C. around at the crash scene, and K.C. yelled at him, saying he was the cause of “all this,” Charley wrote.
When the medics did find the boy, he was flown to the hospital with severe injuries.
S.B. took K.C. to the San Juan Regional Medical Center and, during the drive, she asked K.C. about the other two adults in the car, he wrote.
“(S.B.) said (K.C.)’s boyfriend was the driver because no one ran from the scene as she witnessed the crash in front of her,” Charley wrote.
Charley’s interview with K.C. makes no mention of her pulling her baby out of the car or not bringing him to medics.
Fatal injuries
Orlando Jerry Wadsworth, of Sanostee, 37 when he died, was born on Oct. 6, 1980 in Shiprock and he died on Feb. 15, 2018, according to his obituary. No more biographical information was listed.
Wadsworth’s right arm was completely broken, as was his left leg. He suffered “massive trauma” to the back of the head, according to a field investigation conducted by the Office of the Medical Investigator.
After being sealed in a body bag on Feb. 16, 2018, his family agreed for him to be an organ donor. The following day, donor services informed the deputy field investigator that the Desert View Funeral Home embalmed him before they could harvest any organs, according tot he field investigation.
Although he was embalmed before an autopsy could happen, the FBI asked for it to still be done, according to the field investigation.
According to the autopsy report, Wadsworth has tears in his right lung, spleen and liver, which would have caused massive internal bleeding resulting in his death.
The plea
According to court records, prosecutors filed a criminal information charging Washburn with involuntary manslaughter and child abuse on July 12, 2019, the same day as his plea hearing. The latter charge was a downgrade from assault on a minor resulting in serious bodily injury charge initially levied by Fancher.
Washburn pleaded guilty to the two charges, involuntary manslaughter and child abuse, although Magistrate Judge Kirtan Khalsa deferred final acceptance of the plea until sentencing in front of a District Court judge during a 27-minute hearing, according to minutes from the plea hearing.
According to the plea agreement, Washburn’s sentence would be between just under six years (71 months) and 10 years, an agreement between the prosecution and defense that is binding on a judge who accepts it. Prosecutor Allison Jaros signed the plea.
History of drunk driving
According to Jaros’ sentencing memo, Washburn had previously been arrested for drunk driving in June 2017, while his wife and their child were with him. A breath test for his blood-alcohol level found it to be between 0.15 and 0.17.
“Defendant’s wife told police that she advised Defendant not to drive, but did not want to argue with him,” Jaros wrote.
San Juan County Sheriff’s deputies charged him with child abuse, aggravated DWI, driving on a suspended license and open container of alcohol in a vehicle, according to an Aztec Magistrate Court docket.
His 2017 drunk driving case was initially referred to pre-prosecution diversion, on June 29, 2017, but by Nov. 2, 2017, it was terminated and he waived his right to a preliminary hearing. The case was then bound over to District Court, according to the docket.
Jaros wrote in a sentencing memorandum, submitted Nov. 22, 2019, that the plea allowed Washburn to avoid a minimum sentence of 10 years for a assault on a minor resulting in serious bodily injury charge.
The involuntary manslaughter charge carried a maximum sentence of eight years.
Although the evidence against Washburn was strong, “neither victim favored prosecution,” she wrote.
He was not charged for injuries to A.J., in the vehicle he hit, according to court documents.
Although two of the three victims were related to Washburn, and those were the ones he was charged for hurting and killing, one was dead and the other was 2 at the time of the crash.
Jaros did not write how a dead man and a toddler could favor prosecution.
The two accident reconstructionists disagreed on A.J.’s role in the crash and he was never charged because of that disagreement, she wrote.
Jaros wrote that the previous conviction for drunk driving, and that his child was previously in the car during a drunk driving incident, were aggravating factors to be considered.
Fernandez requested a sentence of 71 months, just under six years, the minimum allowed under the plea deal.
Washburn wrote in an undated letter to the court that he was at the La Pasada Halfway House, had been there for a year, and was working two jobs to provide for his 3-year-old son and a newborn.
“The day the accident happened has made a huge impact on me and my family,” he wrote. “I always wished it never happened. My oldest brother was the passenger and is now deceased from the accident. My son being injured hurts me knowing he was part of it. He had fully healed from the injuries and is now back to normal.”
This assertion, that his child is “now back to normal” is contradicted by Jaros’ sentencing memo, that the boy’s left leg bones “have not grown at the same rate as the right leg bones, resulting in his hips being uneven.”
Washburn wrote that he became addicted to alcohol for three years after his mother died, but he no longer misses the feeling or taste and thinks about his family and his future as a father.
“Please give me the least amount of time to serve so I can attend college and also provide for my two boys,” he wrote. “I believe I am a good person. I help those in need, I donate what is needed to strangers and feel good doing so.”
Revocation for drinking
On Dec. 2, 2019, pretrial services asked for the judge to have Washburn arrested after twice tested positive for alcohol.
The halfway house Washburn had been staying at was no longer willing to serve as his third-party custodian. On Dec. 4, he was remanded into the custody of the U.S. Marshals Service and he waived his right to a preliminary hearing and a detention hearing.
Sentenced
On Feb. 13, 2020, two months after Washburn was arrested for violating the conditions of his release by drinking heavily, federal District Court Judge Martha Vazquezsentenced him to the minimum allowed under the plea deal, just under six years (71 months), followed by supervised release for three years.
According to the sentencing minute sheet, Washburn addressed the court, as did the “Victim’s representative.” The entire hearing lasted one hour and two minutes. Neither the minutes nor the judgement state why Vazquez sentenced Washburn to the minimum allowed under the plea.
On July 30, 2015, Jefferson Herrera, 29, and his three brothers went to Richmond Sam‘s house, trying to get him outside to fight and destroying his property. Sam went to a neighbor’s house, got a gun and started shooting. He hit no one the first time he shot, according to court records.
Sam claims he was fired upon first. The people involved, described as being unreliable witnesses, said they never shot first, according to court records.
He then opened fire a second time, after the assailants, including Herrera, were driving away. He may, or may not have, fired the shot that killed him. According to court records, the autopsy report casts doubt that Sam was low enough to the ground, or close enough, for the trajectory of the bullet that killed him, according to court records.
Sam’s lawyer posited that it is possible one of Herrera’s own brothers accidentally shot him while fleeing, according to court records.
Sam was initially charged with second-degree murder and possession of a firearm by a felon, according to court records.
He took a binding plea for involuntary manslaughter with a minimum sentence of 15 months and a maximum of 21. Federal District Judge James Browning gave him the minimum, 15 months, according to court records.
The incident
On July 29, 2015, a group of four men, all brothers, bought some Old English malt liquor and started drinking. The victim’s brother, only identified as JH, told his brothers, one of whom was victim Jefferson Herrera, Richmond Sam owed him $45 for gas money. The debt was accrued several months prior, FBI Agent Ross Zuercherwrote in an affidavit for an arrest warrant.
Near Counselor, NM. Photo by Chris Sale/Flickr. CC BY
“Around midnight of July 30, 2015, the four men arrived at SAM’s residence shouting that he owed JH money, and to pay his debts,” Zuercher wrote. “The men tried to call SAM out of the residence to confront him.”
After Sam refused to come out, they started smashing the windows of the two cars parked at his house.
“The windows were smashed with iron fence posts obtained from the property,” Zuercher wrote. “JH stated that he saw a man, although he could not make out his face, begin to fire live ammunition at the four brothers.”
After being shot at, the men got into their own car and fled. Herrera was driving, he wrote.
“As the vehicle sped away down SAM’s driveway, several more shots were fired at the vehicle,” Zuercher wrote. “One round broke the back window of the vehicle. One of the rounds fired entered the back of John Doe’s neck, and exited the oral cavity. JH stated that he saw his brother, John Doe, slump forward with blood coming out of his mouth. John Doe had made painful moaning noises as he slumped forward.”
The car crashed into a ditch, JH got out of the vehicle, grabbed Herrera from the driver’s seat and put him in the rear.
“JH could not recall where the other two brothers went,” Zuercher wrote.
JH then drove to their mother’s house, four miles away. At 5 a.m. that same morning, Sam surrendered at the San Juan County Sheriff’s Office.
“The rifle was found wrapped in a blanket and placed inside a bush,” he wrote.
In his own statement to officers, Sam said he had been watching a movie when he heard a loud commotion coming from outside, and someone trying to break his door down.
“SAM held the door shut with his body weight,” Zuercher wrote. “While holding the door closed, SAM said that he heard a loud bang that sounded like a gunshot. Eventually the intruders lost interest into gaining access to the residence. SAM said that he heard a vehicle shift into drive, and believed it to be the best chance to escape from his residence.”
Sam told the officers he then ran to his cousin’s house, told him about the intruders and asked for a weapon and his cousin gave him the AK-47. He went back to his own house and positioned himself next to a wood pile.
“SAM then said that he was fired upon twice by what he believed to be a rifle,” Zuercher wrote. “SAM said that he thought it was a rifle because he could see the light reflecting off what looked to be a long barrel. SAM said he returned fire and shot approximately five times. SAM saw approximately four to six men scatter.”
He saw them get into a car and begin to drive away. He then moved closer, to a metal structure, and fired five more times. After he heard the vehicle crash, he wrapped the gun in a blanket and put it in a bush, he wrote.
Richmond Sam was on probation for previously shooting at a deputy who tried to pull him over for drunk driving. When he killed Herrera, he was still on probation.
In federal law, involuntary manslaughter carries a maximum sentence of eight years in prison. However, the plea agreement, which District Judge James Browning signed, dictated that Sam would receive a sentence of a year and three months (15 months) to a year and nine months (21 months).
Federal prosecutor David Adams proffered that binding plea deal and federal Magistrate Judge Karen Molzen initially accepted it although it was up to Browning to determine the final sentence.
“Acknowledging that the plea agreement radically reduces the defendant’s exposure to incarceration, the United States urges the Court to accept the agreement based on the fact that grounds for the plea are significantly tied to the facts of the case and the detrimental impact proceeding to trial would likely have on all parties involved,” Adams wrote.
The three brothers were unreliable witnesses and Adams was not sure if they would even show up, if the case went to trial, he wrote. In addition, they had little credibility, considering they attacked Sam’s property.
Near Counselor, NM. Photo by Chris Sale/Flickr. CC BY
“If one of the witnesses decided not to show, the government’s case in chief would collapse, the jury would more likely rely upon the Defendant and his version of events, which was well articulated in his statement to law enforcement,” Adams wrote. “A spokesperson for the family had conveyed to the government that the brothers would likely be a no show at the day of trial. The allegation by the Defendant that one of the brothers was firing a rifle from the vehicle would become an even more difficult obstacle to overcome if one of the witnesses decided not to show. The government wasn’t privy to what defenses witnesses would testify to, but the defense had eluded to the fact that one of their witnesses would testify that they heard or saw another weapon being fired, corroborating the Defendant’s version of events.”
Sam’s attorney, Robert Gorence, argued that Sam had a legitimate claim to self defense, Adams wrote.
‘”The United States agrees with the analysis that the Defendant’s self-defense claim could have resulted in an acquittal or at the very least a step down to involuntary manslaughter which would have resulted in a sentence of two to three years,” Adams wrote. “Taking those things into consideration, as well as the criminal history of the victim and his brothers, the parties negotiated a plea that reconciled what would have otherwise been an indeterminate trial dynamic.”
“Mr. Sam’s investigation in this case revealed the following that had not been uncovered by the FBI:
1. Mr. Sam had been the victim of repeated threats and violence directed against him and his property;
2. On the night of July 30, 2016, Mr. Sam was not intoxicated and was peaceably minding his business at his residence;
3. That the alleged victim in this case and his brothers, close to midnight, began what would be called an ‘attempted home invasion,’ and, when unsuccessful in breaching the residence, the alleged victim and his brothers proceeded to smash a house window and the windows of Mr. Sam’s vehicles.”
In addition, Sam was not armed in his own house and only retrieved a gun from his neighbor, who tried himself to call 911, but was unable to. In addition, three different neighbors would corroborate that they heard Sam being shot at before he returned fire, Gorence wrote.
“Perhaps of greatest significance in this case is the odd autopsy findings cursorily set forth in paragraph 17 of the PSR (Pre-sentence report),” Gorence wrote. “Although Mr. Sam was at least 15 feet higher in elevation than the alleged victim, the autopsy identified that the alleged victim died from a single bullet which entered his left upper back, went through his left shoulder blade and the left side of his neck, into his oral cavity and exited the right side of his mouth. Given the difference in elevation, this trial would have established great uncertainty as to whether or not Mr. Sam actually fired the fatal shot. Quite conceivably the alleged victim was accidentally shot by one of his brothers either in the vehicle or before entering it. This would explain the bizarre behavior of the victim’s brothers in not transporting him immediately to a hospital and instead going to a sister’s house for a very lengthy period of time. The argument would have been made at trial that the prolonged stay at the alleged victim’s sister’s house was an attempt by his brothers to cleanse themselves of his blood and hide other critical evidence, namely their firearm.”
“The Pre-Sentence Report fairly describes Mr. Lovato’s promising childhood, his disconcerting slide into youthful alcohol abuse, and his presence in the hours leading up to the fatal confrontation in the company of two middle-aged, severe alcoholics with long criminal histories,” Samore wrote. “Whatever the precipitating factor, Mr. Lovato wound up in a ‘fight for his life’ with yet another middle-aged alcoholic, who was bent on hurting Mr. Lovato. Mr. Lucero’s extensive criminal history and violent past is fairly summarized in the PSR and Addendum. Mr. Lovato eventually overwhelmed Mr. Lucero, and the evidence indicated he administered more blows than necessary to defend himself.”
