• The New Mexico Supreme Court upheld Ameer Muhammad‘s conviction on felony murder • The justices rejected arguments that Muhammad’s mental illness prevented him from waiving his Miranda rights • He received a mandatory life sentence, with parole after 30 years.
SANTA FE, N.M. — The New Mexico Supreme Court unanimously upheld the felony murder conviction of Muhammad Ameer, 26, who stabbed Aaron Sieben to death in 2017.
Defense attorney Steven Forsberg wrote in the appeal that the statement should have been suppressed because Muhammad was “in the grips of severe mental illness” when he made the waiver of his Miranda rights and gave a statement to detectives.
Justice Barbara Vigil wrote in the opinion for the court that Flores rejected the initial argument to suppress the statement, “stating that without more information about Defendant’s apparent delusions there was not enough to conclude that those delusions impacted Defendant’s ability to waive his rights.”
She did not, however, address if it was made “knowingly and intelligently.”
In challenging the unsuppressed statement, Forsberg wrote that the Flores used the wrong legal standard to determine if it needed to be suppressed.
Vigil wrote that the defense argued that Muhammad thought it was pointless to exercise his right not to speak to detectives because he had delusions that they would hear his thoughts and therefore they already knew everything. She wrote:
“The recording of the interview at the MDC demonstrates that Defendant’s mental illness did not affect his understanding of his rights but rather his motivation for not exercising those rights. No other evidence was presented concerning Defendant’s claimed diagnosis of schizophrenia or its effect on his ability to comprehend his rights. Because the record otherwise supports the district court’s findings that Defendant was cogent and could accurately articulate his rights and the consequences of abandoning them, the totality of the circumstances demonstrates that Defendant’s waiver was knowing and intelligent.”
As for the argument that a self-defense instruction should have been given, there was no evidence that the Sieben, 30, ever had a weapon, even if he struck first.
“We have held that evidence of a simple battery against a defendant is insufficient for a reasonable jury to find that the defendant acted reasonably by responding with deadly force,” Vigil wrote, before quoting State v. Lucero, a 2010 case, which in turn quotes a 1996 case, State v. Duarte.
There was not enough evidence to support a self defense claim, she wrote.
The case
On July 27, 2018, a jury found Ameer, 26, guilty of felony murder and armed robbery, although the latter charge was dropped as the predicate felony for felony murder. The jury acquitted him on a charge of tampering with evidence.
According to court documents, victim Aaron Sieben and Ameer allegedly got into some kind of argument while Sieben was in his truck on March 19, 2017, parked at a Circle K gas station in Albuquerque.
After Ameer allegedly fled from Sieben, Sieben pursued him, leading to a fist fight. As the fight progressed, Ameer allegedly produced a knife and stabbed Sieben two to three times. After stabbing Sieben, Ameer allegedly took his wallet. Sieben died at the scene and Ameer allegedly fled, only to be arrested shortly thereafter.
• 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.”
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.
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.
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.
• Muhammad Ameer is appealing two issues from his trial • The case is scheduled for a year after the last brief was submitted to the court in July 2019
SANTA FE, N.M. — Justices will hear oral arguments in Muhammad Ameer‘s appeal of his felony murder conviction on July 7, 2020, although it may be done via teleconference.
On July 27, 2018, a jury found Ameer, 26, guilty of felony murder and armed robbery, although the latter charge was dropped as the predicate felony for felony murder. The jury acquitted him on a charge of tampering with evidence.
According to court documents, victim Aaron Sieben and Ameer allegedly got into some kind of argument while Sieben was in his truck on March 19, 2017, parked at a Circle K gas station in Albuquerque.
After Ameer allegedly fled from Sieben, Sieben pursued him, leading to a fist fight. As the fight progressed, Ameer allegedly produced a knife and stabbed Sieben two to three times. After stabbing Sieben, Ameer allegedly took his wallet. Sieben died at the scene and Ameer allegedly fled, only to be arrested shortly thereafter.
Although four issues were initially raised in a statement of issues for Ameer’s automatic appeal to the Supreme Court, in the June 10, 2019 brief in chief, Assistant Appellate Defender Steven Forsberg, with the Law Office of the Public Defender, only challenged two issues: the judge not suppressing Ameer’s statement to the police and the lack of a self-defense instruction.
In challenging the unsuppressed statement, Forsberg wrote that the Flores used the wrong legal standard to determine if it needed to be suppressed.
A Miranda rights waiver has to be both voluntary and knowing and intelligent, but Flores stated she believed police coercion was required to suppress the statement. However, that is only required to find if a statement was given voluntarily; a statement can still fail to meet the knowing and intelligent threshold in the absence of coercion, Forsberg wrote.
He wrote that Ameer was “in the grips of severe mental illness” when he made the waiver.
The statement was also the only evidence Ameer was the initial aggressor. When the defense argued for a self-defense instruction, the judge said she could not discount his statement to police. Forsberg wrote:
None of the eyewitnesses saw what caused Ameer to flee from Mr. Sieben’s truck while Mr. Sieben chased him, but Ameer in his statement said he had held a knife to Mr. Sieben. None of the witnesses could provide a motive for those events, until Mr. Muhammad said during his statement, according to the detective, “that he wanted to get meth; to get high; to kill himself, and he made statements that he killed him because he did not want to continue to ask people for money.” [8 Tr. 23:24-25:15] Due to his mental state, Ameer’ s statements were not knowing (let alone reliable).
When the defense was arguing for a self-defense instruction, the trial court judge emphasized the importance of the statement: “I think the problem for me is you really want me to discount the Defendant’s statement, and I can’t” [8 Tr. 56:16-56:18] Ameer’s unknowing statement kneecapped any defense he might have had.
Forsberg wrote that the Supreme Court should either reverse his conviction and remand for a re-trial, with the statement suppressed, or remand the case to the District Court for a new hearing on the suppression issue.
Should the trial court, on remand, find the statement unknowing, then a new trial would be required. If, on the other hand, the trial court held that the statement was knowing and intelligent, then Mr. Muhammad could appeal that decision to this Court.
In the answer brief for the prosecution, filed June 20, 2019, Assistant Attorney General Maris Veidemanis wrote that, although Ameer was experiencing delusions during the police interrogation, he was “coherent and articulate” and that the defense presented no information that Ameer did not understand the Miranda warning.
If there had been an error, it wouldn’t have mattered because there was ample evidence to convict him of felony murder, predicated on armed robbery, Veidemanis wrote.
As to the self-defense instruction, Veidemanis wrote that really, the Flores’ decision was based on the lack of evidence that Ameer had been attacked and pointed to State v Abeyta, which states that self defense must be reasonable in relation to the threat posed and that excessive force in self defense “renders the entire action unlawful.”
On July 10, 2019, Forsberg filed a reply brief and focused on Veidemanis’ emphasis on the voluntariness of Ameer’s statement. He wrote that the trial court should be ordered to consider evidence of Ameer’s mental state in determining if he knowingly and intelligently waived his rights.
He wrote that Veidemanis’ claims that the case could have stood without his statement was contradicted by the trial prosecutor, who fought the suppression motion and highlighted the statement during his closing arguments.
• 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
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.
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.
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.
“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.
According to police reports, Pino ran down homeless man Daniel Arballo, whom Pino saw with a pair of speakers. He also ran down Arballo’s friend, Billy Harper.
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Allegedly tired of having his property stolen, Christopher Pino, 52, allegedly ran down homeless man Daniel Arballo and tried to run down his friend, Billy Harper, after he saw the pair with a set of speakers.
He was initially arrested on charged of aggravated battery with a deadly weapon and aggravated assault with a deadly weapon.
On May 1, 2017, Arballo was pronounced dead and on May 4, an autopsy was conducted. After the autopsy, officers decided to charge Pino with murder.
In June 2018, Pino pleaded no contest to voluntary manslaughter with a sentence capped at six years. In August 2018, District Court Judge Cristina Jaramillo sentenced him to 3 1/2 years. He received credit for 197 days served.
On April 30, 2017, officers responded to an alley at Central Avenue and Solano Drive. Daniel Arballo was immediately transported to the University of New Mexico Hospital for extensive injuries, Officer P. Moya wrote in an affidavit for an arrest warrant.
When Officers Israel Martinez and Lea Lopez first arrived, they thought it was a simple crash. While talking to the driver of a red hummer involved, Christopher Pino, Martinez was told that Pino was a suspect and he immediately read him his Miranda rights.
“Pino stated he was contacted by an unknown person who lives in the area,” Moya wrote. “The person stated there were two males taking stuff from his property, which is located at 3715 Silver SE. The building is an old church formally known as The Trinity Methodist Church. Pino decided to go to his property in hopes to stop the inviduals from taking his belongings.”
When he arrived, he saw two men in the alleyway carrying his radio.
“Pino then intentionally struck one of the males at approximately 20 miles per hour and was trying to hit the other male so they could be contacted by police when they arrived,” Moya wrote. “As he was attempting
to confront the other male, a crowd started to gather in the street. It was at this time Pino decided to leave the area.”
Homeless man Billy Harper’s view
Moya interviewed the other man, Billy Harper, who told him he was in the area when he saw his friend, Arballo, cleaning up weeds and branches from the church property.
“Scooby told Billy, ‘this was his people’s church,'” Moya wrote. “It was unclear when Billy decided to help him out but they
started to throw some trash and some branches inside the dumpster. They then obtained some speakers and while
in the process of walking those to the dumpster a red Hummer turned down the alley and accelerated.”
Harper estimated the Hummer to be going at least 40 mph.
“The driver then directed his attention towards Billy and told him, ‘you stealing from my church, you stealing from my church?'” Moya wrote. “He did this while shaking a shovel at him. The male was shaking the shovel at him while threatening to harm him. Billy stated he was only a short distance away, he estimated 15 feet.”
Shortly afterward, Harper alleged Pino left, then came back and threatened him again.
Seven Clover security guard Gregory Kreitman told Moya that he was outside smoking a cigarette when he saw two homeless men in the alley, shaking off jeans and throwing away trash.
Albuquerque, N.M., at Central and Morningside. Photo by Pom’/Flickr. CC BY-SA
“He then saw a red Hummer ‘fly’ down Solano and enter the alley and wreck his vehicle directly into the two males,” Moya wrote. “One was able to jump out of the way but the other was struck with the vehicle and went ‘flying.’ After the collision, the vehicle reversed and went after the other male.”
After the initial crash, Kreitman alleged, Pino started threatening to hit Harper with the car.
“Gregory then stood in front of the male to avoid him from being harmed,” Moya wrote. “The vehicle eventually drove off and turned east on Central and came back around on Silver to Solano. He continued yelling at the male, ‘You’re going to be killed, I’m going to kill you, you stole from me.'”
Pino allegedly stayed a few minutes before he heard sirens, then took off and he said he never saw Pino get out of the vehicle, contrary to Harper’s statement.
“Gregory added the driver kept telling the other male to come out into the road so he can hit him with his car,” Moya wrote.
Seven Clover employee Jamilex Delgado’s statement
Jamilex Delgado, an employee at Seven Clover Dispensary, told Moya she Kreitman dealing with a commotion outside. When he left the building, she saw a man in a hat, later identified as Harper, “freaking out” because it appeared the red Hummer was going to crash into him.
“Delgado recalled seeing the red Hummer enter alley way and possibly hit something,” Moya wrote. “This occurred prior to her any having knowledge of any situation that was transpiring.”
Pino allegedly threatened Harper with what appeared to be a shovel in his back seat, but she was not sure if it was a shovel, a bat or something else.
“Delgado stated the male was ‘raging,'” Moya wrote.
The perimeter
While at the scene, Moya saw a set of speakers in the alley and one was missing a cover. The cover was inside the gated church property.
“Officer Lucero and myself walked the perimeter of the church and could not locate any forced entry or any other type of entry,” Moya wrote. “I did locate some branches inside the dumpster. There was also a green couch cushion as well.”
A “responsible party,” Jacob Welch, allowed them in to make sure there were no signs of forced entry.
“Everything appeared secure and could only locate a window that was not locked,” he wrote. “The window was closed and could not determine whether that could’ve been used as any point of entry.”
Pino’s interview
At the scene, Moya talked to Pino and told him he would interview him at the police station.
“Pino uttered he was contacted by someone who lives in a triplex close by,” Moya wrote. “The person informed him that there were two individuals taking items from the church. I told Pino I will continue to speak with him at the substation so I could advise him of His Constitutional Rights per Miranda.”
At 5:18 p.m., at the Phil Chacon police substation, Moya read Pino his Miranda rights.
“Pino was asking me what he should do. I advised him I could not provide legal advice and that he would have to make the decision or he could contact an attorney,” Moya wrote. “During this time, Pino stated he only wanted to detain them until the police got there. He was tired of dealing with continuous burglaries and other property crimes that have been occurring on the property.”
Moya told Pino that he could not ask him any questions or engage in conversation, and Pino allegedly continued to say that he meant to knock the men down so they would not leave and after knokcing the first one done, he tried to knock down the second.
“He has been dealing with fires being lit inside the property and other nuisances,” Moya wrote. “He just wanted them to get arrested to send a message to others to leave the property alone. Pino stated he had a shovel in the car and wanted to knock the other guy out until the cops got there. It should be noted I did not ask any questions or partake in the conversation. When I engaged in conversation it was merely to provide understanding of his Constitutional Rights.”
Pino allegedly said he did not know what else to do about his property and said he was outside of his vehicle, threatening Harper.
“Pino reiterated he wanted to detain them when he saw them carrying his stereo,” Moya wrote. “Pino stated he didn’t have any intentions of killing or hurting anybody he just wanted them to stop. I eventually terminated the interview due to his indecision to waive his Constitutional Rights. I instructed him to contact an attorney and contact me for an interview if he wanted to.”
He was initially arrested on charges of aggravated battery with a deadly weapon and aggravated assault with a deadly weapon.
Arballo died at 5 p.m., May 1, 2017. On May 4, a pathologist conducted an autopsy and thereafter, officers made the decision to charge Pino with murder.
Knowingly leaving the scene of an accident causing great bodily harm or death
Two counts of aggravated assault with a deadly weapon
On June 5, 2018, Pino pleaded no contest to voluntary manslaughter, which has a maximum sentence of six years, signed by prosecutor David Waymire and accepted by Jaramillo. Waymire dismissed the other charges against Pino.
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.
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.
The case is pending an appeal after a judge dismissed a firearms enhancement.
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.”
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.
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 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.”
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 inState v. Baroz, but did not state what precedent in Baroz the judge was supposed to follow.
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.
“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.
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.
Charges: First-degree or felony murder, armed robbery, tampering with evidence, shoplifting under $250
Status: Jury conviction on felony murder and shoplifting; acquittal on tampering with evidence; armed robbery vacated by the judge. Upheld by the Supreme Court.
Sentence: Life with the possibility of parole after 30 1/2 years (mandatory)
On March 19, 2017, Aaron Sieben and Ameer Muhammad allegedly got into some kind of argument while Sieben was in his truck, parked at a Circle K gas station.
After Muhammad allegedly fled from Sieben, Sieben pursued him, leading to a fist fight. As the fight progressed, Muhammad allegedly produced a knife and stabbed Sieben two to three times. After stabbing Sieben, Muhammad allegedly took his wallet. Sieben died at the scene and Muhammad allegedly fled, only to be arrested shortly thereafter.
Muhammad was indicted by a grand jury on March 30, 2017, on first-degree murder or felony murder, armed robbery, tampering with evidence and shoplifting under $250. After multiple allegations of misconduct by the prosecution and defense, the Attorney General’s Office took over the prosecution. The defense also tried to suppress statements he made to a detective after he asserted his right to an attorney.
On July 27, 2018, a jury found Muhammad guilty of felony murder, armed robbery and shoplifting under $250 while finding him not guilty of tampering with evidence. On Sept. 25, 2018, Judge Jacqueline Flores sentenced him to life in prison, which is a term of 30 years, according to a remand order.
On Nov. 7, 2018, Muhammad’s attorneys appealed his conviction and on June 10, 2019, his attorneys filed a brief in chief, arguing his statements should have been suppressed and the judge should have given a self defense instruction to jurors.
On Oct. 19, 2020, the New Mexico Supreme Court unanimously upheld Muhammad’s conviction for felony murder, rejecting the two arguments made by his defense attorney: Flores not suppressing Muhammad’s statement to the police and the lack of a self-defense instruction.
The incident
On March 19, 2017, Albuquerque Police Officers were called to the Circle K gas station at 900 Eubank Boulevard after a husband and wife called in a stabbing.
Multiple people were standing over Sieben and one person was trying to administer first aid. After paramedics arrived, a short time later, they declared Sieben was dead.
Officers, given a description of the alleged stabber, were able to locate Muhammad near-by.
Hsu interviewed two witnesses, George and Lindsy Brigham. They were parked on the south side of the gas station. Sieben, in a gray truck, was parked beside them.
“Mr. Brigham also observed a black male adult, later identified as Muhammad Ameer, standing outside the gray GMC pickup truck,” Hsu wrote. “As Mr. Ameer started to leave the vehicle, the decedent got out of the GMC and started to Mr. and Mrs. Brigham, ‘Get that mother fucker!’ Mr. and Mrs. Brigham believed that the decedent was requesting their assistance for an emergency.”
Sieben then chased Muhammad along the sidewalk behind the store while the Brighams got out of their vehicle and watched as the pair engaged in a fist fight, which spilled into the westbound lanes of Lomas Boulevard NE.
“While on Lomas Blvd NE, Mr. Ameer produced a six-to-seven inch knife,” Hsu wrote. “Mr. and Mrs. Bringham saw Mr. Ameer going through the decedent’s pants pockets. Mrs. Brigham observed Mr. Ameer remove a black wallet from the decedent’s right rear pocket. Mr. Ameer then fled the scene on foot eastbound on Lomas Blvd NE.”
The Brigham’s tried to administer first aid until paramedics arrived and Lindsy Bringham called 911 and provided a description of Muhammad and the direction he was headed. George Brigham positively identified him, after officers detained him.
He was initially charged, the day of the alleged incident, on an open count of murder and robbery with a deadly weapon.
Romaine, in his motion for sanctions, alleged Martin and Swonger were trying to suppress witnesses because of issues related to pre-trial witness interviews and by putting off interviews of police officers until closer to trial, but before the deadline. He also alleged that the defense, both employed by the Law Office of the Public Defender, did not “seem motivated to move forward in the adjudication of this matter.”
He requested sanctions to “deter this sort of behavior.”
Swonger filed a response on Sept. 11, 2017 and wrote that they were splitting the pre-trial interviews and Martin was not available until November 2017.
“The State responded on August 7, 2017 and stated that the ‘interviews in this case cannot be put off any longer,’ despite the fact that the interview deadline in this matter is not
until January 22, 2018,” Swonger wrote about Romaine. “The State gave no further explanation to Defense of why interview dates in November, two months prior to the interview deadline, would be unacceptable to him.”
Swonger also alleged that Grace Fonesca, employed by the Second Judicial District Attorney’s Office and who was on the prosecution’s witness list, was trying to avoid being served with a subpeona and had been providing false names to investigators for the defense. (According to an Oct. 27, 2017 court filing by Romaine, Fonesca saw Sieben’s killing.)
On Sept. 18, 2017, the judge set a hearing for the motion for sanctions on Oct. 19, 2017.
On Oct. 18, 2017, Martin filed a motion to dismiss or disqualify the Second Judicial District Attorney’s Office. Martin wrote in the motion that Fonesca allegedly lied to investigators, claimed she was a different person when an investigator tried to serve her with a subpoena and allegedly claimed that Romaine told her she did not have to accept the subpoena.
Martin wrote that Romaine violated Muhammad’s Fifth and Fourteenth rights, as well as state constitutional rights, by “the obstruction and interference of the prosecutor in the service of a lawful subpoena upon the witness in this matter.”
“This was in part due to the inherent conflict of interest by the witness being employed at the 2nd Judicial District Attorney’s office and therefore, wanting to please her employer in this matter,” Martin wrote.
Martin wrote that Romaine caused a denial of due process because of bias “formed” by Fonesca being an employee of his office.
“The interplay between the employee witness and the prosecutor has given rise to the appearance of impropriety and a need for a special prosecutor,” Martin wrote.
According to an affidavit by Investigator Milton Rodriguez, and attached to Martin’s motion, Rodriguez went to to Fonesca’s house on Sept. 6, 2017 and a woman was sitting outside on the phone. She claimed her name was “Lisa” and she was the dog sitter. Rodriguez pulled up Fonesca’s driver’s license photo and found he had been duped, he wrote.
On Sept. 11, 2017, Rodriguez found Fonesca’s 17-year-old son outside the house and explained why he was there.
“After explaining to Richard (Fonesca) Jr. the subpoenas I had in hand, Richard Jr. told me he witnessed the same incident in question. Richard Jr. told me, his mother told him not to tell the police what he had seen because she did not want him to get involved,” Rodriguez wrote.
On Oct. 19, 2017, following a hearing, District Court Judge Christina Argyres denied Romaine’s motion for sanctions in a form order.
On Oct. 27, 2017, Romaine filed a response and alleged that he never told Fonesca to refuse service of the subpoena.
On Nov. 7, 2017, prosecutor Mark Probasco, with the Attorney General’s Office, entered his appearance in the case, taking the case away from Romaine and the Second Judicial District Attorney’s Office.
Motion to suppress
Judge Jacqueline Flores
On April 2, 2018, Martin filed a motion to suppress statements Muhammad made to Det. Andrew Hsu on March 24, 2017, after he had been arraigned, asked for an attorney and was being represented by the Law Office of the Public Defender.
Martin wrote that Muhammad was “actively hallucinating” during the interrogation by Hsu and he was represented when Hsu interrogated him on March 24, 2017.
On April 12, 2018, Probasco filed an opposition to the motion to suppress statements and he wrote that Muhammad initiated conversation with Hsu on March 27, 2017. It is not clear which date is correct.
Probasco wrote: “After documenting an injury on the Defendant’s hand, the Defendant — without any question being posed– volunteers ‘Like, uh, never mind. I was going to say, like, I know I did it but that· is that what y’all want to know? Like I did it but I feel like I wasn’t in my right mind at the time though. Like, I feel like everybody in Albuquerque, New Mexico was trying to kill me and shit.'”
“Law enforcement,” although it is not clear if that was Hsu or someone else, stopped Muhammad from speaking and told him he needed to read him his rights, which he did.
“The waiver in this case comports with the requirements of the Constitution because Defendant initiated his interrogation: he was given repeated and individualized advice of
rights, he repeatedly attempted to discuss his criminal conduct, his demeanor showed relief when he initiated his statement, and his affirmative waiver of rights indicated that
he still wanted to provide a statement to the police in this case despite having on previous occasion asserted his right to counsel.”
Guilty verdict and sentence
Trial began on July 23, 2018 and the jury found Muhammad guilty on July 27, 2018, of felony (first-degree) murder, armed robbery and shoplifting $250 or less.
Flores vacated the armed robbery charge because it was the predicate felony for felony murder. He was acquitted of tampering with evidence.
On Sept. 25, 2018, Flores sentenced him to life in prison, which is a term of 30 years, according to a remand order.
Supreme Court appeal
In an initial statement of issues filed Nov. 7, 2018, Martin raised four issues on appeal:
The denial of the suppression of Muhammad’s statements to Andrew Hsu
The judge’s denial of a self defense instruction to the jury
If the judge erred by allowing Det. Tasia Sullivan to be designated as the case agent, and attend the trial, despite not being the lead agent
If there was sufficient evidence to convict Muhammad
In the June 10, 2019 brief in chief, Assistant Appellate Defender Steven Forsberg, with the Law Office of the Public Defender, only challenged two issues: the judge not suppressing Muhammad’s statement to the police and the lack of a self-defense instruction.
However, both of those issues are related because the judge, Flores, used Muhammad’s statements as the basis for not giving a self-defense instruction, Forsberg wrote.
The 42-page brief outlines much of the testimony at trial.
In challenging the unsuppressed statement, Forsberg wrote that the Flores used the wrong legal standard to determine if it needed to be suppressed.
A Miranda rights waiver has to be both voluntary and knowing and intelligent, but Flores stated she believed police coercion was required to suppress the statement. However, that is only required to find if a statement was given voluntarily; a statement can still fail to meet the knowing and intelligent threshold in the absence of coercion, Forsberg wrote.
He wrote that Muhammad was “in the grips of severe mental illness” when he made the waiver.
The statement was also the only evidence Muhammad was the initial aggressor. When the defense argued for a self-defense instruction, the judge said she could not discount his statement to police. Forsberg wrote:
None of the eyewitnesses saw what caused Muhammad to flee from Mr. Sieben’s truck while Mr. Sieben chased him, but Ameer in his statement said he had held a knife to Mr. Sieben. None of the witnesses could provide a motive for those events, until Mr. Muhammad said during his statement, according to the detective, “that he wanted to get meth; to get high; to kill himself, and he made statements that he killed him because he did not want to continue to ask people for money.” [8 Tr. 23:24-25:15] Due to his mental state, Ameer’ s statements were not knowing (let alone reliable).
When the defense was arguing for a self-defense instruction, the trial court judge emphasized the importance of the statement: “I think the problem for me is you really want me to discount the Defendant’s statement, and I can’t” [8 Tr. 56:16-56:18] Ameer’s unknowing statement kneecapped any defense he might have had.
Forsberg wrote that the Supreme Court should either reverse his conviction and remand for a re-trial, with the statement suppressed, or remand the case to the District Court for a new hearing on the suppression issue.
Should the trial court, on remand, find the statement unknowing, then a new trial would be required. If, on the other hand, the trial court held that the statement was knowing and intelligent, then Mr. Muhammad could appeal that decision to this Court.
In the answer brief for the prosecution, filed June 20, 2019, Assistant Attorney General Maris Veidemaniswrote that, although Muhammad was experiencing delusions during the police interrogation, he was “coherent and articulate” and that the defense presented no information that Muhammad did not understand the Miranda warning.
If there had been an error, it wouldn’t have mattered because there was ample evidence to convict him of felony murder, predicated on armed robbery, Veidemanis wrote.
As to the self-defense instruction, Veidemanis wrote that really, the Flores’ decision was based on the lack of evidence that Muhammad had been attacked and pointed to State v Abeyta, which states that self defense must be reasonable in relation to the threat posed and that excessive force in self defense “renders the entire action unlawful.”
On July 10, 2019, Forsberg filed a reply brief and focused on Veidemanis’ emphasis on the voluntariness of Muhammad’s statement. He wrote that the trial court should be ordered to consider evidence of Muhammad’s mental state in determining if he knowingly and intelligently waived his rights.
He wrote that Veidemanis’ claims that the case could have stood without his statement was contradicted by the trial prosecutor, who fought the suppression motion and highlighted the statement during his closing arguments.
On Oct. 19, 2020, the New Mexico Supreme Court unanimously upheld Muhammad’s conviction for felony murder, rejecting the two arguments made by his defense attorney: Flores not suppressing Muhammad’s statement to the police and the lack of a self-defense instruction.
Supreme Court Justice Barbara Vigil, in her opinion for the court, wrote that no self-defense instruction was appropriate because there was no evidence that the Sieben, 30, ever had a weapon, even if he struck first.
Muhammad’s Miranda rights were not violated because, based on the recording of his interview, because his “mental illness did not affect his understanding of his rights but rather his motivation for not exercising those rights,” Vigil wrote.
Albuquerque Police officers broke up a fight between Daryl Albert and Christopher Martinez on Jan. 17, 2017. While talking to Martinez, he clutched his side and told them Albert stabbed him. Although Martinez was transported to the hospital, he was dead on arrival.
On Aug. 31, 2018, his attorney filed a motion for a reconsideration of his sentence in light of “new information,” although no hearings have been set.
The incident
On Jan. 17, 2017, Officers R. Vanderlip and J. Bludworth were dispatched out to the Circle K at the intersection of Central and Wyoming in Albuquerque.
The officers separated the two men and began talking to them separately.
Two more officers, on bicycles, C. Keeling and E. Huggs, saw the two officers and came by to help.
After a few minutes, Martinez came at the officers, his left hand clutching his side, his right hand clutching a box cuter. He told them Albert had stabbed him.
Officers then went to re-apprehend Albert, who had been allowed to leave the scene.
While walking him back toward Circle K, a man who refused to be identified yelled the officers and Albert.
“You had to be a bitch and stab him,” the man yelled.
Martinez was transported to the hospital but pronounced dead on arrival.
One witness, only identified as OH, told the officers that he saw Albert run to the bus stop where Martinez was standing and stab him with a knife.
“OH stated after Christopher was stabbed, he observed Christopher pull out a knife from his pocket and then walk east toward the front of the Circle K where officers were,” Brown wrote.
Another witness, a juvenile only identified as DL, told detectives that Albert, whom he knew as “Puppet,” ran toward Martinez and stabbed him with a knife.
Detectives were able to find the folding knife allegedly used in the attack in a bush at the corner of Wisconsin and Central. It had blood on it.
On March 27, 2018, Albert pleaded no contest to voluntary manslaughter, a lesser-included offense of the open count of murder he was indicted on. District Court Judge Jacqueline Flores accepted his no contest plea. Under the plea, Albert admitted to being a habitual offender, which increased whatever sentence he received by one year. Voluntary manslaughter carries a maximum sentence of six years.
Charges: First-degree murder, aggravated battery with a deadly weapon: a firearm, two counts of tampering with evidence and escape from the custody of a release program
Status: Guilty plea to second-degree murder, tampering with evidence and escape from a community custody program
Sentence: 7 years followed by 5 years supervised probation
On Jan. 15, 2016, Darrius Valles, allegedly shot Jerry Wayne Jennings in the head with a pistol while they were fighting. They got into the fight because Valles caused someone to break Jenning’s windows.
Valles allegedly claimed to his girlfriend, after the fight, that he shot Jennings in self defense.
A female witness who lived across the way alleged that she saw Jennings shot in the head while he was talking on a cell phone, and not while he was fighting with Valles.
He was arrested on the charges on Feb. 29, 2016.
As the case proceeded, DeAmber Yonker failed to appear for a pre-trial interview and her lawyer, representing Valles in another case, requested that she not be ordered to testify because she could incriminate herself. That attorney, Lisa Torraco, was later removed as her attorney.
Yonker failed to appear for a series of hearings and on May 5, 2017, prosecutors agreed to a plea deal with Valles’ attorney, Tom Clark, after Yonker could not be located. She was arrested on a warrant two days later.
According to the plea deal, accepted on June 14, 2017, Valles received a sentence of seven years followed by supervised probation for five years.
The incident
Around 3:42 p.m., Jan. 15, 2016, Darrius Valles, 21 at the time, and Jerry Wayne Jennings, 43, got into a fight over Jenning’s broken apartment windows.
During the fight, Valles allegedly shot Jennings in the head with a pistol, according to what he told his girlfriend, DeAmber Yonker, of Albuquerque, Brown wrote.
He wrote he was called out to Valles’ apartment in the 1300 block of Dickerson Drive SE about two hours after the shooting was reported.
Yonker told Brown, in an interview in the Department’s mobile crime scene van, that nine days prior, her boyfriend, Valles, and his friend, Lamar Watts, got into an argument.
“During this argument, Darrius ran over to Jerry’s apartment #A for refuge,” Brown wrote. “Lamar threw several rocks into several of Jerry’s apartment windows. DeAmber stated since then, none of Jerry’s windows were fixed until today when her mother had a repairman fix only one of the damaged windows.”
Because Yonker’s mother only had the one window fixed, Jennings went over to the apartment Yonkers and Valles shared the day of the shooting. He wanted to speak to Valles about getting the other windows fixed.
Valles walked outside of the apartment and allegedly heard Jennings tell Valles that he was going to fix the windows, then heard fighting outside the closed door, and someone bump up against it.
“She stated her door opened and saw Darrius trip as he was walking back into their apartment,” Brown wrote. “She stated although Darrius was much larger than Jerry that Jerry got on top of him and started punching him.”
Yonker told them she was going to call 911, and did so, but was told to go into one of the back rooms while the two men fought.
Brown wrote that, according to driver’s license information, both men were six feet tall but Jennings only weighed 175 pounds while Valles weighed 280 pounds.
“She stated Darrius and Jerry ended up outside again and while she was on the phone, she heard a ‘pop’ sound,” Brown wrote. “She then dropped her phone and walked into the hallway of their apartment to see what was going on.”
Valles walked in and met her in the apartment’s hallway.
“She stated he told her he had to shoot Jerry ‘out of self-defense,'” Brown wrote. “She stated he told her Jerry was punching him and he had to shoot him. She stated he then handed her a small pistol (unknown type or caliber) telling her to take it because she was 21 and she wouldn’t get in trouble.”
Yonker told him no and handed the pistol back. Valles then allegedly opened the closet door in the hallway, put on a jacket and left the apartment.
The other view
Another detective told Brown he talked to a juvenile who lived in an adjacent apartment complex.
“She stated while in her bedroom, she heard what sounded like a gunshot,” Brown wrote. “She looked through the back window and observed a male talking on a cellphone fall back onto the floor just after hearing the ‘pop’ sound. The female then walked down to 1309 Dickerson Dr SE and noticed the male she saw fall to the ground shaking on the ground.”
She told the detective the man was bleeding from the head.
Nowhere to be found
Detectives learned that Valles was on probation for another case and had an ankle bracelet that should have been able to track his movements.
During a briefing, Brown learned that Valles allegedly cut the bracelet off after the shooting.
“The bracelet was located at Arno St SE and Bell Ave SE at approximately 4:02 pm by Probation and Parole,” Brown wrote.
The arrest warrant was then issued the following day, Jan. 16, 2016.
The prosecution tried to conduct a pre-trial witness interview with Yonker on May 17, 2016 and served her with a subpeona.
Albuquerque by Pom’/Flickr. CC BY-SA
She didn’t show.
Her lawyer at the time, Lisa Torraco, filed a motion for a protective order on May 16, 2016 that would protect Yonker from testifying under the theory that she could incriminate herself. The judge sealed that motion.
In his motion, Romaine asked the judge to issue a warrant for Yonker so she could be held until they could conduct a pre-trial interview.
Torraco had previously represented Yonker and Valles in another case and in this case, prosecutors argued, she had a conflict of interest because what would be good for Valles might not be good for Yonker.
In a motion, Romaine asked that Torraco be removed as Yonker’s attorney and in it, he summarized a series of past cases involving Valles and Yonker. See the motion here.
In addition, he wrote that Torraco indicated that Yonker might expose herself to federal prosecution if she were to testify.
“Torraco is now representing a witness this case whose interests are adverse to Defendant,” District Judge Brett Loveless wrote in the order for new counsel. “Torraco has represented that Yonker may have evidence that is exculpatory for Defendant. However. Torraco sought an order excluding Yonker from testifying in order to protect Yonker from incriminating herself. Thus, the interests of Yonker and Defendant are materially adverse.”
Loveless wrote that it was unusual that prosecutors wanted a witness’s lawyer to be removed from the case.
“However, under the unique circumstances of this case, the Court has no trouble concluding that Torraco’s simultaneous representation of Yonker in this case and Defendant in other criminal matters is fraught with a conflict of interest, as well as a serious potential conflict of interest,” Loveless wrote.
“The State is prepared to grant use immunity to DeAmber Yonker for her testimony in regards to the events of January 16, 2016, so long as DeAmber Yonker does not state she was the shooter,” Romaine wrote.
On March 15, 2017, Valles attorney, Tom Clark, filed a motion to exclude the testimony of Yonker and fellow witness Julia Quaglia-Jaramillo because they had not been made available for interviews and the deadline to interview witnesses was Feb. 3, 2017.
“While suppression is a harsh remedy, it is appropriate in this case,” Clark wrote.
Romaine wrote in a response dated March 17 that interviewing Yonker would be in violation of the judge’s order and that Clark could have attempted to subpoena them himself.
In addition, Quaglia-Jaramillo was not properly served with a subpoena, but was available.
Yonker was booked on a material witness warrant two days later on May 7, 2017, according to the Journal.
Valles did not sign the plea agreement until June 13, 2017 and Romaine did not sign it until June 14, the day it was accepted by District Court Judge Brett Loveless during a plea hearing.
According to the plea agreement, Valles pleaded guilty to second-degree murder, tampering with evidence and escape from a community custody program. In addition to seven years in prison, he also received five years of probation following his release.
It is not clear why Clark filed the two motions on May 31, 2017, to dismiss the homicide charge and exclude Yonker’s testimony, or why Romaine filed a response, when they already agreed to a plea on May 5, 2017.
Second Judicial District Attorney’s Office spokesman Michael Patrick told the Journal that prosecutors, presumably Romaine, would have pushed for a sentence of at least nine years but the deal had already been made in good faith.
James Finch allegedly stabbed his father to death and stabbed his mother, but not fatally, on Aug. 24, 2015.
On March 3, 2017, Finch pleaded no contest to charges of second-degree murder, attempt to commit first-degree murder, tampering with evidence and aggravated burglary. Per his plea, he will spend 27 years in prison and spend six years on supervised probation following his release from prison.
On Aug. 24, 2015, he broke into their house on Grove Street around 3 a.m. and attacked his parents.
James Finch
His parents were so afraid of him they took out a restraining order and after he was released from jail a few days before he killed his father, David Finch, the latter went around his neighborhood, telling everyone to watch out for his son, Detective Leah Acata wrote in a statement of probable cause/criminal complaint for James Finch’s arrest.
When officers F. Duran and E. Bumphrey arrived at the house, after the 911 center received a call of a woman asking for help, Duran looked through a small window in the door and saw a naked man inside the house.
“The nude male ran from the south side of the residence,” Acata wrote. “Officer Duran stated he observed a large amount of blood inside of the residence. Officer Duran observed a female lying face up in a pool of blood.”
The woman, Kathy Finch, was calling out for help.
The two officers called for an ambulance and found they were unable to break through the front door so they went to the back of the house and jumped a wall.
“Officer Duran stated (he) observed bloody foot prints on the back porch (of the house),” Acata wrote. “Officer Duran stated he followed the foot prints where he observed a nude male, wearing only socks, hiding under a white table with a glass top. The table was located on the back porch of the residence.”
The two officers demanded that James Finch come out from the table and saw that he was covered in blood and had a cut on his hand. He did not fight them when he was arrested.
“James stated to police, ‘They are trying to kill us,’ ‘They are trying to kill my parents,’ ‘Please don’t leave me,’ ‘Please help me’ and ‘I don’t want to die,'” Acata wrote.
After arresting James Finch, Duran found that a back window at the house was broken out.
Sandia mountains covered in snow. Photo by John Fowler/Flickr. CC BY
“Officer duran stated it appeared as if someone through (sic) a chair from the outside of the back window to the inside of the back window,” Acata wrote. “Officer Duran entered into the residence through the open back door due to hearing the continued cries for help from a female in the (house).”
Kathy Finch had multiple stab wounds and told Duran that her son attacked her. Next to her was David Finch, already dead, face down on a piece of a cinder block.
“Officer Duran observed another piece of cinder block lying next to Kathy which appeared to have blood and hair attached to the cinder block,” Acata wrote.
Duran found the master bedroom was “covered” in blood and found bloody clothing in the bathroom. The shower was running.
Next to David Finch, they found a 7-inch knife, covered in blood.
“Officer Duran stated both David and Kathy were nude when he located them,” Acata wrote.
Neighbor Tony Martinez told the officers about the grave the Finches found in their back yard, 3 feet wide and 9 feet long and said the Finches placed a note in their son’s former room stating that his personal belongings were in the shed. He was not allowed in the house and they had a restraining order against him.
Another witness, Lynn Russo, told the detectives that David and Kathy Finch had a solid door, with deadbolts, put into their bedroom because they were afraid of their son.
“Lynn stated she heard screaming from (the house) around 0300 hours on this date,” Acata wrote.
When interviewed by Bumphrey at the hospital which does not state if he was read his Miranda rights, including his right to remain silent, he told the officer that three men in masks picked him up from the homeless shelter. He described the three men as wearing all black.
“James stated the males drove him to his parent’s house, placed a gun in his mouth and told him he had to stab his parents or they would kill his parents,” Acata wrote. “James stated he did not want to kill his parents but he was forced to do it. No officer observed any subjects matching the description of the three unknown males in the area (of Grove Street NE).”
Count 1: First-degree murder or felony murder (a killing committed during the commission of another felony).
Count 2: Attempted first-degree murder and a series of alternative counts, including aggravated battery with a deadly weapon and aggravated battery causing great bodily harm, for his attack on Kathy Finch.
Count 3: Aggravated burglary with a deadly weapon.
Count 4: Aggravated battery with a deadly weapon for his attack on his father, David Finch.
Count 5: Tampering with evidence.
Count 6: Aggravated stalking
Count 7: Violation of a protection order
Count 8: Violation of a protection order
Acata was the only person to testify.
Motions
On Jan. 12, 2016, prosecutor Spirit Gaines filed a motion to stay the case on the grounds that James Finch’s competency was in question.
Gaines wrote that his competency had been raised in a different case. The two cases were consolidated until his competency was determined.
On Oct. 14, 2016, the Albuquerque District Judge Brett Loveless found him competent to stand trial and lifted the hold on the case.
According to the plea agreement, James Finch will spend 27 years in prison, with five years of his 36 year sentence suspended, and to be spent on supervised probation.
According to the plea, the only count to be considered a serious violent offense is the charge of second-degree murder.
In addition, according to the plea, he was to serve the sentences for each crime consecutively, meaning one after the other, with the last eight years suspended in favor of five years of supervised probation.
Because second-degree murder is a serious violent offense, James Finch must serve 85 percent of the first 15 years of his sentence. Second-degree murder carries a maximum sentence of 15 years.
After he serves 85 percent of the first 15 years, he then begins to accrue good time at a rate of 50 percent and, after that point, he will be eligible for release after he has served half of the remaining 12 years on his sentence: six years.
According to the Albuquerque Journal, Kathy Finch spoke during the sentencing and said that it may not be a long enough sentence, but she would be dead by the time James Finch is released from prison.
On Dec. 8, 2013, Albuquerque Police Department Officer Hector Marquez fatally shot Andy Snider, 37. Snider was armed with a hammer when Marquez and officer Nathan Cadroy-Croteau chased him into an alley after a report of a man threatening people with a hammer at a 7-Eleven.
Cadroy-Croteau shot Snider once with a beanbag shotgun before Marquez fatally shot him. Cadroy-Croteau shot Marquez with the beanbag gun as he hif behind a car, at the direction of Marquez. After being shot twice, Snider got up and tried to flee with the hammer in his hand. Marquez opened fire, shooting Snider in the wrist, chest and back. The shot to the back was the fatal shot. Their statements to investigators were inconsistent with the lapel footage, attorney Matthew Garcia wrote in a lawsuit complaint.
On March 29, 2010, Albuquerque Police Det. Kevin Sanchez fatally shot Mickey Owings, 26, as he fled from a Wal-Mart parking lot and after police tried to surround his car. According to police accounts, Owings drove into unoccupied police cars before Sanchez shot him.
Owings’ family sued the city after the report came out and in 2018, the case settled for $375,000, according to the Albuquerque Journal. A state district court judge initially dismissed the lawsuit, filed for a loss of consortium, but that decision was reversed by the Appeals Court and reaffirmed by the New Mexico Supreme Court.
In March 2010, a plainclothes detective shot and killed Mickey Owings after Owings’ car was boxed in by an unmarked APD vehicle in a commercial parking lot. The encounter began because officers had received information that a stolen car was located in the parking lot. Several officers positioned unmarked cars in the parking lot around the suspected stolen car. Owings then drove a different car into the parking lot and parked directly next to the stolen car. A passenger got out of Owings’ car and started to get in the stolen car, and officers drove one unmarked car directly behind Owings while the plainclothes detective approached Owings’ car on foot. Owings backed his car into the unmarked police car and another civilian’s car, and as he did so, the detective drew his gun, pointed it at Owings, and ran closer to Owings’ car. Owings then drove straight forward into two parked cars. As he did so, the detective shot Owings. Owings continued driving forward and actually pushed the two empty, parked cars in front of him out of the way. Owings then drove out of the parking lot but soon seems to have lost consciousness on a nearby road. His car slowed to a stop, and when officers got to him, he had died. Owings was not armed.
The department’s use of force policy permits officers to fire at the driver of a moving vehicle only when the car itself poses a threat of death or serious physical injury to the officer or others. (As noted below, the better policy, followed by many departments, is to prohibit officers from firing their weapons at cars altogether.) The use of force policy limits the circumstances in which officers may shoot at drivers because of the substantial risks that are involved: the officer may miss and hit an innocent civilian or fellow officer, or the driver may become incapacitated, leaving the moving car completely out of control. Owings did not pose a threat of death or serious physical injury to the officer or anyone else; he was driving straight into unoccupied, parked cars when he was shot. This damage to property, as serious as it was, did not justify taking Owings’ life. The detective who shot Owings could very easily have missed and hit one of the innocent civilians walking through the parking lot; moreover, after Owings was shot, the probability that he would injure someone with his car increased dramatically. Brosseau v.Haugen, 543 U.S. 194, 199-201 (2004) (collecting federal appellate cases on police shootings at moving cars and acknowledging that such shootings can be unreasonable); Vaughan v. Cox, 343 F.3d 1323, 1333 (11th Cir. 2003) (“[A] reasonable officer would have known that firing into the cabin of a pickup truck, traveling at approximately 80 miles per hour on Interstate 85 in the morning, would transform the risk of an accident on the highway into a virtual certainty.”). But see Scott, 550 U.S. at 382-84 (2007) (noting that a car can itself be a deadly weapon that can justify the use of deadly force).
False police narrative
Even though Owings was unarmed, and he tried to push through to unoccupied vehicles, that did not stop the Albuquerque Police Department from painting their actions as justified at the outset.
The police narrative is captured by an Albuquerque Journal story from March 30, 2010, as noted in one of the two online headlines:
“Armed Robbery Suspect Fatally Shot by Albuquerque Police”
The unbylined story has a second headline, “ALBUQUERQUE, N.M. — Shooting occurred as man fled in a vehicle from a Walmart parking lot on city’s West Side.”
The lede, or first sentence, sums up the false narrative:
“Albuquerque police fatally shot an armed robbery suspect in the parking lot of a busy Walmart on Monday after the suspect rammed police vehicles and shoppers’ cars in an effort to get away, authorities said.”
The police chief at the time, Ray Schultz, said Owings actions were “very violent.” He made no mention that the police cars he was ramming into were totally unoccupied, a lie by omission.
The Department of Justice report states that the police department’s policy at the time was that officers could only shoot at cars if “when the car itself poses a threat of death or serious physical injury to the officer or others.”
NM Political Report posted the surveillance footage from the killing. See below:
