• 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.
• 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 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 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.
