Sentencing date set for Zachariah Joe in stabbing death a year after guilty plea

See the full case summary or past stories on the case

ALBUQUERQUE, N.M. — Over a year after he pleaded guilty to stabbing his cousin 10 times, as he begged for him to stop, Zachariah Joe will be sentenced to 15 years in prison during a virtual hearing in January 2021.

Joe, 28, of Shiprock, is set be virtually sentenced at 3 p.m., Jan. 14, 2021 in the Vermejo courtroom in Albuquerque by District Judge James Browning.

He pleaded guilty on Oct. 31, 2019, to a criminal information charging him with second-degree murder for Brett Micah Morgan’s death, offered by federal prosecutor David Cowen. Joe admitted to stabbing Morgan 10 times in the chest and neck. The plea deal mandates Morgan’s sentence will be 15 years, assuming Browning accepts the plea.

Browning’s only discretion will be in how long Morgan will be on supervised release after serving his prison sentence. Magistrate Judge Kirtan Khalsa initially accepted the plea in October 2019.

Cowen and Joe’s attorney, Melissa Morris, both wrote sentencing memorandums although did not order a pre-sentence report be completed.

Joe will appear remotely for the hearing.

The stabbing

On Jan. 3, 2019, showed up at a house where Morgan, 32, and another man, identified by the initials B.M., were hanging out. Joe had just been fired from Burger King in Shiprock, Federal Bureau of Investigations Agent Lance Roundy wrote in an affidavit for a criminal complaint for the arrest of Joe.

Joe hit Morgan in the face with the back of his hand, then tried to attack Morgan, on the ground, but B.M. wrestled him to the ground. Morgan and B.M. got out of the house and Joe could be heard searching through kitchen drawers and cabinets. B.M. ran to Joe’s house and broke a window. While he was gone, Joe had stabbed Morgan 10 times, Roundy wrote.

Joe admitted in the plea deal to stabbing Morgan as he begged him to stop.

Another witness, D.T., told Roundy that he saw Joe kicking an unresponsive Morgan, after he had been stabbed, Roundy wrote.

Sentencing memorandums

Cowen and Morris both submitted sentencing memorandums imploring Browning to accept the binding plea deal, which mandates a sentence of 15 years for Joe.

Cowen wrote in his sentencing memorandum that Morgan was Joe’s close friend, and cousin, and that his death was “completely avoidable,” although he never specifies how it was avoidable. At the onset of the case, he worked with Morris to “investigate what took place with the goal of working towards a reasonable outcome.”

Cowen wrote that the sentencing guidelines for Joe put his sentence much higher, at just under 20 to to 24 years, but the decrease in sentence will avoid a trial. He wrote:

The proposed plea agreement avoids forcing the victim’s family, who is also Defendant’s extended family, to testify about the facts outlined above. One of the victim’s family members voiced an opinion that the family did not agree with the stipulated 15-year sentence, PSR ¶ 102, but in finalizing the plea agreement the government received support to resolve the case with this proposed 15-year sentence from the victim’s mother and stepfather. This support naturally came with emotion and a realization that no term of imprisonment would bring the victim back to the family.

The plea and 15-year sentence will allow the victim’s family “an opportunity to reconnect with the Defendant’s side of the family,” Cowen wrote.

Photo of Shiprock on a snowy day.
Shiprock in the snow. Photo by Larry Lamsa/Flickr. CC-BY

Joe’s familial history was a childhood of physical abuse perpetrated by his alcoholic father, he wrote.

“According to Defendant’s mother, he unfortunately inherited his father’s tendency to become angry when he drinks alcohol,” Cowen wrote.

Joe had a history of misdemeanor convictions from age 18 to 21, which appear to be two drunk driving arrests and a charge of assault on an officer. He was never convicted of a felony but the convictions gave him a criminal history category of IV, he wrote.

Morris wrote in her sentencing memorandum for Joe that he has been drinking since he was 13 and when he drinks, “his personality changes and he sometimes does things that he would not do otherwise.”

Although his family is “saddened and confused by his actions,” they are still supportive of him. Joe never intended to kill his cousin and does not know how the events leading up to his brutal stabbing resulted in it, she wrote.

“Mr. Joe respectfully submits that this offense, like every other criminal offense he committed in the past, is the product of the disease of alcoholism, which in turn may be the product of his traumatic childhood experiences and his family history of alcoholism,” Morris wrote.

Morris submitted a packet of seven letters on Joe’s behalf, dated around December 2019.

  • Joe’s maternal aunt, Fremina Funmaker, submitted a letter on behalf of Joe and asked that the judge make a decision that “will allow him to seek mental well-being and self-development through sentencing.”
  • Aunt Tiva Esplain wrote that Joe is not a violent person and he has made large and small mistakes in the past and that alcohol caused him to stab his cousin 10 times.
  • Cousin Jerilyn Frank wrote that Joe is one of the “funny guys” and has a contagious laugh.
  • Joe’s mother, Miranda Begay, wrote that Joe and Morgan were “two peas in a pod” and there was not a day that went by when they had not communicated with each other. Without access to alcohol, Morgan would have never died.

 

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See the full case summary, as well as a more complete narrative of the killing. Read the affidavit for a criminal complaint written by FBI Agent Lance Roundy. See all the documents on Google Drive or Document Cloud view the case and documents on Court Listener.

Continue reading “Sentencing date set for Zachariah Joe in stabbing death a year after guilty plea”

Tavor Tom pleads to 2nd-degree murder for killing of aunt

Tavor Tom pleaded guilty to second-degree murder
• He faces a maximum sentence of life for killing his aunt
Federal sentencing guidelines put his sentence at 16 to 20 years

See the case write-up or read previous stories on the case

SHIPROCK, N.M. —  Tavor Tom could receive a sentence of up to life in a federal prison after he pleaded guilty, Nov. 24, 2020, to second-degree murder for stabbing his aunt to death in 2019.

Tom, 19, of Shiprock, pleaded guilty in front of federal Magistrate Judge Kirtan Khalsa during a virtual hearing that lasted just over 30 minutes. Khalsa deferred final acceptance of the plea deal until sentencing by a district court judge, who has not been assigned yet.

Shiprock. Photo by Joseph Novak/Flickr

Tom will remain in jail pending his sentencing hearing.

A federal grand jury indicted him on July 9, 2019, on a charge of second-degree murder. He stabbed his aunt to death on July 1, 2019.

According to the plea deal proffered by federal prosecutor Joseph Spindle, there is no agreement as to the sentence.

Prosecutors will agree that Tom accepted responsibility for his conduct and grant that, under the sentencing guidelines, he is entitled to a reduction of two levels from the base offense. Spindle and Tom’s defense attorney, James Loonam, can argue whatever they want when it comes to the sentence.

In the plea agreement, Tom wrote that he stabbed his aunt repeatedly with a knife, “intentionally and without justification.”

When interrogated by FBI agents, he said he stabbed her repeatedly and slit her throat, according to court documents.

A records request for the autopsy report is pending with the Office of the Medical Investigator.

Sentencing guidelines

Second-degree murder carries a base offense level, per the federal sentencing guidelines for second-degree murder, is 38. The plea deal provides Tom with a two-level reduction for pleading guilty, putting the base level at 36.

According to the federal sentencing table, with little or no criminal history, that puts Tom’s proposed sentence, sans any increases or decreases, at 16 to 20 years. At a base offense level of 38, the level without the consideration of his guilty plea, the range increases to 20 to 24 years.

Based on a search of federal and state court records, Tom does not appear to have any prior state or federal arrests. His tribal criminal records are unknown.

His final sentence will be up to the sentencing judge. No sentencing date has been set.

Federal sentencing guidelines table, levels 33 to 43.
Federal sentencing guidelines table, levels 33 to 43.

The crime

At 10 a.m., July 2, 2019, the victim was found dead in her house by her father. Sometime during that same morning, Tavor Tom was found in the victim’s Jeep Cherokee, after he crashed into a fence in front of a church in Nenahnezad. Navajo Nation police officers found a bloody knife in the car, FBI Agent Cary Cahoon wrote in an affidavit for an arrest warrant.

During an interrogation, Tom told FBI agents he killed his maternal aunt with a folding knife he took from his father’s vehicle. He intended to go to her house to steal her car so he could drive it to Farmington to steal Mucinex. After he stole it from the store, he drove on the back roads toward Shiprock and he crashed the vehicle into the fence. He was found in it the next morning, Cahoon wrote.

For more details on the crash, see the case write-up.

Continue reading “Tavor Tom pleads to 2nd-degree murder for killing of aunt”

Plea set for Tavor Tom in aunt’s stabbing death in Shiprock

• A change of plea hearing is set for Tavor Tom on Nov. 24, 2020
• A grand jury indicted Tom on a charge of second-degree murder for allegedly killing his aunt
• Tom told FBI agents he stabbed her seven to eight times and slit her throat

See the case write-up or read previous stories on the case

SHIPROCK, N.M. —  The Shiprock man who told police he stabbed his aunt and stole her car, before crashing it into a fence on his way to Farmington in 2019, is set for a change of plea hearing on Nov. 24, 2020.

Shiprock in the snow. Photo by Larry Lamsa/Flickr. CC-BY

According to a hearing notice, Tavor Tom, 19, is set for a change of plea hearing at 10 a.m. in front of Magistrate Judge Kirtan Khalsa. The hearing is to be held virtually, via Zoom.

A federal grand jury indicted him on July 9, 2019, on a charge of second-degree murder and his case has been continued at least four times. A jury trial in front of District Judge William Johnson had been set for Jan. 4. 2021.

Tom has been in custody since he was arrested on July 2, 2019. The prosecutor in the case appears to be Joseph Spindle with the U.S. Attorney’s Office.

At 10 a.m., July 2, 2019, the victim was found dead in her house by her father. Sometime during that same morning, Tavor Tom was found in the victim’s Jeep Cherokee, after he crashed into a fence in front of a church in Nenahnezad. Navajo Nation police officers found a bloody knife in the car, FBI Agent Cary Cahoon wrote in an affidavit for an arrest warrant.

During an interrogation, Tom told FBI agents he killed his maternal aunt with a folding knife he took from his father’s vehicle. He intended to go to her house to steal her car so he could drive it to Farmington to steal Mucinex. After he stole it from the store, he drove on the back roads toward Shiprock and he crashed the vehicle into a fence at a church in Nenahnezad. He was found in it the next morning, Cahoon wrote.

For more details on the crash, see the case write-up.

Continue reading “Plea set for Tavor Tom in aunt’s stabbing death in Shiprock”

Autopsy: Chronic alcohol abuse killed man in Cibola jail

Ruben Toledo died in 2017 after being allegedly denied medical care while going through alcohol withdrawal while at the Cibola County Detention Center, in Grants
• Pathologist Matthew Cain found Toledo died from chronic alcohol abuse
The county is being sued for Toledo’s death

Read more about the case in the write-up

GRANTS, N.M. — An Albuquerque man who died seven days after suffering a seizure in the Cibola County Detention Center was killed by chronic alcohol abuse, according to an autopsy report. However, the report makes no mention of the seizures the man suffered, his apparent alcohol withdrawal or his hospitalization and appears to downplay the circumstances of his death.

Petroglyph National Monument, Albuquerque, N.M. Photo by Angel Schatz/Flickr. CC-BY

Ruben Toledo, 42, died in the University of New Mexico Hospital on July 1, 2017, after being taken off of life support. He was taken to the hospital seven days earlier after going comatose in a shower after suffering multiple apparent seizures.

Office of the Medical Investigator pathologist Matthew Cain wrote, in a heavily redacted autopsy report, that based on the evidence presented to him, Toledo died from chronic alcohol abuse and he had “significant liver disease” and alcoholics are at risk for “metabolic abnormalities” and withdrawal complications.

Toledo’s wife, Natalia Antonio, filed a lawsuit against Cibola County on June 20, 2019. Attorney Alyssa Quijano named warden Adrianne Jaramillo, nurse Michael Hildenbrant, Sgt. Lisa Burnside and physician’s assistant Michelle Lucero as defendants in the lawsuit, in addition to Cibola County.

Quijana wrote in the lawsuit that Toledo collapsed from a seizure in his cell, causing a head wound, on June 24, 2017. He died in the hospital seven days later, on July 1, 2017, after being taken off of life support.

There is no mention of that fall in the autopsy report, the seizures that caused it or that Toledo never regained consciousness after he was transported out of the jail.

Much of the allegations in the lawsuit center around Toledo going through alcohol withdrawal, which is often deadly.

Despite evidence of alcohol withdrawal in the lawsuit, it is not mentioned in the autopsy report, except as a perfunctory note in the summary and opinion that it can cause seizures and death. Neither Cain’s report nor the deputy field investigation by Tom Conklin makes mention of the seizures Toledo suffered, as noted in the wrongful death lawsuit, although it is unclear what was redacted.

Cain wrote that Toledo had no evidence of “significant” injury. However, in the evidence of injuries section of the autopsy report, he listed three wounds on Toledo:

  • A blunt head injury. “Healing laceration on forehead”
  • On the chest: “Faint, black, 7 cm contusion on left side of chest”
  • On the extremities: “Abrasions on left knee.”

Toledo suffered a head wound seven days before he died, Quijana wrote in the lawsuit complaint.

The narrative of the deputy field investigation, by Tom Conklin, is redacted except for two-and-a-half sentences. It makes no mention of seizures or Toledo’s fall:

“Seth advised that the decedent had been incarcerated in the Cibola County Detention Center. The decedent was found shaking on the shower floor. He became unresponsive and bystander (REDACTED).”

The lawsuit

The lawsuit against Cibola County, filed on June 20, 2019, outlines alleged abuses and neglect at the hands of jail guards and medical staff at the jail.

Toledo was initially arrested on June 21, 2017, after being found allegedly drunk in his truck at the federal Petroglyph National Monument. U.S. Park Ranger Steven Powers arrested him on charges of DUI, possession of alcohol in a vehicle and possession of a controlled substance and booked him into the Sandoval County Detention Center, according to federal court documents.

Federal Magistrate Judge Kirtan Khalsa ordered Toledo held without bail during an initial appearance, at the request of U.S. Attorney’s Office prosecutor Nicholas Ganjei. Toledo had no attorney. The entire hearing lasted for five minutes, according to a minutes sheet.

Toledo was transferred from the Sandoval jail to Cibola. His condition quickly worsened until he suffered an alcohol-induced seizure on June 24, observed by Sgt. Lisa Burnside. Toledo could no longer speak and he had dried blood on his forehead, Quijana wrote in the lawsuit complaint.

Burnside ordered guards to take Toledo, incapable of walking, to a shower to clean up while she looked for a clean cell. Guards carried him there and placed him on the ground, Quijana wrote.

“Ruben slumped over on the ground and became unresponsive,” she wrote.

Guards didn’t call for medical staff immediately but once they did, they told the guards to call 911 and started CPR. Once he left the jail, he would never regain consciousness, Quijana wrote.

District Judge Kenneth Gonzales dismissed count one of the lawsuit filed against Hildenbrant and Lucero for violation of due process and inadequate medical care, on the grounds they are entitled to qualified immunity.

motion to dismiss filed by the county is pending.

Downplayed events

The narrative outlined in the lawsuit compares starkly with the outline Cain and Conklin noted in the autopsy report and the deputy field investigation.

In the field investigation, Conklin wrote Toledo was “found shaking on the shower floor.” What happened next is redacted.

In Cain’s summary and opinion, he used the same sentence, that Toledo was “found shaking on the shower floor.” Again, what happened next is redacted.

That compares starkly with the lawsuit allegations, that guards carried Toledo into the shower and he slumped over. Guards then lifted Toledo into a chair and eventually called for medical help, according to the lawsuit.

Neither Cain’s autopsy report not Conklin’s field investigation mention that Toledo was taken to a local hospital, and then to the University of New Mexico hospital, after he lost consciousness at the jail.

Both documents also do not mention that Toledo died after being taken off of life support.

Continue reading “Autopsy: Chronic alcohol abuse killed man in Cibola jail”

Fruitland man to receive 6-8 years for woman’s beating death

John Lodgepole’s plea sets his sentence at 6 to 8 years
• Lodgepole wrote he punched a woman in the head 10 times, then threw her to the ground
• While she was on the ground, he grabbed a cinderblock and smashed the back of her head
• When he saw she was still breathing, he propped up her legs and beat her ankles with a cane
• Federal prosecutor Raquel Ruiz-Velez proffered the binding plea deal

See the case write-up here or past stories on this case

ALBUQUERQUE, N.M. — The Fruitland man who staved in a woman’s head with a cinderblock, then beat her ankles with a cane after he saw she was still alive, will be sentenced to 6 to 8 years for the killing, after he pleaded guilty on Nov. 3, 2020.

John Lodgepole, 21, was initially charged with murder and then indicted on a charge of voluntary manslaughter, which brings a maximum sentence of 15 years, down from the maximum sentences of life for first- and second-degree murder.

Federal prosecutor Raquel Ruiz-Velez‘s offered plea deal states Lodgepole can only be sentenced to 6 to 8 years in prison for the brutal beating death of his mother’s friend in Nenahnezad, if it is ultimately accepted by a federal district court judge. If accepted, the binding plea agreement controls the sentence range.

Magistrate Judge Steven Yarbrough accepted the plea, although he deferred final acceptance until sentencing in front of a district court judge, according to a plea minutes sheet.

Lodgepole wrote in a plea deal that he punched his mother’s friend in the head and face 10 times because she called him names and threatened him. He then threw her to the ground and then he took a cinderblock and “smashed the back of her head.” She is identified in court documents as M.W. (YOB: 1975).

“When I noticed that Jane Doe was still breathing, I took the block, placed it under her feet and used a cane to strike her ankles for approximately five or six times,” according to the plea deal.

No sentencing date has been set.

The press release from the U.S. Attorney’s Office on the plea makes no mention of the 6 to 8 year sentence.

Federal agents originally charged Lodgepole with murder after San Juan County Sheriff’s deputies found him covered in blood in the parking lot of the Chapter House, across the street from where he beat the woman to death, on Aug. 1, 2019.

His case remained sealed, despite his arrest, until 15 days after a grand jury indicted him on a charge of voluntary manslaughter on Oct. 9, 2019.

The incident

FBI Agent Jordan Spaeth wrote in an affidavit for a criminal complaint that Lodgepole’s mother, identified as E.L., told deputies she was drinking with the victim when her son threw M.W. to the ground and started kicking her in the head.

Earlier in the night, Lodgepole had been verbally abusive toward her and M.W., before he fatally attacked her, Spaeth wrote.

Outside the house, investigators found a bloody metal baseball bat and shoe prints near where M.W.’s body was found and resembled the soles of Lodgepole’s shoes.

A request for the autopsy report is pending.

Why voluntary manslaughter?

The federal charge of voluntary manslaughter is defined as the unlawful killing of someone without malice and “upon a sudden quarrel or heat of passion.” It is a downgrade from first- and second-degree murder.

According to the indictment, Lodgepole killed M.W. “upon a sudden quarrel and heat of passion, and therefore without malice.”

Lodgepole was initially charged with murder by Spaeth.

According to federal law, first-degree murder is done with “malice aforethought” and is “every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing.”

A view from the Indian Service Route 36 near Nenahnezad. Photo by Gene Selkov/Flickr. CC-BY

First-degree murder is also when someone dies “as part of a pattern or practice of assault or torture against a child or children.” In the murder statute, torture is defined as the crime of torture, except without the requirement that the torturer is doing so “under the color of law.” Under that definition, torture is an act “specifically intended to inflict severe physical or mental pain or suffering.”

In the plea deal, Lodgepole said he took the cinderblock that he used to bash the back of M.W.’s head in with, put it under the legs and beat her ankles with a cane after he saw she was still breathing.

According to federal sentencing guidelines, a judge can increase a sentence beyond the sentencing guidelines if the perpetrator’s behavior was “unusually heinous, cruel, brutal, or degrading to the victim.”

“Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation,” the guidelines state.

How the grand jury that indicted Lodgepole reached the conclusion that voluntary manslaughter was the appropriate charge is a mystery as grand juries are secret. The prosecutor’s signature on the indictment is inscrutable, although Ruiz-Velez is the only attorney listed on the docket.

However, multiple articles articulate how grand juries will follow the lead of the prosecutor presenting the case to them. In the case of Breonna Taylor, a grand juror said that homicide charges were never even presented to them.

University of Dayton Law Professor Susan Brenner wrote in a 1996 article that “the federal grand jury has become little more than a rubber stamp, indiscriminately authorizing prosecutorial decisions.”

A 2017 article in the Harvard Law Review that has no listed author opines that the failure to indict the officers who allegedly killed Michael Brown in Ferguson, Mo., and Eric Garner in Staten Island, N.Y., “merely drew public attention to flaws” that have been there the whole time.

“The complete prosecutorial control over the grand jury — particularly over the flow of information and grand jury procedure — solidifies the grand jury’s dependence on the prosecutor,” the anonymous author wrote.

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Man set to plea in Nenahnezad beating death

• A change of plea hearing is set for Nov. 3, 2020
John Lodgepole was initially charged with murder for kicking a woman in the head, killing her, before he was indicted on a charge of voluntary manslaughter

See the case write-up here or past stories on this case

ALBUQUERQUE, N.M. — A 21-year-old Fruitland man, accused of kicking a woman in the head and killing her in Nenahnezad, is set to plead on Nov. 3, 2020.

John Lodgepole‘s case is set for a change of plea hearing at 10 a.m., Nov. 3, 2020, according to a court docket.

Lodgepole was first arrested, and charged with murder, on Aug. 1, 2019, the night he allegedly kicked a woman in the head repeatedly, killing her. His case remained sealed, despite his arrest, until 15 days after a grand jury indicted him on a charge of voluntary manslaughter on Oct. 9, 2019.

A view from the Indian Service Route 36 near Nenahnezad. Photo by Gene Selkov/Flickr.

The indictment alleged he killed the woman “upon a sudden quarrel and heat of passion, and therefore without malice, unlawfully.” She is only identified by the initials M.W. and her year of birth, 1975. She is identified as a Navajo Nation member.

The change of plea hearing will be conducted through Zoom and in front of Federal Magistrate Judge Steven Yarbrough.

Lodgepole has previously pleaded no contest in a state case to two counts of battery on a healthcare worker, where he was to receive a conditional discharge after finishing probation. After he was arrested and charged with murder, he admitted to a probation violation and was sentenced to 319 days in prison, according to state court documents.

The incident

San Juan County Sheriff’s deputies responded on Aug. 1, 2019, to a house south of the Chapter House in Nenahnezad, after the owner called 911, Federal Bureau of Investigations Agent Jordan Spaeth wrote in an affidavit for a criminal complaint.

The homeowner, identified by her initials of E.L., told deputies she was drinking with the victim, M.W., when Lodgepole threw M.W. to the ground and started kicking her in the head, he wrote.

When investigators spoke to E.L., she said Lodgepole arrived at the house earlier that night and was verbally abusive toward her and M.W. As the night went on, he threw M.W. to the ground and kicked her in the head, he wrote.

“Lodgepole then fled the residence and E.L. contacted 911,” Spaeth wrote. “Deputies were notified a short time after arrival that Jane Doe was pronounced dead at the scene by Emergency Medical Personnel.”

Deputies found Lodgepole in the parking lot of the chapter house. He was covered in blood. They detained him and Navajo Police officers arrested him when they arrived on scene, he wrote.

Outside the house, investigators found a bloody metal baseball bat and shoe prints near where M.W.’s body was found and resembled the soles of Lodgepole’s shoes, he wrote.

The field investigator with the Office of the Medical Investigator found three wounds to M.W.’s head, including one that likely fractured her skull, he wrote.

Spaeth charged Lodgepole with murder.

Continue reading “Man set to plea in Nenahnezad beating death”

Joshua Gutierrez pleads to voluntary manslaughter for To’Hajiilee shooting

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

See past stories or the case write-up

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Wheeler Cowperthwaite contributed to this report.

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Judge: Blood tests in alleged drunk driving killing can be used at trial

  • Kayla Baker is charged for allegedly killing a man in a DWI crash on June 16, 2018 near Navajo
  • Baker was released back to Arizona where she worked as a nurse
  • Prosecutors indicted her 17 months after the fatal crash

See the full case write-up

ALBUQUERQUE, N.M. — A Cornfields, Ariz. woman will not have her 0.15 blood-serum test thrown out as evidence in her involuntary manslaughter and assault on a minor case following a federal district court judge’s ruling, April 9, 2020, that she voluntarily gave them access to her medical records.

Photo of the Navajo Code Talker Monument in Window Rock, Arizona, with the Window Rock in the background.
Navajo Code Talker Monument, Window Rock, Arizona. Photo by John Fowler/Flickr. CC-BY

Kayla Baker, 24, is charged with involuntary manslaughter and assault of a minor resulting in serious bodily injury after she allegedly drunkenly crashed her car into oncoming traffic on June 16, 2018, on Route 12 outside the town of Navajo, near the border with Arizona. She does not appear to have ever been charged in magistrate court with J.G.’s death, rather, a federal grand jury indicted her 17 months after the fatal crash, according to court documents.

Baker allegedly tried to pass a woman on the two-lane highway and slammed into a car carrying a man, only named J.G. (YOB: 1988, enrolled Navajo National tribal member) in court documents, his “common-law wife,” their 16-month-old son and the woman’s 17-year-old sister, according to court documents.

Baker’s attorney, Aric Elsenheimer, tried to get all the test results thrown out under the theory that she did not voluntarily consent to give them to tribal investigators Farrell Begay and Samantha Yazzie when they interrogated her at a jail in Window Rock, Ariz., following the crash. No court documents state she was charged with, or by whom, while she was held in Window Rock.

A separate blood test at the FBI crime lab showed a blood-alcohol level of 0.12, according to court documents.

District Judge William Johnson dismissed the motion on April 9, 2020.

Johnson also dismissed a motion, on March 6, 2020, to dismiss the charge of assault of a minor resulting in serious bodily injury.

Elsenheimer wrote in the motion that the assault charge, which carries a minimum mandatory sentence of 10 years and a maximum of life, required prior knowledge and intent, that is, that Baker knew and intended his 17-year-old victim was underage when she allegedly drunkenly crashed into her. Assault resulting in serious bodily injury, not done to a minor, carries a maximum sentence of 10 years — the mandatory minimum for its counterpart done to a minor.

On Feb. 28, 2020, Johnson granted a motion to continue the case for a jury trial tentatively set for July 6, 2020.

Continue reading “Judge: Blood tests in alleged drunk driving killing can be used at trial”

Trial in Nenahnezad beating death postponed for third time

  • FBI agents originally charged John Lodgepole with murder for allegedly killing a woman by repeatedly kicking her in the head on Aug. 1, 2019
  • Despite being arrested, his case was sealed until a day before he was arraigned on an indictment for voluntary manslaughter
  • His case has been postponed three times already

See the case write-up or read more stories about this case

ALBUQUERQUE, N.M. — John Lodgepole‘s trial on a charge of voluntary manslaughter for the alleged Aug. 1, 2019 beating death of a woman in Nenahnezad has been tentatively set for June 1, 2020.

A view from the Indian Service Route 36 near Nenahnezad. Photo by Gene Selkov/Flickr.

Lodgepole was first arrested, and charged with murder, on Aug. 1, 2019, the night he allegedly kicked a woman in the head repeatedly, killing her.

A federal grand jury indicted Lodgepole, 20, on a charge of voluntary manslaughter on Oct. 9, 2019, alleging “upon a sudden quarrel and heat of passion, and therefore without malice, unlawfully” killed a woman only identified by the initials M.W. (YOB: 1975).

Since he was arraigned on Oct. 28 by Magistrate Judge Kirtan Khalsa, his case has been continued three times at the request of his defense attorney, Melissa Morris. He pleaded not guilty during that hearing and waived a detention hearing.

A trial is tentatively set for June 1, 2020, per a court order to continue on March 10, 2020, but in her motion to continue the case, Morris wrote she has not begun plea negotiations with prosecutor Raquel Ruiz-Velez.

The incident

San Juan County Sheriff’s deputies responded on Aug. 1, 2019, to a house south of the Chapter House in Nenahnezad, after the owner called 911, Federal Bureau of Investigations Agent Jordan Spaeth wrote in an affidavit for a criminal complaint.

The homeowner, identified by her initials of E.L., told deputies she was drinking with the victim, M.W., when Lodgepole threw M.W. to the ground and started kicking her in the head, he wrote.

When investigators spoke to E.L., she said Lodgepole arrived at the house earlier that night and was verbally abusive toward her and M.W. As the night went on, he threw M.W. to the ground and kicked her in the head.

Continue reading “Trial in Nenahnezad beating death postponed for third time”

Judge gives Sanostee man minimum sentence for brother’s death in DWI crash

  • Tavis Washburn will spend just under six years in prison for killing his brother and injuring his 2-year-old son in the crash
  • The binding plea deal mandated a sentence of 6 to 10 years and without it, Washburn faced a minimum mandatory sentence of 10 years
  • He had a blood-alcohol level of 0.258 when he crashed, over three times the legal limit, while driving 79-85 mph
  • A judge sent Washburn back to jail, prior to sentencing, after he began drinking excessively at a halfway house

Read the full case write-up here

SANTA FE, N.M. — Tavis Washburn will spend just under six years in prison after a federal District Court judge sentenced him to the minimum allowed under a plea deal for killing his brother in drunk driving crash.

District Court Judge Martha Vazquez sentenced Washburn, 27, on March 13, 2020, to 71 months in prison, just under six years.

According to court documents, the crash killed Orlando Wadsworth, 37, of Sanostee, severely injured Washburn’s 2-year-old son and injured a third man, only identified as A.J., driving the truck Washburn hit, on Feb. 15, 2018. Wadsworth had to be extricated from the passenger seat of the red Kia Washburn was driving. Although he was flown to a hospital, he died from his injuries. Washburn had a blood-alcohol level of 0.258 after the crash.

Washburn previously pleaded guilty in front of Magistrate Judge Kirtan Khalsa on July 12, 2019, who deferred final acceptance of the plea until sentencing in front of Vazquez, during a 27-minute hearing, according to minutes from the plea hearing.

Federal Bureau of Investigations Agent Kalon Fancher charged Washburn 10 months after the crash, on Oct. 24, 2018. On Nov. 13, 2018, federal Magistrate Judge Jerry Ritter ordered Washburn released on pretrial release at a halfway house in Albuquerque. Washburn was later arrested sometime after Dec. 2, 2019, after he was found, twice, to have been heavily drinking.

Federal prosecutor Allison Jaros did not request a specific sentence, other than within the range of six to 10 years allowed under the plea deal, while Washburn’s attorney, Alejandro Fernandez, asked for the minimum in a sentencing memorandum dated Oct. 21, 2019.

According to the sentencing minute sheet, Washburn addressed the court, as did the “Victim’s representative.” The entire hearing lasted one hour and two minutes. Neither the minutes nor the judgement state why Vazquez sentenced Washburn to the minimum allowed under the binding plea deal, or why she accepted the binding plea deal.

Continue reading “Judge gives Sanostee man minimum sentence for brother’s death in DWI crash”

Joshua Gutierrez: Llewyn Platero — 3-29-2020

 

Summary

Joshua Gutierrez, 21, of To’Hajiilee, allegedly shot and killed Llewyn Platero, 36, on March 29, 2020, at a house on the To’Hajiilee reservation. Although he claimed the man “assaulted him,” the one eye witness did not make the same assertion, according to court documents.

On Oct. 15, 2020, he pleaded guilty to voluntary manslaughter. The plea deal sets his sentence at 12 years. Sentencing has not been set.

The incident

Photo of mesas
To’Hajiilee by Joel/Flickr. CC BY-NC

Federal Bureau of Investigation Agent Dibiassi Robinson was called out to the Route 66 Casino at 5:29 a.m., March 29, 2020, for a possible homicide, although a Navajo Nation criminal investigator told him the alleged killing took place on the To’Hajiilee reservation.

Robinson wrote in an affidavit for a criminal complaint that he spoke to two witnesses at the casino.

When Gutierrez spoke to investigators, he alleged he was attacked by Llewyn Platero, 36, he wrote. Platero is not identified in court records and referred to as Doe or John Doe.

Witness JL, at the casino, told investigators that he was at an acquaintance’s house when Platero and another man, identified as MK, started arguing, then fighting. JL and Gutierrez went to school together, Robinson wrote.

“Doe and MK tussled for a few minutes before CP (year of birth 1987) ordered the group to leave the residence,” Robinson wrote. “CP is the current girlfriend of GUTIERREZ.”

Platero and MK stopped briefly, then started “tussling” and being loud again, before Platero and JL headed toward the front door, he wrote.

“JL indicated that as they approached the kitchen GUTIERREZ raised a handgun up, in his right hand, and fired one shot into the chest of DOE,” Robinson wrote. “JL made no mention of an assault or attempted assault by Doe towards GUTIERREZ. While attempting to provide aid to DOE, JL explained that GUTIERREZ told him and MK to get out of the residence ‘or I’ll shoot you too!’ Gutierrez pointed the firearm at the two as he spoke those words.”

Although Robinson wrote that JL “made no mention of an assault or attempted assault by Doe,” he did not write if JL was asked about an alleged assault.

JL and MK placed pressure on the wound, loaded Platero into a car and drove toward Albuquerque. While on the way, JL called 911 while MK drove, he wrote.

They stopped at the Route 66 Casino, Robinson wrote.

MK, at the casino, told investigators that he started arguing and fighting with Doe while at an acquaintance’s house, then CP, Gutierrez’s girlfriend, ordered them to leave, he wrote.

“MK stated DOE left the room and a few seconds later he heard a pop,” Robinson wrote. “MK exited the room and went to the kitchen of the residence where he saw DOE laying on the floor. MK inquired as to what DOE had done and why GUTIERREZ had to shoot DOE. As MK attempted to provide aid to DOE, GUTIERREZ ordered the group to leave the residence ‘or I’ll shoot you too!’ Gutierrez pointed the firearm at the two as he spoke those words. JL informed MK ‘he’ll do it!'”

Robinson alleged Gutierrez “fled” the house, on foot. He was later found at his own house, 1 1/2 miles away.

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

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

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

On March 31, 2020, Gutierrez appeared in Federal District Court for his initial appearance and was ordered held without bail.

The autopsy

According to the autopsy report, Platero died from a single gunshot wound. The bullet went through his heart and lungs, causing a “large amount” of bleeding in the chest cavity.

Pathologists Karen Zeigler, a fellow, and Ross Zumwalt, the medical investigator, wrote in the report that there was no soot or gunpowder stippling near the wound or on the clothing and that the firing range is “indeterminate.”

The bullet was recovered from the right back.

“The overall trajectory was front to back, left to right and slightly downward,” they wrote.

Secret records

In a June 24, 2020 unopposed motion for a protective order, federal prosecutor Allison Jaros requested public records, including the autopsy report, be kept secret and be the subject of a strict protective order.

Jaros wrote in the motion that the the agreed-to order would prevent defense attorney Sylvia Baiz from showing the public autopsy report to anyone.

In New Mexico, autopsy reports are public records.

Judge Kirtan Khalsa granted the protective order, despite the fact that autopsy reports are public records.

Plea

Gutierrez pleaded guilty Thursday, Oct. 15, 2020, in federal court to voluntary manslaughter and discharging a firearm for fatally shooting another man in an early-morning incident on March 29, 2020, on the reservation. He appeared via Zoom from a Cibola County detention center before Magistrate Judge Paul Briones who accepted Gutierrez’s guilty plea to a criminal information and set sentencing before a District Court judge at an undetermined time.

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

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

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

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

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

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

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

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

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

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

See the case documents on Google Drive or Document Cloud

Andrew Martinez contributed to this report

See past stories on this case

Joshua Gutierrez pleads to voluntary manslaughter for To’Hajiilee shooting

Joshua Gutierrez of To’Hajiilee charged with murder for allegedly shooting unidentified Native American man on March 29, 2020

Shiprock man pleads guilty to second-degree murder for killing fellow Navajo Nation man

  • Prosecutor David Cowen’s binding plea deal mandates a 15-year sentence for Zachariah Joe
  • The magistrate judge deferred acceptance of the plea until the “final disposition hearing”
  • No sentencing hearing has been set

See the full case summary

ALBUQUERQUE, N.M. — A 28-year-old Shiprock man pleaded guilty to second-degree murder, Oct. 31, 2019, for the stabbing death of a 32-year-old Navajo Nation tribal member at the beginning of the year.

Shiprock Pinnacle. Photo by DiAnn L’Roy/Flickr

Zachariah Joe pleaded guilty in federal Magistrate Court in Albuquerque to a criminal information charging him with second-degree murder, according to court documents.

According to the plea deal, Joe admitted killed Brett Micah Morgan by stabbing him 10 times in the chest and neck on Jan. 3, 2019.

The plea deal, signed off on by federal prosecutor David Cowen, states Joe would only receive a 15-year sentence, although any time spent on supervised release after serving a prison sentence would be up to the sentencing judge.

According to the minutes from the plea hearing, Magistrate Judge Kirtan Khalsa accepted the plea but deferred final acceptance to the “final disposition hearing” in front of a district court judge.

Continue reading “Shiprock man pleads guilty to second-degree murder for killing fellow Navajo Nation man”

John Lodgepole: M.W., YOB 1975 — 8-1-2019

 

Summary

On Aug. 1, 2019, John Lodgepole allegedly went to the house of a woman he knew in Nenahnezad, near Fruitland, and became verbally abusive toward her and another woman. Later that night he allegedly came back, threw the victim, M.W. (YOB: 1975) to the ground and kicked her in the head multiple times. Investigators found a bloody bat near the scene, according to an affidavit for a criminal complaint.

San Juan County Sheriff’s deputies found Lodgepole in the parking lot of a chapter house across the street from the house, covered in blood. He was initially charged with murder, according to the complaint. The case was sealed, despite Lodgepole’s arrest, according to the court docket.

On Oct. 9, 2019, a federal grand jury indicted Lodgepole on a charge of voluntary manslaughter and he was arraigned on Oct. 25. The case was unsealed a day earlier.

On Nov. 3, 2020, Lodgepole pleaded guilty to a single count of voluntary manslaughter. The plea deal sets his sentence at 6 to 8 years, is the district court judge accepts it at sentencing. No further hearings have been set.

The incident

San Juan County Sheriff’s deputies responded on Aug. 1, 2019, to a house south of the Chapter House in Nenahnezad, after the owner called 911, Federal Bureau of Investigations Agent Jordan Spaeth wrote in an affidavit for a criminal complaint.

A view from the Indian Service Route 36 near Nenahnezad. Photo by Gene Selkov/Flickr.

The homeowner, identified by her initials of E.L., told deputies she was drinking with the victim, identified in court documents as M.W. (YOB: 1975) or Jane Doe, when John Lodgepole threw M.W. to the ground and started kicking her in the head, he wrote.

“Lodgepole then fled the residence and E.L. contacted 911,” Spaeth wrote. “Deputies were notified a short time after arrival that Jane Doe was pronounced dead at the scene by Emergency Medical Personnel.”

Deputies found Lodgepole in the parking lot of the chapter house. He was covered in blood, he wrote.

Deputies detained him and Navajo Police officers arrested him when they arrived on scene, he wrote.

When investigators spoke to E.L., she said Lodgepole arrived at the house earlier that night and was verbally abusive toward her and M.W. As the night went on, he threw M.W. to the ground and kicked her in the head.

Outside the house, investigators found a bloody metal baseball bat and shoe prints near where M.W.’s body was found and resembled the soles of Lodgepole’s shoes.

The field investigator with the Office of the Medical Investigator found three wounds to M.W.’s head, including one that likely fractured her skull.

Spaeth charged Lodgepole with murder.

The plea deal offers a slightly different set of facts than what investigators initially found.

Lodgepole wrote in the plea deal that he punched his mother’s friend in the head and face 10 times because she called him names and threatened him. After throwing her to the ground, he took a cinderblock and “smashed the back of her head.”

“When I noticed that Jane Doe was still breathing, I took the block, placed it under her feet and used a cane to strike her ankles for approximately five or six times,” according to the plea deal.

Indictment

Although Lodgepole was arrested on Aug. 1, the court docket does not show that he was ever arraigned or assigned a lawyer until two months later, when prosecutors indicted him, on Oct. 9.

The complaint for his arrest, and the entire case, appears to have been sealed until Oct. 24, 2019, the day before he was arraigned on the indicted charge of voluntary manslaughter, a downgrade from murder.

On Oct. 25, 2019, in Albuquerque, federal Magistrate Judge Paul Briones ordered Lodgepole held without bail and on Oct. 28, Magistrate Judge Kirtan Khalsa arraigned him. Lodgepole pleaded not guilty and his lawyer, Melissa Morris, waived a detention hearing.

Nothing in the court record indicates why Lodgepole would have been arrested, and held without bail, without being arraigned or assigned an attorney, or why the case would have been sealed, even though he was arrested.

Court delays

Since the arraignment, Lodgepole’s case has been continued three times. Once on Oct. 30, 2019, once on Jan. 13, 2020 and once on March 10, 2020.

According to Morris’ third motion for a continuance, filed March 6, 2020, plea negotiations had not begun in the case.

Plea deal

On Nov. 3, 2020, Lodgepole pleaded guilty to a single count of voluntary manslaughter in front of Magistrate Judge Steven Yarbrough.

Federal prosecutor Raquel Ruiz-Velez‘s offered plea deal states Lodgepole can only be sentenced to 6 to 8 years in prison for the brutal beating death if it is ultimately accepted by a federal district court judge.

Magistrate Judge Steven Yarbrough accepted the plea, although he deferred final acceptance until sentencing in front of a district court judge, according to a plea minutes sheet.

Lodgepole wrote in a plea deal that he punched his mother’s friend in the head and face 10 times because she called him names and threatened him. After throwing her to the ground, he took a cinderblock and “smashed the back of her head.”

“When I noticed that Jane Doe was still breathing, I took the block, placed it under her feet and used a cane to strike her ankles for approximately five or six times,” according to the plea deal.

Why voluntary manslaughter?

The federal charge of voluntary manslaughter is defined as the unlawful killing of someone without malice and “upon a sudden quarrel or heat of passion.” It is a downgrade from first- and second-degree murder.

According to the indictment, Lodgepole killed M.W. “upon a sudden quarrel and heat of passion, and therefore without malice.”

Lodgepole was initially charged with murder by Spaeth.

According to federal law, first-degree murder is done with “malice aforethought” and is “every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing.”

First-degree murder is also when someone dies “as part of a pattern or practice of assault or torture against a child or children.” In the murder statute, torture is defined as the crime of torture, except without the requirement that the torturer is doing so “under the color of law.” Under that definition, torture is an act “specifically intended to inflict severe physical or mental pain or suffering.”

In the plea deal, Lodgepole said he took the cinderblock that he used to bash the back of M.W.’s head in with, put it under the legs and beat her ankles with a cane after he saw she was still breathing.

According to federal sentencing guidelines, a judge can increase a sentence beyond the sentencing guidelines if the perpetrator’s behavior was “unusually heinous, cruel, brutal, or degrading to the victim.”

“Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation,” the guidelines state.

How the grand jury that indicted Lodgepole reached the conclusion that voluntary manslaughter was the appropriate charge is a mystery as grand juries are secret. The prosecutor’s signature on the indictment is inscrutable, although Ruiz-Velez is the only attorney listed on the docket.

However, multiple articles articulate how grand juries will follow the lead of the prosecutor presenting the case to them. In the case of Breonna Taylor, a grand juror said that homicide charges were never even presented to them.

University of Dayton Law Professor Susan Brenner wrote in a 1996 article that “the federal grand jury has become little more than a rubber stamp, indiscriminately authorizing prosecutorial decisions.”

A 2017 article in the Harvard Law Review that has no listed author opines that the failure to indict the officers who allegedly killed Michael Brown in Ferguson, Mo., and Eric Garner in Staten Island, N.Y., “merely drew public attention to flaws” that have been there the whole time.

“The complete prosecutorial control over the grand jury — particularly over the flow of information and grand jury procedure — solidifies the grand jury’s dependence on the prosecutor,” the anonymous author wrote.

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See the case documents on Google Drive or Document Cloud

Past stories

Fruitland man to receive 6-8 years for woman’s beating death

Man set to plea in Nenahnezad beating death

Trial in Nenahnezad beating death postponed for third time

Tavor Tom: Unidentified woman (aunt) — 7-1-2019

 

Summary

Tavor Tom, a member of the Navajo nation, allegedly went on July 1, 2019 to his maternal aunt’s house and stabbed her repeatedly, killing her, stole her car, then crashed it into a fence, according to his alleged confession.

He was allegedly trying to get to Farmington because he wanted to steal the over-the-counter drug Mucinex, generically known as guaifenesin.

A federal grand jury indicted him eight days later on July 9, 2019, on a charge of second-degree murder. His case is pending.

The incident

Shiprock Pinnacle. Photo by DiAnn L’Roy/Flickr

At 10 a.m., July 2, 2019, the victim was found dead in her house by her father. Sometime during that same morning, Tavor Tom, of Shiprock, was found in the victim’s Jeep Cherokee, after he crashed into a fence in front of a church in Nenahnezad. Navajo Nation police officers found a bloody knife in the car, FBI agent Cary Cahoon wrote in an affidavit for an arrest warrant.

FBI agent Kalon Fancher interviewed Tom and advised him he did not have to speak with him, but Cahoon did not write if Fancher told Tom his Miranda rights.

According to Fancher’s interview with Tom, the latter allegedly admitted to killing the victim with a folding knife he took from his father’s vehicle with the intention of going to the victim’s house to steal her car so he could drive it to Farmington to steal Mucinex, Cahoon wrote.

Tom allegedly said he went to the victim’s trailer, “slit her throat and then stabbed her seven (7) or (8) times with the knife he took from his father’s vehicle, and then stole her vehicle,” Cahoon wrote.

Tom allegedly said he drove to the Wal-Mart in Farmington, stole Mucinex from the store around 7 p.m. and drove on the back roads toward Shiprock, Cahoon wrote.

He then crashed the vehicle into a fence at a church in Nenahnezad, rendering the vehicle undriveable. He was found in the vehicle the next morning.

Crashed car

Navajo Nation firefighter Derrick Woody told Cahoon that he responded to Tom’s car crash and that Tom allegedly tried to overdose on Mucinex. The drug, as well as vomit, were found in the vehicle.

Navajo Nation Sgt. Francis Yazzie told Cahoon that he also responded to the crash and he found a folding knife with blood on it on the passenger-side floorboard.

Family interviews

The victim’s father, only identified by the initials R. C., found the victim, unnamed in federal court documents, when he went to check on her at the behest of her adult children, who could not reach her on the phone.

“After R.C. discovered Victim and realized she was deceased, he called 911,” Cahoon wrote.

Cahoon was called by Navajo Nation detective Jerrick Curley that there had been a killing in Shiprock, in the exterior boundaries of the reservation.

Curley told Cahoon that he found the woman lying on her bedroom floor with multiple cuts and blood around her. He also told Cahoon that the woman’s nephew, Tom, had been in a car crash near Nenahnezad. The car he crashed allegedly belonged to the alleged victim and inside the vehicle police found a knife with blood on it.

The victim’s father, Tom’s grandfather, told Cahoon that Tom had come to his house, next door to the victim’s, at 6 p.m., July 1, 2019, to use his computer, and then left.

Tom’s mother, who was the victim’s sister and is only identified by the initials “M.T.,” told Cahoon that Tom lived with her at her house in Shiprock, which was in “close proximity” to the victim’s house, a single-wide trailer. Tom got around on a red ATV, parked next to R.C.’s house.

“M.T. received a text message from TOM the previous night (07/01/2019) and indicated he was with his friends,” Cahoon wrote. “M.T. went to visit Victim at her residence the previous evening (07/01/2019), at approximately 6:30 p.m., when M.T. arrived and saw that Victim’s vehicle was gone, she assumed Victim left in her vehicle to go somewhere.”

She said her son had been addicted to Mucinex for several years and uses it to get high.

“TOM also had been suicidal in the past and has become more violent recently,” he wrote.

M.T. alleged her son often takes her car without permission and drives it to stores where he can steal Mucinex. She also acknowledged that Tom was found in the victim’s vehicle.

“M.T. believed TOM was the one who killed Victim,” Cahoon wrote. “R.C. and M.T. both advised that Tom often went by and visited Victim at her house and that they got along with one another.”

The crime scene

In the afternoon of July 2, 2019, officers searched the interior and exterior of the victim’s trailer, although Cahoon did not write whom he obtained consent from, since the victim was dead.

During the search, officers found the key to Tom’s red ATV on a couch in the living room. A cell phone was found on a different couch in the living room and there were drops of blood in the kitchen, laundry room and bedroom.

“Additionally, the medicine cabinet door was open in the kitchen and it appeared that someone had rummaged through the prescriptions and over-the-counter medications,” Cahoon wrote.

The field investigator with the Office of the Medical Investigator found the victim had “trauma” and cuts to her neck, back and chest.

 

gov.uscourts.nmd.424819.1.0

 

Held without bail

According to the court docket, Tom initially appeared July 3, 2019 and on July 10 in Albuquerque federal court, and he was ordered held indefinitely after his attorney waived a detention hearing.

On July 10, his attorney filed a waiver of a preliminary hearing. However, a federal grand jury had already indicted him on July 9, 2019, on a charge of second-degree murder.

Plea to second-degree murder

Tom pleaded guilty, Nov. 24, 2020, to second-degree murder in front of federal Magistrate Judge Kirtan Khalsa during a virtual hearing that lasted just over 30 minutes. Khalsa deferred final acceptance of the plea deal until sentencing by a district court judge.

According to the plea deal proffered by federal prosecutor Joseph Spindle, there is no agreement as to the sentence.

Prosecutors will agree that Tom accepted responsibility for his conduct and grant that, under the sentencing guidelines, he is entitled to a reduction of two levels from the base offense. Spindle and Tom’s defense attorney, James Loonam, can argue whatever they want when it comes to the sentence.

In the plea agreement, Tom wrote that he stabbed his aunt repeatedly with a knife, “intentionally and without justification.”

When interrogated by FBI agents, he said he stabbed her repeatedly and slit her throat, according to court documents.

A records request for the autopsy report is pending with the Office of the Medical Investigator.

Sentencing guidelines

Second-degree murder carries a base offense level, per the federal sentencing guidelines for second-degree murder, is 38. The plea deal provides Tom with a two-level reduction for pleading guilty, putting the base level at 36.

According to the federal sentencing table, with little or no criminal history, that puts Tom’s proposed sentence, sans any increases or decreases, at 16 to 20 years. At a base offense level of 38, the level without the consideration of his guilty plea, the range increases to 20 to 24 years.

Based on a search of federal and state court records, Tom does not appear to have any prior state or federal arrests. His tribal criminal records are unknown.

His final sentence will be up to the sentencing judge. No sentencing date has been set.

See the case on CourtListener.com or read the documents on Google Drive or Document Cloud

Zachariah Stanley Joe: Brett Micah Morgan — 1-3-2019

 

Summary

Zachariah Joe first attacked Brett Micah Morgan after visiting with him and another man at a house in Shiprock. After being tackled to the ground, he locked Morgan and the other man, only identified in court documents as B.M., out of the house. He then found a kitchen knife and stabbed Morgan 10 times in the chest and neck, killing him, according to court records.

Joe pleaded guilty on Oct. 31, 2019 to a single charge of second-degree murder, according to court records.

The binding plea deal states he will receive a sentence of 15 years. However, the magistrate judge in the case has deferred acceptance of the plea agreement until sentencing by a district court judge.

No more hearings have been set in the case.

The incident

Shiprock. Photo by Bowie Snodgrass/Flickr

On Jan. 3, 2019, Zachariah Stanley Joe, 28, showed up at a house where Brett Micah Morgan, 32, and another man, identified by the initials B.M., were hanging out. Joe had just been fired from Burger King in Shiprock, Federal Bureau of Investigations Agent Lance Roundy wrote in an affidavit for a criminal complaint for the arrest of Joe.

Roundy referred to Morgan in court documents initially as “B.M.M.,” then by “John Doe.” The other identifiers Roundy included were Morgan’s year of birth, 1986, and that he was a Navajo Nation tribal member, as is Joe.

Although Roundy only identified Morgan as “B.M.M.” in court documents, he was identified in his obituary in the Farmington Daily Times. In additional to the correct initials, his obituary states he was born in 1986 and he died on Jan. 3, 2019, all details that match with Roundy’s affidavit. The obituary has been archived here via the Internet Archive and here as a PDF.

Roundy wrote someone interviewed B.M., who said Joe had been texting with Morgan while Morgan and B.M. drank at a Shiprock house. During the evening, Joe texted Morgan that he left work, at Burger King, and wanted to come over.

When Joe showed up, he was drunk and upset about being fired, Roundy wrote.

“Joe continued his tirade about losing his job throughout the evening and at one point, JOE violently struck John Doe in the face with the back of his hand, sending John Doe back towards the wood burning stove,” Roundy wrote, citing the interview with B.M.

Joe tried to attack the prone victim but B.M. punched Joe several times in the head and wrestled him to the ground long enough for Morgan and B.M. to get of the house. Joe locked the door from the inside. Morgan and B.M. could hear him searching through kitchen drawers and cabinets in a “violent” manner, Roundy wrote.

“B.M. then became upset feeling that his home was being invaded, and subsequently ran to the known residence of JOE and broke a window,” Roundy wrote. “B.M. then returned to his residence approximately five minutes later and found John Doe on the ground just outside the door bleeding.”

Joe was standing over Morgan. At some point two other people, identified as “D.T.” and “V.B.” arrived and drove Morgan to the hospital. Navajo police then arrested B.M. for breaking Joe’s window.

Roundy wrote that the Office of the Medical Investigator found that Morgan suffered from 10 “puncture and/or laceration wounds.” He was pronounced dead at the Northern Navajo Medical Center.

Roundy wrote that someone interviewed D.T., who said that he arrived at the house with V.B. and saw Joe kicking Morgan on the ground, outside the house. D.T. got out of the car and pushed Joe back from Morgan, saw he was unresponsive and heard Joe say that Morgan “was stabbed.”

D.T. then kept Joe at a distance and tried to get Morgan to his feet but realized he was bleeding, put him in a car and drove him to the hospital, he wrote.

D.T., who also lived at the house, later realized a kitchen knife was missing from a drawer, Roundy wrote.

V.B. said during an interview that when she arrived with D.T., she did not notice anything in Joe’s hands.

In the plea deal, Joe attested that he initially hit Morgan. B.M. threw Joe down, but eventually Joe locked them out of the house.

“I located a knife in the residence and armed myself with it,” the plea deal states. “A short time later, I exited the residence and confronted John Doe. I started a fight with John Doe and I stabbed John Doe with the knife approximately 10 times in his chest, side and neck.”

In the plea, he admitted that his stabbing caused Morgan’s death.

“While I stabbed John Doe, he begged for me to stop, but I did not,” the plea deal states. “In doing so, I acted with callous and wanton disregard for human life.”

The U.S. Attorney’s Office for New Mexico only published a press release on the case after Joe pleaded guilty and did not publish one after he was arrested.

The Farmington Daily Times first broke the story on January 14, 2019. Joe was charged on Jan. 4.

Below is the affidavit for a criminal complaint filed by Roundy.

 

D.N.M._1_19-cr-03746-JB_1_0 - Zachariah Joe affidavit for CC

 

Plea and possible sentence

On Oct. 31, 2019, Joe pleaded guilty to second-degree murder, before he was indicted by a grand jury. He previously waived his right to a preliminary hearing, on Jan. 9.

Magistrate Judge Kirtan Khalsa deferred acceptance of the plea agreement, according to the plea hearing minutes for the Oct. 31 hearing

The case had been continued multiple times because the prosecution and Joe’s defense attorney, Melissa Morris, were trying to reach a plea in “pre-indictment negotiations,” according to the docket and an Aug. 16 motion to continue the grand jury presentment. The plea was also signed by federal prosecutor David Cowen.

The plea agreement states Joe will receive a sentence of 15 years, although the sentencing judge can decide how much, if any, time Joe should spend on supervised release after serving his sentence. She can also levy a fine.

According to the plea, the possible maximum sentence for second-degree murder is life imprisonment.

The plea agreement states the 15-year sentence considers Joe’s acceptance of responsibility and that 15 years is the “appropriate disposition.”

In the plea agreement, Joe attested that he locked Morgan and B.M. out of the house, he found a knife and then confronted Morgan.

“I started a fight with John Doe and I stabbed John Doe with the knife approximately 10 times in his chest, side and neck. These stab wounds caused John Doe’s death. While I stabbed John Doe, he begged for me to stop, but I did not. In doing so, I acted with callous and wanton disregard for human life.”

Sentencing date set

Over a year after he pleaded guilty to second-degree murder, Joe will be sentenced to 15 years in prison during a virtual hearing at 3 p.m., Jan. 14, 2021 in the Vermejo courtroom in Albuquerque by District Judge James Browning.

Browning’s only discretion will be in how long Morgan will be on supervised release after serving his prison sentence. Magistrate Judge Kirtan Khalsa initially accepted the plea in October 2019.

Sentencing memorandums

Cowen and Morris both submitted sentencing memorandums imploring Browning to accept the binding plea deal, which mandates a sentence of 15 years for Joe.

Cowen wrote in his sentencing memorandum that Morgan was Joe’s close friend, and cousin, and that his death was “completely avoidable,” although he never specifies how it was avoidable. At the onset of the case, he worked with Morris to “investigate what took place with the goal of working towards a reasonable outcome.”

Cowen wrote that the sentencing guidelines for Joe put his sentence much higher, at just under 20 to to 24 years, but the decrease in sentence will avoid a trial. He wrote:

The proposed plea agreement avoids forcing the victim’s family, who is also Defendant’s extended family, to testify about the facts outlined above. One of the victim’s family members voiced an opinion that the family did not agree with the stipulated 15-year sentence, PSR ¶ 102, but in finalizing the plea agreement the government received support to resolve the case with this proposed 15-year sentence from the victim’s mother and stepfather. This support naturally came with emotion and a realization that no term of imprisonment would bring the victim back to the family.

The plea and 15-year sentence will allow the victim’s family “an opportunity to reconnect with the Defendant’s side of the family,” Cowen wrote.

Joe’s familial history was a childhood of physical abuse perpetrated by his alcoholic father, he wrote.

“According to Defendant’s mother, he unfortunately inherited his father’s tendency to become angry when he drinks alcohol,” Cowen wrote.

Joe had a history of misdemeanor convictions from age 18 to 21, which appear to be two drunk driving arrests and a charge of assault on an officer. He was never convicted of a felony but the convictions gave him a criminal history category of IV, he wrote.

Morris wrote in her sentencing memorandum for Joe that he has been drinking since he was 13 and when he drinks, “his personality changes and he sometimes does things that he would not do otherwise.”

Although his family is “saddened and confused by his actions,” they are still supportive of him. Joe never intended to kill his cousin and does not know how the events leading up to his brutal stabbing resulted in it, she wrote.

“Mr. Joe respectfully submits that this offense, like every other criminal offense he committed in the past, is the product of the disease of alcoholism, which in turn may be the product of his traumatic childhood experiences and his family history of alcoholism,” Morris wrote.

Morris submitted a packet of seven letters on Joe’s behalf, dated around December 2019.

  • Joe’s maternal aunt, Fremina Funmaker, submitted a letter on behalf of Joe and asked that the judge make a decision that “will allow him to seek mental well-being and self-development through sentencing.”
  • Aunt Tiva Esplain wrote that Joe is not a violent person and he has made large and small mistakes in the past and that alcohol caused him to stab his cousin 10 times.
  • Cousin Jerilyn Frank wrote that Joe is one of the “funny guys” and has a contagious laugh.
  • Joe’s mother, Miranda Begay, wrote that Joe and Morgan were “two peas in a pod” and there was not a day that went by when they had not communicated with each other. Without access to alcohol, Morgan would have never died.

See all the documents on Google Drive or Document Cloud view the case and documents on Court Listener.

Past stories

Shiprock man pleads guilty to second-degree murder for killing fellow Navajo Nation man