Sentencing set for Breadsprings man who beat girlfriend to death

Troy Livingston pleaded guilty in August to second-degree murder
• Sentencing is tentatively set for November
• He beat to death Tyler Lamebear, his girlfriend

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

ALBUQUERQUE, N.M. — Troy Livingston is set to be sentenced on Nov. 12, 2020, after he pleaded guilty in August to second-degree murder for beating his 19-year-old girlfriend to death.

A notice on the docket states the sentencing will be at 9:30 a.m. in the Cimarron courtroom in front of District Judge William Johnson.

The docket and notice do not state if the hearing will be in person, virtual, a combination of the two or if that has not been decided yet.

Livingston, 20, pleaded guilty on Aug. 4, 2020, to a criminal information charging him with second-degree murder for Tyler Lamebear’s beating death on April 6, 2019. Livingston is an enrolled member of the Navajo Nation. Second-degree murder carries a maximum sentence of life.

According to the plea deal signed by prosecutor David Cowen, Livingston will be entitled to a two-level reduction in the federal sentencing guidelines, although where that puts his sentence is unknown pending the outcome of a pre-sentence report.

According to the plea, Livingston admitted to beating Lamebear with his hands, feet and a metal flashlight causing severe head, face and body injuries.

Although Magistrate Judge Laura Fashing took the plea, she deferred final acceptance until the sentencing hearing in front of Johnson.

It appears from the docket that the pre-sentence report may have been filed because entry 50 from the docket is missing, pre-sentence reports are not public and a sentencing date has been set.

What federal probation officers think his sentencing range should be has not been entered into the court docket yet. It is usually revealed either through a prosecution or defense sentencing memorandum.

A federal grand jury previously indicted Livingston on a charge of first-degree murder on Jan. 29, 2020.

Sentencing guidelines

The base offense level, per the sentencing guidelines for second-degree murder, is 38. The plea deal provides Livingston 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 Livingston’s proposed sentence, sans any increases or decreases, at 16 to 20 years. At a base offense level of 38, the range increases to 20 to 24 years.

According to New Mexico and federal court records, Livingston has one past criminal case, for intoxicated driving and child endangerment from March 2019. Prosecutors dismissed that the case at the magistrate level, without prejudice, on May 8, 2019 in a form dismissal and wrote that Livingston was in federal custody for “an alleged capital offense.” Past arrests or convictions in tribal court are unknown. His addresses are listed as Church Rock and Vanderwagen in state court documents.

Federal sentencing guidelines table, levels 33 to 43.
Federal sentencing guidelines table, levels 33 to 43. Sentence ranges are in months. Second-degree murder has a base level of 38 (sentence range of 20 to 24 years) and the plea deal means a two-level reduction, to 36, creating a sentence range of 16 to 20 years.

 

The killing

On April 6, 2019, Troy Livingston’s mother, Gertrude Livingston, identified in charging documents as G.L., was at home when her son and his girlfriend, Tyler Lamebear, came home to her Rodeo Road home in Breadsprings, FBI Agent Monty Waldron wrote in a statement of probable cause for Livingston’s arrest.

At 3 a.m., Livingston and Lamebear were arguing and Gertrude Livingston could “sense tension” between them. She then heard crying, which she believed was from her son hitting Lamebear. He ordered his mother out of the bedroom and she complied, Waldron wrote.

When she heard more crying, she went into the bedroom and saw her son allegedly stomping his girlfriend with his foot and described the girlfriend as being in a ball, her arms and hands around her head, he wrote.

“Again LIVINGSTON told G.L. to get out, so G.L. left the house,” Waldron wrote. “LIVINGSTON locked the door behind G.L. From outside, G.L. could hear screaming, thumping and banging.”

When it was quiet, the mother went back into the house and heard wheezing from inside the bedroom door. At some point, she called the Navajo Police Department to report a violent “dispute,”  Waldron wrote.

Officers found Lamebear lying on the floor, covered in blood, badly beaten. They asked her who beat her and she responded, “Troy did this to me.” Livingston was lying on the bed next to his 2-1/2-year-old toddler, who was not harmed, he wrote.

Medics transported Lamebear to the Gallup Indian Medical Center. She either died at the hospital or before she arrived, he wrote.

Livingston told FBI Agent David Loos and Navajo Criminal Investigator Ben Yazzie, during an interrogation, that he “took it too far, way too far.” He was angry Lamebear admitted to having sex with his friend. He also admitted to using a flashlight to beat her, Waldron wrote.

According to the autopsy report by Lori Proe, Lamebear had multiple “bruises, scrapes and skin tears of the face and scalp” and many of them had a distinctive shape, like that of a flashlight. Her nose was broken and there was bleeding in the deep tissues of her scalp and bleeding over the surface of her brain, which was swollen, “a change that can occur when the organ is damaged and/or deprived of oxygen.”

Multiple ribs were broken and she was bleeding in her chest and what would be a bite mark on her left shoulder, Proe wrote.

According to a deputy field investigation by Harolynn Yazzie, she was covered in dried blood and her clothing was soaked in blood.

For more details on the incident, see the case write-up

Do you have information about this case? NM Homicide needs your assistance. Please fill out this form or contact us.

Continue reading “Sentencing set for Breadsprings man who beat girlfriend to death”

DA dismisses murder charge against Anthony Wagon

• Prosecutor Brian Decker dismissed murder case two weeks after a judge ordered one of Anthony Wagon‘s interrogations be suppressed
• A judge suppressed Det. Jason Solomon‘s interrogation, where Wagon allegedly admitted to running down Jeremy Beard
• Wagon spent over three years in jail after initially being released on bond

See the case write-up

AZTEC, N.M. — A prosecutor dismissed the murder case against Anthony Wagon, 23, three weeks after a judge suppressed Wagon’s interrogation by a Farmington detective, and three years after a judge ordered him held without bail pending trial.

Anthony Wagon

San Juan County District Attorney’s Office prosecutor Brian Decker filed the nolle prosequi dismissing the case on June 23, 2020, after District Court Judge Daylene Marsh suppressed Farmington Det. Jason Solomon‘s interrogation of Wagon following Jeremy Beard’s death on April 24, 2017.

After Marsh suppressed the statement on June 2, 2020, in which Wagon allegedly said he ran down Beard after being tackled by him during a fight over a beer, Decker immediately filed an appeal.

Marsh wrote, in her order suppressing his statements to Solomon, that he was never read his rights. His attorney, Craig Acorn, also made the argument that Wagon was too drunk to consent to an interrogation, but her decision made his intoxication a moot point.

“The inadequacy of the advisement of rights requires the exclusion from use at trial of Defendant’s statement to Detective Solomon and whether Defendant knowingly and intelligently waived his rights has become moot,” Marsh wrote.

Marsh cited State v Serna, a Court of Appeals case from 2018. In that case, the Appeals Court found that a Miranda warning requires “that a person be warned, at least implicitly, that they have a right to counsel prior to questioning.” In the case of Ernest Serna, Sandoval Sheriff’s Deputy Sal Tortorici, reciting a Miranda warning from memory, told Serna he had a right to an attorney during questioning. The court found this to be “inadequate.”

While Solomon never read Wagon his rights, Det. Chris Stanton and Sgt. Travis Spruell did after they illegally seized him from the Navajo Nation.

On June 4, 2020, Decker filed a motion to dismiss his appeal and for Marsh to reconsider her suppression order.

He wrote that Stanton read Wagon the correct Miranda warning and that, when he testified during a motion hearing, it was from memory and not the card he carried. Marsh granted his motion and set a hearing for July 7, 2020.

On June 23, Decker dismissed the case, writing it was in the “best interest of justice.”

Prosecutor Dustin O’Brien told the Farmington Daily Times that “the district court followed what is mandated by state law and the Farmington Police Department was issuing Miranda warnings consistent with law at the time.”

Police Spokeswoman Nicole Brown told the Daily Times that the case was “dismissed pending further investigation” following Marsh’s ruling and that the police department “is still pursuing and investigating the incident.”

Wagon was initially released on a bond following his arraignment in magistrate court but after the case was bound over, former district judge John Dean ordered Wagon held without bail on May 26, 2017.

Dean wrote in his order that Wagon’s step-mother testified against him, as did Solomon.

“Based on the testimony of Tina Wagon, Defendant’s step-mother, Mr. Wagon has a history of anger issues than can cumulate (sic) in aggression and violence — particularly when Defendant does not get his way,” Dean wrote. “In fact, Ms. Wagon testified that Mr. Wagon one time became so upset he shoved her and caused her to fall.”

Dean wrote that Wagon “fled through a non-direct path” to his parent’s home on the reservation, that that he was “indifferent to the consequences of his actions” and that Wagon was a danger to the community.

A civil case filed by Beard’s father is still pending as is a battery on a peace officer case stemming from Wagon’s three years in jail.

Do you have information about this case? NM Homicide needs your assistance to tell the stories of homicide victims. Please fill out this form.

Continue reading “DA dismisses murder charge against Anthony Wagon”

Breadsprings man pleads to second-degree murder for beating death of girlfriend

Troy Livingston pleaded guilty to second-degree murder for the beating death of 19-year-old Tyler Lamebear
• Livingston’s 2 1/2 year old child was in the house while he beat Lamebear to death
• He faces up to life in prison

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

ALBUQUERQUE,  N.M. — During a virtual 30-minute hearing Aug. 4, 2020, Troy Livingston, 19, pleaded guilty to second-degree murder for the beating death of his girlfriend, Tyler Lamebear, 19.

Troy Livingston

Livingston pleaded guilty to a criminal information charging him with second-degree murder for Lamebear’s death on April 6, 2019.

According to the plea deal signed by prosecutor David Cowen, Livingston will be entitled to a two-level reduction in the federal sentencing guidelines, although where that puts his sentence is unknown pending the outcome of a pre-sentence report.

According to the minutes, Magistrate Judge Laura Fashing asked why the plea needed to be held so soon, and made findings as to why the plea hearing was held, but not what those findings were. The final acceptance of the plea was deferred until the sentencing hearing in front of a district court judge.

According to the plea, Livingston admitted to beating Lamebear with his hands, feet and a metal flashlight causing severe head, face and body injuries.

No sentencing hearing has been set.

Second-degree murder carries a maximum sentence of life.

A federal grand jury previously indicted Livingston on a charge of first-degree murder on Jan. 29, 2020.

According to the autopsy report by Lori Proe, Lamebear had multiple “bruises, scrapes and skin tears of the face and scalp” and many of them had a distinctive shape, like that of a flashlight. Her nose was broken and there was bleeding in the deep tissues of her scalp and bleeding over the surface of her brain, which was swollen, “a change that can occur when the organ is damaged and/or deprived of oxygen.”

Multiple ribs were broken and she was bleeding in her chest and what would be a bite mark on her left shoulder, Proe wrote.

According to a deputy field investigation by Harolynn Yazzie, she was covered in dried blood and her clothing was soaked in blood.

The incident

On April 6, 2019, Troy Livingston’s mother, Gertrude Livingston, identified in charging documents as G.L., was at home when her son and his girlfriend, Tyler Lamebear, came home to her Rodeo Road home in Breadsprings, FBI Agent Monty Waldron wrote in a statement of probable cause for Livingston’s arrest.

At 3 a.m., Livingston and Lamebear were arguing and Gertrude Livingston could “sense tension” between them. She then heard crying, which she believed was from her son hitting Lamebear. He ordered his mother out of the bedroom and she complied, Waldron wrote.

When she heard more crying, she went into the bedroom and saw her son allegedly stomping his girlfriend with his foot and described the girlfriend as being in a ball, her arms and hands around her head, he wrote.

“Again LIVINGSTON told G.L. to get out, so G.L. left the house,” Waldron wrote. “LIVINGSTON locked the door behind G.L. From outside, G.L. could hear screaming, thumping and banging.”

When it was quiet, the mother went back into the house and heard wheezing from inside the bedroom door. At some point, she called the Navajo Police Department to report a violent “dispute,”  Waldron wrote.

Officers found Lamebear lying on the floor, covered in blood, badly beaten. They asked her who beat her and she responded, “Troy did this to me.” Livingston was lying on the bed next to his 2-1/2-year-old toddler, who was not harmed, he wrote.

Medics transported the girlfriend to the Gallup Indian Medical Center. She either died at the hospital or before she arrived, he wrote.

Livingston told FBI Agent David Loos and Navajo Criminal Investigator Ben Yazzie, during an interrogation, that he “took it too far, way too far.” He was angry Lamebear admitted to having sex with his friend, Waldron wrote.

Do you have information about this case? NM Homicide needs your assistance. Please fill out this form or contact us.

Continue reading “Breadsprings man pleads to second-degree murder for beating death of girlfriend”

Victim’s father files wrongful death lawsuit against Anthony Wagon

See the case write-up

FARMINGTON, N.M. — The father of Jeremy Beard, allegedly intentionally run over in 2017, is suing the accused killer and his insurance company for his son’s death.

Anthony Wagon

Christian Beard filed the lawsuit in Farmington District Court on April 24, 2020, naming accused killer Anthony Wagon, 23, relatives Hershell Wagon and Tina Wagon and insurance companies MGA Insurance Company and Gainsco Insurance Company.

Anthony Wagon allegedly ran down Jeremy Beard, 29, on April 26, 2017 with his truck, after Jeremy Beard took him down during a scuffle following accusations over a stolen beer. Jeremy Beard was his aunt’s husband.

Anthony Wagon is charged with first-degree murder for Jeremy Beard’s death and his case is ongoing.

Christian Beard’s attorney, William Jaworski, wrote in the lawsuit that MGA and Gainsco insured the truck allegedly used to run over Jeremy Beard, and the three Wagons paid the insurance premiums.

When Anthony Wagon allegedly ran down Jeremy Beard, he operated the car in a “negligent and reckless manner,” Jaworski wrote.

“The car accident that killed Jeremy Beard was foreseeable,” he wrote. “The car accident was a proximate cause of Jeremy Beard’s death.”

He is asking for reasonable damages, compensatory damages for the loss of consortium, for the enhanced injury of death and punitive damages, according to the lawsuit.

No hearings have been set in the case.

Read more about the criminal case in the write-up or read more stories about the case

See the case documents on Google Drive or Document Cloud

Continue reading “Victim’s father files wrongful death lawsuit against Anthony Wagon”

Oral arguments scheduled for Muhammad Ameer murder appeal

Muhammad Ameer is appealing two issues from his trial
• The case is scheduled for a year after the last brief was submitted to the court in July 2019

See the full case write-up

Update: Listen to the oral arguments

SANTA FE, N.M. — Justices will hear oral arguments in Muhammad Ameer‘s appeal of his felony murder conviction on July 7, 2020, although it may be done via teleconference.

Muhammad Ameer

The case is scheduled for oral arguments 10:15 a.m., July 7, 2020, but whether it will be in person or via video is still up in the air because of the coronavirus pandemic.

On July 27, 2018, a jury found Ameer, 26, guilty of felony murder and armed robbery, although the latter charge was dropped as the predicate felony for felony murder. The jury acquitted him on a charge of tampering with evidence.

According to court documents, victim Aaron Sieben and Ameer allegedly got into some kind of argument while Sieben was in his truck on March 19, 2017, parked at a Circle K gas station in Albuquerque.

After Ameer allegedly fled from Sieben, Sieben pursued him, leading to a fist fight. As the fight progressed, Ameer allegedly produced a knife and stabbed Sieben two to three times. After stabbing Sieben, Ameer allegedly took his wallet. Sieben died at the scene and Ameer allegedly fled, only to be arrested shortly thereafter.

District Judge Jacqueline Flores sentenced Ameer to life in prison, which is a term of 30 years, on Sept. 25, 2018, according to court documents.

Although four issues were initially raised in a statement of issues for Ameer’s automatic appeal to the Supreme Court, in the June 10, 2019 brief in chief, Assistant Appellate Defender Steven Forsberg, with the Law Office of the Public Defender, only challenged two issues: the judge not suppressing Ameer’s statement to the police and the lack of a self-defense instruction.

In challenging the unsuppressed statement, Forsberg wrote that the Flores used the wrong legal standard to determine if it needed to be suppressed.

A Miranda rights waiver has to be both voluntary and knowing and intelligent, but Flores stated she believed police coercion was required to suppress the statement. However, that is only required to find if a statement was given voluntarily; a statement can still fail to meet the knowing and intelligent threshold in the absence of coercion, Forsberg wrote.

He wrote that Ameer was “in the grips of severe mental illness” when he made the waiver.

The statement was also the only evidence Ameer was the initial aggressor. When the defense argued for a self-defense instruction, the judge said she could not discount his statement to police. Forsberg wrote:

None of the eyewitnesses saw what caused Ameer to flee from Mr. Sieben’s truck while Mr. Sieben chased him, but Ameer in his statement said he had held a knife to Mr. Sieben. None of the witnesses could provide a motive for those events, until Mr. Muhammad said during his statement, according to the detective, “that he wanted to get meth; to get high; to kill himself, and he made statements that he killed him because he did not want to continue to ask people for money.” [8 Tr. 23:24-25:15] Due to his mental state, Ameer’ s statements were not knowing (let alone reliable).

When the defense was arguing for a self-defense instruction, the trial court judge emphasized the importance of the statement: “I think the problem for me is you really want me to discount the Defendant’s statement, and I can’t” [8 Tr. 56:16-56:18] Ameer’s unknowing statement kneecapped any defense he might have had.

Forsberg wrote that the Supreme Court should either reverse his conviction and remand for a re-trial, with the statement suppressed, or remand the case to the District Court for a new hearing on the suppression issue.

Should the trial court, on remand, find the statement unknowing, then a new trial would be required. If, on the other hand, the trial court held that the statement was knowing and intelligent, then Mr. Muhammad could appeal that decision to this Court.

In the answer brief for the prosecution, filed June 20, 2019, Assistant Attorney General Maris Veidemanis wrote that, although Ameer was experiencing delusions during the police interrogation, he was “coherent and articulate” and that the defense presented no information that Ameer did not understand the Miranda warning.

If there had been an error, it wouldn’t have mattered because there was ample evidence to convict him of felony murder, predicated on armed robbery, Veidemanis wrote.

As to the self-defense instruction, Veidemanis wrote that really, the Flores’ decision was based on the lack of evidence that Ameer had been attacked and pointed to State v Abeyta, which states that self defense must be reasonable in relation to the threat posed and that excessive force in self defense “renders the entire action unlawful.”

On July 10, 2019, Forsberg filed a reply brief and focused on Veidemanis’ emphasis on the voluntariness of Ameer’s statement. He wrote that the trial court should be ordered to consider evidence of Ameer’s mental state in determining if he knowingly and intelligently waived his rights.

He wrote that Veidemanis’ claims that the case could have stood without his statement was contradicted by the trial prosecutor, who fought the suppression motion and highlighted the statement during his closing arguments.

The case is scheduled for oral arguments at 10:15 a.m., July 7, 2020.

Continue reading “Oral arguments scheduled for Muhammad Ameer murder appeal”

Judge suppresses Anthony Wagon’s interrogation, prosecutors appeal

• Judge orders interrogation of Anthony Wagon be suppressed
• Prosecutors appealed the order the same day
• Judge previously found Farmington police officers illegally seized Wagon on the Navajo Nation

See the full case write-up

AZTEC, N.M. — Prosecutors cannot use Anthony Wagon‘s statement to a Farmington detective made in the police station, following his illegal seizure on the Navajo Nation, District Judge Daylene Marsh ordered on June 2, 2020, but prosecutors appealed the order same day.

Wagon allegedly ran down his aunt’s husband, April 26, 2017, in his car because he was allegedly mad about getting taken to the ground during a scuffle.

Anthony Wagon

Farmington Police Det. Jason Solomon never read Wagon his Miranda rights after he was brought in for interrogation by detectives Chris StantonJesse Griggs and Chad Herrera, Marsh wrote. The three went to the Navajo nation and, Marsh previously ruled, illegally seized him.

The three detectives went to a house on the Navajo Nation, found Wagon, ordered he come to them, and then transported him to the border where they transferred him into Sgt. Travis Spruell’s police car, who then took him to the Farmington Police Department, Marsh wrote in a July 31, 2019 order. In that order, she found the seizure was illegal, but, after further briefings, she upheld the statements Wagon made to Spruell in an order filed Nov. 15, 2019.

Wagon’s attorney, public defender Craig Acorn, filed a motion to suppress on Jan 16, 2020, followed by an addendum on March 3, 2020. After a hearing on May 14, 2020, Marsh issued her June 2, 2020 decision.

Acorn wrote that Wagon was very drunk and was never given his Miranda warnings, and even if it were given, he was too intoxicated to waive his rights.

Marsh wrote, in her order suppressing his statements to Solomon, that he was never read his rights, making his intoxication a moot point.

“The inadequacy of the advisement of rights requires the exclusion from use at trial of Defendant’s statement to Detective Solomon and whether Defendant knowingly and intelligently waived his rights has become moot,” Marsh wrote.

However, his interview with Stanton, Griggs and Herrera was acceptable because of a Miranda warning.

“Defendant’s statements to Farmington Police Detectives Stanton, Griggs, or Herrera are not excluded from use at trial in this matter to the extent Defendant would have them excluded for the failure to properly Mirandize Defendant,” Marsh wrote.

The same day Marsh issued the order suppressing Wagon’s interrogation by Solomon, June 2, 2020, prosecutor Brian Decker filed a notice of appeal.

No further court hearings have been scheduled.

Do you have information about this case? NM Homicide needs your assistance to tell the stories of homicide victims. Please fill out this form.

Continue reading “Judge suppresses Anthony Wagon’s interrogation, prosecutors appeal”

Breadsprings man indicted for first-degree murder in beating death of girlfriend

  • A federal grand jury indicted Troy Livingston on a single charge of first-degree murder on Jan. 29, 2020
  • Investigators allege Livingston confessed to beating her to death
  • Livingston’s child, 2 1/2, was found in the room with the beaten woman and Livingston

See the case write-up here.

ALBUQUERQUE, N.M. — A federal grand jury indicted a Breadsprings man, Jan. 29, 2020, for the beating death of 19-year-old Tyler Lamebear, his girlfriend, on April 6, 2019.

Troy Livingston, a member of the Navajo Nation, was originally charged on April 6, 2019, for his Tyler Lamebear’s death. He waived his right to a preliminary hearing as well as a grand jury indictment within 30 days before he was indicted on Jan. 29. He waived the indictment in hopes of securing a more lucrative plea deal, according to a motion for a continuance.

No trial date has been set.

The incident

FBI Agent Monty Waldron wrote in a statement of probable cause for his arrest that his mother made the call to 911 that eventually sent police, and then medics, to help the woman, who identified Livingston as her assailant.

His mother, Gertrude Livingston, identified in charging documents as G.L., was at home when her son and Lamebear, identified in court documents as T.L. or “Jane Doe,” came home to her Rodeo Road home in Breadsprings, Waldron wrote.

Continue reading “Breadsprings man indicted for first-degree murder in beating death of girlfriend”

Judge: Farmington police made illegal seizure on Navajo reservation

  • The judge denied a motion to dismiss Anthony Wagon’s case
  • Attorneys to address if statements made following the illegal seizure should be suppressed

See the full case write-up or more stories on this case

AZTEC, N.M. — Attorneys have an hour to argue, Oct. 24, 2019, if statements Anthony Wagon made to Farmington Police detectives should be suppressed after they illegally seized him while on the Navajo reservation.

Anthony Wagon

Oral arguments are set for 2:30 p.m., Oct. 24, 2019 in the District Court in Aztec in front of District Court Judge Daylene Marsh.

Wagon allegedly ran down his aunt’s husband, April 26, 2017, in his car because he was allegedly mad about getting taken to the ground during a scuffle.

Marsh previously denied a May 22 motion to dismiss the entire case filed by Wagon’s defense attorney, Craig Acorn. Acorn filed a separate motion to suppress Wagon’s statements on April 25.

On June 11, Marsh held a hearing where she heard testimony from Det. Chris Stanton and Sgt. Travis Spruell.

Continue reading “Judge: Farmington police made illegal seizure on Navajo reservation”

Richard Griego’s competency questioned by his attorney; case likely to be placed on hold

See the full case write-up here

LAS VEGAS, N.M. — Richard Griego‘s first-degree murder trial will likely not go to trial on Oct. 7, 2019, the date it had been scheduled for, after his attorney filed a motion questioning his competency to stand trial.

According to a public docket for the case, attorney Todd Farkas filed a “Notice of Competency Issue and Motion to Stay Proceedings” on Sept. 11, 2019.

Richard Griego

Farkas’ notice and motion come exactly one year after the case started moving toward trial after it was placed on hold the first time for the same issue.

On Sept. 11, 2018, according to the docket, an order was entered lifting the stay previously imposed on the case after the issue of competency was withdrawn by Farkas.

The case had been functionally paused the first time on Nov. 15, 2017, when Griego’s competency was officially questioned for the first time, although minutes from status hearings note that the attorneys and judge were aware that competency may be an issue.

Continue reading “Richard Griego’s competency questioned by his attorney; case likely to be placed on hold”

Troy Livingston: Tyler Lamebear — 4-6-2019

Suspect: Troy Livingston

Victim: Tyler Lamebear, 19

Charges: First-degree murder pleaded down to second-degree murder

Status: Plea to second-degree murder, pending sentencing. Initially Indicted on a charge of first-degree murder

Sentence: Set for 9:30 a.m., Nov. 12, 2020, Albuquerque Federal Court, Cimarron courtroom

Date of incident: April 6, 2019

Investigating agency: FBI

Prosecutor: David Cowen

Prosecuting agency: U.S. Attorney’s Office

Plea judge: Magistrate Judge Laura Fashing

Sentencing judge: District Judge William Johnson

Location: 53 Rodeo Road, Breadsprings, Navajo Nation, NM

County: McKinley County

Magistrate case number: 19-mj-00971

District case number: 20-cr-00316

 

Summary

On April 6, 2019, Troy Livingston, 18, beat his girlfriend, Tyler Lamebear, to death with his fists, feet and a flashlight after she said she had slept with one of his friends, according to court documents.

On Jan. 29, 2020, a federal grand jury indicted Livingston on a charge of first-degree murder for Lamebear’s death.

On Aug. 4, 2020, he pleaded guilty to a criminal information charging him with second-degree murder. No sentencing hearing has been set.

[cmtoc_table_of_contents]

The incident

On April 6, 2019, Troy Livingston’s mother, Gertrude Livingston, identified in charging documents as G.L., was at home when her son and his girlfriend, Tyler Lamebear, came home to her Rodeo Road home in Breadsprings, FBI Agent Monty Waldron wrote in a statement of probable cause for Livingston’s arrest.

At 3 a.m., Livingston and his girlfriend, Lamebear, were arguing and Gertrude Livingston could “sense tension” between them, he wrote.

Lamebear is identified as T.L. or “Jane Doe” in charging documents.

Troy Livingston

“G.L. heard crying from the bedroom and went in to see LIVINGSTON on top of Jane Doe with his fist raised,” Waldron wrote. “G.L. believes Jane Doe had already been hit because she was crying. Livingston told G.L. to get out of the bedroom which she did.”

When she heard more crying, she went into the bedroom and saw her son allegedly stomping his girlfriend with his foot and described the girlfriend as being in a ball, her arms and hands around her head, he wrote.

“Again LIVINGSTON told G.L. to get out, so G.L. left the house,” Waldron wrote. “LIVINGSTON locked the door behind G.L. From outside, G.L. could hear screaming, thumping and banging.”

When it was quiet, the mother went back into the house. She heard wheezing from inside the bedroom door, but did not know who was wheezing, he wrote.

At some point, she called the Navajo Police Department to report a violent “dispute” between Lamebear and her son, he wrote.

About 30 minutes after she went back into the house, Navajo police officers arrived and knocked on the door. When no one answered, they looked through the windows and saw blood on the floor. The mother then opened the door. Officers could see “lots of blood on the floor between the bedroom and the bathroom,” Waldron wrote.

Officers found the girlfriend laying on the floor, covered in blood, badly beaten. They asked her who beat her and she responded, “Troy did this to me.” Livingston was lying on the bed next to this 2-1/2-year-old toddler, who was not harmed, he wrote.

Medics transported the girlfriend to the Gallup Indian Medical Center. She either died at the hospital or before she arrived, he wrote.

FBI Agent David Loos and Navajo Criminal Investigator Ben Yazzie interrogated Livingston.

“I just got mad and took it too far, way too far,” Livingston said, according to Waldron’s statement of probable cause.

Livingston also allegedly said “I still can’t believe it, I killed her,” he wrote.

“LIVINGSTON stated that he was mad at her for sleeping with his friend as Jane Doe had finally admitted to doing,” Waldron wrote. “LIVINGSTON stated he ‘just started hitting her’ and took it too far. Livingston stated he hit Jane Doe with a flashlight and also used his foot.”

Livingston allegedly said he beat her in the bedroom and bathroom, he wrote.

FBI agents searched the house and found a flashlight with blood on it and photographs of Lamebear showed circular wounds that appeared to be consistent with the end of a flashlight, he wrote.

According to the autopsy report by Lori Proe, Lamebear had multiple “bruises, scrapes and skin tears of the face and scalp” and many of them had a distinctive shape, like that of a flashlight. Her nose was broken and there was bleeding in the deep tissues of her scalp and bleeding over the surface of her brain, which was swollen, “a change that can occur when the organ is damaged and/or deprived of oxygen.”

Multiple ribs were broken and she was bleeding in her chest and what would be a bite mark on her left shoulder, Proe wrote.

According to a deputy field investigation by Harolynn Yazzie, she was covered in dried blood and her clothing was soaked in blood.

The indictment and plea

After waiving his right to a grand jury indictment, as well as a preliminary hearing, a federal grand jury indicted him on a charge of first-degree murder on Jan. 29, 2020.

On Aug. 4, 2020, Livingston pleaded guilty to a criminal information charging him with second-degree murder for beating Lamebear to death.

According to the plea deal signed by prosecutor David Cowen, Livingston will be entitled to a two-level reduction in the federal sentencing guidelines, although where that puts his sentence is unknown pending the outcome of a pre-sentence report.

According to the minutes, Magistrate Judge Laura Fashing asked why the plea needed to be held so soon, and made findings as to why the plea hearing was held, but not what those findings were. The final acceptance of the plea was deferred until the sentencing hearing in front of a district court judge.

A sentencing hearing is set for Nov. 12, 2020.

Sentencing guidelines

The base offense level, per the sentencing guidelines for second-degree murder, is 38. The plea deal provides Livingston 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 Livingston’s proposed sentence, sans any increases or decreases, at 16 to 20 years. At a base offense level of 38, the range increases to 20 to 24 years.

According to New Mexico and federal court records, Livingston has one past criminal case, for intoxicated driving and child endangerment from March 2019. Prosecutors dismissed that the case at the magistrate level, without prejudice, on May 8, 2019 in a form dismissal and wrote that Livingston was in federal custody for “an alleged capital offense.” His past arrests or convictions in tribal court is unknown.

Federal sentencing guidelines table, levels 33 to 43.
Federal sentencing guidelines table, levels 33 to 43. Sentence ranges are in months. Second-degree murder has a base level of 38 (sentence range of 20 to 24 years) and the plea deal means a two-level reduction, to 36, creating a sentence range of 16 to 20 years.

See the documents on Google Drive or on Document Cloud

See stories from this case

Sentencing set for Breadsprings man who beat girlfriend to death

Breadsprings man pleads to second-degree murder for beating death of girlfriend

Breadsprings man indicted for first-degree murder in beating death of girlfriend

 

Anthony Wagon: Jeremy Beard — 4-24-2017

Suspect: Anthony Wagon

Victim: Jeremy Beard, 29

Charges: First-degree murder

Status: Dismissed by prosecutor on June 23, 2020

Date of incident: April 26, 2017

Agency: Farmington Police Department

Location: 2300 block of West Apache Street, Farmington

Magistrate case number: M-47-FR-2017-00297

District case number: D-1116-CR-201700404

Wrongful death lawsuit: D-1116-CV-2020-00578

Prosecutor: Brian Decker

Prosecuting agency: 11th Judicial District Attorney’s Office

Summary

Anthony Wagon allegedly ran down his aunt’s husband, April 26, 2017, in his car because he was allegedly mad about getting taken to the ground during a scuffle.

On May 5, 2017, the case was bound over to District Court on a charge of first-degree murder.

On June 2, 2020, District Judge Daylene Marsh ordered Wagon’s statements to a detective be suppressed. Prosecutors appealed, rescinded their appeal and asked Marsh to reconsider her decision because they did not give her the proper evidence at a prior hearing. Marsh granted the hearing but before it could happen, prosecutor Brian Decker dismissed the case because it was “in the best interest of justice.”

[cmtoc_table_of_contents]

The incident

After Jeremy Beard took Anthony Wagon to the ground, Wagon knew what his only recourse was, according to court records.

“You’re dead,” Wagon allegedly thought after Beard hit him. Wagon relayed that alleged thought to Farmington Detective Jason Solomon during an interview after he allegedly ran Beard over. “You’re fucking dead.”

Wagon and Beard had been drinking with Genella and Garrett Holiday at the El Ray Trailer Park on West Apache Street in Farmington, Solomon wrote in a statement of probable cause for Wagon’s arrest.

Anthony Wagon

Beard was Genella Holiday’s husband, Wagon was her nephew and Garrett Holiday was Wagon’s uncle.

Wagon told Solomon that he had been drinking with the group and Beard became upset when he thought Wagon tried to steal his beer.

“Jeremy hit Anthony a glancing blow to the back of his head and Anthony and Garrett took him to the ground and tried to calm him down,” Solomon wrote, based on his interview of Wagon. “Jeremy got back up and hit Anthony again, knocking him down.”

That was Wagon’s alleged breaking point.

“Anthony told me as soon as Jeremy hit him he said ‘you’re dead. You’re fucking dead,'” Solomon wrote. “I asked if he told Jeremy this and he said no, he said it to himself, in his mind. Anthony said Jeremy would not calm down and the fighting continued.”

Eventually, Beard ran south, down the road and away from the trailer. Garrett Holiday was chasing him, then Wagon allegedly got into his own truck and started following them both.

“He told me Garrett passed out as he was running so Anthony stopped and picked him up,” Solomon wrote. “He then drove onto Apache Street, heading west bound.”

Wagon allegedly spotted Beard on the side walk, headed west.

“He said he ‘floored it,’ drove up on the curb and hit Jeremy with the truck,” Solomon wrote.

Garrett Holiday has not been charged in connection with the death, according to court records.

Wagon told Solomon that Beard was a crack head and that it is hard to fight people high on methamphetamine.

“He said the only way to ‘take someone out’ who was on meth was ‘some other lethal weapon, which is my truck, that’s attempted murder, and that’s a hit and run,'” Solomon wrote, based on his interview of Wagon.

He then asked Wagon why he hit Beard with the truck.

“He said he wanted to paralyze or disable Jeremy but ‘if he dies, he dies, that’s on him. Not me,'” Solomon wrote. “He also said he knew Jeremy had to be hurt or dead because he hit him with the pickup.”

Wagon allegedly described seeing Beard’s back come over the hood of the truck, before he fell back to the ground and went under the truck.

“Anthony said he could then feel the pickup’s tires drove over Jeremy,” Solomon wrote. “Anthony said he wanted Jeremy to know he messed with the wrong person.”

First reports

When the crash was first reported at 9:30 p.m. it was assumed to be a fatal hit and run, Solomon wrote.

An officer spoke to witness Brandy Yniguez, who said she was driving down Apache Street when she saw a white truck pull out of the El Ray Trailer Park, right in front of her.

The truck was driving fast and swerving to the left and right, then struck a decorative wheel mounted on the side of the street.

As she turned, to go home, she saw Beard lying in the driveway to 2310 West Apache Street, then called 911.

Other officers located Wagon and Garrett Holiday, although Wagon’s apprehension is the subject of a series of suppression and dismissal motions.

Below is the statement of probable cause Solomon wrote for Wagon’s arrest:

 

PC - Anthony Wagon - 4-26-2017 - M-47-FR-2017-297

Bound over

On May 3, 2017, Wagon waived a preliminary hearing, prosecutors filed a criminal information charging him with first-degree murder and the case was bound over to district court.

Illegal seizure

On April 25, 2019, Wagon’s attorney, Craig Acorn, filed a motion to suppress evidence and statements of Wagon following his unrecorded apprehension by Farmington police while he was on the Navajo nation. On May 22, he filed a motion to dismiss the entire case for an alleged violation of tribal sovereignty. Prosecutor Brian Decker filed a response to the motion to suppress on May 20 and a response to the motion to dismiss on June 6.

Judge's portrait
11th District Judge Daylene Marsh

On June 11, District Court Judge Daylene Marsh held a hearing where she heard testimony from Det. Chris Stanton and Sgt. Travis Spruell.

Following the hearing, on July 31, 2019, she filed an order denying the motion to dismiss and ordering additional briefing on issues not addressed in the original briefings, specifically related to the police’s illegal seizure of Wagon.

In her order, she summarized the testimony presented:

The night of the crash, Farmington Police detectives Chris Stanton, Jesse Griggs and Chad Herrera drove to Wagon’s address on the Navajo Nation in an unmarked Ford F-150, Marsh wrote.

They spotted Wagon’s vehicle and as they approached, they saw Wagon come out of a house carrying a box. When he saw them, he allegedly ducked behind it, she wrote.

Detectives shouted at Wagon to come out from behind the vehicle and he did, with his hands up, and started talking to the detectives. None of their body cameras or audio recorders were recording, Marsh wrote.

Wagon allegedly started “making statements that implicated him in the crash” and the three detectives got him to get into their vehicle, where they drove him to the border of the Navajo Nation, where he was moved into Sgt. Travis Spruell‘s police car, she wrote.

Spruell was recording, unlike the three detectives, she wrote.

Marsh wrote that the detectives illegally seized Wagon and rejected the prosecution’s argument that the seizure was “lawful for purposes of ‘officer safety.'”

The seizure was not an arrest and “resolved almost immediately into a consensual encounter and remained that way.”

Further, it was not illegal for the detectives to transport Wagon off of the Navajo Nation, even though Wagon was intoxicated and this likely contributed to his “improvident decision.”

Although Acorn made an issue of the lack of department-mandated recordings, their lack did not “persuade this Court that it should ignore Detective Stanton’s testimony as untruthful.”

Marsh wrote that Stanton’s explanation, that he believed he turned on his body cam but it either did not record because of a bad battery or full memory card, was “not particularly satisfying, but it was a reasonable one.”

She wrote that it was not illegal for detectives to take Wagon off of the reservation, even though his initial seizure was illegal.

However, there was a “closer call” over the motion to suppress Wagon’s statement because she already concluded his seizure was illegal.

“Whether the particular evidence the State seeks to admit at trial and Defendant seeks to suppress was  discovered as a result of, or was derived from, the exploitation of Defendant’s illegal initial seizure or whether the evidence may have been purged of the taint of the illegal seizure requires legal analysis that the parties have not briefed,” Marsh wrote.

She ordered the prosecution brief the issue first, with a 15-day deadline, followed by the defense’s response 15 days later.

Decker filed his supplemental brief and Acorn filed his response.

A hearing on the issues happened on Oct. 24, 2019 in Aztec.

No suppression

On Nov. 25, 2019, Marsh ruled that Wagon’s statements to Spruell would not be suppressed at trial.

“There was sufficient attenuation to purge the taint of the illegal seizure of the Defendant, thereby, preventing the exclusion of the Defendant’s statements to Sergeant Spruell,” she wrote.

Wagon’s removal from the Navajo Nation was not illegal because Wagon went with Spruell voluntarily, she wrote.

Suppressed statement

On Jan 16, 2020, Acorn filed a motion to suppress the statements Wagon made to Solomon while being interrogated at the Farmington Police Department. He then filed an addendum on March 3, 2020.

Acorn wrote that Wagon was very drunk and was never given his Miranda warnings, and even if it were given, he was too intoxicated to waive his rights.

Marsh wrote, in her order suppressing his statements to Solomon, that he was never read his Miranda rights, making his intoxication a moot point.

“The inadequacy of the advisement of rights requires the exclusion from use at trial of Defendant’s statement to Detective Solomon and whether Defendant knowingly and intelligently waived his rights has become moot,” Marsh wrote.

However, his interview with Stanton, Griggs and Herrera was acceptable because of a Miranda warning.

“Defendant’s statements to Farmington Police Detectives Stanton, Griggs, or Herrera are not excluded from use at trial in this matter to the extent Defendant would have them excluded for the failure to properly Mirandize Defendant,” Marsh wrote.

The same day Marsh issued the order suppressing Wagon’s interrogation by Solomon, June 2, 2020, Decker filed a notice of appeal.

On June 23, 2020, Decker dismissed the case.

Wrongful death lawsuit

Jeremy Beard’s father, Christian Beard, filed a wrongful death lawsuit in Farmington District Court on April 24, 2020, naming Wagon, relatives Hershell Wagon and Tina Wagon and insurance companies MGA Insurance Company and Gainsco Insurance Company.

Christian Beard’s attorney, William Jaworski, wrote in the lawsuit that MGA and Gainsco insured the truck allegedly used to run over Jeremy Beard, and the three Wagons paid the insurance premiums.

When Anthony Wagon allegedly ran down Jeremy Beard, he operated the car in a “negligent and reckless manner,” Jaworski wrote.

“The car accident that killed Jeremy Beard was foreseeable,” he wrote. “The car accident was a proximate cause of Jeremy Beard’s death.”

He is asking for reasonable damages, compensatory damages for the loss of consortium, for the enhanced injury of death and punitive damages, according to the lawsuit.

No hearings have been set in the case.

See the case documents on Google Drive or Document Cloud

Richard Griego: Jimmy Griego — 3-28-2017

Suspect: Richard Griego

Victim: Jimmy Griego

Charges: First-degree murder, tampering with evidence

Status: Pending; stayed for competency

Date of incident: March 28, 2017

Agency: State Police

Location: Pecos River Bridge, State Route 3, Ribera, San Miguel County

Relation to victim: 

Magistrate case number: M-48-FR-201700095

District case number: D-412-CR-201700129

Summary

On March 28, 2017, Richard Griego allegedly threw Jimmy Griego off of a bridge over the Pecos River on State Road 3, an allegation backed up by data from an ankle bracelet Richard Griego was wearing from a separate case which tracked his movements via GPS.

On May 1, 2017, Richard Griego was bound over to District Court on charges of first-degree murder and tampering with evidence following a preliminary examination. On Nov. 15, 2017, his competency to stand trial was raised as an issue and proceedings were stayed until Sept. 11, 2018, when the Notice of Competency Issue was withdrawn.

A year later, on Sept. 11, 2019, competency was again raised as an issue and the case has been stayed.

[cmtoc_table_of_contents]

The incident

On March 28, 2017, Beverly Quintana called 911 to report that someone dumped a body off of the bridge over the Pecos River, on State Road 3, and the dumped person was her cousin, State Police Agent Patrick Montoya wrote in an affidavit for an arrest warrant.

Quintana told Montoya that she was driving south when she passed a white Ford truck heading the opposite direction. She described the driver as being angry.

Richard Griego

“As the pickup continued passed (sic) her, she noticed a male in the bed area of the pickup,” Montoya wrote. “She recognized the male in the bed of the pickup as her cousin, who she identified as Jimmy Griego.”

Quintana kept the truck in her rear view mirror and she watched as the truck stopped. Her cousin was on his knees in the back and he appeared to be terrified.

The driver pulled over and stopped on the bridge, got out and walked toward the back of the truck with someone in his right hand.

Quintana then turned around and drove back toward the truck and watched as the man, allegedly Richard Griego, carried her cousin on his shoulder, walked to the edge of the bridge and threw him over, to the river below.

When she stopped, got out, and looked down, she saw her cousin’s body floating in the river and blood on the back of his shirt. She then recognized the driver was Richard Griego.

The agent then learned that Richard Griego was on probation and required to wear an ankle monitor with a GPS unit in it. The tracking device allegedly placed him at the river at 4:18 p.m., the day of Jimmy Griego’s death.

Quintana called 911 two minutes later at 4:20.

“A Field Examiner for the Office of the Medical Investigator found blunt force trauma and two lacerations to Jimmy’s head,” Montoya wrote. “I observed the injuries to Jimmy’s head, including an indentation to the left side of his head.”

He was charged with an open count of murder and tampering with evidence, according to the docket.

On April 6, 2017, a waiver of time limits was filed and a preliminary hearing was set for May 1, 2017.

Las Vegas Magistrate Judge Christian Montaño held a preliminary hearing on May 1 and bound over Richard Griego on charges of first-degree murder and tampering with evidence. On May 19, in District Court, Richard Griego’s attorney Todd Farkas filed a motion in District Court to waive the arraignment and to enter a plea of not guilty.

Jail recordings

According to a Dec. 11, 2018 motion filed by prosecutor Thomas Clayton, Richard Griego made multiple phone calls while he was in jail that he wanted admitted as evidence.

In a May 1, 2017 call, he allegedly told his mother that someone else wanted to borrow his truck, that “those weren’t even my shoes and I wasn’t driving my truck.” His mother responded that they should not discuss “this stuff” on the phone.

Clayton wrote that the truck is an issue because Quintana saw him in his truck, on the bridge with the victim. A shoe print was also taken from the crime scene and it is a similar pattern to one seized from his house.

In a June 6, 2017 call, he talked to his mother about conversations with his attorney about getting out on bail.

“I feel this even more leaning towards, if I could get this to a justifiable homicide by citizen, protecting myself and family and property from all these conspiracies against me and stuff, will that make it easier to get a bond,” Clayton wrote, quoting from Richard Griego’s call.

In July 24 call, Richard Griego allegedly told his mother he could “beat these charges” because he didn’t “do” them and that he never hit Jimmy Griego with a weapon, but he didn’t want him “to come back and try to kill me, but he could have crawled out of the water and fucking not died. And let me alone. But no, they do, they do all this stuff. It’s all their fault that this stuff happened. Not my fault.” Clayton wrote, quoting Richard Griego.

 

Competency raised the first time

Portrait of District Judge Gerald Baca
District Judge Gerald Baca

On Nov. 15, 2017, competency was formally raised in a written motion for the first time by Farkas. In an order on the same date, District Court Judge Gerald Baca wrote that Richard Griego had been found “in-competent” by Dr. Susan Cave and that the proceedings would be stayed pending a determination on his competency and the issue of his dangerousness.

According to notes from the June 14, 2017 status hearing, Farkas notified District Judge Gerald Baca has a documented history of mental illness and he needed to be assessed.

During a Aug. 16, 2017 hearing, prosecutor Thomas Clayton told Baca that Richard Griego sent a letter to State Police officers about an unrelated homicide, a theft and that there were also jail recordings he wanted the psychologist to listen to and that he agreed that he “may have mental issues,” according to the notes.

During an Oct. 11, 2017, hearing, Baca told the attorneys he was concerned about the discussions of competency when no motion about competency had been filed. Farkas replied that he was waiting for a report on his mental health, according to the notes.

On Sept. 11, 2018, Baca ordered that the case would start moving forward because Richard Griego’s attorney had withdrawn his claim that his client was not competent to stand trial. Frakas did not file a motion but a hearing on competency had previously been held on Sept. 7, 2018, and the records of that hearing were sealed.

 

No-bail hold lifted

On Aug. 1, 2018, Baca ordered Richard Griego be released if he could post a $50,000 cash bail and into the custody of a third party.

Prosecutors did not contest that finding until Sept. 25, when Clayton filed a motion for pre-trial detention.

“Upon information and belief, the family of the defendant has raised the funds to post the bond,” Clayton wrote.

On Aug. 3, 2018, Richard Griego was charged with two counts of possession of a deadly weapon by a prisoner, specifically, a handcuff key and a “nail/bolt like device approximately 4 1/2 inches in length,” he wrote.

Baca then held a hearing on Oct. 2, 2018 and ordered Richard Griego be held without bail pending trial, according to notes from the hearing.

 

Competency raised second time

Richard Griego’s case was placed on hold a second time, on Sept. 11, 2019, after his attorney raised the question of his competency to stand trial a second time, according to the docket.

According to the docket, the case had been set for a trial on Oct. 7, 2019 in the San Miguel County Courthouse.

A docket call was set for Sept. 25, 2019 and the judge issued an order staying the case, according to the docket.

Matthew Rodriguez: Mitchell Daniel — 3-25-2017

Suspect: Matthew Rodriguez, 34

Victim: Mitchell Daniel, 64

Charges: First-degree murder, aggravated burglary with a deadly weapon and tampering with evidence; pleaded down down to second-degree murder

Status: Plea to second-degree murder

Sentence: 10 years followed by 5 years supervised probation

Date of incident: March 25, 2017

Agency: Santa Fe Police Department

Location: 1713 Fifth Street, Santa Fe

Magistrate case number: M-49-FR-2017-319

District case number: D-101-CR-2017-311

Judicial district: First judicial district

 

Summary

On March 25, 2017, Matthew Rodriguez, 34 at the time, allegedly stabbed his 64-year-old neighbor, Mitchell Daniel, in the chest repeatedly, compelled by the voices in his head. He allegedly admitted to stabbing the man, who appeared to be living in a van outside of Rodriguez’s apartment complex.

On Oct. 19 or Oct. 22, 2018, Rodriguez pleaded guilty to second-degree murder for Daniel’s death and, per the plea deal, received a sentence of 10 years followed by five years of supervised probation.

[cmtoc_table_of_contents]

The incident

On March 25, 2017, Matthew Rodriguez, 34 at the time, allegedly stabbed his 64-year-old neighbor, Mitchell Daniel, in the chest repeatedly, compelled by the voices in his head.

Although Daniel was transported after the stabbing to the hospital, he died from his injuries shortly thereafter.

Officers were first called to the scene following a 911 call that a man had been either shot or stabbed. Rodriguez allegedly took credit for making the call after he had been arrested, Detective Tony Trujillo wrote in a statement of probable cause for Rodriguez’s arrest.

Matthew Rodriguez

Officers found four men at the scene when they arrived, including Rodriguez and took all four of them into custody.

After Rodriguez was put into the back of the police car, he allegedly started punching himself in the face. After being handcuffed, he then allegedly started banging his head on the divider in the police unit. He was taken to the Christus St. Vincent Regional Medical Center for his head injury.

“While in the emergency room at the hospital being treated by the attending physician and nursing staff Matthew Rodriguez made a statement ‘how’s the fuck I stabbed doing’? and ‘I called 911 about the stabbing; I didn’t realize that I did it,” Trujillo wrote. “These statements were heard by attending physician and nursing staff.”

At the police department, Trujillo talked to Gary Brown, who described himself as an acquaintance and told Trujillo that he was one of the people who called 911.

“Mr. Brown was at the apartment with Matthew Rodriguez approximately one hour prior to making the 911 emergency call. Mr. Brown stated Matthew Rodriguez suddenly told him ‘you need to leave,’ and ‘fucking neighbor,'” Trujillo wrote. “Mr. Brown told Affiant Matthew Rodriguez is schizophrenic and hears voices in his head. Mr. Brown told Affiant this was not unusual to him because Matthew Rodriguez on other occasions had told him ‘you need to leave’ for no reason at all.”

He gathered his belongings and left the apartment. While outside, he heard someone yelling to call 911 and he went up to the apartment and saw Daniel lying on the ground, bleeding.

“Mr. Brown called 911,” Trujillo wrote. “Mr. Brown also told Affiant that Matthew Rodriguez always carries a kitchen knife with him.”

While Rodriguez was being held at the police department, an officer walked up and asked if he wanted a cup of water.

“Matthew Rodriguez responded ‘the person that I stabbed,
what’s going on with him?'” Trujillo wrote.

Later on, Rodriguez was interviewed and he agreed to waive his Miranda rights.

“In this statement Matthew Rodriguez admitted to stabbing Mitchell Daniel,” Trujillo wrote. “Matthew Rodriguez stated he did not mean to kill him, saying ‘I was just angry at the voices in my head.'”

He allegedly described the knife as being nine inches long with a black handle and he allegedly threw it into the sink after the stabbing, Trujillo wrote.

“Matthew Rodriguez stated he stabbed Mitchell Daniel inside Mitchell Daniel’s van which Mitchell Daniel had been living out of and parked in the driveway of 1713 Fifth Street,” Trujillo wrote.

Below is the statement of probable cause for Matthew Rodriguez’s arrest.

 

PC-CC - Matthew Rodriguez - 3-27-2017

 

Indictment, competency and plea deal

On April 13, 2017, Rodriguez was indicted on charges of:

  • First-degree murder under the depraved-mind theory
  • Aggravated burglary: a kitchen knife
  • Tampering with evidence

At his May 1, 2017 arraignment, District Court Judge T. Glenn Ellington placed a no-bond hold on him.

Bisbee Court, Santa Fe, NM. Photo by Wheeler Cowperthwaite. CC BY

On May 5, 2017, a notice was filed that Rodriguez’s competency was in question and on July 5, 2017, Ellington suspended the proceedings.

On Feb. 9, 2018, Rodriguez’s attorney withdrew the question of his competency and filed a notice that Rodriguez would plead not guilty by reason of insanity and an incapacity to form specific intent.

On April 17, 2018, prosecutors filed a motion to have Rodriguez moved from the Santa Fe Detention Center to the custody of the Department of Corrections, as well as a motion to close the courtroom to hear the motion.

On April 24, 2018, the Santa Fe Reporter published an article by Justin Horwath about Rodriguez’s confinement in the Santa Fe Detention Center and his extensive stay in solitary confinement.

According to the article, on Sept. 21, 2017, Rodriguez attacked two separate inmates, who declined to press charges against him.

Judge's portrait
First Judicial District Judge T. Glenn Ellington

“A corrections officer wrote in an incident report that Rodriguez said he assaulted the two inmates because they ‘are mind-control freaks,'” Horwath wrote.

On Sept. 21, 2018, prosecutors and the defense reached an agreement for a plea deal. That plea deal was signed by Ellington on Oct. 19, 2018 although the docket states the hearing took place on Oct. 22.

During that hearing, Rodriguez pleaded guilty to second-degree murder.

According to the plea deal, which Ellington accepted, Rodriguez will spend 10 years in prison, sans credit for time served. Prosecutors agreed to drop charges of aggravated burglary with a deadly weapon and tampering with evidence.

Ellington, acting according to the plea deal, sentenced Rodriguez to a total of 15 years, but suspended five and ordered that they be served on intensive supervised probation.

According to the judgement and sentence, Ellington ordered that the Department of Corrections place Rodriguez in “an appropriate Mental Health Unit where Defendant’s medical regimen can be fulfilled by the New Mexico Department of Corrections” and receive his required medication and mental health treatment.

 

See the documents on Google Drive

Muhammad Ameer: Aaron Sieben — 3-19-2017

Suspect: Muhammad Ameer

Victim: Aaron Sieben, 30

Charges: First-degree or felony murder, armed robbery, tampering with evidence, shoplifting under $250

Status: Supreme Court appeal pending following jury conviction on felony murder and shoplifting; acquittal on tampering with evidence; armed robbery vacated by the judge.

Sentence: Life with the possibility of parole after 30 1/2 years (mandatory)

Location: Circle K gas station at 900 Eubank Boulevard NE, Albuquerque

Investigating agency: Albuquerque Police Department

Date of incident: March 19, 2017

District case number: D-202-CR-201701237

Metro case number: T-4-FR-2017001669

Supreme Court number: S-1-SC-37364

Judicial district: Second judicial district

 

Summary

On March 19, 2017, Aaron Sieben and Muhammed Ameer allegedly got into some kind of argument while Sieben was in his truck, parked at a Circle K gas station.

After Ameer allegedly fled from Sieben, Sieben pursued him, leading to a fist fight. As the fight progressed, Ameer allegedly produced a knife and stabbed Sieben two to three times. After stabbing Sieben, Ameer allegedly took his wallet. Sieben died at the scene and Ameer allegedly fled, only to be arrested shortly thereafter.

Ameer was indicted by a grand jury on March 30, 2017, on first-degree murder or felony murder, armed robbery, tampering with evidence and shoplifting under $250. After multiple allegations of misconduct by the prosecution and defense, the Attorney General’s Office took over the prosecution. The defense also tried to suppress statements he made to a detective after he asserted his right to an attorney.

On July 27, 2018, a jury found Ameer guilty of felony murder, armed robbery and shoplifting under $250 while finding him not guilty of tampering with evidence.

On Nov. 7, 2018, Ameer’s attorneys appealed his conviction and on June 10, 2019, his attorneys filed a brief in chief, arguing his statements should have been suppressed and the judge should have given a self defense instruction to jurors.

[cmtoc_table_of_contents]

The incident

On March 19, 2017, Albuquerque Police Officers were called to the Circle K gas station at 900 Eubank Boulevard after a husband and wife called in a stabbing.

Muhammad Ameer

When officers arrived, they found Aaron Sieben, 30, dead on Lomas Boulevard NE, Detective Andrew Hsu wrote in a criminal complaint for Muhammad Ameer‘s arrest.

Multiple people were standing over Sieben and one person was trying to administer first aid. After paramedics arrived, a short time later, they declared Sieben was dead.

Officers, given a description of the alleged stabber, were able to locate Ameer near-by.

Hsu interviewed two witnesses, George and Lindsy Brigham. They were parked on the south side of the gas station. Sieben, in a gray truck, was parked beside them.

“Mr. Brigham also observed a black male adult, later identified as Muhammad Ameer, standing outside the gray GMC pickup truck,” Hsu wrote. “As Mr. Ameer started to leave the vehicle, the decedent got out of the GMC and started to Mr. and Mrs. Brigham, ‘Get that mother fucker!’ Mr. and Mrs. Brigham beleived that the decedent was requesting their assistance for an emergency.”

Sieben then chased Ameer along the sidewalk behind the store while the Brighams got out of their vehicle and watched as the pair engaged in a fist fight, which spilled into the westbound lanes of Lomas Boulevard NE.

“While on Lomas Blvd NE, Mr. Ameer produced a six-to-seven inch knife,” Hsu wrote. “Mr. and Mrs. Bringham saw Mr. Ameer going through the decedent’s pants pockets. Mrs. Brigham observed Mr. Ameer remove a black wallet from the decedent’s right rear pocket. Mr. Ameer then fled the scene on foot eastbound on Lomas Blvd NE.”

The Brigham’s tried to administer first aid until paramedics arrived and Lindsy Bringham called 911 and provided a description of Ameer and the direction he was headed. George Brigham positively identified him, after officers detained him.

He was initially charged, the day of the alleged incident, on an open count of murder and robbery with a deadly weapon.

Below is the criminal complaint for Ameer’s arrest.

 

Muhammad Ameer PC -3-20-2017_Redacted

 

Indictment and case movements

On March 30, 2017, a grand jury indicted Ameer on charges of:

  • First-degree murder, or in the alternative, felony murder
  • Armed robbery
  • Tampering with evidence for allegedly stealing the wallet
  • Shoplifting under $250 for razors blades and a knife allegedly stolen from Wal-Mart

Attempts at disqualifying the DA

On Sept. 7, 2017, Assistant District Attorney Les Romaine accused defense attorneys Robert Martin and Matthias Swonger of “engaging in gamesmanship to try and obtain suppression of witnesses.” On Nov. 7, 2017, after more motions, including ones to remove the Second Judicial District Attorney’s Office, the Attorney General’s Office entered its appearance in the case.

Romaine, in his motion for sanctions, alleged Martin and Swonger were trying to suppress witnesses because of issues related to pre-trial witness interviews and by putting off interviews of police officers until closer to trial, but before the deadline. He also alleged that the defense, both employed by the Law Office of the Public Defender, did not “seem motivated to move forward in the adjudication of this matter.”

He requested sanctions to “deter this sort of behavior.”

Swonger filed a response on Sept. 11, 2017 and wrote that they were splitting the pre-trial interviews and Martin was not available until November 2017.

“The State responded on August 7, 2017 and stated that the ‘interviews in this case cannot be put off any longer,’ despite the fact that the interview deadline in this matter is not
until January 22, 2018,” Swonger wrote about Romaine. “The State gave no further explanation to Defense of why interview dates in November, two months prior to the interview deadline, would be unacceptable to him.”

Swonger also alleged that Grace Fonesca, employed by the Second Judicial District Attorney’s Office and who was on the prosecution’s witness list, was trying to avoid being served with a subpeona and had been providing false names to investigators for the defense. (According to an Oct. 27, 2017 court filing by Romaine, Fonesca saw Sieben’s killing.)

On Sept. 18, 2017, the judge set a hearing for the motion for sanctions on Oct. 19, 2017.

On Oct. 18, 2017, Martin filed a motion to dismiss or disqualify the Second Judicial District Attorney’s Office. Martin wrote in the motion that Fonesca allegedly lied to investigators, claimed she was a different person when an investigator tried to serve her with a subpoena and allegedly claimed that Romaine told her she did not have to accept the subpoena.

Martin wrote that Romaine violated Ameer’s Fifth and Fourteenth rights, as well as state constitutional rights, by “the obstruction and interference of the prosecutor in the service of a lawful subpoena upon the witness in this matter.”

“This was in part due to the inherent conflict of interest by the witness being employed at the 2nd Judicial District Attorney’s office and therefore, wanting to please her employer in this matter,” Martin wrote.

Martin wrote that Romaine caused a denial of due process because of bias “formed” by Fonesca being an employee of his office.

“The interplay between the employee witness and the prosecutor has given rise to the appearance of impropriety and a need for a special prosecutor,” Martin wrote.

According to an affidavit by Investigator Milton Rodriguez, and attached to Martin’s motion, Rodriguez went to to Fonesca’s house on Sept. 6, 2017 and a woman was sitting outside on the phone. She claimed her name was “Lisa” and she was the dog sitter. Rodriguez pulled up Fonesca’s driver’s license photo and found he had been duped, he wrote.

On Sept. 11, 2017, Rodriguez found Fonesca’s 17-year-old son outside the house and explained why he was there.

“After explaining to Richard (Fonesca) Jr. the subpoenas I had in hand, Richard Jr. told me he witnessed the same incident in question. Richard Jr. told me, his mother told him not to tell the police what he had seen because she did not want him to get involved,” Rodriguez wrote.

On Oct. 19, 2017, following a hearing, District Court Judge Christina Argyres denied Romaine’s motion for sanctions in a form order.

On Oct. 27, 2017, Romaine filed a response and alleged that he never told Fonesca to refuse service of the subpoena.

On Nov. 7, 2017, prosecutor Mark Probasco, with the Attorney General’s Office, entered his appearance in the case, taking the case away from Romaine and the Second Judicial District Attorney’s Office.

Motion to suppress

Portrait of District Judge Jacqueline Flores
Judge Jacqueline Flores

On April 2, 2018, Martin filed a motion to suppress statements Ameer made to Det. Andrew Hsu on March 24, 2017, after he had been arraigned, asked for an attorney and was being represented by the Law Office of the Public Defender.

Martin wrote that Ameer was “actively hallucinating” during the interrogation by Hsu and he was represented when Hsu interrogated him on March 24, 2017.

On April 12, 2018, Probasco filed an opposition to the motion to suppress statements and he wrote that Ameer initiated conversation with Hsu on March 27, 2017. It is not clear which date is correct.

Probasco wrote: “After documenting an injury on the Defendant’s hand, the Defendant — without  any question being posed– volunteers ‘Like, uh, never mind. I was going to say, like, I know I did it but that· is that what y’all want to know? Like I did it but I feel like I wasn’t in my right mind at the time though. Like, I feel like everybody in Albuquerque, New Mexico was trying to kill me and shit.'”

“Law enforcement,” although it is not clear if that was Hsu or someone else, stopped Ameer from speaking and told him he needed to read him his rights, which he did.

District Court Judge Jacqueline Flores denied the motion to suppress for the reasons Probasco outlined.

Flores wrote:

“The waiver in this case comports with the requirements of the Constitution because Defendant initiated his interrogation: he was given repeated and individualized advice of
rights, he repeatedly attempted to discuss his criminal conduct, his demeanor showed relief when he initiated his statement, and his affirmative waiver of rights indicated that
he still wanted to provide a statement to the police in this case despite having on previous occasion asserted his right to counsel.”

Guilty verdict and sentence

Trial began on July 23, 2018 and the jury found Ameer guilty on July 27, 2018, of felony (first-degree) murder, armed robbery and shoplifting $250 or less.

Flores vacated the armed robbery charge because it was the predicate felony for felony murder. He was acquitted of tampering with evidence.

On Sept. 25, 2018, Flores sentenced him to life in prison, which is a term of 30 years, according to a remand order.

Supreme Court appeal

In an initial statement of issues filed Nov. 7, 2018, Martin raised four issues on appeal:

  • The denial of the suppression of Ameer’s statements to Andrew Hsu
  • The judge’s denial of a self defense instruction to the jury
  • If the judge erred by allowing Det. Tasia Sullivan to be designated as the case agent, and attend the trial, despite not being the lead agent
  • If there was sufficient evidence to convict Ameer

In the June 10, 2019 brief in chief, Assistant Appellate Defender Steven Forsberg, with the Law Office of the Public Defender, only challenged two issues: the judge not suppressing Ameer’s statement to the police and the lack of a self-defense instruction.

However, both of those issues are related because the judge, Flores, used Ameer’s statements as the basis for not giving a self-defense instruction, Forsberg wrote.

The 42-page brief outlines much of the testimony at trial.

In challenging the unsuppressed statement, Forsberg wrote that the Flores used the wrong legal standard to determine if it needed to be suppressed.

A Miranda rights waiver has to be both voluntary and knowing and intelligent, but Flores stated she believed police coercion was required to suppress the statement. However, that is only required to find if a statement was given voluntarily; a statement can still fail to meet the knowing and intelligent threshold in the absence of coercion, Forsberg wrote.

He wrote that Ameer was “in the grips of severe mental illness” when he made the waiver.

The statement was also the only evidence Ameer was the initial aggressor. When the defense argued for a self-defense instruction, the judge said she could not discount his statement to police. Forsberg wrote:

None of the eyewitnesses saw what caused Ameer to flee from Mr. Sieben’s truck while Mr. Sieben chased him, but Ameer in his statement said he had held a knife to Mr. Sieben. None of the witnesses could provide a motive for those events, until Mr. Muhammad said during his statement, according to the detective, “that he wanted to get meth; to get high; to kill himself, and he made statements that he killed him because he did not want to continue to ask people for money.” [8 Tr. 23:24-25:15] Due to his mental state, Ameer’ s statements were not knowing (let alone reliable).

When the defense was arguing for a self-defense instruction, the trial court judge emphasized the importance of the statement: “I think the problem for me is you really want me to discount the Defendant’s statement, and I can’t” [8 Tr. 56:16-56:18] Ameer’s unknowing statement kneecapped any defense he might have had.

Forsberg wrote that the Supreme Court should either reverse his conviction and remand for a re-trial, with the statement suppressed, or remand the case to the District Court for a new hearing on the suppression issue.

Should the trial court, on remand, find the statement unknowing, then a new trial would be required. If, on the other hand, the trial court held that the statement was knowing and intelligent, then Mr. Muhammad could appeal that decision to this Court.

In the answer brief for the prosecution, filed June 20, 2019, Assistant Attorney General Maris Veidemanis wrote that, although Ameer was experiencing delusions during the police interrogation, he was “coherent and articulate” and that the defense presented no information that Ameer did not understand the Miranda warning.

If there had been an error, it wouldn’t have mattered because there was ample evidence to convict him of felony murder, predicated on armed robbery, Veidemanis wrote.

As to the self-defense instruction, Veidemanis wrote that really, the Flores’ decision was based on the lack of evidence that Ameer had been attacked and pointed to State v Abeyta, which states that self defense must be reasonable in relation to the threat posed and that excessive force in self defense “renders the entire action unlawful.”

On July 10, 2019, Forsberg filed a reply brief and focused on Veidemanis’ emphasis on the voluntariness of Ameer’s statement. He wrote that the trial court should be ordered to consider evidence of Ameer’s mental state in determining if he knowingly and intelligently waived his rights.

He wrote that Veidemanis’ claims that the case could have stood without his statement was contradicted by the trial prosecutor, who fought the suppression motion and highlighted the statement during his closing arguments.

The case is scheduled for oral arguments at 10:15 a.m., July 7, 2020.

See the case documents on Google Drive or Document Cloud

Bobby Smith: Michael Evans — 1-29-2012

Suspect: Bobby Smith

Victim: Michael Evans

Charges: First-degree murder, shooting at or from a vehicle causing great bodily harm or death, tampering with evidence, receiving stolen property: a firearm

Status: No contest plea to second-degree murder, tampering with evidence and receiving a stolen firearm

Sentence: 13 years

Date of incident: Jan. 29, 2012

Agency: Artesia Police Department

Location: 105 South 4th, Artesia

County: Eddy

Magistrate case number: M-18-FR-2015-00068

District case number: D-503-CR-2015-00445

District court: Fifth Judicial District

 

Summary

On Jan. 29, 2012, Bobby Smith, 24, of Artesia, allegedly walked up to security guard Michael Evans, 24, of Artesia, after he failed to sneak up on him, and shot him in the left side of the head with a revolver armed with shotgun shells.

Bobby Smith

Smith’s neighbors reported hearing shooting earlier in the evening and described Smith as wearing the same clothing that the assailant was, based on surveillance footage.

On Jan. 30, 2012, Smith was arrested on an outstanding warrant.

On June 15, 2015, Artesia Police Department Detective David Rodriguez arrested Smith on a warrant charging an open count of murder.

Prosecutors filed a criminal information charging Smith with first-degree murder, shooting at or from a motor vehicle causing death, tampering with evidence and receiving stolen property on Oct. 27, 2015.

On Oct. 12, 2016, Smith’s attorney, Gary Mitchell, filed a notice of incompetency for Smith, based on a report by Dr. Eric Westfried. On April 3, 2018, he was found competent to stand trial, and again on Nov. 14, 2018.

On April 2, 2019, prosecutors filed an amended complaint charging him with second-degree murder, in addition to the other charges.

On May 6, 2019, he pleaded no contest to second-degree murder, tampering with evidence and receiving a stolen firearm. Fifth Judicial District Judge Jane Shuler Gray accepted his plea and sentenced him to 13 years in prison.

He received pre-confinement credit of 2,653 days (7 years).

[cmtoc_table_of_contents]

The incident

Security guard Michael Evans, 24, was patrolling, Jan. 29, 2015, around 105 South 4th Street in Artesia when he noticed someone was trying to sneak up on him.

Sculpture in Artesia, NM. Photo by Justin Miller/Flickr. CC BY-NC

A little before 10:46 p.m., he called 911 and said the man tried to get him while he was parked by the Derrick Statute, Artesia Police Department Detective David Rodriguez wrote in a statement of probable cause for Bobby Smith’s arrest, filed June 15, 2015.

“Evans stated he lost sight with the male subject but then stated the subject was heading towards him,” Rodriguez wrote. “While talking with dispatch, the telephone conversation was terminated.

Sgt. Christopher Boor told Rodriguez that when he got into the area, he saw Evans’ work truck had crashed into a building in the alley between 4th and 5th streets.

“Sgt. Boor reported he approached the truck and observed a male subject inside the truck in the driver’s seat with an apparent gun-shot wound to the head,” Rodriguez wrote. “Sgt. Boor notified dispatch and requested EMS.”

Detective Tim Argo told Rodriguez he viewed the security cameras from the Yates Petroleum Building and saw Evans’ truck drive east down the alley while a person wearing blue jeans, a green sweater and a blue bandanna over his face walked toward the truck.

Rodriguez did not specify how Argo was able to determine colors from footage taken outside at night.

“The subject raised their left hand towards the Dodge pickup and walked up to the driver’s side window while at the same time pulling an item that appears to be a chrome or nickel in color handgun from the right front of the subject’s pants and point the handgun at Michael Evans,” he wrote. “The subject then ran west bound down the alley out of the camera’s view.”

Evans’ truck then, as seen in surveillance footage, crashed into a post. Officers arrived two minutes later and found Evans, shot in the left side of the head and his left arm.

“The gunshot wound on his left arm entered and exited,” Rodriguez wrote. “In the wound was a clear plastic object that appeared to be wadding from a .410 caliber shotgun shell.”

Earlier in the day, Officer Gracie Gonzales was dispatched to 9th and Texas streets because someone reported shots had been fired. She told Rodriguez that she walked to multiple tenants in the area, Rodriguez wrote.

“Melissa and Alice Duncan told Officer Gonzales after they heard 4 or 5 shots and they came out of their apartment to see what was going on, and they saw tenant Bobby Smith walking back into his house hunched over as if he was trying to conceal something,” Rodriguez wrote. “Melissa Duncan told Officer Gonzales Bobby Smith left his residence on January 29, 2012 between 2200 (10 p.m.) and 2230 (10:30 p.m.).”

Karla Parada told Gonzales that she also heard five or six shots. She immediately dropped to the ground.

Later in the night, Parada allegedly saw Smith allegedly walking away from his apartment between 9 and 9:36 p.m. He was wearing a green sweater with a design on the front and a black bandanna on his head, the alleged description of the assailant from the surveillance footage.

She saw him standing by her truck, looking inside, before he walked down Texas Street.

Marcos Herrera said Smith asked him for a cigarette earlier in the evening and they smoked together.

“(While they were smoking, Smith told Herrera if he needed anyone taken care of, he would shoot them. Herrera then ended the conversation,” he wrote.

On Jan. 30, 2015, Smith was arrested on an outstanding warrant.

On Jan. 31, detectives and officers executed a search warrant on Smith’s apartment in the 900 block of West Texas Street. In the apartment, they allegedly found clothing that matched the suspect’s clothing.

To get into the house, they had to break the back door open because the manager did not have a key. Smith had been arrested the previous day on a warrant.

In the apartment, they found .45 caliber casings and live .410 shotgun shells and a chrome Taurus Judge revolver in the ceiling of the bedroom.

“The a nickel or chrome colored Taurus Judge revolver with black grips that is capable of using .45 Long Colt bullets and .410 shotgun shells,” Rodriguez wrote. “A copy of the lease agreement was obtained and it stated Bobby Smith was the tenant of the apartment.”

The pathologist, who conducted the autopsy on Evans, confirmed that it was a .410 shotgun shell that killed him.

That gun had been reported as stolen on Sept. 19, 2011, from a truck parked in the 700 block of West Quay in Artesia. The truck owner told police someone broke the front windshield of his 2011 Ford with a big rock and stole the Taurus revolver, capable of shooting .45 bullets or .410 shotgun shells.

When police checked serial numbers, they found the gun found in the ceiling allegedly matched the serial number of the one that had been stolen.

A past address for Smith showed he lived in the 600 block of West Quay, a block away from the theft.

On June 15, 2015, Rodriguez arrested Smith on a warrant charging an open count of murder. Below is the statement of probable cause for his arrest.

 

Competency in question

On Oct. 27, 2015, prosecutors filed criminal information charging Smith with:

  • First-degree murder
  • Shooting at or from a vehicle causing great bodily harm or death
  • Tampering with evidence
  • Receiving stolen property: a firearm

The information was filed after Smith’s lawyer waived a preliminary hearing.

Bobby Smith

On April 19, 2015, Smith was present for a competency hearing, according to an order for continued care and treatment.

District Judge Jane Shuler-Gray found Smith, in a Jan. 4, 2016 order, competent to proceed in the criminal case, but found that Smith needed continued care and treatment at the New Mexico Behavior Health Institute, which agreed to provide him care

On Oct. 12, 2016, Smith’s lawyer, Gary Mitchell, filed a notice of incompetency, based on consultation with Dr. Eric Westfried, who twice examined Smith.

Smith is incompetent to stand trial because he could not cooperate with or assist his attorney, Mitchell wrote.

“Dr. Westfried reports his absence of cooperation was similar to that experienced in 2012, being the product of a severe mental disorder,” Mitchell wrote. “During 2012, Dr. Westfried had suspected a psychosis that would have been part of a schizophrenia disorder, and his being observed at the state hospital forensic division confirmed that suspicion.”

In 2012, Smith was charged with possession of a firearm by a felon. That case was dismissed due to Smith being incompetent, according to the online docket.

Smith, as of Mitchell’s Oct. 12, 2016 motion, was no longer on his medication.

“Records from the state hospital indicate that when he was not taking antipsychotic medication, he was not capable of proceeding on his charges,” Mitchell wrote. “Once he was stabilized on the psychotropic medication, it was then the opinion of the state hospital examiner that he was capable of proceeding. In Dr. Westfried’s opinion, his refusal to take medication at the present time has resulted in recurring signs and symptoms of psychosis. Consequently, he is not capable of rationally assisting in his defense.”

Smith had previously been sent to the New Mexico Corrections Department in March 2017 after the Eddy County Detention Center found they were not capable of safely housing him.

On Oct. 12, 2016, Smith’s attorney, Gary Mitchell, filed a notice of incompetency for smith, based on a report by Westfried. On April 3, 2018, he was found competent to stand trial, and again on Nov. 14, 2018.

 

No-contest plea

On April 2, 2019, prosecutors filed an amended complaint charging him with second-degree murder, in addition to the other charges.

On May 6, 2019, he pleaded no contest to second-degree murder, tampering with evidence and receiving a stolen firearm. The plea states the prosecution would argue for a sentence of seven to 13 years, although it is not clear if that was binding on the judge. Shuler-Gray accepted his plea and sentenced him to 13 years in prison.

He received pre-confinement credit of 2,653 days (7 years).

 

See the case documents on Google Drive or Document Cloud