Appeals court suggests no double jeopardy in Scott Bachicha case

• A Court of Appeals judge suggested the appeal be dismissed as Scott Bachicha does not face a double jeopardy violation
• Judge Brett Loveless stayed the case pending the appeal
• The case has been going on for over three years and was initially dismissed after a prosecutor missed deadlines

ALBUQUERQUE, N.M. — The Court of Appeals filed a proposed disposition that Scott Wade Bachicha’s right against double jeopardy would not be violated if prosecutors moved forward with a firearms enhancement in the involuntary manslaughter case against him.

Scott Bachicha

In a proposed summary disposition filed on Sept. 10, 2020, Court of Appeals Judge Miles Hanisee wrote that the New Mexico Supreme Court rejected the basis of the double jeopardy claim Ramczyk used in State v Baroz, where the supreme court found that a firearms enhancement did not violate double jeopardy even though the use of a firearm is an element of the charge.

“Given the holding in Baroz, we propose that the firearm enhancement in this case does not violate double jeopardy,” Hanisee wrote. “Accordingly, we propose to reverse the district court’s order dismissing the firearm enhancement.”

District Judge Daniel Ramczyk dismissed the firearms enhancement in an order on Nov. 20, 2019, following a hearing. Prosecutors James Grayson and Mia Rubin then filed an interlocutory appeal of his decision on Jan. 29, 2020. The case has been stayed since the appeal was filed.

According to a flow chart provided by the Court of Appeals, Bachicha’s attorney has 20 days to file a memo in response. The court could then issue another notice or issue an opinion. Once an opinion is issued, his attorney could file a motion for a rehearing.

The case

Bachicha, 35, allegedly shot and killed girlfriend Mindy Stuart, 30, with a shotgun blast to the neck on April 16, 2017. In court documents, Bachicha’s attorneys argue the shooting was purely accidental but Albuquerque Police Department detectives initially charged him with an open count of murder, followed by a grand jury indictment on a charge of first-degree murder on May 2, 2017. (Read more details about the case in the write-up.)

After Second Judicial District prosecutor John Duran missed a series of deadlines, he dismissed the case without prejudice on Feb. 12, 2018 and then brought a new indictment on charges of involuntary manslaughter with a firearm enhancement and tampering with evidence, on Dec. 4, 2018. He left the case after Bachicha’s attorney tried to call him as a witness.

On April 17, 2020, District Judge Brett Loveless granted a stay in the case, requested by Rubin, pending the outcome of the appeal on the firearms enhancement.

Among the motions that are now stayed pending the appeal is a speedy trial motion Maestas filed on Jan. 10, 2020.

“In this case, the nearly three-year delay from Mr. Bachicha’s arrest on April 16, 2017 and charging to the present trial setting of March 26, 2020 (total: 1,066 days) is simply unconstitutional,” he wrote.

Also pending is a motion to suppress statements as involuntary.

No further hearings are scheduled in either the appeal or in the case proper.

Continue reading “Appeals court suggests no double jeopardy in Scott Bachicha case”

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 stays ABQ involuntary manslaughter case for prosecution appeal

• Prosecutor John Duran initially dismissed murder charges after he missed a series of deadlines
• Judge Brett Loveless overruled the order of the previous judge in the case to allow the case to continue, even though the case has been going on for over three years
Scott Wade Bachicha is now facing a charge of involuntary manslaughter

See the full case write-up

ALBUQUERQUE, N.M. — After years of delays that lead to an initial dismissal of a murder charge, an Albuquerque man will have to wait even longer for his day in court after a judge ordered a stay in his case while prosecutors appeal a dismissal of a firearms enhancement.

Scott Bachicha

Scott Wade Bachicha, 35, allegedly shot and killed girlfriend Mindy Stuart, 30, with a shotgun blast to the neck on April 16, 2017. In court documents, Bachicha’s attorneys argue the shooting was purely accidental but Albuquerque Police Department detectives initially charged him with an open count of murder, followed by a grand jury indictment on a charge of first-degree murder on May 2, 2017. (Read more details about the case in the write-up.)

Second Judicial District prosecutor John Duran missed a series of deadlines and dismissed the case without prejudice on Feb. 12, 2018 and then brought a new indictment on charges of involuntary manslaughter with a firearm enhancement and tampering with evidence, on Dec. 4, 2018.

Bachicha’s attorney, Raymond Maestas, filed a motion to dismiss the firearms enhancement on Oct. 8, 2019. District Judge Daniel Ramczyk dismissed the firearms enhancement in an order on Nov. 20, 2019, following a hearing. Maestas also tried to call Duran as a witness and have the Second Judicial District Attorney’s Office removed from the case.

After Ramczyk dismissed the firearms enhancement, prosecutor Mia Ulibarri filed a motion for Ramczyk to reconsider his dismissal of the firearms enhancement on Nov. 18, 2019. He denied that request and prosecutors James Grayson and Mia Rubin then filed an interlocutory appeal of his decision on Jan. 29, 2020.

On Jan. 31, 2020, Rubin filed a motion to stay the case pending the appeal of the firearms enhancement.

Ramczyk heard that motion on Feb. 12, 2020 and orally denied the motion, but never filed a written order. On Feb. 21, 2020, Ramczyk recused himself from the case, but listed no reason.

District Judge Brett Loveless was assigned to the case on Feb. 27, 2020, after three other judges recused themselves and on March 11, 2020, Meastas again argued against the stay.

On April 17, 2020, Loveless granted the motion to stay the appeal. According to the docket, all proceedings are suspended.

“Inefficiencies may result from ruling on Defendant’s pending motions as they may dispose of the case without approval from or knowledge of the appellate court,” Loveless wrote. “This Court will not rule on those matters while the appeal is pending.”

Among the motions that are now stayed pending the appeal is a speedy trial motion Maestas filed on Jan. 10, 2020.

“In this case, the nearly three-year delay from Mr. Bachicha’s arrest on April 16, 2017 and charging to the present trial setting of March 26, 2020 (total: 1,066 days) is simply unconstitutional,” he wrote.

Also pending is a motion to suppress statements as involuntary.

No hearings or pleadings have been filed in the prosecution’s appeal of the firearm enhancement dismissal.

Continue reading “Judge stays ABQ involuntary manslaughter case for prosecution appeal”

Scott Wade Bachicha: Mindy Stuart — 4-16-2017

Suspect: Scott Wade Bachicha

Victim: Mindy Stuart, 30

Charges: Initially first-degree murder, charge dismissed; re-indicted as involuntary manslaughter and tampering with evidence

Status: Pending

Date of incident: April 16, 2017

Agency: Albuquerque Police Department

Location: 2437 Madeira NE, Albuquerque

Magistrate case number: T-4-FR-2017-002202

District case for murder (dismissed): D-202-CR-201701625

District case for involuntary manslaughter: D-202-CR-201804094

Appeal case for firearms enhancement: A-1-CA-3878

Judicial district: Second judicial district

Prosecutors: John Duran, Mia Ulibarri, James GraysonMia Rubin

Prosecuting agency: Second Judicial District Attorney’s Office

Summary

On April 16, 2017, Scott Wade Bachicha, 32, allegedly shot live-in girlfriend Mindy Stuart, 30, in the neck with a shotgun, killing her.

During an interview with a police detective, Bachicha allegedly said the gun went off accidentally, he panicked and threw it on a near-by roof.

Despite his claims of the killing being an accident, he was charged in Albuquerque Metro Court with an open count of murder.

On May 2, 2017, he was indicted by a grand jury for first-degree murder and tampering with evidence. On Feb. 12, 2018, prosecutor John Duran dismissed the case without prejudice after the judge denied a motion to extend the deadlines for scientific evidence that same day.

According to a defense motion to dismiss, the Albuquerque Police Department failed to analyze the ballistics evidence and prosecutors refused to let a defense expert analyze first, because APD wanted the first chance.

On Dec. 4, 2018, he was indicted, this time for involuntary manslaughter and tampering with evidence and a jury trial is tentatively set for March 16, 2020.

While first-degree murder carried a life sentence, involuntary manslaughter and tampering with evidence are fourth-degree felonies with a maximum sentence, each, of 18 months.

Trial on the charge of involuntary manslaughter was set for March 16, 2020.

[cmtoc_table_of_contents]

The incident

On April 17, 2017, Albuquerque Police Department officers were dispatched to a house in the 2400 block of Madeira NE in reference to a shooting, Detective Andrea Ortiz wrote in a criminal complaint for Scott Wade Bachicha’s arrest.

Shortly after officers arrived at the scene, they arrested Bachicha on a count of open murder for allegedly killing his live-in girlfriend, Mindy Stuart.

Officer Jacob Perea, dispatched at 6:35, was flagged down by three neighbors standing in front of the house.

Scott Bachicha

The neighbors, Fletcher Johnson, Tamika Johnson and Brian Garcia, told Perea that they had been told to come to the house by Bachicha. He had allegedly told them someone shot Stuart.

“Officer Perea made entry into the home and he advised he observed broken glass and blood near the front entrance,” Ortiz wrote. “The officer advised he observed Scott Wade in the living room and Scott was covered in blood. Officer Perea advised he saw a female who was lying on a mattress that had been placed in the living room.”

Stuart had a large amount of blood pooling under her head.

“Brian Garcia told the officer that Scott Wade had moved Mindy Stuart from the couch in the living room to the mattress before the arrival of officers,” Ortiz wrote.

Perea searched the house and found a Glock pistol case and two shotgun shells near Stuart.

“Officer Perea advised he saw a large fist size hole in the sheet rock near the victim,” Ortiz wrote. “This hole had blood around it. Rescue arrived on scene and pronounced the victim deceased.”

Perea read Bachicha his Miranda rights, including his right to remain silent, and Bachicha allegedly agreed to talk to him and alleged that that someone shot Stuart.

“Scott told him he and Mindy had been watching a movie and he fell asleep,” Ortiz wrote. “He was awakened by Mindy shouting ‘What the fuck?’ and he then heard a loud bang. Scott advised he saw a shadowy figure leaving the home.”

Several people who were outside when they heard the gun go off said they saw no one fleeing the area or from Bachicha’s house.

“The only person they saw exiting the residence was a male subject who appeared to be covered in blood,” Ortiz wrote.

Ortiz walked through the house, after getting a search warrant for it.

“I noticed several blood drops throughout the residence,” Ortiz wrote. “The back door facing north appeared to have blood on the door handle. On the exterior side of the door had smudge marks also appearing to be blood.”

He then went to the Albuquerque Police station to interview Bachicha, who was in custody. He read Bachicha his Miranda rights again and again, Bachicha allegedly agreed to talk.

“Scott advised he and his ‘wife’ Mindy returned to their residence after Easter celebration,” Ortiz wrote. “He fell asleep on a mattress located in the living room while his wife was watching television.”

Bachicha allegedly said he woke when he heard a gunshot.

“He turned toward the couch and noticed Mindy was bleeding from her head,” Ortiz wrote. “He saw a dark shadow exit his residence out his front door. Scott couldn’t locate his cell phone and was in a panic, exited his residence, and ran to Brian’s residence requesting they telephone 911.”

After Ortiz alleged that Garcia told officers that Bachicha had recently bought a shotgun, that they found shotgun shells at the house and that no one was seen leaving the house after the gunshot went off, Bachicha allegedly began to cry.

“(He) advised he was messing around with his shotgun while seated on the mattress in the living room,” Ortiz wrote. “Mindy was seated on the couch directly behind him. As Scott manipulated the shotgun it suddenly discharged. Scott turned around and saw Mindy had been shot on the right side of her neck.”

Bachicha allegedly told Ortiz that he panicked, held Stuart in his arms, but knew that she was already dead, then took the shotgun and the spent shells and left out the back door.

“He threw the shotgun and the shotgun shell on the roof of the building directly west of his residence and across his
back alley,” Ortiz wrote. “Scott returned inside his residence and ran out his front door to request assistance from his neighbor Brian. He advised he did not wipe down the shotgun. The interview was concluded.”

PC - Scott Bachicha - 4-17-2017

Dismissed and re-indicted

After the Albuquerque Police Department failed to test ballistics by deadlines imposed by the court and the prosecutor, John Duran, refused to allow a defense expert to test the evidence before the Albuquerque Police Department, Bachicha’s defense attorney, Christopher Dodd, filed a motion to dismiss the case on Feb. 7, 2018.

Following a hearing five days later, Duran dismissed the entire case against Bachicha without prejudice, meaning the charges could be re-filed.

Duran did just that, after securing a new indictment, this time on charges of involuntary manslaughter and tampering with evidence, on Dec. 4, 2018.

Although prosecutors did not write their rationale for either dismissing the murder case or for bringing the new charge of involuntary manslaughter, according to a July 18, 2019 motion to disqualify the Second Judicial District Attorney’s Office from prosecuting the case, Detective Andrea Ortiz previously testified that the shooting had an “upward shot trajectory” and that would match Bachicha’s statements that the shooting was accidental.

“The investigation (criminalistics and OMI) revealed an upward trajectory of as much as 19 degrees,” defense attorney Raymond Maestas wrote.

Maestas was trying to get the the Second Judicial District Attorney’s Office removed from the case because, he alleged, a witness gave a statement to Duran that he had not previously disclosed and he wanted to call Duran as a witness.

He withdrew that motion on Aug. 30, 2019, after prosecutors wrote that they would not call that witness.

The case had been set for a tentative trial of March 16, 2020.

Dismissal of firearms enhancement

On Oct. 8, 2019, Meastas filed a motion to dismiss the firearm enhancement accompanying the involuntary manslaughter charge.

He wrote that the firearms enhancement is not supposed to be applied to an involuntary manslaughter charge, per a 1993 decision by the New Mexico Court of Appeals in State v. Franklin.

In that case, the Appeals Court found that the firearms enhancement was subsumed within the charge involuntary manslaughter and keeping the enhancement would constitute double jeopardy.

Prosecutor Mia Ulibarri wrote in a response that, in this case, the firearms enhancement didn’t constitute double jeopardy because ” there is no charge by the State for the misdemeanor of negligent use of a firearm.”

District Judge Daniel Ramczyk dismissed the firearms enhancement in an order on Nov. 20, 2019, following a hearing.

After Ramczyk dismissed the firearms enhancement, Ulibarri filed a motion for Ramczyk to reconsider his dismissal of the firearms enhancement on Nov. 18, 2019. He denied that request and prosecutors James Grayson and Mia Rubin then filed an interlocutory appeal of his decision on Jan. 29, 2020.

In a docketing statement, Grayson wrote that Ramczyk should have been following precedent set in State v. Baroz, but did not state what precedent in Baroz the judge was supposed to follow.

Case stayed pending prosecution’s appeal

On Jan. 31, 2020, Rubin filed a motion to stay the case pending the appeal of the firearms enhancement.

Ramczyk heard that motion on Feb. 12, 2020 and orally denied the motion, but never filed a written order. On Feb. 21, 2020, Ramczyk recused himself from the case, but listed no reason.

District Judge Brett Loveless was assigned to the case on Feb. 27, 2020, after three other judges recused themselves and on March 11, Meastas again argued against the stay.

On April 17, 2020, Loveless granted the motion to stay the appeal.

“Inefficiencies may result from ruling on Defendant’s pending motions as they may dispose of the case without approval from or knowledge of the appellate court,” Loveless wrote. “This Court will not rule on those matters while the appeal is pending.”

Among the motions that are now stayed pending the appeal is a speedy trial motion Maestas filed on Jan. 10, 2020.

“In this case, the nearly three-year delay from Mr. Bachicha’s arrest on April 16, 2017 and charging to the present trial setting of March 26, 2020 (total: 1,066 days) is simply unconstitutional,” he wrote.

Also pending is a motion to suppress statements as involuntary.

No hearings or pleadings have been filed in the prosecution’s appeal of the firearm enhancement dismissal.

Appeals court proposes overturning dismissal

In a proposed summary disposition filed on Sept. 10, 2020, Court of Appeals Judge Miles Hanisee wrote that the New Mexico Supreme Court rejected the basis of the double jeopardy claim Ramczyk used in State v Baroz, where the supreme court found that a firearms enhancement did not violate double jeopardy even though the use of a firearm is an element of the charge.

“Given the holding in Baroz, we propose that the firearm enhancement in this case does not violate double jeopardy,” Hanisee wrote. “Accordingly, we propose to reverse the district court’s order dismissing the firearm enhancement.”

According to a flow chart provided by the Court of Appeals, Bachicha’s attorney has 20 days to file a memo in response. The court could then issue another notice or issue an opinion. Once an opinion is issued, his attorney could file a motion for a rehearing.

See the documents on Google Drive or Document Cloud

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

James Finch: David Finch — 8-24-2015

Suspect: James Finch

Victim: David Finch, 60

Non-fatal victim: Kathy Finch

Charges: Second-degree murder, attempt to commit first-degree murder, tampering with evidence, aggravated burglary

Status: No contest plea to second-degree murder, attempt to commit first-degree murder, tampering with evidence, aggravated burglary

Sentence: 27 years followed by 5 years supervised probation

Date of incident: Aug. 24, 2015

Relation to victim: Son

Agency: Albuquerque Police Department

Location: 1200 block of Grove Street NE, Albuquerque

District case number: D-202-CR-201502502

Magistrate case number: T-4-CR-2015011995

Judicial district: Second Judicial District

 

Summary

James Finch allegedly stabbed his father to death and stabbed his mother, but not fatally, on Aug. 24, 2015.

On March 3, 2017, Finch pleaded no contest to charges of second-degree murder, attempt to commit first-degree murder, tampering with evidence and aggravated burglary. Per his plea, he will spend 27 years in prison and spend six years on supervised probation following his release from prison.

[cmtoc_table_of_contents]

The case

Four days before James Finch stabbed his father to death and beat and stabbed his mother, he dug a grave in his parent’s back yard.

On Aug. 24, 2015, he broke into their house on Grove Street around 3 a.m. and attacked his parents.

James Finch

His parents were so afraid of him they took out a restraining order and after he was released from jail a few days before he killed his father, David Finch, the latter went around his neighborhood, telling everyone to watch out for his son, Detective Leah Acata wrote in a statement of probable cause/criminal complaint for James Finch’s arrest.

When officers F. Duran and E. Bumphrey arrived at the house, after the 911 center received a call of a woman asking for help, Duran looked through a small window in the door and saw a naked man inside the house.

“The nude male ran from the south side of the residence,” Acata wrote. “Officer Duran stated he observed a large amount of blood inside of the residence. Officer Duran observed a female lying face up in a pool of blood.”

The woman, Kathy Finch, was calling out for help.

The two officers called for an ambulance and found they were unable to break through the front door so they went to the back of the house and jumped a wall.

“Officer Duran stated (he) observed bloody foot prints on the back porch (of the house),” Acata wrote. “Officer Duran stated he followed the foot prints where he observed a nude male, wearing only socks, hiding under a white table with a glass top. The table was located on the back porch of the residence.”

The two officers demanded that James Finch come out from the table and saw that he was covered in blood and had a cut on his hand. He did not fight them when he was arrested.

“James stated to police, ‘They are trying to kill us,’ ‘They are trying to kill my parents,’ ‘Please don’t leave me,’ ‘Please help me’ and ‘I don’t want to die,'” Acata wrote.

After arresting James Finch, Duran found that a back window at the house was broken out.

Sandia mountains covered in snow. Photo by John Fowler/Flickr. CC BY

“Officer duran stated it appeared as if someone through (sic) a chair from the outside of the back window to the inside of the back window,” Acata wrote. “Officer Duran entered into the residence through the open back door due to hearing the continued cries for help from a female in the (house).”

Kathy Finch had multiple stab wounds and told Duran that her son attacked her. Next to her was David Finch, already dead, face down on a piece of a cinder block.

“Officer Duran observed another piece of cinder block lying next to Kathy which appeared to have blood and hair attached to the cinder block,” Acata wrote.

Duran found the master bedroom was “covered” in blood and found bloody clothing in the bathroom. The shower was running.

Next to David Finch, they found a 7-inch knife, covered in blood.

“Officer Duran stated both David and Kathy were nude when he located them,” Acata wrote.

Neighbor Tony Martinez told the officers about the grave the Finches found in their back yard, 3 feet wide and 9 feet long and said the Finches placed a note in their son’s former room stating that his personal belongings were in the shed. He was not allowed in the house and they had a restraining order against him.

Another witness, Lynn Russo, told the detectives that David and Kathy Finch had a solid door, with deadbolts, put into their bedroom because they were afraid of their son.

“Lynn stated she heard screaming from (the house) around 0300 hours on this date,” Acata wrote.

When interviewed by Bumphrey at the hospital which does not state if he was read his Miranda rights, including his right to remain silent, he told the officer that three men in masks picked him up from the homeless shelter. He described the three men as wearing all black.

“James stated the males drove him to his parent’s house, placed a gun in his mouth and told him he had to stab his parents or they would kill his parents,” Acata wrote. “James stated he did not want to kill his parents but he was forced to do it. No officer observed any subjects matching the description of the three unknown males in the area (of Grove Street NE).”

He was charged, in Albuquerque Metropolitan Court, on charges of open murder, aggravated battery with a deadly weapon and aggravated burglary.

PC- James Finch - 8-24-2015

Court proceedings

The indictment

On Sept. 17, 2015, an Albuquerque grand jury indicted James Finch on eight charges, and even more step down in-the-alternative charges.

  • Count 1: First-degree murder or felony murder (a killing committed during the commission of another felony).
  • Count 2: Attempted first-degree murder and a series of alternative counts, including aggravated battery with a deadly weapon and aggravated battery causing great bodily harm, for his attack on Kathy Finch.
  • Count 3: Aggravated burglary with a deadly weapon.
  • Count 4: Aggravated battery with a deadly weapon for his attack on his father, David Finch.
  • Count 5: Tampering with evidence.
  • Count 6: Aggravated stalking
  • Count 7: Violation of a protection order
  • Count 8: Violation of a protection order

Acata was the only person to testify.

Motions

On Jan. 12, 2016, prosecutor Spirit Gaines filed a motion to stay the case on the grounds that James Finch’s competency was in question.

Gaines wrote that his competency had been raised in a different case. The two cases were consolidated until his competency was determined.

On Oct. 14, 2016, the Albuquerque District Judge Brett Loveless found him competent to stand trial and lifted the hold on the case.

The Plea

Portrait of District Judge Brett Loveless
District Judge Brett Loveless

On March 3, 2017, James Finch pleaded no contest to one count of second-degree murder, a serious violent offense, attempt to commit first-degree murder, tampering with evidence and aggravated burglary with a deadly weapon.

According to the plea agreement, James Finch will spend 27 years in prison, with five years of his 36 year sentence suspended, and to be spent on supervised probation.

According to the plea, the only count to be considered a serious violent offense is the charge of second-degree murder.

In addition, according to the plea, he was to serve the sentences for each crime consecutively, meaning one after the other, with the last eight years suspended in favor of five years of supervised probation.

Because second-degree murder is a serious violent offense, James Finch must serve 85 percent of the first 15 years of his sentence. Second-degree murder carries a maximum sentence of 15 years.

After he serves 85 percent of the first 15 years, he then begins to accrue good time at a rate of 50 percent and, after that point, he will be eligible for release after he has served half of the remaining 12 years on his sentence: six years.

Plea agreement - James Finch - 3-3-2017

The sentencing

According to the Albuquerque Journal, Kathy Finch spoke during the sentencing and said that it may not be a long enough sentence, but she would be dead by the time James Finch is released from prison.

 

See the case documents on Google Drive or on Document Cloud