Stephen D Aarons, Attorney at Law | Aarons Law PC | New Mexico Criminal Defense Attorney

Category: Crime

  • Teen once charged in Santa Fe shooting death arrested in new case

       A 17-year-old Santa Fe boy who prosecutors maintain was involved in the slaying of a Michigan man in September, despite dropping a murder charge against him, has been arrested in a new shooting case, authorities say.

       Zachary Gutierrez was arrested by Santa Fe police Feb. 12, following a report three days earlier of shots fired near Alto Park and a subsequent high-speed chase with a white Dodge Charger, according to a search warrant affidavit.

       No one was harmed in the Feb. 9 incident in which police believe Gutierrez fired a handgun, ran from the Charger when they arrived at the scene and then fled in a blue pickup, according to the affidavit. A 19-year-old man who drove away in the Charger and led police on a chase was arrested a short time later.

       Police arrived at Gutierrez’s home with the warrant and followed him and a young woman they suspect was the getaway driver of the pickup to a gas station on Airport Road, where they were both taken into custody.

       In October, Gutierrez was arrested and charged in the killing of Richard Milan, 64, who was shot while walking his dog near the intersection of Airport Road and Lucia Lane on the night of Sept. 26. Milan and his wife had been their way home to Kalamazoo, Mich., following a trip to California, when they stopped to see family in Santa Fe. According to police, Milan encountered a group of teens and exchanged words with Gutierrez.

    Milan was shot twice and died.

       Police said at the time that Gutierrez, who had an extensive history of encounters with law enforcement, was believed to have started the altercation with Milan and stood over him, laughing, after shooting him. The teens then fled.

       However, in late November, District Attorney Marco Serna dismissed the murder charge against Gutierrez, saying that his office did not have enough time to present the case to a grand jury before a mid-December deadline. In early November, Serna told The New Mexican the pursuit of an indictment against Gutierrez had to be postponed because his office was reviewing new information.

       Gutierrez’s attorney at the time, Stephen Aarons, said he had given prosecutors an eyewitness video that showed the teen was a bystander and not the shooter.

       The District Attorney’s Office said Wednesday in a statement that Gutierrez remained in custody and was still considered connected to Milan’s killing. The office declined to provide details.

       “My office is working to keep the juvenile defendant in custody and to protect the safety of residents, however, given the active and ongoing nature of the Richard Milan murder investigation and the alleged involvement of a juvenile defendant, it would be inappropriate to comment any further at this time,” Serna said.

       The driver of the Charger in the Feb. 9 incident, Nathaniel Bueno-Diaz, was charged with fleeing from a law enforcement officer, leaving the scene of a car accident, possession of a firearm by a felon and tampering with evidence, according to a criminal complaint. Police said he led them on an extensive chase, ran red lights, drove into oncoming traffic and hit two vehicles.

       The search warrant affidavit, filed in District Court on Friday, said Bueno-Diaz told investigators after his arrest that Gutierrez was his cousin and that the two had been trying to buy drugs when he saw Gutierrez fire several rounds from a Glock handgun with an extended magazine.

       Bueno-Diaz said Gutierrez had attacked and stolen the gun from another man earlier that day. Bueno-Diaz told police that when officers pulled them over, Gutierrez pointed the Glock at him and told him to flee. Police said Bueno-Diaz threw a second handgun from his vehicle during the chase that ensued. That handgun has not been found, according to the affidavit.

  • Court questions appeal in Fabian Gonzales case

    BY KATY BARNITZ / JOURNAL STAFF WRITER
    Court questions appeal in Fabian Gonzales case

    Fabian Gonzales sits with his attorney, Stephen Aarons, left, and his former lawyer, Tom Clark, right, at a hearing in District Court in September. (Adolphe Pierre-Louis/Journal)

    ALBUQUERQUE, N.M. — The state Court of Appeals is asking the District Attorney’s Office to explain whether its appeal in the Fabian Gonzales case should be dismissed as moot following his cousin’s no contest plea.

    Gonzales, along with his cousin Jessica Kelley, are defendants in a case centered on the death of 10-year-old Victoria Martens. In an agreement last month with the DA’s Office, Kelley pleaded no contest to reckless child abuse resulting in death, tampering with evidence and aggravated assault. She also promised to testify against Gonzales.

    Prosecutors in September appealed Judge Charles Brown’s decision to exclude statements Jessica Kelley made in jail, along with evidence of her drug use and prior convictions.

    Gonzales had been set for trial in mid-October, but the appeal put his case on hold indefinitely.

    In an order filed last Thursday, the Court of Appeals noted that Kelley’s plea agreement and availability to testify may have rendered moot the argument asserted in the appeal.

    A spokesman for the DA’s Office said prosecutors will file a response in coming days.

    Gonzales’ attorney Stephen Aarons filed a response asking the court to dismiss the appeal and send the case back to the District Court for trial.

  • Probation for father, son in rape case

    A father and son accused of jointly raping a 15-year-old girl at a Fiesta de Santa Fe party in 2015 pleaded no contest Monday to conspiring to sexually assault the girl and threatening to harm her if she went to police.

    The plea was part of an agreement with the District Attorney’s Office that calls for both men to be placed on probation.

    Prosecutors dismissed eight counts of criminal sexual penetration and two counts of criminal sexual contact against 44-year-old Charles Galvan and six counts of criminal sexual penetration against his 23-year-old son, Carlito Quintana Speas.

    District Judge T. Glenn Ellington sentenced Galvan to three years probation after accepting his plea. He sentenced Quintana Speas, who has been serving time on a federal bank robbery conviction while this case was pending, to five years probation.

    The charges to which the men entered pleas exposed each to as many as six years in prison, but their suspended sentences in favor of probation were part of the deal agreed to by prosecutors.

    The state also agreed not to apply a one-year habitual offender enhancement against Galvan, who was convicted in the past of heroin trafficking, child abuse and aggravated fleeing of a police officer.

    The two men were charged with raping the girl, who does not live in New Mexico, after she told school officials that during a visit to Santa Fe in September 2015 she had encountered Quintana at a party where she took part in using drugs and drinking, then went with him to the home of one of his relatives, where Quintana Speas shared a room with his father.

    The girl said she and Quintana Speas got in bed and were joined by Galvan, after which the two men sexually assaulted her.

    The girl told the men on several occasions to stop, according to an arrest affidavit. Police say the men later threatened to kill her if she told anyone about the incident. The teenager told family members about the incident during the ensuing days and months but it wasn’t until March 2016, after she told authorities at her school about the incident, that the matter was reported to Santa Fe police.

    Ellington said when sentencing the men Monday that the state was “getting as much as it can” in the case, which he said had been “a mess since the beginning,” with many discovery issues and the state having difficulty even arranging for the defendants to be brought to court hearings.

    Asked by the judge why the deal was a good one for the state, Assistant District Attorney Martin Maxwell said the accuser has a high risk pregnancy and was concerned about having to testify at trial.

    Maxwell said the state was also concerned about the age of the case. It had been pending for more than three years and Quintana Speas had filed a motion to dismiss for lack of a speedy trial.

    Asked to comment following the hearing, District Attorney Marco Serna said in an email: “We must always remember that victims of sexual assault and violence endure unimaginable pain and anguish and… may not want to participate in the prosecution process.

    Although we have had constant communication with the victim’s family, we have recently lost contact with the victim who showed indications of hesitation in November of last year. Rather than gamble on the small chance we’d be able to find the victim to testify, we ensured that these two individuals are convicted felons.”

    When the men were asked if they wanted to say anything in court Monday, Quintana Speas declined, but Galvan spoke.

    “I’m already almost 45 and I’ve never been convicted of no violent crime,” Galvan said, adding he was not a danger to the community and that, if he was, he already would have been convicted of a violent crime by now.

    “This is an unlucky and unfortunate situation… let’s leave it at that,” Galvan said.

    Ellington responded that Galvan was “hardly a model citizen.”

    “I’ve had to revoke your conditions of release on a couple of occasions,” Ellington said, adding that Galvan had been charged with “many violent things” in the past but was simply lucky he’d never been convicted of them.

    The judge said the state was in “an untenable position” trying to prosecute this case with its many evidence problems including intimidation of the witness which, the judge said, he couldn’t be sure hadn’t continued while the case was pending.

  • Judge will not reconsider sentence for woman who killed 2 in DWI crash

    SANDOVAL CO., N.M.- Judge Louis McDonald denied a motion by the district attorney’s office to reconsider the three-year sentence for Christie Noriega.

    She received the sentence after the judge expressed concerns about whether the department of corrections could treat Noriega’s liver disease.

    Noriega’s attorney said the back-and-forth about the sentencing has made for a tough week for his client. “She is very relieved that the court stuck with its original decision. She accepts responsibility for what happened and will now begin her prison term,” said attorney Steve Aarons.

    Noriega pleaded guilty to two counts of homicide by vehicle and aggravated DWI.

    Michael Chambellan and Lonnie Escovedo were killed in the crash on I-25 near Algodones.

    Noriega faced up to 30 years in prison for the crimes.

     

    by Hoshua Panas, copyright 2019 by KOB. Reprinted with Permission

  • RESPONSE TO STATE’S MOTION TO RECONSIDER SENTENCE

    THIRTEENTH JUDICIAL DISTRICT COURT

    COUNTY OF SANDOVAL

    STATE OF NEW MEXICO

    STATE OF NEW MEXICO

    Plaintiff,

    v. No. D-1329-CR-201800142

    Chief Judge Louis P. McDonald, Div V

    CHRISTIE NORIEGA,

    Defendant.

    RESPONSE TO STATE’S MOTION TO RECONSIDER SENTENCE

    DEFENDANT submits the following in opposition to the State’s Motion to Reconsider Sentence as filed on 30 January 2019 (“Motion”):

    1. On 1 November 2018 Ben Klein, Ph.D., Clinical Psychologist, provided to the court and counsel of record on behalf of the New Mexico Department of Corrections a nine (9) page Diagnostic Evaluation of defendant. Under medical history on page 4, Dr. Klein reported that defendant “has been diagnosed with a fatty liver” and she has been prescribed loratidine and ranitidine. Because diseased livers cannot eliminate alcohol, and defendant was not diagnosed until after the accident, Dr. Klein thought she did not make impulsive or reckless decisions about her alcohol use” before she drove home. Id. 9.

    2. In the Motion, the prosecutor argues that “Defendant’s non-alcoholic fatty liver disease was not mentioned as a bar to incarceration until the sentence hearing.” Motion at page 1. This “did not allow time for the State’s attorney to contact the Department of Corrections about the availability of treatment for Defendant’s possible health issue.” Id.

    3. One day before the sentence hearing, defense counsel delivered a sentence memorandum to the court and emailed a copy late that evening to the prosecutor. In the letter of transmittal, defense counsel argued: “As a result of her illness, her body did not process the alcohol which she had consumed like someone with a healthy liver. This helps to explain why she seemed sober to her cousin when she left Santa Fe yet had a blood alcohol content of 0.140 hours after the fatal accident.” Counsel thus argued in mitigation, not that a liver disease would bar any imprisonment.

    4. At the sentence hearing on 24 January 2019, defense counsel’s opening remarks regarding the medical condition likewise were in mitigation of the blood alcohol content, not a bar to imprisonment: “Her family did not know, she did not know that she suffers from a non-alcoholic liver disease, which prevented her body from absorbing and eliminating alcohol. This is not an excuse for her choices, but it does help explain what happened.” Transcript, page 4, lines 21-24 (TR-4.21-24).

    5. Defense psychologist Elizabeth Penland, Ph.D., did discuss the medical condition along with her psychological opinions.1 She doubted whether defendant would receive a restricted diet for her liver.2

    6. Thus defense counsel and her expert did not argue that the inability to treat the disease barred incarceration. Given that the court imposed three years of prison, the court did not treat the issue as a complete bar.

    7. The court expressed concerns about whether the Department of Corrections will make necessary accommodations for defendant’s illness. Defense counsel suggested: “we could call her doctor on another date.” TR-19.24-25.3

    8. In answer to the accommodations question, the prosecution weighed against a continuance, stating, “I don’t think they have a choice. There [are] other inmates who are sick and it is not an option. The State is confident that, given the direction, they would do so.” TR-20-10-13. 19.

    9. In stark contrast to the defendant, whose counsel agreed to continue the hearing before pronouncement of sentence to allow defendant to submit a letter from her the treating physician and the prosecution a letter from the department, the prosecutor wanted to go ahead with sentencing:

    THE COURT: What would you propose?

    MS. LOPEZ DOOLING: The State would propose that we go ahead with sentencing. If the Court orders incarceration, certainly we can have someone evaluate her and ensure that any treatment she is required is put in the Judgment and Sentence. If they fail to comply, then that’s another issue that the Court can consider.

    TR-20.24 to TR-21.5 (emphasis added).

    1. Despite moving forward without a letter, the prosecution now submits a belated letter suggesting that defendant was “missed diagnosed” and the department looks forward to accommodating her special dietary and exercise needs. Motion, attachment 1. This is too little, too late.

    MEMORANDUM OF LAW

    1. The New Mexico Constitution states “nor shall any person be twice put in jeopardy for the same offense. NM Const. Art II, § 15; see also US Const. Amend V.

    2. “It is a well established principle of New Mexico law that a trial court generally cannot increase a valid sentence once a defendant begins serving that sentence.” State v. Porras, 1999-NMCA-016, 126 N.M. 628 (citations omitted),4 see also United States v. Rosenstreich, 204 F.2d 321 (2nd Cir 1953)(“It is well settled that, thanks to the double-jeopardy provision of the Fifth Amendment, a federal court may not increase a sentence of imprisonment, once execution of the sentence has begun”).

    3. The United States Supreme Court agreed long ago:

    If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.

    Ex parte Lange, 85 U.S. 163, 168 (1873)(emphasis added).

    1. The New Mexico Supreme Court amended NMRA 5-801 from “Modification” to “Reduction of Sentence” because district courts may reduce but not increase a sentence after it has been imposed. NM Supreme Court Order 14-8300-014.

    2. The prosecution cites one case, and only one case, to support any legal authority to increase a sentence once imposed. Motion at page 2 citing State v. Diaz, 1983-NMSC-090, 100 N.M. 524. In Diaz the defendant made derogatory comments about the court after it suspended his sentence but before the judgment was reduced to writing. “We further determine that no portion of Diaz’ sentence was carried out.” 100 N.M. at 525.

    CONCLUSION

    1. Defendant began serving her sentence immediately after the oral pronouncement, with credit for pre-sentence confinement. Unlike a suspended sentence in Diaz, defendant’s post-sentence incarceration is being carried out and that alone raises the constitutional prohibition against the ordeal of a second hearing at which she could once again face up to thirty years and ninety days of prison were the court to exercise its discretion in a less lenient manner. Given the political pressure brought to bear on this case by parties poorly informed beyond sensational media accounts, a reconsideration would create the appearance of undue political influence.

    2. Alternatively, if the letter does not persuade the court that more time is due, if the reasons for suspending 27 years were more complicated than a medical accommodation, then reconsideration would raise false hopes in the victims’ family members firmly convinced that the court erred, once again dashing hopes that at last their brand of justice will be meted out.

    3. The prosecution could have easily joined in a defense suggestion that the hearing be continued and the parties collect letters like the one attached to its Motion. Instead the prosecution proposed “that we go ahead with sentencing.” Having opted to go forward without its letter, it should not be heard to complain that the sentence was less than expected.

    WHEREFORE defendant requests under the Fifth and Fourteenth Amendments of the United States Constitution and Article II, Section 15 the New Mexico Constitution, that the court:

    1. Find that (1) the court is sufficiently informed so that oral argument of counsel will not be necessary or helpful to its decision; (2) the defendant has begun to serve her term of post-sentence confinement; (3) the court has no jurisdiction as a matter of law to increase a sentence under these circumstances; and (4) in any event the new matters would not have persuaded the court to do so; and,

    2. Deny the Motion.

    Stephen D Aarons

    Counsel for Defendant

    2019 Galisteo Street, Suite H1

    Santa Fé NM 87505

    steve@aarons.law

    (505) 984-1100

    Certificate of Service

    On 31 January 2019 I emailed a copy of this pleading to the prosecutor, Amy Lopez Dooling, Assistant 13th Judicial District Attorney, PO Box 1750, Bernalillo NM 87004-1750 alopezdooling@da.state.nm.us (505) 771-7400.

    Stephen D Aarons

    Defense Counsel

    1See e.g. TR-10.9-13 (“Ms. Noriega does have what’s called ‘non-alcoholic fatty liver,’ which interferes with the liver processing and detoxing the pollutants and the toxins that come through the body. I personally do not believe that this was a reliable test of the blood alcohol level.”). The Motion does not contest the medical diagnosis or its effect on blood alcohol content measurements but rather whether the department of corrections is equipped to treat inmates with this disease.

    2TR 12.5-13 (“in the prisons of Colorado and New Mexico, the food that I see the inmates are served is horrible. It’s absolutely horrible. I know Your Honor knows that. They don’t have the food that will keep her alive. Because of her liver disease, it was written – I don’t have her medical records, but it was written that she should have solid nutrition, fresh vegetables and fresh fruits. I think this disease could turn into something more serious, such as liver disease”).

    3See also TR-21.2-17 (“MR. AARONS: Well, all I can offer is the – I can have the doctor write something up. There is discussion here about what is recommended for her. But in terms of the Department of Corrections, it probably would be incumbent on the State to present a letter or a person to say what accommodations they could and would make”).

    4The district court may correct clerical mistakes if the written judgment does not correspond to the oral pronouncement, resulting in an illegal sentence. State v. Stejskal, 2018 NMCA-045 citing NMRA 5-113(B).

  • GOP lawmakers want judge to resign for suspended sentence

    by ELISE KAPLAN / JOURNAL STAFF WRITER

    Republican legislators from Rio Rancho are calling for a judge to resign after he sentenced a drunken driver who killed two people to three years in prison.

    Christie Noriega, 32, pleaded guilty in September to two counts of vehicular homicide and aggravated driving while intoxicated in the deaths of Lonny Escovedo, 28, and Michael Chambellan, 21. She was facing up to 30 years in prison.

    In early March, she was heading southbound on Interstate 25 near Algodones when she crashed into the two men, who were changing a flat tire on Escovedo’s car. The men died at the scene.

    Noriega’s 2-year-old son was in her car but was not injured.

    On Friday, 13th Judicial District Judge Louis McDonald sentenced her to 30 years in prison, but suspended all but three years. Following the three years, Noriega will be on supervised probation for five years and could be ordered to serve her full sentence if she violates probation.

    “This goes beyond unacceptable, is a dereliction of duty and shows a complete lack of judgment,” Rep. Jason Harper, R-Rio Rancho, said in a news release Monday. “It’s decisions like this one that erode confidence in the criminal justice system in New Mexico. Judge McDonald should resign.”

    Rep. Tim Lewis, R-Rio Rancho, and Sen. Craig Brandt, R-Rio Rancho, are joining Harper in the calls for McDonald’s resignation.

    The judge was not immediately available for comment late Monday, and a court administrator said he would be able to provide more information about the sentencing today.

    Noriega’s defense attorney, Steve Aarons, said he thought the call for McDonald’s resignation was “horrible.”

    “I can say that it’s unfortunate that people are judging a very seasoned district court judge without having all of the facts that he had,” Aarons said.

    He said there were many factors that led to Judge McDonald sentencing his client to three years, including recommendations from the New Mexico Corrections Department and Noriega’s lack of a criminal or DWI history.

    Noriega underwent a 60-day diagnostic at the Western New Mexico Correctional Facility in the fall and a psychologist wrote that “it is likely best for all involved that any incarceration that might be felt appropriate to be as short in total time as possible.”

    The diagnostic, according to Aarons, states that Noriega “does not appear to have any significant substance use disorders” and although she did drink alcohol the day she crashed into Chambellan and Escovedo “she did not make impulsive or reckless decisions about her alcohol use on that day.”

    Aarons said Noriega has a nonalcoholic fatty liver disease that prevents her body from absorbing and eliminating alcohol.

    Media reports zeroed in on the disease and highlighted the judge’s questions about whether the corrections department could handle her care.

    Aarons, however, said there was a lot more that went into the sentencing decision.

    “I really think its her lack of history,” he said. “Even the Corrections Department recommended the least amount of time possible.”

    He added that the victims had also parked in an area just a couple of feet from the traveling lane and had a door open.

    Copyright © 2019 Albuquerque Journal (reprinted with permission)

    Click here to see this article as it appeared in the Albuquerque Journal 

  • Drunk driver who killed two men on I-25 receives 3-year sentence

    Drunk driver who killed two men on I-25 receives 3-year sentence

    RIO RANCHO, N.M. – She drove drunk with her 2-year-old son in the car and plowed into two men changing a tire on the side of I-25, killing them. Christie Noriega was facing more than 30 years in prison, but Thursday a judge gave her a huge break of just three years. Both of the men’s families were shocked by the sentence, many of them bolting from the courtroom in disbelief.

    “Nothing will rectify the damage done by her choice to drink and drive. The state has too many families that suffer the consequences of drunk drivers,” Mikey’s mom, Tracy Chambellan, said.

    Both Mikey Chambellan and Lonnie Escovedo’s families spoke at Noriega’s sentencing Thursday.

    The two men were killed last March when Christine Noriega drove drunk along I-25 and plowed into the two men as they were changing a tire on the side of the road near Bernalillo.

    Noriega pled guilty late last year to two counts of vehicular homicide and aggravated DWI, and Thursday she apologized to the men’s families.

    “Please know that I am very, very, very sorry for hurting you and breaking your hearts and for taking away Lonnie and Michael,” Noriega said.

    The families both asked Judge Louis McDonald to give Noriega the full 30 years before he settled on that three-year sentence.

    At one point, the judge said he was concerned about Noriega’s dietary needs in prison. That’s because the mother of five has liver problems.

    The victims’ families feel Noriega has never shown remorse and has always acted like the victim in all this.

    They even pointed out the GoFundMe page Noriega set up last year to help pay for her legal defense.

    Since this is considered a non-violent crime, Noriega will only have to serve half of the three-year sentence.

    Arguments of counsel:

    Several hours before the accident, Christie Noriega drank too much, but in that she was not alone. Her family did not know, she did not know, that she suffers from a nonalcoholic fatty liver disease which prevented her body from absorbing and eliminating alcohol. They thought it safe for her to drive back to Rio Rancho in the early evening, but she never made it home.

    Ms. Noriega pled straight up to the charges, and she accepts responsibility for her actions. As her advocate I often wonder if this accident might have happened even without her drinking. An aggressive driver, someone who triggered more than one 911 call all the way into Albuquerque, tried to pass her on the right. There was a slower moving car on the right so he got behind Ms. Noriega and flashed his lights. She was frightened with her two year old in his car seat, sped up to pass the slower moving traffic and veered into the right lane so the man would stop tailgating and just pass. She was unfamiliar with her eight passenger SUV. It was not as nimble as her old car and it yawed across the fogline. Recently we learned that at least one of the victims had a blood alcohol content of .301, more than twice Ms. Noriega’s .14, nearly four times the legal limit. They too drove drunk and, if sober, they might have driven just a few yards farther after the short span of guardrail and parked safely. The final mistake was the door, wide open. Ms. Noriega clipped it, sending her vehicle into a 180* spin and killing both men.

    Dr. Penland is better able than I to discuss Ms. Noriega’s personal characteristics. But let me add that I cannot remember a DOC psych eval in which zeros are marked down the page, a “very low risk” for future misconduct. This woman has made a difference in raising her five children. As Dr. Klein said in his independent report, “it is likely best for all involved that any incarceration that might be felt appropriate to be as short in total time as possible.” I join in his recommendation, and ask the court to consider some or all of the incarceration to be house arrest. We are only recently seeing this form of sentence but it makes sense in this case. It reminds the defendant, her family and the community that there are consequences. It enables the defendant to get the medical intervention her liver requires. It saves taxpayer money and resources better spent for violent defendants and those unable to curb their addictions. And last but not least, it allows her three year old son to get a hug whenever he needs one.

  • Plea deal accepted in death of Victoria Martens

    ELISE KAPLAN / JOURNAL STAFF WRITER

    Copyright © 2019 Albuquerque Journal reprinted with permission

    Jessica Kelley will not be going to trial in the brutal slaying of Victoria Martens.

    In a nearly empty courtroom Monday – watched only by the media, a couple of investigators and Victoria’s crying grandparents – 34-year-old Kelley pleaded no contest to child abuse recklessly caused resulting in death, tampering with evidence and aggravated assault.

    The plea was accepted by Judge Charles Brown.

    She faces a total of 50 years in prison. Since she has two prior felony convictions, she will be sentenced as a habitual offender, which adds 20 years in prison to the sentence.

    But Kelley has the possibility of cutting her time in prison down to 20 years total with good behavior.

    The plea agreement is similar to one Brown rejected last September.

    Although the District Attorney’s Office and Kelley’s defense attorneys had agreed to that deal at the time, Judge Brown said they had not presented enough evidence that Kelley was guilty of child abuse.

    At a news conference after the plea hearing, District Attorney Raúl Torrez said the primary difference this time is that Kelley is pleading “no contest” – or saying while she is not admitting guilt, she is not contesting the state’s narrative.

    “We were able to fashion an agreement that substantially exposes Ms. Kelley to the same amount of time in the Department of Corrections and satisfies the concerns of the court,” Torrez said. “It also brings some finality at least to the second of the three suspects that are charged with the death of Victoria Martens.”

    Kelley is the second suspect to take a plea deal in the case.

    Victoria’s mother, Michelle Martens, pleaded guilty to child abuse recklessly caused resulting in death over the summer, and she faces between 12 and 15 years in prison.

    Martens’ boyfriend, Fabian Gonzales, is charged with child abuse resulting in death and tampering with evidence. His trial has been delayed pending a ruling by the New Mexico Court of Appeals.

    His attorney, Steve Aarons, said his client is innocent and will not take a plea deal.

    “We are disappointed that the prosecution settled for a child abuse conviction against Jessica Kelley for her brutal murder and dismemberment of Victoria Martens,” Aarons wrote in an email. “On the other hand, by pleading and agreeing to testify as the prosecution’s star witness, Kelley will be subject to cross examination at our trial.”

    Although police initially said Gonzales and Kelley stabbed and strangled Victoria while Martens watched, prosecutors now say an unidentified man was retaliating against Gonzales when he went to Martens’ apartment and killed her daughter.

    They say that man’s partial DNA sample was left on the little girl’s body and he has been indicted as a “John Doe.”

    Torrez said he hopes the plea deal his office struck with Kelley will strengthen the case against Gonzales and will help identify and prosecute John Doe.

    No sexual assault

    Less than 24 hours after the August 2016 morning when 10-year-old Victoria’s body was found mutilated and on fire in the bathtub of her mother’s Northwest Albuquerque apartment, detectives arrested Martens, Gonzales and Gonzales’ cousin, Kelley.

    They were all charged with murder, child abuse and other charges, and Gonzales and Kelley were charged with raping the little girl.

    On Monday, Mark Earnest, Kelley’s defense attorney, announced that over the past two months experts have determined that contrary to the findings in the initial autopsy report, there was not any evidence that Victoria was raped the night she was killed.

    “In totality these three experts that I’m talking about have over 100 years (of experience) …” he said. “They determined that no sexual assault took place. Despite that, early on, the autopsy report in this case indicated that there was sexual assault.”

    Last Friday, the DA’s Office filed charges dismissing rape charges against Kelley, saying there was “not sufficient evidence to connect Jessica Kelley to the charge of criminal sexual penetration.”

    Earnest said he wishes those charges had been dismissed earlier in order to correct the public’s misconceptions about the case.

    “Part of the pretrial publicity in this case, adding to the horrific nature (and it was a horrific crime), was this added element that Victoria had been raped and sexually assaulted, and she wasn’t,” Earnest said. “That the state did not concede until a few days before the trial in this case.”

    “This case was reviewed by seven additional experts, including forensic pathologists, a child sexual abuse expert, and an expert in the changes in genital tissues from sexually transmitted viruses before the autopsy report was finalized,” Sanchez wrote in the statement. “We strongly refute any claims he was unqualified to handle this case.”

    She said officials will be reviewing the independent findings along with OMI’s autopsy report.

    Torrez said this case has illustrated that all the major players in the criminal justice system “can do a much better job.”

    “We do our very best to be professionals,” he said. “To examine the evidence, to look at every angle of the case, to work with law enforcement partners, our partners at the Office of the Medical Investigator and to examine specific cases, but also to learn important lessons for the future.”

    Not a perfect outcome

    Kelley was “tweaking” and experiencing paranoid delusions from methamphetamine the afternoon she agreed to baby sit Victoria while Martens and Gonzales went out, according to the factual basis included with the plea agreement.

    She should have realized she was too intoxicated and impaired to care for a child. When an unknown man arrived at the apartment, asked for Gonzales and went to Victoria’s room, she should have tried to stop him.

    “The man strangled Victoria to the point of death or to the point of causing great bodily harm,” the statement reads. “Evidence would support a reasonable inference that Kelley knew or should have known that the man posed a substantial and unjustifiable risk of serious harm to Victoria.”

    After the man left, Kelley carried Victoria’s body down the stairs, but was interrupted by Martens’ and Gonzales’ return.

    Kelley told Gonzales that Victoria had been killed and the two cousins “agreed to conceal the crime and dispose of Victoria’s body and to hide the murder from Martens by keeping her way from Victoria’s room.”

    After cleaning up the room, Kelley grabbed a clothes iron and struck Martens on the face with it. This is the basis for the aggravated assault charge. There was a struggle between all three suspects and “a short time later, Martens and Gonzales left apartment 808. Kelley then set Victoria’s body on fire and took down two smoke detectors in the apartment.”

    Torrez, flanked by his two lead prosecutors and Art Gonzales, the deputy chief of investigations at Albuquerque Police Department, said the two detectives who had been assisting with the investigation will continue to do so. Art Gonzales did not comment at the news conference, and in response to request for an interview, an APD spokesman merely said, “Today’s plea agreement is a step toward accountability for this heinous crime.”

    Torrez said he did not make the decision to enter a plea deal lightly and he recognizes it’s not the perfect outcome.

    “It is not something that is ideal in terms of what we all would like to see happen in these cases,” he said. “However we are confronted as prosecutors with our ability to present cases based on the facts and the evidence that we have. We, as you know, identified some issues with the initial investigation which altered the course of our prosecution and had to inform our decision to enter into this plea agreement.”

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  • Jessica Kelley pleads no contest to child abuse in Martens case

    BY ELISE KAPLAN / JOURNAL STAFF WRITER

    ALBUQUERQUE, N.M. — One day before the first trial in the Victoria Martens case was scheduled to begin, the defendant, 34-year-old Jessica Kelley pleaded no contest to child abuse recklessly caused, resulting in death, tampering with evidence and aggravated assault.

    She faces 50 years in prison, with the possibility to get out in a little over 20 years for good behavior.

    Kelley is the second defendant in the high profile case to plead in the case.

    Victoria’s mother, Michelle Martens, pleaded guilty to child abuse resulting in death over the summer. She faces between 12 and 15 years in prison with the opportunity for that to be cut in half for good behavior.

    In August 2016, Victoria was discovered dead in her mother’s Northwest Albuquerque apartment. She had been strangled, stabbed and dismembered and her body was on fire.

    Albuquerque Police Department detectives arrested Martens, Martens’s boyfriend Fabian Gonzales and Gonzales’s cousin Kelley and charged them with murder, child abuse, rape and tampering with evidence. However, in late June, District Attorney Raul Torrez announced much of what was known about the case is “simply not true.”

    The most serious charges against Gonzales were dismissed. His trial, which was supposed to begin in October has been delayed pending a decision by the New Mexico Court of Appeals.

    Copyright (c) Albuquerque Journal 2018
    Reprinted with Permission

  • He believed every car was out to kill him

    By Sami Edge | sedge@sfnewmexican.com

    Maybe it was about a trip to Colorado gone sour. Maybe it was deeper than that.

    Whatever the case, Mark Hice and Lucas “Louie” Martinez were feuding. And the disagreement between the two Española men escalated into death threats, gunfire on a highway and, ultimately, the fatal shooting of an innocent teen.

    Recorded interviews by police and other police documents tell the story of how the bad blood between Hice and Lucas Martinez led to the death of 18-year-old Cameron Martinez of Alcalde on the northbound stretch of N.M. 68 near Ohkay Hotel Casino on the evening of Oct. 4.

    Hice and two of his friends are accused of shooting into a blue Subaru that they believed Lucas Martinez or his friends were in. But inside the car were Cameron Martinez and three of his friends, who had nothing to do with the dispute between Hice and Lucas Martinez.

    Cameron Martinez, a recent graduate of Española Valley High School and an intern at Los Alamos National Laboratory, died from a gunshot to the head. His friends were shot as well and survived.

    Hice, 22, sobbed when New Mexico State Police interviewed him after the shooting, according to an audio recording.

    “I’m sorry,” Hice said, breaking down during an interview. “I just keep seeing the kid’s face.”

    Hice and the other alleged shooters — Anton Martinez, 19, of Santa Cruz, and Axel Zamarron, 17, of Española — are each charged with first-degree murder. Brittany Garcia, 21, of Ojo Caliente, who police say was driving the car in which Hice rode, also faces a murder charge. Three other females — ages 23, 17 and 16 at the time of the shooting — face lesser charges.

    The bad blood

    It isn’t clear from police documents when Hice and Lucas Martinez, 19, of Española, first crossed paths or when their relationship began to go south.

    But Christopher Hice, a brother of Mark Hice, and Michelle Mascareñas, Mark Hice’s mother, told authorities the relationship soured after Mark Hice and Lucas Martinez had gone to Colorado to pick up marijuana.

    Sometime during the trip, Lucas Martinez ditched Hice, forcing him to hitchhike home, Mascareñas told police.

    Christopher Hice told police his brother was angry when he returned to New Mexico and went to Lucas Martinez’s house to fight him. In the altercation, Christopher Hice said, Lucas Martinez threatened to shoot Mark Hice and bury him in the backyard of Lucas Martinez’s home, known as the “Trap.”

    Mark Hice also told his brother that Lucas Martinez had threatened to put a hit on him.

    In a recorded interview, a state police officer questioned that story.

    “Do you think it was a drug debt or anything?” the officer asked Christopher Hice. “You think he might have ripped him off or something?”

    “I don’t know. Usually, he tells me the truth,” Christopher Hice said of his brother. “But honestly, like, he’s been doing bad things and I don’t know if he was trying to cover it up saying he was going to Colorado for some weed.”

    Mark Hice told police that Lucas Martinez and his friends sent him death threats and said they would kick down his door and “shoot me in my face.” They also threatened his children, ages 4 and 5, Hice said.

    State police recovered social media photos that appear to show friends of Lucas Martinez mocking Hice while holding guns.

    The shooting

    Mark Hice told police that he hadn’t heard from Lucas Martinez in the few days leading up to the shooting. But on that day, a Thursday, as he and girlfriend Garcia were driving around Española in a black Dodge Charger, they saw Lucas Martinez’s friends tailing them in a black Cadillac Escalade.

    The Cadillac followed Hice and Garcia northbound on N.M. 68, police reports say.

    Around 4 p.m., an Alcalde woman reported the two cars to state police. The caller’s family was driving northbound, she told a dispatcher, when they ended up between the Charger and the Escalade near the Ohkay Hotel Casino. She saw a man reach out of the Charger with a black handgun and fire three shots “in the direction of her and her family” and the Escalade behind them.

    Hice told police that occupants of the Cadillac shot first, so he fired backed as a warning.

    “I got scared, so I reached out the window with it and popped three shots toward the ground,” he said. “I fired off just warning shots, just to get them away from us.”

    Officers didn’t find the cars involved.

    After that afternoon shooting, Hice’s mother told police, her son was “paranoid because he believed every car was out to kill him,” reports say.

    Police reports say Hice and Garcia switched cars in Ojo Caliente in the late afternoon of Oct. 4 before heading back to Española.

    Hice bought ammunition, he told police. Then he met up with friends, drank liquor and distributed guns to a few of them: a Colt 1911 for Anton Martinez, a Glock .45 for Zamarron and a Mac-11 for himself.

    The three and their friends started to drive again in two cars and headed north on N.M. 68 when, apparently, they got spooked. They thought Lucas Martinez or his friends were on to them.

    Hice told police the blue Subaru pulled up behind the cars he and his friends were in, driving aggressively, before it started to pass in the left lane.

    “I got scared and thought it was them [Lucas Martinez or friends] because I saw one of their windows down,” Hice told police. “That’s when I thought it was them so all of us, it just, you know, we were in that thing, and we wanted to defend ourselves.”

    Hice told police that Zamarron, who was in the car in front of Hice, started firing first. Then his car joined in.

    Hice said he fired nine rounds. He said Zamarron emptied a full clip and that Anton Martinez shot once.

    Zamarron remembers things slightly differently. He told police that as the Subaru was passing, he heard shots. Thinking his friend had just been shot at, police reports say, Zamarron leaned out the window of the car and started shooting.

    But he told police he didn’t fire a full clip or hit Cameron Martinez with any of his bullets.

    “I aimed toward the floor,” he told police, according to their written reports.

    Not long after the shooting, a state police officer pulled over to help the occupants of the Subaru, which had stopped in the median on N.M. 68. He found Cameron Martinez dead and the three occupants others shot.

    The arrests

    In the days after the shooting, Hice and Garcia turned themselves in to state police. Police searched two homes for Anton Martinez before he turned himself in. Zamarron surrendered after police surrounded his home Oct. 7.

    Zamarron told police he’d never hung out with Hice before the night of Oct. 4. Zamarron had decided to be friends with Hice because Hice did not like the people charged with shooting and killing Nicholas Kaye, Zamarron’s best friend, during a shootout at an Española gas station in June.

    Police documents say Hice had been living with Anton Martinez prior to the shooting. Hice’s mother told police that Martinez had “lured Mark into the ‘gangster life’ and had Mark selling cocaine with him.”

    According to police interview recordings, Anton Martinez told police he was innocent but wouldn’t answer questions without a lawyer.

    In an email Friday, Anton Martinez’s defense lawyer, Stephen Aarons, said Hice “has apologized in the jail for his police statements” and that Hice’s family “is just hoping to avoid some of the consequences for the shooting.”

    Aarons said Anton Martinez’s defense in court will be that he only fired one round after the group had passed Cameron Martinez’s car because “he didn’t want Hice or the girls to think he was afraid or not ‘part of it.’ ”

    Lawyers for Hice and Lucas Martinez did not return calls for comment.

    Anton Martinez, Hice, Zamarron and Garcia are being held in jail without bond as the cases against them wind through state District Court.

    Hice’s past

    In addition to first-degree murder, Hice faces charges of shooting at or from a motor vehicle, conspiracy and tampering with evidence in the death of Cameron Martinez.

    It isn’t his first trouble with the law.

    In 2015, court records show, Hice was charged with false imprisonment and battery against a household member when his girlfriend told police that Hice trapped her inside an apartment and shoved her away from the door.

    Police found the woman with a red mark on her chest, court records show. Hice told police he was arguing with the woman and got angry when she told him she didn’t want to be with him anymore. Charges in that case were dropped.

    Hice was also charged with driving under the influence of marijuana and possessing drug paraphernalia in 2017, but those charges were dropped as well.

    Lucas Martinez is not facing charges related to any of the shootings on N.M. 68 on Oct. 4. But he still has legal troubles.

    Lucas Martinez faces charges of aggravated battery with a deadly weapon in the shooting of an Española woman in October. He also faces charges of contributing to the delinquency of a minor after two boys reported getting shot accidentally while hanging out with Lucas Martinez and friends, drinking alcohol and handling guns in November.

    One of the boys told police that Lucas Martinez “is known for carrying and distributing illegal narcotics” from his home.

    The District Attorney’s Office has asked a judge to hold Lucas Martinez in jail pending his trial, arguing he is a danger to the community.

    Lucas Martinez was charged in August with a felony for allegedly possessing a stolen firearm, but the case was dismissed, documents show.

    Copyright 2018 Santa Fe New Mexican | Reprinted with Permission