Below is the true legal breakdown of the case thus far.
State of New Mexico v. Perez, Dominique
D-202-CR-2015000105
January 12, 2015 Information
o Deborah DePalo, Chief Deputy District Attorney for the Second Judicial District of the State of New Mexico, filed the following charges against Officer Perez:
§ First Degree Murder (Willful and Deliberate);
§ Second Degree Murder (firearm enhancement; and
§ Manslaughter (firearm enhancement)
January 12, 2015 Statement of Joinder
o Deborah DePalo, Chief Deputy District Attorney joins Officer Dominique Perez’s criminal case with Officer Keith Sandy’s criminal case (State of New Mexico v. Sandy, Keith, D-202-CR-2015000104)
January 15, 2015 Defendants’ Joint Motion to Disqualify the Second Judicial District Attorney’s Office
o Defendant Officers counsel file a Motion to Disqualify the Second Judicial District Attorney’s Office
§ Prosecution by the Second Judicial District Attorney’s Office Would Violate Several Specific Standards of Professional Conduct;
· In a January 14, 2015 letter from CAO Robert Perry to District Attorney Kari Brandenburg, Mr. Perry noted the City’s concerns that Chief Deputy District Attorney DePalo had potentially violated two separate rules of professional conduct by being both the District Attorney's representative on scene during initial briefings in the Boyd case and being the attorney who filed a criminal information against the Defendants.
· Mr. Perry further noted, District Attorney Brandenburg is the subject of an APD criminal case which was “referred to the Attorney General’s Office for multiple reasons, not the least of which is the fact that you are the prosecuting authority for police shootings.”
January 23, 2015 Defendants’ Unopposed Motion to Waive the Sixty (60) Day Deadline Prescribed by Rule 7-202(D) NMRA
o Pursuant to Rule 7-202(D) NMRA, the preliminary hearing must be held no later than sixty days from the filing of the Information (filed January 12, 2015)
o Defendant Officers needed more time to prepare for the Preliminary Hearing due to the allegations and amount of evidence that needed to be collected and presented
April 9, 2015 Order Granting Motion to Disqualify
o Judge Alisa Hadfield granted Defendants’ Joint Motion to Disqualify the Second Judicial District Attorney’s Office
§ Judge Hadfield stated although she didn’t believe an actual conflict existed, the media’s coverage of the shooting and relationship between the District Attorney and the police department could create an appearance of a conflict
April 16, 2015 Notice of Conflict and Substitution of Counsel
Certificate of Appointment
Oath of Office
o District Attorney Kari Brandenburg appointment Special Prosecutor Randi McGinn and Kevin Holmes (McGinn, Carpenter, Montoya & Love, PA)
April 21, 2015 Notice of Preliminary Hearing
o Judge Neil Candelaria filed a notice setting the Preliminary Hearing for May 18, 2015
April 29, 2015 Unopposed Motion to Vacate Preliminary Hearing
o Due to conflicts of Defendant Officers’ counsel, the Preliminary Hearing set for May 18, 2015 was vacated
June 9, 2015 Scheduling Order
o Order setting preliminary hearing deadlines
June 12, 2015 Notice of Intent to Call Witnesses
o State of New Mexico filed their witness list
June 22, 2015 Amended Information
o Special Prosecutors Randi McGinn and Kevin Holmes filed an Amended Information charging officer Perez with the following:
§ Count 1: Second Degree Murder (Willful and Deliberate), Voluntary Manslaughter (firearm enhancement), and Involuntary manslaughter (firearm enhancement)
§ Count 2: Aggravated Assault (deadly weapon) (firearm enhancement)
July 1, 2015 Defendant Perez’s Notice of Intent to Call Witnesses
o Defendant Perez filed his witness list
July 24, 2015 State’s Motion In Limine to Limit Evidence of James Boyd’s Character
o The state argued: 1) New Mexico law does not allow prior instances of bad conduct to prove that a victim in a homicide was the first aggressor, and 2) New Mexico law only allows the admission of evidence of prior instances of bad conduct that the defendants were actually aware of at the time of the killing.
July 27, 2015 Defendant Perez’s Preliminary Hearing Brief
o Defendant Perez filed his Preliminary Hearing Brief which addressed certain legal issues that he requested the Court consider prior to holding the preliminary hearing
§ Defense of Another. Elements for defense of another are:
· there was an appearance of immediate danger of death or great bodily harm to a person;
· the defendant believed the person was in immediate danger of death or great bodily harm from the victim and killed the victim to prevent the death or great bodily harm; and
· the apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did
§ Justifiable Homicide by a Police Officer. The elements for justifiable homicide by a police officer (UJI 14-5173):
· At the time of the killing, the defendant was a public officer or employee;
· The killing was committed while the defendant was performing his duties as a public officer or employee;
· The killing was committed while
o overcoming the actual resistance of the victim to the execution of some legal process;
o overcoming the actual resistance of the victim to the discharge of some legal duty;
o retaking the victim, a person who committed [ a felony] and who had [been rescued] or [escaped];
o arresting the victim, a person who committed [ a felony] and [was fleeing from justice]; or
o attempting to prevent the escape from [a place of lawful custody or confinement] by the victim, a person who committed [a felony]; and
· A reasonable person in the same circumstances as the defendant would have reasonably believed that the victim posed a threat of death or great bodily harm to the defendant or another person.
July 27, 2015 Defendant Dominique Perez’s Motion in Limine No. II: The Presentation of Evidence Pursuant to Rules 11-404 and 11-405 NMRA
o Defendant Perez filed a motion in limine to present evidence regarding specific information he knew at the time he fired his weapon at James Boyd.
§ Prior to the time Officer Perez fired his weapon at Mr. Boyd, Officer Perez was provided with information regarding Mr. Boyd’s criminal history. In particular, Officer Perez learned that Mr. Boyd had committed an aggravated battery against APD Officers prior to the March 16, 2014 incident. Officer Perez's knowledge of Mr. Boyd's prior act of battering APD Officers is one of the many factors that caused Officer Perez to believe Mr. Boyd posed an immediate danger of death or great bodily harm to his fellow officers.
July 28, 2015 State’s Motion in Limine to Preclude Opinion Testimony Regarding Probable Cause or Self-Defense
o The state requested the court disallow witnesses from testifying about probable cause or self-defense and stated:
§ “It is improper for an investigating officer or any other witness to testify as to probable cause because it is the ultimate issue in the preliminary hearing and would not assist the Court in its task of determining “whether there is that degree of evidence to bring within reasonable probabilities the fact that a crime was committed by the accused.” State v. Garcia, 1968-NMSC-119, ¶ 6, 79 N.M. 367.
§ “Similarly, testimony that a defendant acted in self-defense or otherwise justifiably is merely a legal conclusion and would not be helpful to the Court, which must weigh the evidence to decide whether the Defendants acted in self-defense or were otherwise justified.
§ “Any testimony opining that the charges in this case are not supported by probable cause or that the Defendants acted in self-defense has no probative value, while the danger of unfair prejudice, misleading the court and the public, and waste of time would be very high, and for those reasons, any such testimony should be barred pursuant to Rules 11-402 and 11-403 NMRA.”
July 31, 2015 State’s Preliminary Hearing Trial Brief
o The state filed their brief setting forth the law which should inform the Court’s decision:
§ police officers are not entitled to claim self-defense or defense of others in killing a person when:
· The officers started the fight (Un 14-5191 NMRA);
· The officers created the danger to themselves that they then claim justified the killing; or
· The victim was surrendering, doing what he was ordered to do, and was not an immediate threat to the officers.
§ James Boyd believed he was acting in self-defense after the APD Open Space officers confronted him with drawn guns for an alleged “illegal camping” violation
§ After Mr. Boyd agreed to surrender to APD, Defendants Sandy, Perez and their fellow officers re-escalated the encounter by attacking him with a flashbang, Taser shotgun, and police dog.
August 3, 2015 Preliminary Hearing begins
August 18, 2015 Judge Neil Candelaria binds officers over
o Judge Neil Candelaria found “that there is probable cause to believe that the offenses set forth in the Amended Information have been committed – with the exception of the offense of involuntary manslaughter, which the Court dismissed on August 7, 2015 on the motion of the defense.” Judge Candelaria found “that there is probable cause to believe that the Defendant committed those offenses.”
o Judge Candelaria ordered that Officer Perez is bound over for trial for the following offenses:
§ Count 1: Second Degree Murder (Willful and Deliberate) and Voluntary Manslaughter (firearm enhancement)
§ Count 2: Aggravated Assault (deadly weapon) (firearm enhancement)
September 11, 2015 Arraignment