Victoria Martens murder suspect could have been in prison - Albuquerque Journal

Victoria Martens murder suspect could have been in prison

Copyright © 2017 Albuquerque Journal

The glamor shot of Jessica Kelley on Facebook, hair pulled back tight with red lipstick and shades, is dated Aug. 15, 2016.

“So u still on paper or free as a bird,” a friend asked in a post.

“Free,” was Kelley’s reply.

Jessica Kelley is wheeled into her arraignment on Sept. 14, 2016. Kelley had been incarcerated before, after convictions for assault, drug trafficking, DWI and conspiracy to commit criminal sexual penetration. (Jim Thompson/Albuquerque Journal)

Kelley was back in town, she told her Facebook followers, released after a 233-day stint at the state women’s prison in Grants.

“What did you go back (to prison) for?” another person asked in a post.

“Trafficking… And parole violation… Got snatched up with strippers,” she replied in an apparent reference to strips containing the drug Suboxone.

Eight days after her Facebook post, Kelley was arrested by Albuquerque police after she jumped off a two-story balcony in the West Side apartment complex where the sexually abused and dismembered body of 10-year-old Victoria Martens lay burning. Kelley is charged with first-degree murder, criminal sexual assault and other crimes in Victoria’s death — along with Kelley’s cousin, Fabian Gonzales, and Victoria’s mother, Michelle Martens.

Records show Kelley had been in and out of jail since 2007 on convictions for assaulting a police officer, drug trafficking, DWI and conspiracy to commit criminal sexual penetration.

But the Journal has learned that if not for a prosecution lapse, Kelley could well have been back in prison on new drug charges the night Victoria Martens was murdered.

And as the Journal previously reported, her cousin and co-defendant Gonzales should have been under strict supervision by a state probation officer at that time, but his criminal case had fallen through the cracks.

Drug case dismissed

In September 2015 — less than a year before Victoria was murdered — Jessica Kelley was facing a felony drug possession and trafficking charge after her state probation officer discovered 19 strips of the drug Suboxone and baggies in her purse during an unscheduled search.

Kelley was charged with drug trafficking and possession, but the office of then-District Attorney Kari Brandenburg dismissed the case Sept. 18, 2015, citing the need for a forensic drug analysis and additional discovery.

While Kelley went back to prison on a probation/parole revocation, the drugs from her purse were submitted to the Albuquerque Police Department’s crime laboratory for testing on Nov. 20, 2015.

APD says it sent the test results back to the DA’s office on Dec. 16, 2015. That would have cleared the way for the drug charges against Kelley to be refiled.

But for more than eight months, the case languished at the DA’s office.

In fact, more than a year went by before Kelley was indicted on the drug charge — and that occurred just weeks after she was indicted in Victoria Martens’ death.

Kelley quietly pleaded no contest to the drug charge in January, and faces a minimum of three years in prison on the drug case with a possible repeat offender enhancement.

Brandenburg didn’t return a phone call Thursday.

Michael Patrick, spokesman for current Bernalillo County DA Raul Torrez, who took office in January, said there’s no explanation in the DA’s files as to why the drug case wasn’t indicted until after the killing.

“There’s nothing saying, ‘Here’s why we’re waiting on this,'” Patrick said. “There’s just a gap.”

Mandate on prisons

Court records show the dismissal of Kelley’s 2015 drug charge was filed without prejudice so the case could be refiled later, according to court records signed by then-Deputy District Attorney Todd Heisey.

That year, because of a Supreme Court mandate aimed at clearing up a backlog of criminal cases in Bernalillo County, Kelley’s was one of more than 800 criminal cases that were dismissed without prejudice from February through December 2015.

Prosecutors have criticized the mandate, officially called the Case Management Order, contending it forced many dismissals because of the tight discovery deadlines imposed on prosecutors and police.

As the 2015 drug case languished in the DA’s office, Kelley’s days in prison were drawing to a close.

An Albuquerque judge had sent her back to the custody of the New Mexico Corrections Department after revoking her probation — the fourth time in five years — based on the discovery of drugs in her purse. The state Parole Board also revoked her parole.

Kelley had prior convictions for drug trafficking in 2010 and conspiracy to commit criminal sexual penetration — stemming from a 2012 incident in which she was accused of forcibly detaining a female prisoner during a sexual assault at the Metropolitan Detention Center.

But because she had completed her sentences for those crimes, Kelley, 32, was released from prison with no strings attached on Aug. 15, 2016.

Victoria Martens was murdered eight days later.

Parole revoked

The New Mexico Parole Board in 2014 approved a plan under which Kelley would live at the La Pasada halfway house and remain under probation/parole supervision.

But on Nov. 20, 2015, the board found Kelley was a threat to public safety and revoked her parole. Under state rules, such offenders return to prison to serve the remainder of their parole terms. But after their parole term in prison expires, the inmates are considered to have completed their sentences and are released without supervision.

News reports state that after Kelley left prison she moved in with her cousin, Fabian Gonzales, and his new girlfriend, Martens, in Martens’ apartment.

Kelley wasn’t required by law to register as a sex offender, state officials say, because the conspiracy sex offense conviction didn’t fall into a category that would require it under state or federal law.

And the 2015 drug charge?

Three weeks after the Martens slaying, Kelley was indicted on the third-degree felony of distribution of a controlled substance based on the discovery of strips of drugs in her handbag a year earlier.

One witness, an APD officer who responded to the probation officer’s discovery of the drugs, testified before the grand jury.

Two police officers, the APD chemist who tested the drugs and Kelley’s probation officer, were listed as prospective witnesses if the case went to trial. But Kelley pleaded no contest last January and is awaiting sentencing.

The process — from indictment to plea — took less than four months.

Had the prosecution occurred before her incarceration ended in August 2016, Kelley may well have been sentenced to a new prison term and wouldn’t have been released back into the community.

Torrez’s office in January filed notice that Kelley qualifies as a repeat offender so her sentence on the third-degree felony drug charge could be enhanced by four years.

Meanwhile, Jessica Kelley is in jail awaiting trial in the Martens case, which is set for next year. Neither Kelley’s public defender in the 2015 case nor her current attorney in the murder prosecution returned Journal phone calls seeking comment.

Probation order lost

As previously reported, Kelley’s cousin, Gonzales, was supposed to have been on supervised probation at the time of Victoria’s death. He was sentenced to serve two years probation as part of a plea deal in February 2015 on a child abandonment charge.

District court officials say they sent notification of Gonzales’ probation order to the state Probation and Parole department in an emailed packet that contained information on 23 other cases.

State Corrections officials have said they never received the email packet from the court and didn’t know Gonzales was supposed to be on probation.

They blamed the courts for sending the probation directive to an email adddress that had been shut down. Court officials say the email address was in operation at the time.

Nevertheless, Gonzales, an admitted methamphetamine user who like his cousin Jessica Kelley had a history of violating probation, failed to check in with probation department officials as directed. That could have led to an automatic revocation of his probation and could have landed him in jail. Probation would likely have included home visits and drug testing.

Cover photo: Jessica Kelley, one of three defendants charged in the sexual assault and murder of 10-year-old Victoria Martens took to Facebook social media after her release from prison in August 2016. Days later, she was arrested by police for her alleged role in the slaying at an apartment complex on Albuquerque’s West Side.

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