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Judge rules on evidence in attempted murder case

ALBUQUERQUE, N.M. — Jurors may have access to evidence related to the knife and shovel police say were used in a 2008 attempted murder case, even though both of those items were destroyed as the case sat unsolved for years, a judge ruled Thursday.

Justin Hansen awaits a hearing in July before Judge Charles Brown in the Bernalillo County District Courthouse. (Marla Brose/Albuquerque Journal)

Brittani Marcell, then a senior at Cibola High School, was beaten nearly to death with a shovel at her West Side home in 2008. And when her mother walked in on the attack, the intruder threatened her with a knife, according to police.

Last year, prosecutors charged Justin Hansen in the attack after law enforcement learned his DNA profile matched blood found at the scene.

Hansen’s attorney asked 2nd Judicial District Judge Cindy Leos on Thursday to keep evidence related to the shovel and knife out of trial, although her argument centered on the knife.

“The knife held with it fingerprint and DNA evidence that, if tested, could have proven or disproven that Mr. Hansen was the intruder,” attorney Rose Osborne argued in her motion. “The destruction of the evidence directly limits Mr. Hansen’s ability to prepare a defense.”

Osborne argued that the knife contained prints, but they were never processed. If those prints belonged to someone else, she said, that would indicate Hansen was not the person holding the shovel, because Marcell’s mother told police that the same person used both.

The only physical evidence the state has tying Hansen to the scene, Osborne wrote, is “a single drop of blood found outside the house on a piece of broken window which allegedly matches Mr. Hansen’s DNA profile.” Fingerprints found on the sliding glass door don’t match Hansen’s and another man’s DNA was present on the shovel, which was more thoroughly processed before being destroyed, Osborne said.

An APD detective said in court Thursday that the knife was never processed for latent prints because the prints it contained, if any, did not have enough detail to merit testing. Prosecutor David Waymire said the knife and shovel, along with several other pieces of evidence, were inadvertently destroyed when the original detective on the case retired. He argued the destruction of evidence hurts the state’s case more than it hurts the defendant’s.

Leos said photos of and testimony related to the shovel and knife would be allowed into Hansen’s trial, which is set for next month, but she will consider other remedies to address issues associated with the destroyed evidence.

Meanwhile, Leos agreed to let Hansen’s attorney file a request asking the Court of Appeals to review another decision in the case.

The case was first indicted in 2010 against the DNA profile found at the crime scene. And when police determined that profile matched Hansen’s, a new indictment was filed using his name. But Osborne argued that three charges Hansen faces should be dismissed because the statute of limitations ran out before he was indicted by name.

Leos did not dismiss the charges, but she said Thursday the question is a novel issue in New Mexico and that a request for an immediate appeal was appropriate.