Copyright © 2019 Albuquerque Journal
SANTA FE – The Santa Fe Police Department has never wavered on who it believes killed a Michigan man on Airport Road last fall, yet the suspect is not facing charges.
Zachary Gutierrez, then 17, was initially charged with the killing of 64-year-old Richard Milan, a visitor to Santa Fe who was shot while walking his dog on Sept. 26.
But Santa Fe District Attorney Marco Serna dropped the case in November, saying his office wouldn’t be able to take the case to a grand jury by a mid-December deadline set under court rules for juvenile cases.
The charges haven’t been refiled, despite the SFPD saying Gutierrez, now 18 and no longer a minor, is still the main suspect.
With the charges dropped, Gutierrez was released from custody in December. In February, he was arrested again after he allegedly fled from an SFPD officer and admitted firing a gun in the air while getting away. The truck he escaped in, reportedly driven by his girlfriend, nearly ran down an officer.
A police report said that, on the same day, he also beat another man at a house party, took his gun and fired several shots during a drug deal.
After the February incident, Serna released a statement that saying that his office “was working to keep the juvenile defendant in custody and to protect the safety of residents.”
But Gutierrez is no longer in any detention facility – he is currently on house arrest with a GPS monitor, even though he was previously accused of cutting off a GPS monitor in a different case.
According to police reports about last September’s homicide on Airport Road, Gutierrez shot Milan twice – in the left thigh and in the buttocks. One of the bullets severed Milan’s femoral artery and caused fatal blood loss.
Milan and his wife, of Kalamazoo, Michigan, were on a cross-country trip and were staying in Santa Fe for the night.
A 17-year-old female witness who was walking along Airport Road with a group of other young people and Gutierrez told police that Gutierrez became aggressive with Milan before the shooting. She said Gutierrez stood over Milan after he shot him and laughed at him before the group fled.
Gutierrez was arrested and charged with murder on Oct. 11, but the charges were dismissed “without prejudice,” meaning they could be refiled, on Nov. 27.
SFPD spokesman Greg Gurule has said the department has no other suspects in Milan’s murder.
“Mr. Gutierrez is still the main suspect in the shooting death of Mr. Milan,” Gurule said in an email last week. “The case is still under investigation.”
Santa Fe District Attorney’s Office spokesman Henry Varela said in an email that the office anticipates “presenting the case to a grand jury in the near future.”
Defense attorney Stephen Aarons, who represented Gutierrez in the murder case, maintains a man named “Chuey” is the real murderer and intimidated young female witnesses into pinning the murder on Gutierrez.
“It’s our position that the person claiming Zach did it, who is an illegal alien and who was found with drugs in his house, is blaming it on our guy,” Aarons said.
Gutierrez was released from custody on Dec. 13 after the murder charge against him was dropped.
On Feb. 9, SFPD officers responded to a report of shots fired at a house on Salazar Place and a blue pickup leaving the scene. Officers found the truck, a Toyota Tacoma, and a Dodge Charger in the Alto Park parking lot, and tried to make contact with the two occupants of the Charger.
Sgt. Bryan Rodriguez said he saw the passenger, later identified as Gutierrez, reach down as if he was grabbing something and heard a “loud audible thud,” a court affidavit says.
Rodriguez drew his gun and ordered the occupants to get out of the car. Gutierrez got out, but was able to use his hand to push Rodriguez away and get into the Tacoma, which sped off and nearly hit Riodriguez. Gutierrez was arrested at his residence three days later.
The driver of the Charger, Nathaniel Bueno-Diaz, was also able to speed away from the parking lot, but was later arrested. He said he previously saw Gutierrez fire several rounds from a handgun at a house where they were trying to buy drugs, and said Gutierrez also beat a man at a house party and took a gun from his waistband.
Varela, the spokesman for the DA’s Office, said state District Judge Jason Lidyard subsequently denied a motion to keep Gutierrez incarcerated and put Gutierrez on house arrest.
“A pretrial detention motion was filed in April,” Varela said in an email. “Judge (Jason) Lidyard ruled against the motion and instead placed ZG on electronic monitoring.”
Varela did not immediately answer a question as to why it took two months after Gutierrez’s February arrest to file the pretrial detention motion.
Criminal cases with juvenile defendants are generally sealed from public view in New Mexico and there are no publicly available court records on Gutierrez’s proceedings as a juvenile.
Long police record
Last August – shortly before the fatal shooting on Airport Road – the Santa Fe County Sheriff’s Office had tweeted an alert that Gutierrez was wanted on a warrant. The warrant said Gutierrez violated probation by cutting off his GPS device while he was facing charges of robbery and conspiracy to commit robbery.
Gutierrez has a record with the police dating back to when he was just 4 years old. By age 14, he was claiming gang membership and vowing not to be a snitch, even after he’d been beaten up and cut, police reports show.
As a child in 2005, Gutierrez was the subject of a referral to the state Children, Youth and Families Department. In 2007, when Gutierrez was 5, he was again referred to CYFD and was listed as the victim of alleged child neglect.
A list of Gutierrez’s interactions with the police provided by SFPD shows he was a suspect for possession of marijuana at age 13, and for assault and battery at 14.
In April 2016, he was suspected of being one of two boys who robbed a tourist couple downtown. Although Gutierrez later was found with a .45 caliber Ruger gun nearby, a police officer wrote that he believed cellphone data would “exonerate” Gutierrez and a companion. In the other reports, he’s accused of stealing expensive sneakers and breaking someone’s jaw in a fight, possibly after a convenience store robbery.