Copyright © 2019 Albuquerque Journal
Earlier this year, a Santa Fe District Court judge determined that the teenage suspect in a Santa Fe homicide is a potential danger to society, as the judge considered whether the youth should be released from custody in a different case where he allegedly fired a gun in the presence of officers and fled.
But the judge still ruled that the Santa Fe District Attorney’s Office did not prove that Zachary Gutierrez needed to be in custody, and he placed the teen on house arrest with provisions that allow him to take a job.
The Santa Fe Police Department says Zachary Gutierrez, 18, is still the main suspect in the shooting death of 64-year-old Michigan man Richard Milan on Airport Road last September.
Gutierrez, then 17, was charged with the killing in October, but the DA’s office dropped the case and Gutierrez was released from custody in December. The DA’s office said at the time it couldn’t meet court deadlines to move the charges forward.
The charges have not been refiled, but a District Attorney spokesman has said the office plans to bring the case to a grand jury in the future.
According to court documents in the September slaying, Richard Milan, of Kalamazoo, Michigan, was walking his dog along Airport Road when he encountered a group of young people. A 17-year-old girl who was part of the group later told police that Milan and Gutierrez exchanged words before Gutierrez became aggressive and got in Milan’s face.
The girl said she heard a gunshot, turned around and saw Gutierrez shoot Milan two times, and that Gutierrez stood over Milan and laughed at him. Milan later died at a hospital of blood loss.
But Gutierrez’s lawyer says he has a cellphone video of two girls who witnessed the shooting saying they were intimidated into blaming the shooting on Gutierrez.
After his release in December, Gutierrez was indicted for a subsequent incident, for aggravated assault with a deadly weapon, shooting at or from a motor vehicle, two counts of unlawful possession of a handgun, tampering with evidence and resisting or evading an officer.
According to court documents, on Feb. 9, SFPD responded to a report of shots fired and made contact with Gutierrez and 18-year-old Nathaniel Bueno-Diaz, who is Gutierrez’s cousin, at the Alto Park parking lot.
Bueno-Diaz said Gutierrez pointed a gun at him and told him to drive away. An officer ordered the two to get out of the car after hearing what he thought was a gunshot, but Gutierrez was able to push the officer away and flee in a pickup that was being driven by his girlfriend. Gutierrez was arrested at his house three days later.
According to audio recordings from a pretrial detention hearing on April 19, District Judge Jason Lidyard ruled that Gutierrez presents a danger to society, but believed house arrest under his parents’ watch would keep the community safe.
“The court finds that there’s sufficient evidence to establish that there was clear and convincing evidence that he presents a future harm,” Lidyard said.
He told Gutierrez’s mother that he was “worried about him running from the police with handguns drawn, pointing at him, ordering him to do things and he’s running from them.”
“That’s not only a danger to the police and those around them, it’s a danger to him,” the judge said.
But Lidyard ruled, “The court finds that the state has failed, however, to establish clear and convincing evidence that no reasonable conditions or combination thereof could safeguard the community from the threat presented by Mr. Gutierrez. The court finds that strict house arrest would ensure that Mr. Gutierrez is nowhere near these types of incidences during the time that he’s being monitored.”
Gutierrez has a history that includes arrests for assault with a deadly weapon, robbery and aggravated burglary, but most of those cases have been dropped. Prosecutor Heather Smallwood noted at the April hearing that he had violated probation after previous arrests as a juvenile.
“He has violated several times and so court orders don’t mean much to him,” Smallwood said.
Lidyard told Gutierrez, “You’ve shown me in your history that you have difficulty avoiding getting yourself in these violent situations where weapons of a deadly nature are present, and that’s very concerning to the court.”
But in granting house arrest, the judge said, “I believe I can relieve society from the threat you present by these conditions, but you’re going to have to show me that you’re capable of complying with them.”
“Yes, your honor, and I understand the severity of these charges and it’s really opened my eyes, and I really appreciate you giving me a chance, your honor, and I understand,” Gutierrez responded.
His mother told the judge that Gutierrez is not a bad kid, but had been hanging around with the wrong people. She said a local supermarket was holding a job for him.