Copyright © 2015 Albuquerque Journal
The judge who will decide whether recently retired Albuquerque police Detective Keith Sandy and officer Dominique Perez should be bound over for trial for the March 2014 shooting death of homeless camper James Boyd will have several options and probably a mountain of evidence.
The criminal informations filed Monday in 2nd District Court by Chief Deputy District Attorney Deborah DePalo charge Sandy and Perez with first-degree murder, second-degree murder and voluntary manslaughter, the latter two with a firearm enhancement.
The judge will determine after a preliminary hearing whether there is probable cause for any of those charges and, if so, which ones.
The elements of each crime vary widely, as do potential penalties: A life sentence for first degree (at least 30 years), 18 years plus one for the gun on second degree and six years plus one for the gun on voluntary manslaughter.
Jury instructions describe the elements of first-degree murder as a deliberate intention to take away the life of the victim and a showing that the crime happened in New Mexico. It explains that “deliberate intention” refers to the state of mind of the accused.
For there to be first-degree murder, “the slayer must weigh and consider the question of killing and his reasons for and against such a choice.”
That is a critical aspect, says former Supreme Court Justice Paul Kennedy, a private attorney in Albuquerque.
“Murder one is generally described as premeditated murder with deliberation, meaning that you thought about it and weighed the consequences and weighed whether to do it or not,” he said.
Second-degree murder typically doesn’t involve weighing the consequences, Kennedy said.
And voluntary manslaughter means there was not sufficient provocation for the killing.
“That’s real, real shorthand,” he said. “But that’s essentially the difference.”
Barbara Bergman, veteran professor of criminal procedure at the University of New Mexico School of Law, says another important element in the mix deals with justifiable homicide by a public officer or employee.
A jury instruction says a homicide is justifiable if a reasonable person in the same circumstances as the officer would have reasonably believed that the victim posed a threat of death or great bodily harm to another person.
“I think that’s probably what (Sandy’s attorney Sam) Bregman was talking about when he said (Boyd) was – what – 8 feet away from the dog handlers. So that’s the defense. Either they intended to kill him or the risk of great bodily harm was substantial, so they had to have some justification,” she said.
The judge who hears evidence at the preliminary hearing will have to consider the elements of the crime and the instructions for all of the listed crimes, Kennedy said.
“A finding of probable cause is an extremely low level of proof. All it means is there’s enough to take it to trial,” he said.
Proof beyond a reasonable doubt is required for a conviction.
Kennedy said his knowledge of the case is derived solely based on what he’s read in the newspaper.
“There was a lot of back and forth (between Boyd and officers). There were knives. There were gestures. Then you have the alleged statement by Sandy where he says he’s going to shoot him (Boyd). Arguably, that could be premeditation and deliberation,” he said.
Judge Alisa Hadfield has been assigned to the case, but under the rules currently in place, each party may disqualify or strike the assigned judge without explanation. The procedures change Feb. 2 in Bernalillo County, but it won’t affect the case against Sandy or Perez.
Kennedy predicts plenty of evidence will be presented by DePalo and Deputy District Attorney Chris Lackmann at the as-yet unscheduled hearing.
“I would think the DA is going to put on just about everything,” he said. “She (DA Kari Brandenburg) is doing it not just for efficiency’s sake, but to get everything out in the public. And if it goes against her, she can say it’s all out there.”