ALBUQUERQUE, N.M. — A co-defendant in a brutal murder case out of Rio Arriba County refused to testify Wednesday at the trial of his alleged partner-in-crime, despite his commitment to do so in a previous plea agreement with the District Attorney’s Office.
In another development on the first day of testimony in the Toby Gonzales trial in Santa Fe, the defendant’s attorney sought a “mistrial for police misconduct,” claiming a confession that Gonzales allegedly gave to an officer was ill-gotten.
Gonzales, 23, of El Guique, faces several charges, including murder, for his role in the grisly 2010 killing of Steven Duran. Prosecutors contend that Gonzales and Rudy Salazar hog-tied the 26-year-old Chamita man, beat him in the back of his own truck, dumped him into a remote arroyo, doused him with gasoline and set his lifeless body on fire.
Several Duran supporters and family members struggled with their emotions while photographs of the victim’s charred and beaten body were shown to jurors.
Salazar refused to testify Wednesday, apparently for fear he would be killed in prison for “ratting” on a friend, eliciting a contempt citation from District Judge Michael Vigil.
Assistant District Attorney Peter Valencia told jurors that Gonzales, Salazar and Duran had been “up for days, doing drugs and drinking” before the killing. Gonzales, who had used Duran’s pickup to flee police during an unrelated high-speed chase, ran out of gas in the foothills between El Guique and El Duende and called Salazar and Duran to bring a gasoline can. They also brought booze and drugs and stayed there to party, according to Valencia.
But an argument broke out, Valencia said, because Duran was unhappy that Gonzales had used his truck to evade police.
“A beating, a kidnapping, a murder and an extensive attempt to hide that murder” is what followed, he said.
Valencia acknowledged that there is no “smoking gun” to tie Gonzales to the murder. But the prosecutor asked the jury to “connect the dots.”
Gonzales faces charges of second-degree murder; kidnapping; conspiracy to commit kidnapping; and tampering with evidence. He faces a possible prison sentence of 39 years, not including any enhancements from possible prior felony convictions.
If Valencia and co-counsel, Chief Deputy District Attorney Juan Valencia, are going to get a conviction, they’ll have to do it without Salazar’s help.
Salazar, 33, of Alcalde, has previously pleaded guilty to second-degree murder in this case. When called to testify against Gonzales, Salazar, who is in custody, invoked his 5th Amendment right against self-incrimination. When Judge Vigil asked Salazar’s attorney, Dan Marlowe, the basis for invoking the 5th, Marlowe said that Salazar was going to be sentenced to prison and did not want to be labeled as someone who turns state’s evidence.
“If he says anything at all, he will pay the penalty of death,” Marlowe said.
The judge said he found no basis for Salazar to invoke the 5th Amendment. But when he ordered Salazar to testify, Salazar refused.
“I made up my mind, your honor,” Salazar said. “I’m not going to testify.”
The judge ruled Salazar in contempt of court and said he would add six months to his prison sentence — which is expected to be between 16 and 22 years — at a later date. Vigil told prosecutors they could set aside the plea agreement, but a decision was postponed until after Gonzales’ trial.
Gonzales’ attorney, Tom Clark, reminded jurors during his opening arguments that Salazar had already pleaded guilty and that his client “is not a murderer.” He called the prosecutors’ case a “house of cards.”
“He was there; he must have done it,” Clark said in summing up the prosecutors’ case. “Well, don’t buy into this. It’s not the law.”
Before testimony began and jurors were in the room, Clark filed a motion to suppress testimony from an officer who talked with Gonzales during a recent court hearing. Rio Arriba County Sheriff’s Deputy Abraham Baca — who was formerly with the State Police as a lead investigator in the case — was working security at the Tierra Amarilla courthouse during jury selection in Gonzales’ case on Dec. 6. He wrote that he spoke with Gonzales, who “told me the night they killed Steven he was drinking alcohol and snorting cocaine.”
Clark blasted Baca in his motion, which either seeks to exclude the deputy’s testimony or to be granted a mistrial “for police misconduct.” Clark said that the conversation took place outside his presence and that “there is no lawful reason Baca could have justified even the most basic conversation with the defendant …”
Clark alleges that the “activity on behalf of officer Abraham Baca represents the sleaziest type of police behavior.”
The judge said he will hear arguments on Clark’s motion today, outside the presence of the jury.
Wednesday was the only trial day scheduled in Santa Fe, something prearranged for a witness’s travel logistics. The trial will resume next week in Tierra Amarilla.