The judge who will try the case against two former police officers next month in a fatal shooting of a homeless, mentally ill camper in the Sandia foothills has denied three prosecution motions dealing with evidence and surgically excised another dealing with the running commentary of a neighbor who filmed the interaction from a distance.
Keith Sandy and Dominique Perez are to stand trial starting Sept. 19 on second-degree murder charges in the death of James Boyd in 2014.
Special prosecutor Randi McGinn had asked the judge to exclude all audio from the amateur video as hearsay, but 2nd Judicial District Judge Alisa Hadfield ruled some comments can be admitted as exceptions to the hearsay rule – a present sense impression of events as they unfold or an “excited utterance.”
Other comments, however, were deemed more prejudicial than useful and will be excluded.
So jurors will be able to hear the man making the video say, “He’s got a knife” and “They’ve got their guns on him,” but they will not hear speculation about his arrest.
They’ll get to hear the videographer repeat Boyd’s statement, “He said he’s gonna kill them.” They won’t hear the man’s opinions of what he was seeing or his prediction of what he believed Boyd was going to do.
Statements in the video commentary were just one of 16 motions by the parties to allow or foreclose testimony in the trial.
The prosecution also asked to exclude lay witness testimony from other police officers about the ultimate issue – whether Boyd posed a threat of imminent harm to officers. Hadfield said the observations of officers called to testify are guided by their experience and training, so some of their factual statements will be influenced by this specialized knowledge.
But she said officers may not be asked what they would have done in a similar situation, or whether Sandy and Perez were reasonable, justified or lawful.
In another motion, McGinn wanted the court to bar defense attorneys from asking leading questions of law enforcement officers at the scene whom she deems friendly to Sandy and Perez even though they’re technically prosecution witnesses. Lawyers for Sandy and Perez objected, saying their defenses aren’t unified.
Hadfield ruled that because there may be “significant overlap” in the cases, she will limit but allow the use of leading questions “when it becomes necessary to do so because the witness is hostile or adverse.”