The prosecution will not be able to present evidence of an alleged police “code of silence” in the prosecution of former Albuquerque Police Department officers Keith Sandy and Dominique Perez, the judge in the case has decided.
Second Judicial District Judge Alisa Hadfield decided five motions filed by Perez in an order this week on issues ranging from whether police created a dangerous situation, then responded with lethal force, to whether video from Perez’s helmet camera taken after the fatal shooting of James Boyd should be allowed.
Sandy and Perez are charged with second-degree murder in the encounter with the homeless, mentally ill man camping in the Sandia foothills in 2014. The trial is scheduled to begin later this month.
Hadfield excluded the post-shooting video that prosecutors wanted to use to show intent or state of mind, saying it offers little evidence of the officers’ intent, state of mind or the reasonableness of the force employed. She said the footage could have “a tendency to cause the jury to make a decision based on emotion” and might confuse the issues.
In other rulings responding to motions, Hadfield:
• Said she will not exclude evidence about APD’s standard operating procedures. Perez, later joined by Sandy, asked for them to be excluded, arguing that there’s a danger the jury would hear about training the two did not get. But the state said it is relevant to show intent and to demonstrate that the officers’ actions were not justified.
Hadfield said that if prosecutors want to present evidence of procedures not part of the two officers’ training, she will revisit the issue.
• Refused to exclude evidence about less intrusive alternatives police might have used. Perez, later joined by Sandy, argued that the issue wasn’t whether there were alternatives, but if the force used was reasonable in light of the perceived threat.
Prosecutors said the case is not only about justifiable homicide claimed by the officers, but also if there was sufficient provocation by Boyd to reduce the charge to voluntary manslaughter, and whether Perez and Sandy committed aggravated battery or aggravated assault. Hadfield said the officers’ knowledge of other means of responding “may be relevant to show their intent to harm Boyd.”
• Excluded prosecution expert Jeffrey Noble from testifying about an alleged police code of silence.
Perez said such testimony was irrelevant as well as unfairly prejudicial, while the prosecutors said it was relevant to the bias of APD officers who might testify.
Hadfield said the prosecution is not barred from exploring potential bias of specific officer witnesses that could come from pressure not to testify against or question actions of a fellow officer. But she said it would be improper to cast doubt on the truthfulness of officer witnesses as a group.
• Said that the question of whether police had a duty to be aggressors in the situation is a fact question to be answered by the jury. Officers had wanted the prosecution to be prohibited from arguing that Boyd acted in self-defense. Hadfield ruled that the special prosecutor may not instruct the jury on the law during her opening statement, or try to have lay witnesses testify about legal conclusions.
