ALBUQUERQUE, N.M. — Prosecutors on Wednesday asked a state District Court judge to separate the cases against three people accused in the Victoria Martens killing.
Michelle Martens, the girl’s mother, Fabian Gonzales, the mother’s boyfriend, and Jessica Kelley, the boyfriend’s cousin, are charged jointly in the rape and murder of the 10-year-old girl.
Prosecutors said attorneys for Gonzales and Kelley agree that the cases should be handled separately. Martens’ attorney has not responded. Gonzales’ attorney Tom Clark said the motion is a “formality,” and that all parties agree the trials should be severed.
In a motion filed Wednesday, prosecutor Kevin Holmes said the state plans to use Martens’ admission to police against her at trial. But the statement also implicates Gonzales and Kelley, and would “cause undue prejudice” to them, and would “result in reversible error.” Holmes said prosecutors also intend to introduce an admission by Gonzales, which would raise the same issues at a joined trial.
Clark said the rules of evidence don’t allow the state to try defendants together if they’ve made statements against one another.
“Because of the way the investigation unfolded, because of what the defendants said about each other,” Clark said, “it’s appropriate that they’re tried separately.”
DA’s Office spokesman Michael Patrick said the state has two choices in a situation like this.
“Don’t use the defendant’s statement at all and keep the two defendants joined,” Patrick said, “or sever the two defendants’ trials so you can still use the one defendant’s statement against him or her in trial.”
Attorneys for Kelley and Martens could not be reached for comment Thursday.
Holmes also filed a request Wednesday asking that Martens go to trial first, followed by Gonzales, and last Kelley. Patrick said the trial order is based on “logistical and evidentiary concerns in the case as it is currently developing.”
Police say the group drugged, raped and killed the child in a Northwest Albuquerque apartment in August.
All three are set to appear before Judge Charles Brown on Tuesday morning for a motion hearing.