By Darrell Todd Maurina: CNJ staff writer
Fernando Garcia no longer faces the possibility of life in prison after prosecutors dropped the most serious charge of first-degree murder for lack of evidence.
Deputy District Attorney Bryan McKay told the court on Wednesday that testimony so far hasn’t provided enough evidence to prove Garcia acted intentionally and deliberately in killing Moises Ortiz during a dogfight in south Clovis on Feb. 28, 2003.
If Garcia, 20, had been convicted on the first-degree murder charge and received the maximum penalty, he wouldn’t have been eligible for parole for at least 30 years.
The remaining charge of second-degree murder carries a maximum penalty of 15 years in state prison, but with penalty enhancements and additional charges of dogfighting and tampering with evidence, he could spend up to 25 years in prison.
Defense attorney James W. Klipstine Jr. wanted even more of the charges dismissed.
“The testimony that this court has heard is entirely from two people who said they saw what happened. Each of the men in their testimony testified to certain specific facts, and those facts included distance from the victim,” Klipstine said. “The scientific evidence is that the way these witnesses testified the facts happened is impossible.”
Klipstine cited earlier testimony from the prosecution’s expert witness, a state medical investigator who said at least two of Ortiz’s bullet wounds were made by a gun in close proximity to or contact with his body. Prosecution witnesses earlier testified that Garcia was at some distance from Ortiz when they said Garcia shot Ortiz.
“We’re not talking about inferences, we’re not talking about innuendoes, we’re talking about impossibilities based on the state’s own expert testimony,” Klipstine said.
Klipstine also said prosecutors didn’t have enough evidence to prove that Garcia had tampered with evidence by disposing of the weapon used to shoot Ortiz and argued that the New Mexico statute on dogfighting is unconstitutional because it requires those present at a dogfight to take actions to break it up or be found guilty of criminal conduct.
McKay said Klipstine was misrepresenting the medical investigator’s testimony.
“The only absolute was all five shots couldn’t have come from a distance,” McKay said, noting the medical investigator had said the bullet wounds on Ortiz could have come from a man being held in a headlock by Ortiz.
Judge Stephen Quinn didn’t accept Klipstine’s request to dismiss the charges. The judge said that while he was concerned about inconsistencies in the testimony, it would be up to the jury to determine whose perception of the facts was correct.
Klipstine began presenting the defense case late Wednesday afternoon. Judge Quinn dismissed the jury before hearing testimony by Fernando Garcia’s father, Richard Garcia. The father also faces charges in the case and has been advised by his attorney to invoke his Fifth Amendment rights against self-incrimination. State court rules require the judge to review his expected testimony in advance and make sure the questioning does not force him to invoke his Fifth Amendment rights in front of the jury.
Richard Garcia said his son is not guilty of killing Ortiz and provided an alternative explanation for .25-caliber ammunition found at the murder scene The father said he was considering buying a .25-caliber handgun from Moises Ortiz and bought ammunition to test it, but decided not to buy the gun after it repeatedly jammed while test-firing in the location on Ortiz’s property where Ortiz was later killed.
Quinn didn’t rule on Richard Garcia’s testimony Wednesday afternoon but instead decided to wait until the father’s attorney could be present in court. Quinn called for testimony to resume at 8:45 a.m. today.