Alleged pickax killer may get third trial
Attorney: Jury did not get crucial info in previous trial
SANTA FE — A Santa Fe District Court judge recently ordered that a young man convicted of killing three members of an El Rancho family with a large pickax in 2011 get a new trial — it would be his third — because prosecutors failed to include crucial jury instructions on the firstdegree murder charges.
The Santa Fe District Attorney’s Office says it will appeal the judge’s order to the state Supreme Court, where appeals on first-degree murder counts must be filed.
Nicholas Ortiz, 22, was convicted of killing Lloyd Ortiz, 55, Dixie Ortiz, 53, and their special needs son Steven Ortiz, 21, at their home north of Santa Fe in the early morning hours of June 19, 2011, after his second trial in December.
Nicholas Ortiz, whose first trial in June last year ended with a hung jury, was not related to the victims, but had stayed with their adult daughter next door.
Ortiz’s attorney, Dan Marlowe, filed a motion asking for a new trial in July, citing errors in the jury instructions, as well as the discovery of new evidence. One issue was whether the jury instructions regarding Ortiz’s murder counts failed to address whether there had been any provocation for the killings.
State District Judge Francis Mathew, who has overseen the Ortiz trials, granted the motion Aug. 8, overturning the murder convictions, because a “fundamental error was committed by the failure of the jury instructions to instruct the jury in any fashion concerning the lack of sufficient provocation as an element of felony murder,” according to a court document filed this week.
“A trial court’s failure to properly instruct on all the essential elements of a crime constitutes fundamental error requiring a reversal,” the judge found.
Provocation is defined in the Uniform Jury Instructions as “any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition.”
Deputy District Attorney Susan Stinson said she couldn’t say much about the case because it’s still active, but that an appeal of the ruling is going to be filed with the Supreme Court within the next 30 days. Prosecutors argued that Nicholas Ortiz conspired with first cousins Jose Roybal and Ashley Roybal to burglarize the Ortiz house. Jose Roybal testified that he ran home after Nicholas went into the home by himself and killed the Ortizes. Lloyd Ortiz was found dead in his backyard, Dixie Ortiz died in her bed and Steven was killed in the kitchen after a struggle.
Mathew also vacated an aggravated burglary conviction because there was no evidence that anything was stolen from the home.