2nd trial ordered in stun-gun torture case
Improper use of testimony cited
A Clovis man convicted of child torture for using a stun gun on his foster son more than 20 times is out of prison and will get a new trial after Court of Appeals judges ruled that prosecutors called the wrong level of expert witness to testify about how a stun gun works.
The appeals judges overturned Michael Vargas Sr.’s jury conviction on 24 counts of child torture because the prosecutor had Clovis police Detective Rick Smith explain how a stun gun works, but they didn’t get the court’s permission to call him as an expert witness.
The ruling, issued earlier this year, said the longtime police detective qualified as a lay witness who can testify about opinions and perceptions not based on science or technicalities, but not as an expert witness who can testify about scientific detail or technicalities.
Prosecutors used Smith’s testimony, in addition to the boy’s statements, to reach the 24 counts.
The boy told police he stopped counting how many times he had been hit with the electric stun gun when he reached 24.
And, in court, Smith testified that he saw 24 separate wounds on the boy created by the stun
gun in late 2010.
A stun gun temporarily immobilizes a person using a high voltage jolt of electricity to the skin via metal prongs.
Because Smith’s testimony contributed to the jury finding Vargas guilty on that many counts and since his testimony was improperly used, appeals judges ruled that the jury was wrongly influenced.
The judges said the error meant Vargas needs a new trial.
Vargas already has spent two years and eight months in prison for the crime, according to Department of Corrections spokeswoman Ashley Espinoza.
He was released in May 2016 and has been on supervised probation since.
The prosecutor in Clovis did not return a phone call.