Judge tosses manslaughter charge in Boyd shooting
Former APD officers still face second-degree murder charges
State District Judge Alisa Hadfield on Wednesday found insufficient evidence was presented during the prosecution’s eight days of testimony to support the third-degree felony charge of voluntary manslaughter against two former Albuquerque police officers on trial in the on-duty shooting death of a homeless camper in 2014.
While Hadfield decided to throw out the manslaughter charge on a defense motion, she found “enough evidence” to support the charge of second-degree murder and continue the trial.
Defense attorneys asked for dismissal of all charges after Special Prosecutor Randi McGinn rested the state’s case against Keith Sandy and Dominique Perez. Sandy faces an
additional lesser charge of aggravated battery.
Perez’s defense attorneys began presenting their case late Wednesday afternoon just after Sandy’s attorney Sam Bregman informed the judge that his team had filed a motion for sanctions alleging prosecutorial misconduct against McGinn and other prosecutors. Hadfield is expected to rule on that motion today.
The motion alleges that McGinn coached a witness, made “numerous misrepresentations” and displayed a large photo of Boyd to the jurors.
In asking the judge for a directed verdict dismissing the charges, defense attorneys argued that the elements of manslaughter, while a less serious offense, weren’t present in the decision by Sandy, a detective with the Repeat Offender Project, and thenSWAT officer Perez, to use deadly force.
Under state law, a defendant would have to have been provoked by anger or the heat of passion to have committed the crime of manslaughter.
Defense attorneys said Perez and Sandy made the decision to shoot, one after the other, in a calm, reasoned manner to protect the life of another officer who got too close to the knife-wielding Boyd the evening of March 16, 2014.
Monnica Garcia, an attorney for Sandy, told the judge that not only did the prosecution provide insufficient evidence for a manslaughter charge but also didn’t prove that the officers weren’t acting in defense of K-9 handler Scott Weimerskirch, who chased after his police service dog and came within 9 feet of Boyd.
“The state has just tried a civil case against the APD,” Garcia told the judge. David Roman, one of Perez’s lawyers, argued, “Rather than evidence, what we have in the state’s case are arguments.”
“Whether other officers responded in an ideal fashion or whether, in hindsight, the shooting could have been prevented ... is just an attempt to distract,”Roman told the judge.
Before ruling, the judge left the bench to review testimony of the prosecution’s police expert, Jeff Noble, who testified that there was no immediate threat to any officer’s life that justified the fatal shooting.
The hours-long police standoff began when Boyd, who was mentally ill, pulled knives on two Open Space officers responding to a call of an illegal campsite in the city Open Space park east of Copper Road. By the time Boyd was shot, 19 police officers were at the scene.
McGinn contends Boyd was surrendering and was attempting to obey police orders to get on the ground when Sandy and Perez fired. She cited a widely viewed police helmet camera video that captured Boyd’s movements up to the fatal shooting and afterward.
Testimony earlier Wednesday revealed that in the minutes before shots rang out, an APD SWAT officer had been making his way up the hillside to deliver a beanbag shotgun to Sandy and two other officers who had been demanding Boyd drop his knives and surrender.
The shotgun would have been another way to incapacitate Boyd and take him into custody, testified former SWAT Sgt. James Fox.
Fox testified that when he dispatched one of his SWAT team leaders to deliver the beanbag shotgun, he hadn’t been informed there already were at least two beanbag shotguns on scene.
The threat of a such a shotgun seemed to work earlier in the standoff when an agitated Boyd started advancing on a team of uniformed police officers who initially responded to the scene. Once told he would be shot with a beanbag shotgun if he came any farther, Boyd stayed where he was, according to testimony earlier this week.
Fox testified that he arrived on the scene about 10 minutes before the shooting and began developing a plan for SWAT officers and a crisis negotiating team to take over the talks with the erratic Boyd and “slow things down.”
His plan would have included dispatching a crisis negotiating team, with a psychologist, to the scene.
Fox said he knew Sandy and the two other officers talking with Boyd had a takedown plan, but hadn’t been told what it was.
In cross-examination, Fox testified that sometimes a police officer might need to take action before an attack actually occurs.
“If an officer waits for an attack to begin, it might be too late,” Fox said, adding, “There’s a certain amount of time it takes an officer to perceive a threat.”
Sandy fired three shots at Boyd, hitting him in the arms, followed by Perez, whose first bullet entered Boyd’s lower back. His other two missed because Boyd was falling to the ground.
Fox, who retired last December from APD after 22 years, said he felt “horrible” about having to testify in the trial of one of his former officers, Perez.
Fox dispatched Perez that evening to act as the “cover officer” and to use deadly force if necessary.
“He was a dream officer,” Fox testified. “We pay him for 40 hours, he’d give me 80 (hours).”