‘I made a mis­take’

Jury reaches im­passe in per­jury trial against sher­iff’s sergeant

The Taos News - - FRONT PAGE - By John Miller [email protected]­news.com

A state district court jury in Taos could not reach a unan­i­mous de­ci­sion Tues­day (Nov. 27) as to whether a Taos County Sher­iff’s Sergeant lied un­der oath at a New Mex­ico Mo­tor Ve­hi­cle Di­vi­sion hear­ing in 2017.

Five ju­rors found Sgt. Gil­bert Aten­cio guilty, while seven de­ter­mined that there was in­suf­fi­cient ev­i­dence to prove Aten­cio had lied about hav­ing viewed a lapel cam video of a traf­fic stop which re­sulted in the wrong­ful charg­ing of a for­mer Taos Pue­blo Tribal Po­lice Of­fi­cer.

The Mo­tor Ve­hi­cle Di­vi­sion hear­ing was to de­ter­mine whether the tribal mem­ber was to have his driver’s li­cense re­voked af­ter Aten­cio, 54, ar­rested him for ag­gra­vated DWI near the Sto­ry­teller Cin­ema 7 in Taos on Sept. 2, 2017.

Video recorded on the sergeant’s lapel cam­era was played dur­ing trial this week. It shows that while the driver first re­fuses to take a breath­a­lyzer test, he later agrees af­ter Aten­cio reads him the con­se­quences of a re­fusal. Driv­ers who refuse test­ing are charged with ag­gra­vated DWI in New Mex­ico.

In­stead of tak­ing the driver to be tested, how­ever, Aten­cio drove him to be booked at the Taos County Adult De­ten­tion Cen­ter. The sergeant later wrote in a state­ment of prob­a­ble cause that the driver had never agreed to take the test.

While un­der oath at the MVD hear­ing held later in the year, Aten­cio af­firmed that the driver had de­nied the test­ing. He cited his lapel cam video as ev­i­dence of the re­fusal, and told a hear­ing of­fi­cer that he had re­viewed the footage ear­lier in the day.

But af­ter re­view­ing record­ings of the hear­ing and video of the traf­fic stop, the New Mex­ico State Po­lice In­ves­ti­ga­tions Bu­reau de­ter­mined that Aten­cio’s ac­count of the in­ci­dent in­di­cated he could not have viewed the video prior to the hear­ing. The Bu­reau charged Aten­cio with one count of per­jury ear­lier this year.

Dur­ing Aten­cio’s trial, Dustin O’Brien, chief deputy district at­tor­ney with the 11th Judicial District At­tor­ney’s Of­fice, told the jury that it would have been “im­pos­si­ble” for Aten­cio to have viewed the video prior to the MVD hear­ing in light of his er­ro­neous ac­count of the in­ci­dent.

Tak­ing the wit­ness stand to tes­tify dur­ing the sec­ond day of his trial on Tues­day in Taos, Aten­cio re­it­er­ated the de­fense he had re­layed to state po­lice in­ves­ti­ga­tors: that he hadn’t watched the video in full, but had skipped for­ward to the sec­tion where the driver first re­fused the test, stop­ping be­fore the driver changed his an­swer.

O’Brien said Aten­cio likely lied about view­ing the video to “main­tain cred­i­bil­ity,” but seemed to have made an hon­est mis­take and for­got the driver changed his an­swer. He said it was more likely the sergeant had only re­viewed his own er­ro­neous re­port of the in­ci­dent, which would later be thrown out, along with the charge against the driver.

Aten­cio’s de­fense at­tor­ney, Paul Sanchez, coun­tered that the state had failed to prove his client had lied. A con­vic­tion for per­jury re­quires proof that a de­fen­dant de­lib­er­ately gave a false state­ment.

“Ev­ery state­ment (Aten­cio) gave he be­lieved to be true,” Sanchez told the jury dur­ing clos­ing ar­gu­ments. “The state wants you to be­lieve that a crime was com­mit­ted at the MVD hear­ing, but it was a mis­take that started at the traf­fic stop.”

Sanchez ques­tioned other law en­force­ment of­fi­cers dur­ing trial, who also said that video ev­i­dence of an in­ci­dent is not al­ways re­viewed in its en­tirety prior to a hear­ing.

A mem­ber of the Taos County Sher­iff’s Of­fice since 2015 and with over 17 years to­tal in law en­force­ment, Aten­cio had never be­fore been charged with per­jury, ac­cord­ing to court records.

Tak­ing the stand to tes­tify on Tues­day, Aten­cio re­peated in re­sponse to ques­tions: “I made a mis­take.”

Af­ter a few hours in de­lib­er­a­tions, the di­vided jury re­turned to the court­room late Tues­day af­ter­noon to say that fur­ther time de­lib­er­at­ing would not change the split.

In the foyer out­side the court­room, O’Brien in­ter­viewed sev­eral ju­rors to help de­ter­mine whether his of­fice would seek a re­trial against Sgt. Aten­cio.

“At this point, I don’t know,” O’Brien said. “It’s an easy de­ci­sion if it’s 11 to 1 for a con­vic­tion, or 11 to 2. Then it’s a case we’re go­ing to retry. When it’s split like this, it’s go­ing to take some thought and anal­y­sis by our of­fice be­fore we make a de­ci­sion.”

As of press time, Aten­cio still faced the per­jury charge pend­ing the state’s de­ci­sion.

‘When it’s split like this, it’s go­ing to take some thought and anal­y­sis by our of­fice be­fore we make a de­ci­sion.’

– Dustin O’Brien, chief deputy district at­tor­ney of the 11th Judicial District At­tor­ney’s Of­fice

Mor­gan Timms

Taos County Sher­iff’s Sgt. Gil­bert Aten­cio em­braces loved ones af­ter a mis­trial was de­clared Tues­day (Nov. 27) dur­ing the sec­ond day of his per­jury trial in state district court. Af­ter sev­eral hours of de­lib­er­a­tion, the jury was un­able to reach a ver­dict on whether Aten­cio lied about view­ing a lapel cam video of a drunk driv­ing stop in 2017.

Mor­gan Timms

From left, de­fense lawyer Paul Sanchez and Taos County Sher­iff’s Sgt. Gil­bert Aten­cio, back­ground, lis­ten as the pre­sid­ing ju­ror ex­plains that the jury was un­able to reach a ver­dict Tues­day (Nov. 27) in Aten­cio’s per­jury trial.

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