A Fact Proven by a Fact Not Produced

When is the prosecutor out-of-bounds?

In every criminal case, there are inevitably certain truths about what took place in the courtroom that remain hidden, despite our best efforts to bring them into the light. The transcribed record, however, resuscitates what was and brings it into the world of what is; although, just the knowing of what occurred in the context of a decades-old criminal conviction that courts are not exactly eager to review is not in itself enough to take an appeal or appellant across the finish line of exoneration. Because, ultimately, the petitioner still carries, not only the burden of proof, but also that of persuasion—which in itself is a whole other animal. But occasionally the stars align and the trajectories of a person's exerted efforts intersect with the foreign trajectory of someone else's exerted efforts. Obviously, the collision of these two trajectories creates friction and that friction makes a spark that in turn causes a flame that grows into a fire that will not be ignored. Which fairly describes what took place a few days ago when I read a decision just published by the New Mexico Supreme Court in State v. Lensegrav, S-1-39542 (N.M. Feb 20, 2025). And to say that a fire has been ignited is an understatement, because the factual and legal parallels that exist between this case and my own are enough to turn the heads of judicial review and make them see that my conviction was not the righteous product of facts and the rule of law, but rather the outcome of an elected prosecutor's need to win at any cost—even if that cost was conduct of the most egregious kind.

As a brief overview, the Lensegrav decision presents a case of a brutal murder in 2019, in Taos, where the victim's corpse was exposed to various forms of mutilation and disposed of in a shallow grave by two defendants. The codefendant who actually killed the victim admitted guilt, the trial that resulted in the appeal was for the killer's wife who had seemingly instigated the confrontation between her husband and the victim that ultimately led to the victim's murder. Her defense at trial was not one of actual innocence, it was instead an affirmative defense where she insisted that her instigation was only meant to go so far as a confrontation and fight, not to the extent of a murder, and that her actions in disposing of the victim's body was done out of fear for what her husband might do to her if she didn't cooperate. The issues presented and, ultimately decided in favor of the defendant, was whether or not the ADA's comments were so egregious as to deprive the defendant of a fair trial.

In the words of Justice Michael E. Vigil, writing for the majority, the case before the Court was one "of severe and pervasive prosecutorial misconduct, exacerbated by a lackluster defense," where the majority held "that an Assistant District Attorney who uses opening statements to expose the jury to incriminating allegations from a non-testifying codefendant, repeatedly accuses a defendant of witchcraft, and relies on inflammatory and inadmissible evidence throughout the case, has knowingly committed misconduct so unfairly prejudicial and with such willful disregard for a reversal on appeal that retrial is barred by double jeopardy under Article II, Section 15 of the New Mexico Constitution."

The identifiable parallelism that exists between this case and my own has nothing to do with a modern day prosecutor accusing a defendant of witchcraft before a jury. It has everything to do, however, with a prosecutor's comparable tactic of sidestepping its duty of proving every element of the crimes charged "beyond a reasonable doubt;" and, knowingly opening the door before a jury to a codefendant's accusations where the State has already decided not to place that witness on the stand to testify under oath. And then, in its closing arguments to devote the majority of its time to revisiting the contents of the very testimonial statements of a non-testifying codefendant's accusations against the defendant—statements not given under oath.

I'm not an attorney, which likewise establishes that I'm not an expert on the law. What I am is a wrongfully convicted man who is determined to learn the law in order to prove the "wrongful" modifier to being a convicted man. At best, I would call myself a student of the law. And as a student, there is something very troubling about a prosecution where the State avoids having to produce its witness, who just so happens to be the only person accusing the defendant on trial of murder, but yet gets to use the very testimonial statements given by that codefendant to prove essential elements of a crime.

Prior to my trial, the Court of Appeals¹ ruled in a case where the State impeached a defendant's testimony with previously recorded statements of a codefendant, where under different circumstances those recorded statements were introduced at trial, and the Court ruled that, "[t]he State errs in relying on [the codefendant's] earlier taped statement as substantive evidence supporting Defendant's conviction because the taped statement was only admitted for the purposes of impeachment." In my case, my sole accuser's testimonial statements were introduced in their entirety by the defense for the non-hearsay purpose of establishing the "lie of the matter."

Initially, in a pretrial hearing the trial court addressed the defense's intent to introduce limited portions of the the codefendant and accuser's testimonial statements to the police, not to prove the truth of the matter asserted, since that would be hearsay and generally impermissible for establishing a fact at trial; rather, trial counsel was attempting to introduce limited portions of the codefendant's statements through the cross-examination of the case's lead detective, so as to demonstrate the general ineptitude of a lead, rookie detective who discovers numerous lies from a declarant's statements and still keeps the focal point of his investigation on the individual being accused by the untruthful declarant. A necessary action given the fact that the State had already decided to not call the codefendant to testify, instead having opted to introduce the declarant's accusations through the testimony of his spouse as "excited utterances" and other exceptions to the hearsay rule so as to sidestep Rule 11-801 NMRA. At that hearing the trial court granted the defense's motion in limine on the limited portions of the codefendant's statements.

Because of that pretrial ruling, the defense in its opening statements before the jury stated the following:

Eloy Montano was also arrested on August 19th, and that began a series of statements that Eloy Montano gave to various detectives at the Bernalillo County Sheriff's Department. These statements are critical, and we will spend a great deal of time looking at what Eloy told to the police. He made a statement on August 19th that was tape recorded, and you will see portions of it. He made a statement on August 21st that was tape recorded and you will see portions of it. He made statements on August 27th. Eloy's statements became part of the focus on the Bernalillo County Sheriff's Department investigation...

The investigation was directed in part by some of the things that Eloy said. He would say things, and the detectives would follow up on it, and then drop it. And, of course, most of the things that he said, if not all, was, "I didn't do it. I didn't have anything to do with it. Mario did it."

One of the most notorious items of evidence in this case that you're going to see is a book called, "Hitman Online," and as an example of what Eloy Montano told the Sheriff's Department, and that ultimately became a central piece of evidence in this case is this hitman book, and he told them that Mario had a fascination with these things. He said to them directly, "I've never had any books or materials on this. This book came from Mario. I saw it in his car. I didn't have anything to do with it."

I'm giving you this just one example of what Eloy Montano told the Sheriff's Department as an illustration for our examination of Eloy Montano and what he said to the Sheriff's Department. And we will test his words in the marketplace of truth because we will go through it and expose his lies.

The focus on the Sheriff's Department using Eloy Montano's lies became the focus of this investigation, and we will go through piece after piece, like the hitman book, like the telephone call, and like dozens of other things that Eloy talked about. And, if Eloy was so innocent, why would he have lied about this?

But when it actually came down to part of the trial where Detective Hix was being cross-examined by the defense in accordance with the court's granting of defense's motion in limine, the trial court decided to change its previous ruling. A heated discussion ensued, outside the presence of the jury, where the court offered and stated that if the defense intended to cross-examine the detective on the codefendant's lies (non-hearsay) it could only do so through the introduction of the entirety of those statements. Obviously, the defense argued that the entirety of those statements would include certain truths which would be hearsay that the defense could not cross-examine; that the court was forcing the defendant to waive certain rights (including confrontation) so as to expose certain non-truths. Counsel reiterated the absurdity of what the court was suggesting, and clearly stated that he was not waiving his client's right to confrontation, but was nevertheless accepting the court's compromise so long as it was understood by the court that no waiver of rights was taking place.

That was how the entirety of the codefendant's statements came to be on the record, but though they were there in their entirety that didn't change the fact that they were only introduced to prove the lie-of-the-matter (non-hearsay). Yet, the State used the entirety of those statements to prove certain essential elements of crimes for which the defendant (me) was charged. As a point of fact, at least half of the State's closing arguments were devoted to Eloy's accusations:

You heard a great deal of detail in Eloy's statements, details like how the defendant said that he used the victim's pen and was concerned about going back there to get the pen because there might be a fingerprint on it. How the defendant wants to drive back by the house after the murder, after they had left the scene and then says, "there's all sorts of cars there, we're screwed now." Eloy didn't see any cars, but the implication is that he is so freaked out that he just wasn't looking, but he took the defendant's word for it. It was an apparent attempt to make Eloy even more upset and freaked out that he was somehow in to the extent that the defendant would have you believe.

Details like—at one point the plan was to take the car to the airport and have mom report it stolen. Details like how Mario called him Thursday morning, after they came back from Texas asking, how are you doing? Just stay calm, just stay cool. And most, not all, but most of what Eloy told the police turned out to be true. If it fit with the physical evidence and it was verified. Again, not everything, but most. And as you look at these statements that he gave the police, three different statements, covering those several hours, I submit to you that most of what he said, has the ring of truth, common sense. Using that common sense that you have. It has the ring of truth, for the most part, not all, completely, and certainly.

Ask yourself, whose actions after the killing are most consistent with a cold-blooded murderer? Is it the defendant who says with a smile on as they approach the house—there's a dead guy in there? Who calmly waves to the neighbors, who Scott Clark describes as calm and smooth and collected?...

Eloy describes him as being real calm about the whole thing. He's methodically taking care of evidence and coordinating how things are going to be taken care of, how their tracks will be covered, how the car will be taken, how that will be covered, so they won't be found.

These are not the actions of a surprised and horrified witness to what he described, or are Eloy's actions more consistent with someone who has just seem something of just such a shocking magnitude that it boggles the mind? How he describes, upon seeing the sight of this dead man, laying inside the house in a pool of blood. "I just lost it," [Eloy said]. Curled up on the floor, his mouth was dry. He was close—he was close to vomiting. He refused to help him move the body. He was hysterical. He's crying at Walmart after they go there later. Later to his wife, he's pacing, he's pacing, he's crying, his eyes are red, he's trembling all over, he's praying. Eloy acted much more as we would expect someone who had unexpectedly come across this horrendous, shocking scene that he describes to act and realize that his best friend had just committed that act. Many or most of Eloy's actions are consistent with not being the murderer. The same can't be said of the defendant, as we'll discuss in more detail later.

When reading the State's closing arguments it's hard to tell if the prosecution is Eloy's defense attorney at his own trial, or under the misapprehension that Eloy actually testified at my trial. Because it's important to note that he didn't testify, and yet, the State used his hearsay to establish every element of every charge of their case. Nothing that Eloy stated in his testimonial statements to the police was cumulative of someone else's testimony: it all came from a witness who the state didn't produce on the stand, under oath, to testify and thereby be exposed to the crucible of cross-examination.

As I have repeatedly explained in numerous posts on this newsletter, the State's entire case against me was based on the out-of-court accusations of a codefendant, who, the State determined prior to trial, would not be called to testify at trial under oath. Similar to the accusing codefendant in Lensegrav, the State determined that its cooperating codefendant was too unreliable to trust with its case, and instead sought alternative methods for introducing the accusations before the jury without having to expose those accusations to cross-examination. Which, if that's not prosecutorial misconduct, what would be? And, as a non-expert and non-lawyer it seems to me that hearsay is not substantive evidence that can be used to prove or establish elements of a crime. As the Court of Appeals established in the Armijo case, "[a]s [the codefendant's] prior statement is not substantive evidence, it cannot be used to support defendant's conviction."

If this was prosecutorial misconduct, just like in the Lensegrav case, defense counsel did not object. Maybe I misunderstand the law. Maybe it's entirely permissible for the State to meet its burden of proof beyond a reasonable doubt by directing the jury to the testimonial statements of a codefendant who has every reason and motive to lie, an individual who was not produced by the State to testify, and because of which his statements were nothing more than hearsay. In an article discussing reasonable doubt, the Hon. James A. Shapiro wrote that, "[a]lthough a juror must subjectively believe that a defendant has been proven guilty, that subjective belief must be based upon a reasoned, objective evaluation of the evidence, and a proper understanding of the quantum of proof necessary to establish guilt to a 'near certitude.'"² It's clear that the jury was not, in my case, instructed on such "quantum of proof."

When looking at the charge the State was attempting to prove on Count 1, it needed to demonstrate the element of deliberation; or under its submitted accessory theory it needed to demonstrate Eloy's deliberation. Again, in its closing arguments the prosecutor properly described the element of deliberation: "A deliberate intention refers to the state of mind of the defendant...to constitute a deliberate killing, the killer must weigh and consider the question of [the] killing and his reasons for and against his choice." Then the State goes on to say that "[e]verything in this case points to a deliberate killing."

What are the facts that supposedly establish deliberate intent? There are five: (1)the defendant briefly viewed a hitman book online; (2) a legally purchased firearm was modified with a muzzle suppressor; (3) the defendant's penchant for mafia and crime related fiction; (4) the fact that the defendant allegedly loaded the firearm; and (5) the fact that defendant viewed websites on body disposal.

I'm the first to admit that the optics of these five elements look bad from the context of a criminal murder trial. But, taken out context, someone who views porn online could easily be seen as a prime suspect in a rape trial. In other words, one element does not prove another—not in a criminal trial, at least. When looking at the five elements of proof, that, according to the State, proved beyond a reasonable doubt the essential element of deliberation, a closer look at these elements shows that none of them prove a person's mental deliberations. First, people are free to read or view whatever they want, that doesn't determine deliberation of murder. Maybe if the crime was copycat of something found in a book, then, yes, but that was not the case here. As for a modified weapon, imagine for a moment that anyone who modifies a weapon is said to be deliberating on first-degree murder; and then, imagine what the NRA's lawyers would say about such an absurdity. As for the crime-related fiction, basically anyone who loves Quentin Tarantino movies is planning murder. And as far as "body disposal" searches, again, maybe if that was an element of this crime the connection would be relevant.

In fact, the only thing the State points to as a mental state was when it, again in closing arguments, quoted what Eloy said in one of his testimonial statements to the police, "he says the defendant said (yes, double hearsay), the whole thing just happened in slow motion. I don't know what came over me, I don't know why I did it, man, I just don't know." Then, in a subsequent statement to detectives, Eloy said that I said, "I don't know what came over me. I just reached into my bag and I picked up the gun and this happened in slow motion and then I shot him..."

Does any of this prove the element of deliberation? In fact, if the statements had been given under oath they would serve as substantive evidence of second-degree murder, not first-degree. Which brings us to the State's alternative theory of the crime: accessory or accomplice liability.

The State correctly instructed the jury that "a person can be found guilty of a crime, even though they themselves did not do the acts constituting the crime. If it's shown beyond a reasonable doubt, the defendant intended the crime be committed, the crime was committed, and the defendant helped, encouraged, or caused the crime to be committed." The problem, however, is that the State can't prove one element by proving another—i.e., by proving that the victim was intentionally killed (a bullet to the back of the head) it's not presumed that the killer deliberated on the consequences of his actions. Even if Eloy was the killer, to convict me under an accessory liability theory, it still needed to prove beyond a reasonable doubt that the killer's mental state included the element of deliberation. The State never explained what proof there was of Eloy's deliberation or its theory on how or why he committed the crime; in fact, all that was said was, "even if you believe that Eloy Montano was somehow the killer of Garland Taylor, all the other actions, the concert of action, the togetherness of how these—it would acted shows that Mario Chavez is guilty of the crimes as an accessory." Wow, that's quite a leap!

Judge Shapiro wrote in the same article that "to further guard against miscarriages of justice, we require prosecutors to prove beyond a reasonable doubt each element of the offense, not to simply paint a general picture of a defendant who is guilty or to suggest that one element has been so convincingly proven that another element need not be proven to the same high standard."² Just as in the Lensegrav case, the prosecution in my case presented its case on hearsay statements that it did not produce and therefore could not prove, which explains why the Court ruled that "the State bears the entire burden of production and proof in a criminal trial, and the defense has no duty to put on any case." As I said, the collision of two independent trajectories creates friction, and that friction makes a spark that in turn causes a flame that grows into a fire that will not be ignored—I am that fire.

FOOTNOTES:

1. State v. Armijo, 2005 NMCA 10, 136 N.M. 723, 104 P.3d 1114 (N.M. App. 2004) 2. Hon. James A. Shapiro, & Karl T. Myth. Beyond a Reasonable Doubt: Juries Don't Get It. 52 Loy.U.Chi.L.J. 1029 (https://lawecommons.luc.edu/luck/vol52/i554/5)

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