OFFICER INVOLVED SHOOTING

TRIAL REVIEW AND EVALUATION

STATE V. KEITH SANDY, D-202-CR-2015-00104
STATE V. DOMINIQUE PEREZ, D-202-CR-2015-00105

ISSUED FEBRUARY 24, 2017

OFFICE OF THE DISTRICT ATTORNEY

SECOND JUDICIAL DISTRICT
STATE OF NEW MEXICO

RAL TORREZ
DISTRICT ATTORNEY
TABLE OF CONTENTS
INTRODUCTION .............................................................................................................. 1
PROCEDURAL HISTORY AND FOCUS ON THE TRIAL RECORD .......................... 2
FACTUAL EVIDENCE CONSIDERED BY THE JURY IN THE TRIAL...................... 3
ANALYSIS OF APPLICABLE LAW AND JURY INSTRUCTIONS GOVERNING
THE TRIAL ........................................................................................................................ 7
ANALYSIS OF JURYS APPLICATION OF THE LAW TO THE EVIDENCE .......... 10
CONCLUSION ................................................................................................................. 11
 INTRODUCTION

The Office of the Second Judicial District Attorney has completed its review of the
investigation and subsequent prosecution at trial of the officer-involved shooting in which
Albuquerque Police Officers Dominique Perez and Keith Sandy fired shots that resulted
in the death of James Boyd. Specifically, senior prosecutors in the office have reviewed
and analyzed the original shooting event, the subsequent law enforcement investigation
of the event, and the record of the October 2016 jury trial on the charges against Officers
Perez and Sandy.

The purpose in reviewing the history of the original shooting and subsequent trial was to
determine whether that record supports commencing a new trial of these officers or
whether the charges against them, to the extent not already dismissed, should now be
dismissed. This analysis has focused on determining the likelihood that a second trial
would yield a substantially different result than that reached at the first triala
deadlocked jury with a vote of nine for acquittal and three for conviction.

The review has demonstrated that, given the evidence the jury would consider and the
law governing the use of force by a police officer, a second trial by a jury likely would
not result in a verdict that either Officer Perez or Officer Sandy used unlawful force.
Therefore, the District Attorney has determined that further prosecution of this case is not
warranted and all charges currently pending in the Second Judicial District Court will be
dismissed.

This conclusion is based on the criminal law standard of proof at trialthat a jury
considering the facts and law would be unlikely to find beyond a reasonable doubt that
the force used by Officers Perez and Sandy in the discharge of their duties was unjustified.
The conclusion is not based on and does not relate to any civil standard of proof, nor does
it intend to limit administrative actions by the Albuquerque Police Department.

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 PROCEDURAL HISTORY AND FOCUS ON THE TRIAL RECORD

The timeline from event through the trial was as follows:

March 16, 2014: Officers Dominique Perez and Keith Sandy are involved in an
officer-involved shooting resulting in the death of James Boyd.

January 12, 2015: Informations are filed in the Second Judicial District Court
charging Officers Perez and Sandy with First Degree Murder (Willful and
Deliberate), Second Degree Murder (Firearm Enhancement) and Manslaughter
(Firearm Enhancement).

April 9, 2015: The Second Judicial District Attorneys Office is disqualified from
prosecuting the cases against Officers Perez and Sandy.

April 16, 2015: Randi McGinn is appointed as special prosecutor.

June 22, 2015: Amended Informations are filed in the Second Judicial District
Court charging:

o Officer Perez with Second Degree Murder (Firearm Enhancement),

Voluntary Manslaughter (Firearm Enhancement), Involuntary
Manslaughter (Firearm Enhancement), and Aggravated Assault (Deadly
Weapon)(Firearm Enhancement), and

o Officer Sandy with Second Degree Murder (Firearm Enhancement),

Voluntary Manslaughter (Firearm Enhancement), Involuntary
Manslaughter (Firearm Enhancement), and Aggravated Battery (Great
Bodily Harm and/or Deadly Weapon) (Firearm Enhancement).

August 3-7 and 17-18, 2015: A Preliminary Hearing is held before Judge Neil
Candelaria to determine whether there is probable cause to proceed to trial on the
charges in the Amended Informations.

August 24, 2015: Judge Candelaria issues a Probable Cause Determination and
Bind-Over Order charging:

o Officer Perez with Second Degree Murder (Firearm Enhancement),

Voluntary Manslaughter (Firearm Enhancement), and Aggravated Assault
(Deadly Weapon)(Firearm Enhancement), and

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 o Officer Sandy with Second Degree Murder (Firearm Enhancement),
Voluntary Manslaughter (Firearm Enhancement), and Aggravated Battery
(Great Bodily Harm and/or Deadly Weapon)(Firearm Enhancement).

September 19-October 11, 2016: The cases were tried before a jury, Judge Alisa
Hadfield presiding. The jury was unable to reach a unanimous verdict on the
charges, and a mistrial was declared by Judge Hadfield. The jury was polled, and
the results were nine for acquittal and three for conviction.

January 13, 2017: Special Prosecutor Randi McGinn and her associates are
allowed to withdraw.

January 17, 2017: The court issues an order allowing entry of appearance by
Newly-elected District Attorney Ral Torrez for the State.

January 17, 2017: District Attorney Ral Torrez enters the case.

While the review underlying this report encompassed available information from all of
the above events, it focused on the evidence that the jury considered at trial and the law
it was instructed to follow by the court. The focus was on the events and outcome in the
trial because, as a matter of both law and practicality, the format, available evidence, and
jury instructions in any subsequent trial would be essentially the same as that in the first
trial. Accordingly, the following sections of this analysis set forth the evidentiary facts
that the jury heard and considered in their deliberations and the law that the court
instructed the jury to follow.

FACTUAL EVIDENCE CONSIDERED BY THE JURY IN THE TRIAL

Mostly in the form of video footage from the various police officers lapel video cameras,
the jury was able either to see or at least hear most of the 3-hour standoff with Mr. Boyd.
The following summarizes what that video footage showed, as supplemented by
testimony from the officers and documents introduced into evidence.

At approximately 3:53 p.m. on March 16, 2014, Albuquerque Police Dispatch received a
telephone call from 812 Piedra Vista Rd. NE, reporting a homeless camp set up for the
past month on a nearby mound in the open space to the east of the residence. At 4:24
p.m., the caller advised that a person had returned to the camp. Open Space Police
Officers John McDaniel and Patrick Hernandez were dispatched at 4:30 p.m. to

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investigate. Officers McDaniel and Hernandez drove to a nearby trail head and walked to
the camp. Once there, they made contact with the person, later identified as James Boyd.
The officers observed Mr. Boyd lying in a tent but could see only one of his hands. Officer
McDaniel told Mr. Boyd to show them his other hand, but Mr. Boyd refused to comply
until the officers drew their duty pistols and ordered him to show his other hand.

Officer McDaniel then gave repeated orders for Mr. Boyd to come out of the tent. When
Mr. Boyd came out of the tent, both officers spotted a folding clip knife attached to Mr.
Boyds pocket. Officer McDaniel told Mr. Boyd to turn around so that he could pat him
down for weapons. Mr. Boyd became agitated, put his hands in his pockets, and pulled
out two knives in a threatening manner. Both officers backed away from Mr. Boyd and
repeatedly ordered him to drop the knives. When Mr. Boyd refused to comply and
threatened to kill the officers if they came toward him, they called for backup. Mr. Boyd
talked about being in Special Forces and the government and said that he felt the officers
were attacking him. After about ten minutes, Mr. Boyd placed both knives in his pockets
with the blades still extended. They remained talking until back-up officers and a sergeant
arrived. Officers McDaniel and Hernandez were then relieved and redeployed to
perimeter positions.

In response to the request for back-up, approximately eighteen additional law

enforcement officers arrived over the next two hours. Because Mr. Boyds encampment
was located near a residential area and popular hiking trails, some officers were posted to
provide a secure perimeter. Several officers arrived with less than lethal means at their
disposal, including K-9, Taser shotguns (which emit an electrical charge), bean bag
shotguns, and flash-bangs.

Video and testimony showed that further attempts to negotiate with Mr. Boyd began
immediately and continued. As reported by civilian witnesses and by a number of officers
who were present, negotiations with Mr. Boyd were unproductive. Mr. Boyd appeared
psychologically unstable and made repeated threats to kill officers if they approached
him. At one point, an officer was recorded asking How are we going to resolve this? Tell
me. Mr. Boyd replied I dont know if we can. I think someones going to get hurt,
killed, I dont know. When speaking with officers, he would become agitated and pull
the knives from his pocket and brandish them. He would then return the knives to his
pockets, with the blades still out, where he could quickly grab them again. This behavior
was repeated a number of times while officers attempted to reason with him. While he
would agree to leave the camp site, he repeatedly refused to give up his knives.

According to the statements of the involved officers, the tactical situation evolved until
K-9 Officer Scott Weimerskirch, Detective Rick Ingram, and Officer Keith Sandy were
the officers closest to Mr. Boyd. Officer Weimerskirch continued to try to negotiate with

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Mr. Boyd, who continued to threaten officers and refuse to give up his knives. The sun
set at 7:15 p.m., and it was getting dark when officers made the decision to take Mr. Boyd
into custody. At this point Officer Dominique Perez had been approaching the team, and
testified that he observed that Mr. Boyd was becoming more agitated. Officer Perez then
moved closer to support the others.

At approximately 7:30 p.m., Officer Sandy tossed a flash-bang in front of Mr. Boyd in
order to disorient him. The flash-bang bounced into a crevice to the right of Mr. Boyd,
where it detonated without having the desired effect on Mr. Boyd. After the flash-bang
detonated, Officer Weimerskirch released his K-9 and, at the same time, Detective Ingram
fired two rounds from his Taser shotgun. The Taser rounds struck Mr. Boyd but had no
apparent effect on him. The dog ran towards Mr. Boyd, but had only brief contact with
him before breaking off and focusing on a discarded backpack. Officer Weimerskirch ran
forward to gain control of the dog while others repeatedly ordered Mr. Boyd to get on the
ground. Officer Sandy moved up to cover Officer Weimerskirch, who was kneeling on
the ground trying to control his dog and had not drawn a weapon.

Figure 1. Mr. Boyd arms himself with two knives from his pockets as Officer Weimerskirch approaches to control the
K-9 and Officer Sandy moves to cover Officer Weimerskirch.

As the jurors saw in the video footage, Officers Sandy and Weimerskirch were
approximately nine feet in front of and down-slope from Mr. Boyd, at which point Mr.
Boyd again pulled out his two knives.

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Figure 2. Mr. Boyd armed with two knives as Officers Sandy and Weimerskrich are approximately nine feet downslope.

Officer Perez, approximately twenty feet from Mr. Boyd, and Officer Sandy, standing
over Officer Weimerskirch, testified that they feared that Mr. Boyd was going to stab the
officers in front of him, and that they therefore made the decision to use deadly force to
protect the lives of the two officers. Almost simultaneously, Officers Perez and Sandy
shot Mr. Boyd, who fell to the ground.

Officers approached to take Mr. Boyd into custody, and found him still clutching a knife
in each hand. Two seconds passed from the time Mr. Boyd pulled out his knives to the
first shot. Mr. Boyd died later at the hospital.

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Figure 3. Officers approach and find Mr. Boyd still holding the two knives.

ANALYSIS OF APPLICABLE LAW AND JURY INSTRUCTIONS

GOVERNING THE TRIAL

After the jury watched video evidence and heard testimony establishing the facts
summarized above, they were instructed by the court as to the law underlying the criminal
charges against the defendants as well as the law supporting any defenses the defendants
may have against the charges. Jurors in any case are bound by oath to follow the courts
jury instructions and to consider only the evidence presented at trial. As such, the
evidence presented in the trial together with the instructions from the court defined the
universe of information the jurors were allowed to consider in their deliberations.

Understanding how that universe of information led the jurors to a deadlocked result is
central to the question of whether a second trial is warranted, as the jury in any subsequent

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trial would hear substantially the same evidence and be bound by the same instructions
from the court. A second trial against Officers Perez and Sandy would be presided over
by the same Second Judicial District Court judge, the Honorable Alisa Hadfield. There is
no reason to believe that Judge Hadfield, faced with the same facts and likely the same
arguments by counsel, would rule differently on any procedural, evidentiary, or
dispositive motions brought in a second trial than she did in the first trial. Further, Judge
Hadfield presumably will follow the law of the case doctrine, which in this context can
be described as the practice of courts to continue application of earlier decisions in the
same proceeding and not to re-decide what has already been decided. In short, the
evidentiary and legal landscape of any subsequent trial would essentially mirror that of
the first trial.

In particular, substantially the same jury instructions would presumably be given in a

second trial. The following instructions from the trial directed the jury to consider or not
to consider certain information. The first such instruction was for the primary charges
against the two defendants, Uniform Jury Instruction 14-210, given to the jury in the
following form:

For you to find the defendant guilty of second degree murder as charged
in Count 1, the state must prove to your satisfaction beyond a reasonable
doubt each of the following elements of the crime:

1. The defendant killed James Boyd;

2. The defendant knew that his acts created a strong probability of death
or great bodily harm to James Boyd;
3. The defendant did not commit justifiable homicide by a public
officer or employee, or act in defense of another;
4. This happened in New Mexico on or about the 16th day of March,
2014.

Elements 1, 2, and 4 of this instruction were not contested at trial. The third element,
however, which the State had the burden to disprove, embodied the primary defense
theory in the case. Because this instruction was given, the court also was required to give
the following instruction, UJI 14-5173, a restatement of NMSA 30-2-6, which describes
the defense of justifiable homicide by a public officer:

Evidence has been presented that the killing of James Boyd was justifiable
homicide by a public officer or employee.

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 The killing was justifiable homicide by a public officer or public employee
if:

1. At the time of the killing, the defendant was a public officer or

employee; and
2. The killing was committed while the defendant was performing his
duties as a public officer or employee; and
3. The killing was committed while overcoming the actual resistance of
James Boyd to the discharge of the legal duty to arrest James Boyd for
the felony crime of aggravated assault on a peace officer; and
4. A reasonable person in the same circumstance as the defendant
would have reasonably believed that James Boyd posed a threat of
death or great bodily harm to the defendant or another person.

Again, the State at trial did not and could not contest the first three elements of this
defense. The jurors therefore necessarily focused on the fourth element as the standard
for police conduct by which they were to judge the actions of the defendants. The jury
also was given UJI 14-5172; Justifiable homicide, defense of another. Although similar
to the defense set forth in UJI 14-5173, which is available only to public officers and
employees, UJI 14-5172 was presented as a separate defense and thus provided the jury
with another standard by which to judge the conduct of Officers Perez and Sandy.

Two additional jury instructions, which presumably would be given again in a second
trial, further constrained the jurys consideration of the States evidence and theory. The
first, Instruction No. 16, was as follows:

The availability of less-lethal tools at the scene is not relevant to your

determination of whether the elements of justifiable homicide by a public
officer or employee have been met.

The second, Instruction No. 18, was as follows:

Whether the actions of the person being defended played a role in creating
the need to use force is not relevant to your determination of whether the
elements of justifiable homicide by a police officer and/or the elements of
justifiable homicide in defense of another have been met.

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 ANALYSIS OF JURYS APPLICATION OF THE LAW TO
THE EVIDENCE

At trial, the defense argued that the killing of James Boyd was both justifiable homicide
by a public officer and justifiable homicide as defense of another. Once these defenses
had been raised, the burden was on the State to prove beyond a reasonable doubt that the
killing of Mr. Boyd was not justifiable.

The jury heard testimony that the officers at the scene were informed that Mr. Boyd had
a history of violence involving law enforcement and corrections officers, and that he had
earlier assaulted two open space officers with knives. During a lengthy stand-off where
officers tried to negotiate with him, Mr. Boyd repeatedly told them that he would not be
taken into custody, would kill any officer who approached him, and would not give up
his knives. Indeed, the defense presented video evidence showing that different officers
on 33 separate occasions told Mr. Boyd drop his knives, and that Mr. Boyd on 19 separate
occasions told the officers he was going to kill them.

In the initial encounter with the open space officers, Mr. Boyd committed the felony
offense of aggravated assault upon a peace officer. From that point forward the police
were obligated to arrest Mr. Boyd and take him into custody. Under the States theory as
presented at trial, the police officers handled this effort badly and, in so doing, created or
at least aggravated the standoff situation with Mr. Boyd. The State further argued that,
even after the lengthy standoff, the use of non-lethal means of subduing Mr. Boyd should
have been exhausted before the use of firearms was justified. The States argument under
these theories was nullified by the courts jury instructions 16 and 18 set out above. But,
even in the absence of these two instructions the jury had ample evidence to consider that
undermined these theories. The mistrial outcome, with a vote of 9 to 3 in favor of
acquittal, strongly suggests the evidence did not support the States theory of a police-
created situation.

Additionally, although they were told that this was irrelevant to the question of whether
the shooting of Mr. Boyd was justified, the jury was shown evidence of multiple attempts
by the police to use non-lethal force to subdue Mr. Boyd. Specifically, the jury watched
hours of video in which the police were attempting to negotiate with Mr. Boyd, as well
as video of the use of a Taser shotgun, a flash-bang, and a police dog as non-lethal tools
before any shots were fired. The mistrial outcome again suggests that a majority of the
jurors found this evidence to support the defense theory.

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The final evidence was video footage of the actual shooting and the immediately
preceding actions by officers and Mr. Boyd. The State had the burden of proving that, in
that moment, neither Officer Perez nor Officer Sandy could have reasonably believed that
Mr. Boyd posed a threat of death or great bodily harm to any of the officers present. The
jury saw video of Mr. Boyd, within nine feet of and standing at a higher elevation than
Officer Weimerskirch and once again pull his knives from his pockets. All of the officers
present, including Officers Perez and Sandy, testified that they believed Mr. Boyd posed
a threat of death or great bodily harm to either themselves or another officer. On cross
examination, the prosecutions own expert conceded that if Mr. Boyd moved his feet, the
officers were justified in shooting. The jury considered this evidence in light of the States
burden of proof. Nine members of the jury believed that the State failed to prove beyond
a reasonable doubt that the killing of Mr. Boyd was not justified under the law.

CONCLUSION

The jurors in the trial of the charges against Officers Perez and Sandy deadlocked,
resulting in a mistrial. Polled afterwards, nine of the twelve jurors indicated that they
favored acquittal of the defendants. In other words, a majority of the jurors believed that
the State did not prove beyond a reasonable doubt that the killing of Mr. Boyd was
unjustified under the facts and circumstances of this case. Although a second trial would
be before a different jury, that jury would consider the same evidence and be obliged to
follow substantially the same instructions on the law as were given in the first trial. The
review underlying this report has revealed no reason to believe the case against Officers
Perez and Sandy could be tried better or more exhaustively at a second trial or that a
second jury would reach a different outcome than was reached by the first.

Based on this review I have determined that it is not in the interest of justice for the Office
of the Second Judicial District Attorney to reinstate charges against Officer Dominique
Perez or to pursue a retrial of Officers Perez or Keith Sandy in this matter. All charges
currently pending in the Second Judicial District Court will be dismissed.

RAL TORREZ
District Attorney

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