By Darrell Todd Maurina: CNJ staff writer
Difficulties seating an impartial jury delayed the homicide trial of Fernando Garcia, 20, until late Monday afternoon. But prosecutors and defense attorneys were still able to present brief testimony from two law enforcement officers before adjourning for the evening.
Garcia faces charges of first-degree murder, second-degree murder and dogfighting. Clovis police Det. Keith Bessette said the first-degree murder charge requires prosecutors to prove that Garcia killed Moises Ortiz while committing a felony, which is one reason for the dogfighting charge.
According to New Mexico statutes, first-degree murder carries a maximum penalty of life in state prison with no possibility of parole for 30 years. The maximum penalty for second-degree murder is 15 years in prison.
Assistant District Attorney Brian McKay and defense attorney James W. Klipstine Jr. said the jury selection delays weren’t unusual due to the seriousness of the case but were complicated by a series of Clovis News Journal stories on homicides published in Sunday’s edition. Potential jurors had to satisfy both attorneys they could decide the case based on evidence presented rather than preconceptions or news media reports.
Both attorneys said they were satisfied with the selection of 12 members and four alternates, which took place behind closed doors from 9 a.m. to 4:30 p.m. with a break for lunch.
“These 16 are as close to a clean slate as could be desired in a case like this,” McKay said.
“This jury was very, very responsive,” Klipstine said. “A lot of times it’s difficult to get jurors to open up and say anything. This panel was honest and open with us.”
In his opening statement, McKay said Moises Ortiz, Fernando Garcia and a number of other people were attending a dogfight on Feb. 28, 2003, and described what prosecutors believe happened that day.
“Moises and some of his family have already been drinking and some of them have been smoking marijuana,” McKay said. After some time an argument broke out, he said.
“At that point in time, the defendant pulls out a handgun, chambers a round, and points it at least in the general direction of (a third person),” McKay said. “As this goes on, Moises Ortiz takes a hold of the defendant and then everybody grabs everybody and starts fighting.”
McKay said after the fight was over and police showed up at the scene, they found Ortiz dead with five bullet wounds but nobody present was willing to say what happened. Later investigation and subsequent statements led police to believe the shooter was Garcia, McKay said.
“Statements were taken, and don’t get me wrong, these statements change,” McKay told the jury. “Your job is to determine who is telling the truth, and I ask you to pay very close attention to what is said.”
Klipstine waived his right to begin with an opening statement that described his view of the case.
“The reason I am not giving my opening statement is I don’t want to tell anyone where I am going,” Klipstine said in a later interview. “Clearly I don’t think the state has the evidence to prove the guilt of my client.”