By Andy Jackson: CNJ staff writer
A defense attorney says he will ask to delay sentencing for a convicted killer because DNA that hasn’t been processed could prove his client’s innocence.
Ninth Judicial District Attorney Matt Chandler said the DNA in question would not exonerate Steven Duran of Clovis, who was convicted of a Jan. 13, 2004, slaying on Sept. 30.
Duran’s sentencing is scheduled for Feb. 28. His attorney, Gary Mitchell, said he will ask for a delay until the DNA can be processed.
A jury found Duran, 36, shot and killed Ricardo Gallegos. Police found Gallegos dead inside his trailer at 1013 Sunrise Street in Clovis.
Mitchell insists Duran did not kill Gallegos.
“To ignore DNA that would help the defense is improper, and in the search for justice it’s the wrong thing to do,” said Mitchell, who is also president of the American Civil Liberties Union in New Mexico.
“Let’s be fair. Do the work, get it all in, get it all to the jury,” he said.
But Chandler said the DNA in question is irrelevant because it was not found inside Gallegos’ trailer; it was found inside Duran’s car, on a clipboard and on clothing items belonging to Duran, Mitchell and Chandler said.
The prosecutor said witnesses tied Duran to the shooting and the DNA evidence not processed is “a last-ditch effort” by the defendant.
“The defendant already testified blood in the vehicle was from heroin use and a cut on his hand,” Chandler said.
At trial no witnesses stated they saw Duran shoot Gallegos.
Mitchell said another witness statement tied other suspects to the crime, but it was inadmissible because the witness died before trial.
“We have an eyewitness that says something different than defense witnesses and DNA that would help the defense. To ignore this is wrong in the search for justice,” Mitchell said.
Mitchell says the DNA evidence may have changed the jury’s decision and is grounds for a new trial.
Because the DNA evidence was never received it cannot be determined if the jury would have convicted Duran had the evidence been available, Mitchell said.
Chandler said funding issues in the state’s crime labs stalled the DNA processing.
Ninth Judicial District Judge Joe Parker proceeded with Duran’s trial without results for the DNA in question.
“I would agree that everybody would want all pieces of evidence collected and tested, but this particular issue was presented during pretrial motions and Judge Parker determined to move forward after pretrial,” Chandler said. “There were other means of evidence that the prosecution could go forward with, and we (prosecution) did that and (obtained) a first-degree murder conviction.”
In trial, prosecutors did not present any blood evidence tying Duran to the victim.
If Duran is sentenced before the motion for a new trial can be heard, Mitchell will appeal the decision, he said.
Parker’s assistant Cindy Roybal said Monday that Parker is waiting to communicate with Mitchell before deciding on the motion.
The jury found Duran guilty of using (or possessing) drug paraphernalia, possessing a firearm as a felon, possessing heroin and possessing methamphetamine.
However, Duran was acquitted of an armed robbery charge, which Chandler argued in trial was a motive in the murder.
Duran faces a minimum sentence of life in prison, which is 30 years before he could be eligible for parole. The maximum sentence is 17 1/2 years in addition to life, Chandler said.
Duran is being held at the Curry County Adult Detention Center, officials said.
Mitchell said the DNA evidence would finalize the investigation into Gallegos’ slaying.
“People need to open their minds up. What if this (DNA) led to other discovery, evidence and leads?” Mitchell said.
Chandler said a guilty verdict was handed down. “It’s time to respect the jury’s verdict,” he said.