Defense attorney asks judge to dismiss charges against former officer

The defense attorney for a Clovis police officer involved in a fatal vehicle accident while on duty asked a judge to dismiss charges against him Monday on grounds the district attorney interfered with the grand jury deliberations.

A grand jury indicted Officer Stephen Gallegos in January 2011 on vehicular homicide and causing great bodily injury. The charges stemmed from an accident in November 2010 in which investigators say Gallegos ran a stop sign in his Clovis police car and crashed into a vehicle, killing passenger Mary Castillo and seriously injuring driver Edith Payton.

Gallegos is no longer with the police department.

Dan Lindsey said the grand jury that heard his client's case originally submitted a verdict of "no probable cause" on the charge of vehicular homicide, but changed their verdict after District Attorney Matt Chandler illegally questioned their conclusion.

"It's unprecedented," Lindsey said. "When the jurors are impaneled they are instructed that all they see, hear, say and vote shall be kept secret." Lindsey said it is a violation of New Mexico state law to question jurors individually about how they came to their conclusions.

Prosector Tom Blakeney explained Chandler seemed confused at the jury's verdict and his questions were an attempt to make sure the "no probable cause" bill was the intent of the jury.

"The grand jury can make as many whimsical changes as they want," asserted Blakeney, who is the 10th Judicial District attorney.

Judge Teddy Hartley concurred.

"Yes, they can, as long as the door is shut, but once the door is open and a signed verdict is handed over, then you have a problem."

Chandler, who was not in court, said he did nothing wrong.

"By no means did I interfere with jury deliberations," said Chandler, who removed his office from prosecution of the case to avoid the appearance of a conflict of interest.

He said when he polled the jury, several people raised their hand and indicated that a no bill was not their finding. He asked them if it would assist them to continue deliberations, which they elected to do, and came back with a probable cause verdict.

Blakeney is the district attorney for the 10th Judicial district, which was assigned the case.

Hartley said he would review the testimony presented Monday during the pre-trial hearing. He said he would be gone next week, but upon his return would make a ruling in a few days.

In the meantime, a trial was set for Aug. 20-24.

Lindsey presented for evidence Monday a grand jury transcript, from January 2011, and played a recording of the grand jury foreman reading the "no probable cause" finding, called a "no bill," on the count of vehicular homicide. "There's no question about it," Lindsey said. "The proceedings should have stopped there."

Instead, Lindsey stated, Chandler proceeded to question the jurors on how they arrived at the verdict and to poll the jurors.

The recording also revealed that the grand jury originally found no reckless driving on the part of Gallegos, only careless driving. "There's no such thing as vehicular homicide by careless driving," Lindsey said. "The driving has to be willfully reckless, which the jury did not find."

Lindsey also called for a change of venue due to wide publicity of the incident, which he said would make finding an unbiased jury difficult.

Hartley said he would also rule on that motion at the same time as the motion to dismiss charges.