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Michael Gallegos v. Charles L. Ryan
Case No. 08-99029
Exhibits to Appendix to Motion to Clarify Relief Requested in Motion to Stay
Proceedings and Remand to the District Court and Request for Authorization ofFederal Habeas Counsel to Appear in State Court Litigation
Appendix 1 Brady Claim
Exhibit A Supplemental Police Report (excerpt) by Michael Chambers,03/17/90
Exhibit B Supplemental Police Report by Michael Chambers Regarding
Interview of Cindy Wishon, 03/17/90
Exhibit C Phoenix Police Department Evidence Reports and Results of
Scientific Analysis, 03/19/90
Exhibit D Supplemental Police Report by Armando Saldate, 03/21/90
Exhibit E Transcript (excerpt) of Hearing on Motion to Dismiss GeorgeSmallwood, 06/29/90
Exhibit F State’s Motion to Dismiss George Smallwood and Order
Granting the Motion Without Prejudice, 07/02/90
Exhibit G Transcript (excerpts) of Voluntariness Hearing, 08/03/90
Exhibit H Transcript (excerpts) of Opening Statements, 03/07/91
Exhibit I Trial Testimony (excerpt) of Cindy Wishon, 03/07/91
Exhibit J Trial Testimony (excerpt) of Jerry Gallegos, 03/07/91
Exhibit K Trial Testimony Regarding Panties (excerpts) -- of CindyWishon, 03/07/91; Jerry Gallegos, 03/11/91 a.m. session; HarveyHamrick, 03/12/91 a.m. session
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Exhibit L Trial Testimony (excerpts) of Armando Saldate, 03/12/91 p.m.
session
Exhibit M Testimony (excerpt) of George Smallwood Asserting Fifth
Amendment Right Against Self-Incrimination, 03/13/91
Exhibit N Trial Testimony Regarding Stipulation of DNA Evidence,03/13/91
Exhibit O Jury Verdict on First Degree Murder, 03/14/91
Exhibit P Transcript (excerpt) of Resentencing, 10/24/94
Exhibit Q Transcript (excerpts) of State Post-Conviction Relief Evidentiary
Hearing, 12/01/00
Exhibit R State Court Order Denying Petition for Post-Conviction Relief,
01/05/01
Exhibit S Report by Dr. Robert L. Heilbronner, 12/12/11
Exhibit U Declaration of John Castro, 04/04/14
Exhibit V Letter to Bill Montgomery Requesting Records, 03/25/13
Exhibit W Invoice from Maricopa County Attorney’s Office Regarding
FOIA Records, 07/11/13
Exhibit X Transcript (excerpt) of State Post-Conviction Relief Evidentiary
Hearing, 12/01/00
Exhibit Y Minute Entry Regarding Asserting Fifth Amendment RightAgainst Self-Incrimination of Armando Saldate, 12/19/13
Exhibit Z Arizona ex rel. Montgomery v. Mroz Court Opinion, 04/14/14
Exhibit AA Email from Treasure VanDreumel Regarding Armando Saldate,
04/22/14
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APPENDIX 1
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I. The State’s Suppression of Material Exculpatory and Impeachment
Evidence Regarding its Lead Detective, Armando Saldate, Contrary to
its Duties under Brady v. Maryland and Progeny, Violated Mr.
Gallegos’s Constitutional Rights to Due Process and a Fair Trial under
the Fifth, Sixth, and Fourteenth Amendments.
This claim has not yet been presented to the Arizona Supreme Court. It is
based on new evidence that was recently discovered despite the state’s ongoing
failure to disclose it to Mr. Gallegos. The State’s suppression constitutes cause for
Mr. Gallegos’s failure to discover this evidence earlier. See Banks v. Dretke, 540
U.S. 668, 691-92, 703 (2004) (citation omitted) (rejecting the state’s argument that
the Brady claim was procedurally defaulted).
A. Factual Background.
Detective Armando Saldate was the lead detective in this case. (Ex. L at
25.) Within 24 hours of the offense, he interrogated Michael Gallegos, an 18-year-
old high-school student in special education classes. (Ex. D at 1.)1
Det. Saldate
did not tape record the interrogation, secure a written confession, or get a signed
waiver of Miranda rights from Mr. Gallegos. After Mr. Gallegos allegedly
confessed, Det. Saldate purportedly conducted a re-interview in the presence of his
partner, Detective Chambers, lasting only 10 or 15 minutes. (Ex. G at 32.) Det.
1 Later testing by Dr. Heilbronner, a neuropsychologist, revealed that at the time
of the offense, Mr. Gallegos suffered not only from a learning disability, but alsofrom brain damage, which “made him susceptible to the influence of others.” (Ex.
S at 7.)
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Saldate testified that in this “highlight interview,” he told Mr. Gallegos “to tell
Detective Chambers generally what he had told me,” and that Mr. Gallegos “just
highlighted general areas.” (Ex. L at 59.) Det. Chambers (now deceased) wrote
two lengthy reports, but never included anything about this “highlight interview.”
(Exs. A & B.) Like the initial interrogation, the second interrogation was not
recorded, and there was no signed written confession or waiver of Miranda rights.
The State charged two defendants: Mr. Gallegos and George Smallwood,
the 18-year-old half-brother of the victim. Mr. Gallegos purportedly gave a
statement that implicated both codefendants. (Ex. D at 3-4.) Mr. Smallwood
purportedly told Det. Chambers that “I could have done this, but I don’t remember
it, I black out a lot.” State v. Gallegos, 870 P.2d 1097, 1116 (1994).
Both teenagers lived together and were high school students in Flagstaff,
Arizona, but at the time of the offense, were visiting family in Phoenix. (Ex. I at
57-59.) During the day and night before the offense, they had been together
working on cars, playing a Nintendo game, and drinking. (Ex. J at 130-35.)
About three months after the offense, on June 29, 1990, the State informed
the Court that it had no DNA evidence implicating Mr. Smallwood (ex. E at 3) and
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moved to dismiss the charges against Mr. Smallwood (ex. F at 1). The court
granted the motion. ( Id. at 3.)2
After dismissing the charges against Mr. Smallwood, the trial court
conducted a pre-trial voluntariness hearing regarding Mr. Gallegos’s alleged
confession. Det. Saldate testified that he reviewed Mr. Gallegos’s Miranda rights
with him before his confession, and that Mr. Gallegos never requested counsel.
(Ex. G at 23-25, 29.) Mr. Gallegos also testified at the voluntariness hearing,
but his testimony differed significantly from that of Det. Saldate. He testified that
Det. Saldate repeatedly ignored his requests for counsel: “He would just look at
me and just keep writing. . . . Like it went in one ear and out the other. . . . It was
just like I didn’t say anything.” ( Id . at 97-98.) Mr. Gallegos also testified that Det.
Saldate did not inform him of his Miranda rights until after he confessed. ( Id. at
96.) The court relied on Det. Saldate’s testimony and held that Mr. Gallegos’s
statements were voluntary and admissible:
Frankly, I must state I am unable to believe the defendant when he
asserts that – he asserted his constitutional rights numerous times and
2 While the State reportedly had no DNA evidence implicating Mr. Smallwood, it
did have other physical evidence linking Mr. Smallwood with the offense.
Specifically, the State laboratory found oil on the “dark blue fitted bottom sheet”of the lower bunk bed, identified by Cindy Wishon, the mother of Mr. Smallwood,
as Mr. Smallwood’s bed, that matched both the oil found on the victim’s sheetsand pillowcase and the oil in the bottle found in the road near the victim’s body.
(Ex. C; Ex. B at 4.)
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that Detective Saldate ignored them. And that Detective Saldate didnot give him his constitutional rights until after he had confessed. I
find to the contrary, that the statements made by the defendant werenot the result of force, threats or promises of leniency and the
statements were made after the defendant was properly advised of hisconstitutional rights and that therefore the statements of the defendant
made to the Detectives Saldate and Chambers are admissible.
( Id. at 118.)
What the trial court did not know when it made this ruling was that Det.
Saldate had a history of both lying in judicial proceedings and ignoring defendants’
constitutional rights. Neither the court nor defense counsel knew the following:
• On June 22, 1990, less than two months earlier, a court found that Det.
Saldate lied under oath and “continued to interrogate the defendant despite
the defendant’s demand to cease questioning.” Milke v. Ryan, 711 F.3d 998,1020 (9th Cir. 2013) (Appendix) (discussing State v. King, No. CR90-00050
(Ariz. Super. Ct. June 22, 1990)). The trial judge in that case suppressed the
portion of the confession that followed the defendant’s request to end theinterview. Id.
• On October 16, 1989, less than ten months earlier, another court held that
Det. Saldate misled a grand jury by omitting some of the defendant’s
statements to make him look more culpable, and remanded for a new findingof probable cause. Id. at 1014, 1020 (Appendix) (discussing State v. Rangel, No. CR89-08086 (Ariz. Super. Ct. Oct. 16, 1989)).
• On February 27, 1989, less than 18 months earlier, another court found that
Det. Saldate’s false statement to a grand jury “denied [the defendant] hisright to due process and a fair and impartial presentation of the evidence”
and granted the motion for a new finding of probable cause. Id. at 1013(discussing State v. Reynolds, No. CR88-09605 (Ariz. Super. Ct. Feb. 27,
1989)).
• On November 20, 1986, less than four years earlier, another court ordered aredetermination of probable cause because Det. Saldate testified to the grand
jury that there were four shots, when it was undisputed that the victim was
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shot only once. Id. at 1013-14 (discussing State v. Rodriquez, No.CR 161282 (Ariz. Super. Ct. Nov. 20, 1986)).
• On August 31, 1973, 27 years earlier, a Phoenix Police Department Internal
Affairs investigation concluded that Det. Saldate lied about an incidentwhere, in exchange for a kiss and other advances, he allowed a female
motorist to leave without checking on a possible warrant. The reportconcluded that “because of this incident, your image of honesty,
competency, and overall reliability must be questioned” and Det. Saldatewas suspended for five days. Id. at 1020 (Appendix).
Det. Saldate testified at trial about Mr. Gallegos’s alleged statement. His
testimony was critical to Mr. Gallegos’s conviction and sentence. The prosecutor
emphasized in his opening statement that “[t]he key in this case will fall with
testimony by Detective Saldate.” (Ex. H at 40.) On habeas review, the district
court agreed: “[T]he information most damaging to Petitioner’s defense was
contained in Detective Saldate’s testimony.” (ECF No. 111 at 34.)3
Upon advice of counsel, Mr. Gallegos testified at trial. Mr. Gallegos’s trial
counsel, Greg Clark, testified during state post-conviction proceedings that he
advised Mr. Gallegos to testify because he knew Det. Saldate’s testimony would be
admitted at trial and that the testimony would be detrimental to the defense. Mr.
3 Citations to the District Court record are cited as “ECF No.” Citations to the
Ninth Circuit record in this case, Gallegos v. Ryan, No. 08-99029, are cited as“Ninth Circuit ECF No.” Citations to electronic filings in other cases include the
specific case name in the citation before the ECF filing number.
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Clark believed the testimony of Mr. Gallegos, a young unsophisticated defendant,
was necessary to mitigate Det. Saldate’s testimony. (Ex. Q at 7-8, 49-50.)
After Mr. Gallegos’s trial but before he was resentenced, yet another court
held that Det. Saldate violated a defendant’s right to remain silent when he
continued to interrogate a defendant after an ‘unequivocal invocation” of the right
to remain silent. See Milke, 711 F.3d at 1021 (Appendix) (discussing State v.
Mahler , No. 1 CA-CR 90-1890 (Ariz. Ct. App. Oct. 2, 1992)). To date in this case,
the State has never disclosed any of this impeachment evidence to any court or Mr.
Gallegos’s counsel.
Recent attempts by Mr. Gallegos’s defense team to speak with Det. Saldate
have been unsuccessful. He did not respond to attempts by an investigator in the
office to speak with him (ex. U) and more recently, through counsel, has refused
to speak with Mr. Gallegos’s defense team (ex. AA). On December 13, 2013, Det.
Saldate asserted his Fifth Amendment right against self-incrimination and refused
to testify in the retrial of Debra Milke. (Ex. Y at 2.) While the state trial court
held that Det. Saldate could assert the privilege (id. at 7), the Arizona Court of
Appeals recently reversed, holding that Mr. Saldate could not invoke this right and
“may be compelled to testify truthfully in the upcoming trial.” Arizona ex rel.
Montgomery v. Mroz, No. 1 CA-SA14-0028 (Ariz. Div. 1, 4/17/14) at 4. (Ex. Z.)
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Recent attempts to secure the previously suppressed documents from the
Maricopa County Attorney’s Office, have similarly failed. On March 25, 2013,
Mr. Gallegos’s defense team requested documents from the Maricopa County
Attorney’s Office, specifically requesting “all files, records and other documents”
pertaining to Det. Saldate. (Ex. V.) When those documents were finally received
on July 11, 2013 (Ex. W), they did not include any documents about Det. Saldate.
Mr. Gallegos subsequently discovered that in June and July of 2013, the state, in
the Milke case, filed affidavits indicating that all of Det. Saldate’s files had been
destroyed by unknown persons on unknown dates. Milke v. Ryan, No. 98-cv-
00060-RCB (ECF Nos. 205 & 210).
B. The State’s Continuing Failure to Disclose Exculpatory and
Impeachment Evidence Violates Mr. Gallegos’s Constitutional
Rights .
In 1963, the Supreme Court held that a prosecutor’s suppression of evidence
favorable to an accused violates due process when the evidence is material to either
guilt or punishment. Brady v. Maryland , 373 U.S. 83, 87 (1963). This principle is
inexplicably woven into the fabric of our jurisprudence.
We now hold that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where theevidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.
The principle [] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society
wins not only when the guilty are convicted but when criminal trials
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are fair; our system of the administration of justice suffers when anyaccused is treated unfairly.
Id.; see also Banks, 540 U.S. at 691, Kyles v. Whitley, 514 U.S. 419, 421 (1995).
Under Brady, a defendant’s due process rights are violated whenever
evidence favorable to the defendant – whether labeled exculpatory evidence,
impeachment evidence, or perjury – is withheld or suppressed by the prosecution.
Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006); Brady, 373 U.S. at 87.
A Brady claim lies when three elements exist:
The evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.
Banks, 540 U.S. at 691 (internal quotations omitted) (citing Strickler v. Greene,
527 U.S. 263, 281-82 (1999)). Once established, a Brady violation requires
reversal. United States v. Bagley, 473 U.S. 667, 678 (1985). Evidence is favorable
if it is exculpatory, impeaching or establishes the use of perjured testimony. Id. at
676-77, 678 n.8 (citing Mooney v. Holohan, 294 U.S. 103 (1935)). Suppression
occurs when the prosecution fails to turn over evidence, whether or not the
prosecutor personally knows that the evidence exists. Kyles, 514 U.S. at 437-39.
Finally, to show prejudice, “it isn’t necessary to find that the jury would have come
out differently.” Milke. 711 F.3d at 1018. Prejudice is shown when “the
government’s evidentiary suppression undermines confidence in the outcome of
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the trial.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)); see also
Bagley, 473 U.S. at 682.
1. The suppressed evidence is favorable to Mr. Gallegos.
Any evidence that “would tend to call the government’s case into doubt is
favorable for Brady purposes.” Milke, 711 F.3d at 1012. The Ninth Circuit
already has held that Det. Saldate’s personnel file, as well as the court orders
showing that Det. Saldate lied under oath, were favorable to the defense in the
Milke case. Id. at 1012-16. The Milke court found that the non-disclosed evidence
would have shown that Det. Saldate had “no compunction about lying during the
course of his official duties,” id. at 1012; had repeatedly “lied under oath in order
to secure a conviction or to further a prosecution,” id. at 1013 (citation omitted);
and “kept asking questions long after the defendant indicated he no longer wanted
to answer,” id. at 104.
2. The prosecution, either willfully or inadvertently, failed to
disclose the evidence.
The State never disclosed the exculpatory impeachment evidence regarding
Det. Saldate. Brady protects against both willful and inadvertent failures to
produce evidence. Milke, 711 F.3d at 1012. Here, regardless of whether the
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particular prosecutor in this case knew about Det. Saldate’s impeachment
evidence, the state had an obligation to produce it. Milke, 711 F.3d at 1016.4
Mr. Gallegos cannot be faulted for failing to discover this evidence. The
Supreme Court has rejected the proposition that “the prosecution can lie and
conceal and the prisoner still has the burden to . . . discover the evidence . . . so
long as the ‘potential existence’ of a prosecutorial misconduct claim might have
been detected.” Banks v. Dretke, 540 U.S 668, 696 (2004) (citation omitted). A
“rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a
system constitutionally bound to accord defendants due process.” Id.
Regarding the court records at issue here, the Milke court expressly rejected
the argument that trial counsel should have found them on their own. Moreover,
the Court found that Ms. Milke’s post-conviction team spent nearly 7000 hours
sifting through court records to discover the Brady evidence and that a “reasonably
diligent lawyer couldn’t possibly have found these records” before trial. Milke,
711 F.3d at 1018. That assessment similarly applies to Mr. Gallegos’s current
situation.
4 While Mr. Gallegos has met the test for inadvertent failure to disclose, it also
stretches credibility to believe that a prosecutor, in a capital case, would be
ignorant of Det. Saldate’s prior dishonest and discrediting acts.
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3. Had the evidence been disclosed, there is a reasonable
probability that the outcome would have been different.
Defense counsel develops a trial strategy based on evidence that is available.
The Supreme Court has recognized that when the State withholds evidence, the
State is essentially telling the defense that “the evidence does not exist.” Bagley,
473 U.S. at 682-83. Relying on this misrepresentation, defense counsel “might
abandon lines of independent investigation, defenses, or trial strategies that it
otherwise would have pursued.” Id. When the withheld evidence affects the
defense strategy, courts have found the evidence to be material and prejudicial to
the defendant. See, e.g., Kyles, 514 U.S. at 445-49 (noting that the defendant could
have used the suppressed evidence to outline an alternative defense attacking the
integrity of the police investigation).5
Here, Mr. Gallegos’s trial counsel developed a trial strategy based on an
understanding that Det. Saldate would testify at trial against Mr. Gallegos and that
his testimony could not effectively be impeached. Det. Saldate had testified at the
5 See also United States v. Lee, 573 F.3d 155, 165 (3d Cir. 2009) (information
suggesting that defendant was in a hotel room contrary to his alibi defense was
material because the defendant “would have likely crafted a different trial strategythat might have proven more effective in light of the information” resulting in a
lack of confidence in the verdict); United States v. Spagnoulo, 960 F.2d 990, 995(11th Cir. 1992) (report was material because it could have made an insanity
defense a viable option); D’Ambrosio v. Bagley, No. 1:00 CV 2521, 2006 WL1169926, at *31-33 (N.D. Ohio Mar. 24, 2006) (evidence was material because it
could have been used to impeach witness and alter the entire defense strategy).
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voluntariness hearing, and even though Mr. Gallegos contradicted him, the trial
judge believed him. It was not unreasonable for counsel to assume that, like the
judge, the jury would believe Det. Saldate over Mr. Gallegos. Faced with
apparently unassailable testimony by the case agent, trial counsel chose to not
contradict Det. Saldate at trial, but to attempt to mitigate the impact of his
testimony by having Mr. Gallegos testify.
Had the impeachment evidence been disclosed, there is a reasonable
probability that the trial court would have suppressed Mr. Gallegos’s statement.
See, e.g., Milke, 711 F.3d at 1020 (Appendix) (citing State v. King, State v. Yanez,
State v. Conde, and State v. Mahler as cases where the court suppressed the
defendant’s statements after Det. Saldate violated the defendants’ Fifth
Amendment rights). Without Det. Saldate’s testimony, Mr. Gallegos would not
have testified. Without this testimony, the State’s evidence would have been
insufficient to support a guilty murder verdict. The State had no witnesses to the
crime. The only substantial physical evidence linking Mr. Gallegos to a crime was
the State’s evidence that Mr. Gallegos’s DNA was found in the victim’s panties.
(Ex. N at 5-6.) While this evidence is relevant to Count 2, Sexual Conduct with a
Minor, it does not provide evidence of first-degree murder, even murder based on a
felony murder theory. This is especially true here, where the jury split on the first-
degree murder theories of premeditation and felony murder. (Ex. O at 45-46.)
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Moreover, this evidence had problems. Before the victim’s body was found,
the police and family members were searching the house. Hearsay testimony
admitted at trial indicated that co-defendant Smallwood reportedly found panties in
the victim’s bedroom during this search and that a family member placed them on
the kitchen table where they were collected by the police. (Ex. K (3/7/91 at 122-
23; 3/11/91 a.m. session at 13-14; 3/12/91 a.m. session at 29, 35-36).) There was
no reliable chain of custody regarding the panties, and Mr. Smallwood did not
testify at trial.6
Notably, the panties (and Mr. Gallegos’s DNA) were not found on
or near the body of the victim. While the State had submitted samples collected
from the victim’s mouth, vagina, or rectum for DNA testing, no evidence linking
these test results with anyone was presented. (Ex. N at 5-6.)
One of the inaccurate and damning myths found in both the state and federal
post-conviction record is that Mr. Gallegos’s DNA was found in the victim’s
rectum. In denying the state petition for post-conviction relief, the trial judge,
based on a misapprehension of the facts, found that even if deficient performance
had been proven, Mr. Gallegos failed to show prejudice:
As mentioned previously, the State’s evidence was completely
overwhelming: The Defendant confessed twice to two different police detectives, and the DNA evidence in Kendall’s rectum linked
6 Mr. Smallwood invoked his Fifth Amendment right against self-incrimination,
and did not testify before the jury. (Ex. M at 17-19.)
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to the Defendant was devastating to the defense; all the other evidencecorroborated the Defendant’s guilt.”
(Ex. R at 3.)7 The State then perpetuated this inaccuracy in proceedings before the
Ninth Circuit. (See, e.g., Ninth Circuit ECF No. 32 at 3 (quoting the state trial
judge’s inaccurate statement), at 20 (referring to Mr. Gallegos’s “DNA evidence in
the victim’s rectum”).)
This representation of the trial DNA evidence is wrong. The parties, at trial,
stipulated to the DNA evidence. That stipulation did not include a match between
Mr. Gallegos’s DNA and the sample taken from the victim’s rectum, but rather
provided the following:
In a report of laboratory examination dated August 9, 1990, it was
concluded that the DNA banding pattern obtained from the stainedmaterial labeled panty crotch, front, back, matches the DNA banding
pattern obtained from the blood sample labeled Michael Gallegos.
The frequency in the Caucasian population for another person being a
contributor for the DNA banding pattern obtained from the pantycrotch and Michael Gallegos is approximately 1 in 10 million.
The frequency in the Hispanic population for another person being acontributor of the DNA banding pattern obtained from the pantycrotch and Michael Gallegos is approximately 1 in 67 million.
7 During the evidentiary hearing, similarly inaccurate testimony was introduced.
At that hearing, the state asked Mr. Gallegos’s trial counsel, Greg Clark, “Therewas also DNA evidence found in the victim’s rectum that tied Michael to the
crime?” Mr. Clark, who was defending his performance at trial, answered, “Yes,there was.” (Ex. X at 35.) But there was no such evidence, and state PCR counsel
ineffectively failed to correct the inaccurate testimony.
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(Ex. N at 5-6.)8
In addition to these subsequent misrepresentations, the stipulation had other
problems. The Arizona Supreme Court, sua sponte, held that while the standards
used by the State’s DNA lab, Cellmark, to declare a “match” complied with those
“generally accepted in the relevant scientific community,” Cellmark’s procedures
used to determine statistical probabilities were not similarly accepted and were
inadmissible. State v. Gallegos, 870 P.2d 1097, 1109-10 (1994). In light of Mr.
Gallegos’s confession and testimony at trial, however, the court found no
fundamental error. Id. Had Det. Saldate’s testimony been suppressed, there is a
reasonable probability that the Arizona Supreme Court would have found
fundamental error.
Even if the court did not suppress Det. Saldate’s statement after the
voluntariness hearing, trial counsel still could have attacked Det. Saldate’s
testimony at trial. The Ninth Circuit in Milke believed that the withheld Brady
evidence showing Det. Saldate’s lying would have been a “game-changer”:
With court orders in hand, defense counsel would have had a good-faith basis for questioning Saldate about prior instances where he had
lied on the witness stand. If Saldate admitted the lies, his credibility
8 The only references in the stipulation to rectal swabs merely provided that rectal
swabs had been submitted for testing, and that, like the blood samples of thevictim, Mr. Gallegos and Mr. Smallwood, DNA banding patterns had been
obtained. (Ex. N at 5-6.) To conclude from this statement that there was a match between Mr. Gallegos and the rectal swabs would have been total speculation.
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16
would have been impaired. If he denied them, he would have exposedhimself to a perjury prosecution. If he claimed he couldn’t remember,
defense counsel could have shown Saldate the documents to refreshhis memory. And if Saldate still couldn’t recall, the jury would have
had reason to doubt, not only his veracity, but his memory as well.
Milke, 711 F.3d at 1009 (citations omitted).
The State’s failure to disclose the Brady evidence regarding Det. Saldate
also prejudiced Mr. Gallegos’s sentencing. In finding the “heinous and depraved”
aggravator, the trial judge expressly relied on Mr. Gallegos’s trial testimony
regarding the offense. (Ex. P at 180-81.) The state similarly acknowledged to the
Ninth Circuit that Det. Saldate’s testimony was relevant to the sentencing
aggravators. (Ninth Circuit ECF No. 32 at 22.)
Finally, when viewed in light of his past misconduct, Det. Saldate’s recent
attempts to assert his Fifth Amendment right against self-incrimination in the Milke
retrial and his refusal to speak with Mr. Gallegos’s defense counsel, indicate a
reasonable probability that he committed perjury in both of these trials.
As stated by this Court, “the information most damaging to Petitioner’s
defense was contained in Detective Saldate’s testimony.” (ECF No. 111 at 34.)
The state’s suppression of critical impeachment evidence denied Mr. Gallegos the
opportunity to meaningfully cross-examine Det. Saldate. It caused Mr. Gallegos’s
trial counsel to pursue a strategy based on the erroneous assumption that Det.
Saldate’s testimony was unassailable. Det. Saldate’s known misconduct, together
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17
with his recent conduct that suggests that he committed perjury at Mr. Gallegos’s
trial, show that there can be no confidence in either Mr. Gallegos’s guilty verdict
or sentence of death.
C. Conclusion.
The state’s failure to provide this information to Mr. Gallegos violated
Brady and Mr. Gallegos’s constitutional rights.
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EXHIBIT A
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• SUSPECT INTERVIEW: ANTHONY-
w i t h JERRY and HORTENCIA
Student - Coconino High School, Grade 12, 5 year plan
Employed: Woodman's R e s t a u r a n t , Shopping Plaza,
as busboy,
• ADVISEMENT OF
RIGHTS:
General I n v e s t i g a t i o n s Bureau, 3-16-90,
4:25 p.m. by DETECTIVE CHAMBERS #1678. "Yes"
nodding a f f i r m a t i v e l y when asked i f he understood.
SERGEANT
a t the scene. . I provided
a- SUSPECT
t a k e - p l a c e a t . ..
. t r a n s p o r t a t i o n f o r
t '•
SMALLWOOD at th e west curb of. 7 1 s t .- • •
d i r e c t l y ' was s i t t i n g on th e -.
.
- - -
I
t e s t s as
_
i n d i c a t e d • u n d e r s t a n d i n g and would
t o th e Main P o l i c e S t a t i o n
these purposes.
i n d i c a t e d t o him when a P o l i c e O f f i c e r would a r r i v e on
th e second "he be d r i v e n d i r e c t l y and I would f o l l o w . I asked
him t o remain w i t h t h e O f f i c e r he was w i t h f o r t h e and he
so. I c o n t a c t e d CINDY WISHON and e x p l a i n e d t o her my i n t e n t i n v o l v i n g
- GEORGE
. MS.
was v e r y c o o p e r a t i v e and w i t h JERRY
t o GALLEGOS i n t e n d e d t o so s i m i l a r l y MICHAEL
GALLEGOS... JERRY a l s o agreed t h i s would be a p p r o p r i a t e .
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Page 12
.•>• • OFFICER •.
#1678
-. -
. '•' ' v'
to
to Bureau
include blood and t r a n s p o r t him to the
.
" Bureau. - WeSALDATE
t o General GALLEGOS and I
I n v e s t i g a t i o n s Bureau.
would i n t e r v i e w Bureau t o f i n d u n i f o r m e d
We a r r i v e d a t
I n v e s t i g a t i o n s
s t a n d i n g by w i t h
Desk
and GALLEGOS were w i t h i n a d j o i n i n g
and
,-, .. ...
'
y
-
: - -.
•
GEORGE s a i d MICHAEL
are expected back
GEORGE had working
had come t o
3 - 1 0 - 9 0 estimated he
GEORGE drove .: wheel
t o
d r i v e t r u c k . He
' GEORGE s a i d when he .. due c o n d i t i o n s one t h e r e .
b e l i e v e d h i s
and h i s s i s t e r KENDALL a t sch ool .
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'_' ' '
"TYPE OF CHAMBERS
•. HOMICIDE •
brother JERRY able to o f f e r opened the
made the appropriate they
a custom d r i v e l i n e being
new d r i v e was
s t a r t i n g motor need t o be
. . . . . .
•••• • •
GEORGE he .. - in. ...
.
previ ously l e f t ....and GEORGE up t o o l s used
to
goodnight. KENDALL k i s s e d JERRY .. .
t h i s t o :00 p.m.
GEORGE s a i d " i t t h i s point they games. JERRY the
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Page
' ! ' . •' i
OF REPORT ., '
CHAMBERS
109-04233SA• • .
he has
, • •
h i s mother went t o
two players
fiEOR5|
wn
KENDALL'S room t o "tuck h e r . one h a l f
seen h e r do t h i s o f t e n i n t h e past. He esti mate d
hour a f t e r KENDALL had gone t o bed.
having tucked KENDALL i n .
GEORGE r e c a l l e d h i s . mother doing dishes a f
time JERRY g o t doing dishes
JERRY to. CINDY s h o r t l y
t o have ru n ou t o f He prepared
CINDY went t o be d. JERRI from t h e pr evioush i m s e l f a meal o f r i c e and
n i g h t ' s d i n n e r . JERRY a t e w h i l e c o n t i n u i n g t o
p l a y Nintendo. .,
I
to GEORGE he had not
2*."
JERRY.GEORGE i t to be s o c i a l . . I ,
our. -
'-
• -
and '
hour. . •
- went
having heard' JERRY, .
• • :.•
- •• •
•GEORGE s ai d 'they do n o t and s l e e p i n g He sa id they -each have t h e i r or s i x emphatic xf ,
l e t a lo ne MICHAEL gets sle epe r. GEORGE o f f ered
s l e e p i n g . GEORGE describes him sel f
a l i g h t
go t oand MICHAEL a r e o f t e n companions o f f r e e time '
-school' t o g e t h e r , t h e y l i v e t o g e t h e r , t h e y spend a
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!
'• -
! #1678 ' •
**'*
ving ' arrangement i n F l a g s t a f f . . He desc ribes
' l i v i n g '
MICHELLE
19 y e a r s , who i s s i x months pregnant
and her s i s t e r NAOMI, 14 years, also l i v e a t t h e residence. He describes .
a t h r e e s t o r y house having bedrooms. Four a r e l o c a t e d
and one i n t h e basement. The basement bedroom i s occupied by
basement
almost as an apartment w i t h th e
room , . . , •. '.
t o h i s e a r l i e s t a c t i v i t i e s on t h e morning o f
' He t o l d me of having been waken by h i s mother being t o l d t o ge t
m i l k from t h e C i r c l e K nearby and being gi ve n $2.00 i n cash from' her . He
estimated t h i s was approximately 8:30 a.m. He w a i t e d u n t i l she had l e f t
go t o work
drove
t o 75th
McDowell t o t h e C i r c l ea h a l f g a l l o n of m i l k and a paok o f c i g a r e t t e s f o r himself
• ,• V '
i n
same
, a" w h i t e . .
- i l l e g a l " ,' and
•;
-wearing t o sleep
not,'-be c e r t a i n . GEORGE s a i d •
. 7
had gotten up to-
) - r e s i d e s ; i n Tucson.
i n
f
.
•
c a r p o r t
idea What
• oar MICHAEL •••
t o him. GEORGE went .. - to
found she He .......appeared as
"someone
i n
t h e r e was no
- o f He o f having checked around t h e house, ' i n and o u t o f
,
a He -and .-MICHAEL' checked i n i
f o r one h a l f hour and
•
became
c a l l e d h i s mother a t work. .GEORGE s a i d a f t e r having c a l l e d h i s mother he a l s o c a l l e d t h e P o l i c e , - He
was unsur.e o f
had
phoned t h e P o l i c e . GEORGE s a i d he
sent MICHAEL d r i v i n g " down"
i n t h e "immediate ar ea l o o k i n g f o rCINDY t o
home.... GEORGE and MICHAEL drove ups t r e e t s immediate neighborhood. They drove t o
nearby apartment complexes on McDowell and checked a f i e l d east o f tho se
n e g a t i v e They drove
a canal bank ne arb ywi th
s t i l l s i g n of KENDALL. ' GEORGE s a i d they ret urn ed t o he
were f a t h e r , REX, as
h i s s i s t e r JULIE. ' '
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EXHIBIT B
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Page
H O M I C I D ESU PPLEM EN T
DR
3 -1 7 -9 0
09-0I2335AV I C T I M ' S } L O C A T I O N OF OCCURRENCE
O F F I C E R R E P O R T ' S
M . D . %
D A T E & TIME TYPED
18, 1990-1100B U R E A U
LEADOF KIN;
LEE
( r e n t a l 3 y e a r s ) , 873-2538g r e e n s , days , v a r i ous
Mother o f d e c e d e n t , SUSPECT
d i r e c t e d by t o
in the
it t h e ranking
A s s a u l t D e t a i l at the
i n
9-00 b '
She
f o u n d the aboutGEORGE WOOD
KENDALL
her b e i n g
responded o th e r e p o r t an d began a s e a rc h th e
n i t a l l y f a i l e d t o l o c a t e KENDALL.
fer::^r::;th
Tof
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MCCREARY s a i d a p i a s t i o b o t t l e baby
from S res idence per CINDY WISHON. A p a i r o f g i r l s p a n t i e s
o r ur in e and pos s i b l y baby o i l were found i n decedent ' ac h a r a c t e r i s t i c o f b ab y o i l was n o te d o n
bedding by CINDY A baby o i l b o t t l e urns found by
l i t Ave nu e.LIEUTENANT MCCREARY f i n a l l y s a i d i n t e r v i e w s i n d i c a t e d premises
s l e e p t h i s a . . .n o t e d KENDALL S bedroom door cl o s e d and as no
r e s p e c te d
p r i v a c y and a l lowed t o s l eep i n t h i s was Tor this
as ea r l y as , :0 0 CINDY had not i f KENDALL was' vent to work w i t h o u t
f i a n c e o f WISHON had
th e r e s i d en ce e i t h e r . GEORGE ANTHONY
and MICHAEL STEVEN GALLEGOS found KENDALL m is si ng when theyawoke approx ima te ly a .m. They di sc ov er ed her a r te r thea d u l t s i n r e s i d en ce had l e f t f o r
members by SERGEANT BRYANTARMANDO SALDATE was a s s ig n e d as Case DETECTIVE
and I co n ta c t ed CYNTHIA LEE
w i t h i n r es idence a t
SALDATE i n t r o d u c e d h i ms e l f t o h e r . He i n t r o d u c e d as° i n t e r v i e w h e r . He n o t i f i e d of
KENDALL h a v i n g been found and being A b r i e f aoaent o f h y s t e r i a • ensued w i t h CINDY and a t t r a c t e d t h e a t t e n t i o n o f SMALLVOOD whoh a d p r e v i o u s l y been o u t s i d e t h e r e s i d e n c e . JULIETTE
and receivedfrom CINDY o f KENDALL'S d e a t h . JULIETTE became h y s t e r i c a l as
t o c o n s o l e t h e n separa t ed by
I asked JULIETTE t o
ou ts ide and took
to the l i v i n g room
an . •
1 b i o g r a p h i c a l CYNTHIA and a
m a r i t a l
and
c h i l d r e n . CINDY ha s
WHEATON an d her ha s
deceden t . The SMALLVOOD,
GEORGE
who l ives
w i t h h i s n a t u r a l f a t h e r a l s o
WHEATON. Th e decedent youngest 8 y e a r s .
CINDY sa id she is
t o JERRY GALLEGOS. She has
d i v o r c e d f o r seven years and invo lv ed w i t h GALLEGOS f o r They have
l i v e d at t h e i r p resen t address f o r t h r e e y e a r s . a r e r e n t i n g
w i t h no t o she o f f e r e d GALLEGOS a t
when they t o l e g a l l y a do pt as hi s own
•
•
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TYPE OF REPORT VICTIMKENDALL
Page - 3
J OFFICERS
J DR 8
of the previous evenings
having bathed and gone
" r o o m . S h e as
bed and q u i e t l y e x p e c t i n g KENDALL to be
KENDALL her thenq u i e t l y l e f t the
CINDY sa i d she does t h i s r o u t i n e l y e ve ry
She es t imated KENDALL f i n d s
and d id so .
i v
r r e t u r n e d
a t2 pack o f ounce o f M i l l e r s be e r .
i n a Cabinet i nbe in g a Jeh ova h Wit ne ss and as her
She whent o p r a c t i c e
t h o u g h . She i n d i c a t e d h a v i n g r a i n e d h e r c h i l d r e n
Jehovah Witness r e l i g i o n b u t
or t h e i r s l e e p i n g a r ra n g e m en t s . t he aaa te r which
. . . •.
s o u t h w e s t
•'" s a i d r o u t i n e l y JERRY
CINDY s a i d SheJERRY
»
w o u l d do a
and he agreed
He, as a r e s u l t , has l i v e d s ince September w i t h . . . . . . . . . .
f
1
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g i v e
n a r r a t i v e o f h e r a c t i v i t i e s t h i s d a t e . sa idt h e n remembered needing t o do
l a u n d r y . She dressed and had spare t i m e . She fo r a
c a r t o o n s on 1 5 . woke JERRY as she was .g e t t i n g ou t o f bed. dressed and l e f t f o r work a t 7 :30 She ha d
GEORGK and MIKE'S doors
22, qu ie t when moving
t h e house so
not t o d i s t u r b KENDALL and a l l o w h e r
" s l e e p i n " .
t h e r e f r i g e r a t o r f o r b r e a k f a s t . ? and MICHAEL'S bedroom.
MICHAEL s l e e p i n g on the t op hunk
GEORGE sleeping i n the bo t tom
m i l k f o r
and gave
t he GEORGE a c c e p te d i assured he wou ld do so and shemade c e r t a i n he awoke. CINDY t hen l e f t f o r work w i t h t h a t had
• a r r i v e d at her
no ted a f r o n t at the l i v i n g room cl os ed and l ocked w i t h the
b o l t . CINDY sa i d that door i s r a r e l y used and a lways kept lo cke d. Theca rpor t door l end ing in to t he k i t c h e n d i n i n g area
opened . i nn o t c e r t a i n bu t b e l i e v e s t he door was locked when t h i s
She spoke t o JERRY about t h i s and he assured he r he had un locked
he l e f t . I no ted t h e a r c a d i a door t h e e a s t area o f d i n i n g
b e i n g a p p r o x i ma t e l y one CINDY
she opened t h i s doorh e r s e l f morni ng hav ing found i t a a u s u a l She
in the and l e t s t he dog , a t h re e y e a r o l d
i n t h e b a c k y a r d . She l e aves i t opened as t h e two c a t s come and
g o f r e e l y t h i s manner. •
KENDALL a b o u t k e e p i n g he r bedroom
ha d t h e
n j a r dog Would
h e r
bed d i r t y and
a KENDALL i s
the i
pe t b u t does n o t a p p r e c i a t e s o i l e d b e d d i n g . No t e : at the o f i n t e r v i e w
f u r r y cat was l y i n g on c l o t h i n g l e f t t h e d i n i n g
t ab e . a p a i r o f c l o t h p a n t i e s and a n ightgown were a l s o thet a b l e . The
teas were descr ibed h a v i n g been found by
I noted what a a p p e a re d t o be feces on
c r o t c harea o f t h e p a n t i e .
tho rough ly inves t iga te JERRY,
MICHAEL. She i n d i c a t e d u n d e r s t a nd i n g t h r o u g h ay o f q u e s t i o n i n g i t woul d appear t he was s e c u re d d u r i n g t h e I t would then
f u r t h e r appear a SUSPECT was not an i n t r u d e r b u t someone from w i t h i n thewe would
everyone i n v o l v e d t h o r o u g h l y .1 ended
I n t e r v i e w w i t h he r t h i s p o i n t and her to a v o i d areaso r t h e which would be i n v e s t i g a t e d f o r f i n g e r p r i n t s Or t r a c ee v i d e n c e . She assured sh e wou ld do
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- 5
TYPE OF REPORT { VICTIM
OFFICER "
HOMICIDE
KENDALL "' '
i n f o r m a t i o n w i t h r e g a r d t o KENDALL was of her be in gi n d e p e n d e n t i n n a t u r e , d o i n g
in schoo l r e c e iv i n g A' a and B 'a andb e i n g c o n s i d e r e d f o r a s t u d i e s p r o g r a m . Sh e d e s c r i b e d t h i s asb e i n g an ac ce le ra te d s tudy a t Pe r a l t a Schoo l where KENDALL is in thesecond g rade .
has
in su ranc e on any o f he r C h i ld re n and
h e a l t h i n s u r a n c e p r o v i d e d i n g r o u p b y
The ins u r an ce i s a
due to her h av in g been an f u l l . t i t s * f Cr t h r e e y e a r s .
o f f e r e d t h e o n l y l i f e i n su r ance she
h e r s e l f i n n m in ima l
mm-
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EXHIBIT C
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REQUEST SCIENTIFIC ANALYSIS
S U S P E C T N A M E F I R S T ,
MICHAEL
R, NO,
09-042335A • —
S U S P E C T N A M E F I R S T ,
GEORGE
T Y P E O F R E P O R T
L O C A T I O N O F O C C U R R E N C EA R R E S T N O , O R NO,
- S E R I A L N U M B E R
'
Det. H. E. 1739
O A T E 4 T I M E O F O C C U R R E N C E
3-16-90V I C T I M N A M E F I R S T , M I D D L E I F I R M N A M E I F B U S I N E S S 4 T I M E O F T H I S R E Q U E S T
3-19-90
A N A L Y S I S R E Q U E S T E D ! M A R I J U A N A Q D R U G S
O T H E R
Examine Items 1-31 fo r th e p r e s e n c e of semen, blood, s u b s t a n c e , h a i r s
and f o r e i g n s u b s t a n c e s . Compare to blood and h a i r s from M i c h a e l Gallegos
and to o i l in Item and 29
The undersigned prepared to test ify that he Is a criminalist employed by the of and that he on the
19 day
March , 90 obtain i n la b at
i I N V E N T O R Y A S P E R P R O P E R T Y I N V O I C E
E V I D E N C E
That he make an examination and analysis of evidence and In
Semen was i n d i c a t e d on the pant ies (Item 8 ) .
Semen was i n d i c a t e d on the f i t t e d sheet ( I t e m 3)
Chemical t e s t i n g i n d i c a t e d the p r e s e n c e blood on t h e f i t t e d )
Chemical t e s t i n g i n d i c a t e d the p r e s e n c e of blood and the
S e r o l o g i c a l t e s t i n g of th e underwear ( I t e m 27) gave the f o l l o w i n g
ESD PGM PGM Sub EAP ADA AK
2-1 1+2- 1 N/A N/A
N/A No A c t i v i t y
Semen was i d e n t i f i e d on th e c a r p e t ( I t e m 3 1 ) . S e r o l o g i c a l t e s t i n g of
the s t a i n produced a 1+1+ PGM Sub type.
The o i l on th e s t a i n e d sh eets (Items
& 17)
p i l l o w c a s e (Item 5).
was c o n s i s t e n t w i t h the o i l i n the g l a s s v i a l ( I t e m 30A ).
At the conclusion of the analysis the evidence on day
T O PO L I C E P R O P E R T Y T O
, ,
O F C R I M I N A L I S T
M. Pat el
D A T E 4 T I M E T Y P E D C L E R K N U M B E R
1515 09-042335A
REV
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NOTE: FILL IN EVERY SPACE UNLESSTHE INFORMATION IS NOT AVAILABLE.PRINT LEGIBLY IN INK.
? PROPERTYONE ONLY)
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TYPE OF OFFENSE IF KNOWN
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RECEIPT80-130 Rev, 3/89
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EVERY 8PACE UNLESSTHE INFORMATION IS NOT AVAILABLE.PRINT LEGIBLY IN INK.
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TURNED TOCUSTODIAN IN PERSON
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PLACED IN LOCKER
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TAKEN TOPOLICERANGE
USE ONLY;REMARKS
RECEIVED BY
BOOK:
CITY OF PHOENIX, ARIZONA POLICE DEPARTMENT
DATE
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TIME
LINE:
LAWFUL DISPOSITIONAUTHORIZED BY:
PROPERTY INVOICE AND RECEIPTRev.
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EXHIBIT D
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Page - 1
TYPE OF REPORT
HOMICIDE! SUPPLEMENT DATE OR
*
J NAME J
OFFICER REPORT'S •
5 SUPPLEMENT a
! DATE & TIME TYPED
21, 1990 2:11 FNBUREAU CLERK
GI B
S u s p e c t #1 - GALL EGOS . MICHAEL ST EV EN , H/M,
>
MICHAEL GALLEGOS 620
t o
c o n t a c t was to i n t e r v i e w
i n
P a r a p h r a s e d h i s
the i n t e r v i e w ro o. where MICHAEL
o f f i c e r e f t e r he
c a r d . MICHAEL that he knew I
was a p o l i c e o f f i c e r and had s e e n at the i then MICHAEL i
a t t e n d i n g s c h o o l c u r r e n t l y and he s a i d t h a t he
s e n i o r at Coconino High School an d was going t o be one
he
d i d w th no I asked
i f what he
o r
to
h. In
...
,,
—
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gone to h i s b r o t h e r ' s employment which he i d e n t i f i e d as MB V a l l e y Truck
and T r a i l e r . He s a i d he and GEORGE I.WOOD had gone see h i s broth er
so they could some on GEORGE* s E a r l i e r i n th e day, h i s
b r o t h e r had s a i d that they cou ld go by the shop a f t e r 4:30 PM and do soae
work on s a i d t h e y a r r i v e d a t h i s bro the r's place
o f at
4:20 PM and t h a t they wai ted f or
10
u n t i l the shop c l o s e d a t 4:30 PM. H i s broth er
then allowed GEORGE to work on h i s t r u c k which as an
I n t e r n a t i o n a l Scout v e h i c l e . s a i d t h a t they re pl ac ed
the t i e rods on the Scout and d i d soae work to i t u n t i l i t got dark.
MICHAEL s a i d he, GEORGE and h i s b r o t h e r t h e n l e f t f o r
S h o r t l y a f t e r a r r i v i n g at h i s b r o t h e r ' s hone, MICHAEL s a i d he went outside
to the c a r p o r t and began working around h i s c a r which was d i s a b l e d and parked i n the ca rp or t because of a bad He s a i d he was
working on h i s c a r f o r soae t i n e when h i s b r o t h e r t o l d him t h a t i t was
g e t t i n g l a t e and that he ought to coae i n s i d e the house. He went i n s i d e
the took a shower and then began p l a y i n g Nintendo w i t h GEORGE and
h i s b r o t h e r . They a l l p l a ye d Nintendo u n t i l
11:30 PM when
h i s b r o t h e r got t i r e d and went to bed .
MICHAEL s a i d he and GEORGE c o n t i n u e d to p l a y Nintendo for next
hour. At 12:00 or 12:30 MICHAEL t h a t GEORGE decided
to go to then went into the b a t h r o o a and then de cid ed to go to bed
h i m s e l f . When he e n t e r e d the bedroom, he n o t i c e d t h a t GEORGE was alr eady
a s l e e p and the p i t which i s f a a i l y dog, l y i n g on bed
w i t h GEORGE. He i n bed a few a i n u t e s he asleep.
T h i s morning at
8:30
he was awakened because he had a
phone c a l l from a f r i e n d
him who he
Tucson. him to was
down i n a day or two to
i t hits. He e x p l a i n e d ANTHONY had
gone t o s c h o o l i n F l a g s t a f f t o g e t h e r u n t i l moVed
ANTHONY been t r a i n i n g and was to Phoenix Tor
that
A short t he
the phone
he n o t i c e d that GEORGE got
up ou t of bed, got d r e s s e d and then l e f t i n h i s Scout. GEORGE then
r e t u r n e d w i t h h i s some m i l k . He then went i n t o room, changed into some
d i r t y c l o t h e s and went o u t s i d e to work on h i s c a r . He maid J u s t before he
walked o u t s i d e , he saw GEORGE i n the l i v i n g room p l a y i n g w i t h the Ninten do
game.
MICHAEL s a i d he c o u l d not e s t i m a t e the time i t was a sho rt time a f t e r
he had walked ou t to working on h i s e a r when came out and
t o l d him t h a t he c o u l d not f i n d KENDALL. GEORGE asked him
he had seenKENDALL and he t o l d him that he had not. They then walked back I n t o the
home GEORGE s t a r t e d r a i l i n g s e v e r a l of
and that he
f i n a l l y c a l l e d b i s He
t h a t
mother t o l d him to
c a l l the p o l i c e . MICHAEL s a i d p o l i c e a r r i v e d s h o r t l y before GEORGE'S
mother. MICHAEL s a i d t h a t CINDY, mora, gave the® a l a r g e ft x 10
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Page - S
TYPE OF REPORT J VICTIM •
•OFFICER ! OR 8
J •t
photograph of KENDALL t h a t he c o u l d use w h i l e he was l o o k i n g f o r KENDALL.
He and went t o g e t h e r and walked down the s t r e e t showing
p i c t u r e but found no one that had s e e n h e r . They went to School
where KENDALL attends and a l s o drove around in Scout for
KENDALL but not s u c c e s s f u l .
I t o l d MICHAEL that i t was ay t h a t someone in th e house had to have
k i l l e d KENDALL. I e x p l a i n e d him that there was i n d i c a t i o n t h at anyone
had broken i n t o the house but r a t h e r the house was locked and secured the
e n t i r e n i g h t . MICHAEL agreed w i t h t h a t the house was locked and could
no t u n d e r s t a n d how KENDALL could have g o t t e n ou t. I then t o l d MICHAEL that
I wasn't t o t a l l y sure but that i t was my b e l i e f t h at be may have had
something to do w i t h d e a t h . MICHAEL immediately denied being
i n v o l v e d and sai d that he had t o l d me t h a t o c c u r r e d l a s t
n i g h t . I t o l d h i a that I b e l i e v e d t h a t he was p r o b a b l y d r i n k i n g and that
he d not mean t o KENDALL. was s h a k i n g h i s head
from s i d e to s i d e , i n d i c a t i n g no, bu t d i d not v e r b a l l y respond.
1 to ld MICHAEL that the best thing f o r him to do was to t e l l the
t r u t h and that I was there only to get th e t r u t h and not to judge I
t o l d h i a t h a t I had v i s i b l y examined KENDALL'* body and t h a t 1 knew what
he had done to he r. I e x p l a i n e d to him t h a t I was ready to h e a r what had
a c t u a l l y happened and that. 1 could b el ie ve that he p r o b a b l y d i d not intend
on k i l l i n g KENDALL. He asked i f I r e a l i z e d what was a s k i n g h i a and I
t o l d him that I was only asking him to t e l l me the t r u t h . He said that 1
was asking h i a to say something t h a t would c a u s e to l o s e h i s family.
do you think ay b r o t h e r w i l l t h i n k of 1 t h e n t o l d MICHAEL that
he was t h i n k i n g
about h i s w e l f a r e i n s t e a d of t e l l i n g the t r u t h .
MICHAEL t h e n s a i d " l e t ' s say, okay, I'm not a d m i t t i n g i t , but l e t ' s j u s t
say I di d have something do KENDALL, what would
.
1 t o l d MICHAEL
would
under .
a r r e s t and would murder of j a i l .
asked sa y I di d do not
a d m i t t i n g i t , l e t ' s j u s t ' say I d i d , would there I could say.
to keep going to I t h e n t o l d MICHAEL that there was not
a n y t h i n g would keep him from going t o j a i l but that h i s true
s t a t e m e n t would nt l e a s t be an e x p l a n a t i o n of what happ ened i n s t e a d of
j u s t h e a r i n g one s i d e of the s t o r y . MICHAEL f i n a l l y asked me "do you think'
1 d i d it by m y s e l f ? " I t o l d h i a I d i d not. r e a l l y know but that I
would l i s t e n t r u t h and I f someone e l s e was Involved w i t h him. 1
would expect hi a to t e l l who t h a t p e r s o n was. MICHAEL then t o l d me
"okay. I d i d do i t but I was not by GEORGE h e l p e d me and he's as
much to as I an." I then t o l d MICHAEL that I wanted to t e l l me
eve ryt hin g that happened and t h a t I d i d not want to h i s
involvement and p l a c e any blame on GEORGE that he was not d e s e r v i n g of.
MICHAEL t h e n t o l d ae that he understood and would t e l l me th e trut h.
MICHAEL c o n t i n u e d I n t e r v i e w i n n a r r a t i v e form. He s a i d he and GEORGE
had been d r i n k i n g most o f the day, mixing whiskey with He said
t h a t e v e r y t h i n g he had t o l d me about what had o c c u r r e d up when h i s
b r o t h e r went to s l e e p was the t r u t h . He S a i d they a r r i v e d at hi *
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TYPE REPORT VICTIM
KENDALL
b r o t h e r s work to work on t h a t the were drinking
b e e r and t h a t he and GEORGE ha d p o s s i b l y 6 or 7 a p i e c e . When they
a r r i v e d back u n t i l he and GEORGE a l s o had
about 6 o r 7 b e e r s . He sai d that h i s b r o t h e r had bought a case of
e n r o u t e home because GEORGE had h i a the money to do ao. MICHAEL was
t h e n w o r r i e d whether were going to c h a r g e h i s b r o t h e r f o r
l i q u o r to and 1 t o l d h i a t h a t was not ay c o n c e r n at t h i s time.
A f t e r h i s b r o t h e r went s l e e p , MICHAEL t h a t he and GEORGE
to Nintendo and that they began to d i s c u s s s e x . MICHAEL said that he
has o n l y had s e x u a l on t h r e e
and t h a t the l a s t time
was a p p r o x i m a t e ly one year ago. He s a i d he and GEORGE d i s c u s s e d
factt h a t one had had f o r a p p r o x i m a t e l y one y e a r and he
t h a t GEORGE a l s o not that e x p e r i e n c e d w i t h s e x u a l i n t e r c o u r s e .
S h o r t l y a f t e r midnight, s a i d he doesn't know why, he thought
about p o s s i b l y i n t o room and he r . He s a i d hi s
i n t e n t i o n s were to go i n s i d e the room and touch he r " a s s " and then
l e a v e . He mentioned t h i s idea to GEORGE but d i d no t know how GEORGE
t a k e i t KENDALL was h i s s i s t e r . MICHAEL s a i d he was somewhat
s u r p r i s e d when GEORGE agreed. MICHAEL s a i d t h i s made him l i t t l e unsure
about whether they should do i t and t h a t GEORGE a s s u r e d him t h a t no one
would and t h a t i f KENDALL d i d wake up, she would not t e l l anyone.
MICHAEL sa id that he was wearing a of l i g h t c o l o r e d s h o r t s and that
GEORGE was a l s o wearing s h o r t s but t h a t they were b l u e checked.
They t u r n e d of f the game and t h e y both walked down He
s a i d when they got to th e door, he t o l d GEORGE to
a
because wanted t o go i n s i d e the bathroom and ge t the baby o i l . I asked MICHAEL
what he needed the baby f o r and he he had i n t e n t of putting
the baby on because he had t h i s t h i n g about how baby
s k i o f e e l ao s o f t . MICHAEL and s a i d t h a t he went
i n t o removed the baby o i l the and then walked
back to KENDALL'S bedroom door. He n o t i c e d GEORGE w i t h h i s hand
on the door knob and h i s o t h e r hand down the f r o n t Of h i s
MICHAEL s a i d i t was obvious to him t h a t GEORGE was " p l a y i n g w i t h himself."
They e n t e r e d room, MIKE s a i d t h a t he saw KENDALL l y i n g on her
s i d e f a c i n g the was not c o v e r e d and hep n i g h t s h i r t was j u s t
above her w a i s t . He s a i d t h i s exposed a small part of he r back and her
pant They both walked up n e x t to t he bed and t h a t he was standing
the area of b u t t o c k s . GEORGE was s t a n d i n g next to him h er
MICHAEL s a i d i t very hard f o r t o me these thin gs and I
to h i a that I
1
t
to l i s t e n . MICHAEL s a i d he paused fo r a moment and then co nti nue d.
MICHAEL sa id that f o r some r e a s o n , he area and
r e f e r r e d to as "he r a s s " . He s a i d he began r u b b i n g b u tt oc k s
o v e r h er and he t h a t 0KDR0K breast
a r e a . MICHAEL s a i d hat t h i s t i m e , was a s l e e p . He
a p p l i e d some baby to h i s to rub the baby o i l on the area of
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Page - 5
TYPE OF ! VICTIM
OFFICER j 9
KENDALL
back that was exposed. MIKE s a i d he l i k e s th e way baby o i l f e e l s
on someone's s k i n and was doing i t f o r t h a t r e a s o n . He s a i d t h a t GEORGE
had moved h i s hand to v a g i n a l a r e a and was s o r t of rubbing h i s
f i n g e r around i t . He s a i d he then p l a c e d h i s hand which had o i l i t on
KENDALL'S back and that alao st KENDALL began t o wake up. He
b e l i e v e d th at i t
have the baby o i l and t h a t he was
c o l d ami that may have been what woke KENDALL up. He i s no t r e a l l y sure
but he t h i n k s KENDALL had turned to look a t them and he then saw GEORGE
pla ce h i s hand on raouthand h o l d i t so she could not
KENDALL was s t i l l asking a n o i s e which he then i l l u s t r a t e d to by
covering h i s own mouth and then t a k i n g deep b r e a t h s through h i s nose. This
made a sound as a pi g would do and he s a i d t h a t was th e same sound that
KENDALL was making. Because of t h a t , he p l a c e d h i s hand on top of
hand, c o v e r i n g
nose. He doesn't know how long he and GEORGE kept
t h e i r hands on KENDALL's mouth and nose but then he r e a l i z e d t h a t KENDALL
went limp. KENDALL was not moving anymore and he sai d that he • immedi ately
thought that they had h e r . He and GEORGE both l e t go of KENDALL and
he i s sure but he b e l i e v e s t h a t he whispered to GEORGE that she was
dead. sa id that he d i d not r e a l l y mean to k i l l KENDALL but that
t h i n g s j u s t got c a r r i e d away. I then as ked why they s t i l l sexua lly
a s s a u l t e d KENDALL and he sai d that they knew they had a l r e a d y k i l l e d her
so they f i g u r e d they s i g h t as w e l l f i n i s h .
MICHAEL GEORGE turned KENDALL on her back. GEORGE grabbed the
t h a t KENDALL's head was l y i n g on and moved I t down and p l a c e d i t
underneath her not iced tha t GEORGE no l o n g e r have
pants on and he saw GEORGE g et on to the bed w i t h KENDALL. He could see
that GECRGE had a complete e r e c t i o n as he d i d . GEORGE then spread
KENDALL's a p a r t . He was no t on t he bed but was standing i n
the
he was when he
f i r s t
to fondle
He does not thin k that GEORGE e v e r made KENDALL because
he made t h i s which be a g a i n i l l u s t r a t e d by c l o s i n g
i • opening ,
h i s mouth and g r i t t i n g h i s t e e t h . He s a i d when he saw t h i s face on
he as sur ed t hat i t was h u r t i n g GEORGE and that he a p p a r e n t l y was unable
"get i t i n " . I then asked what he was doing and he had h i s
hand underneath KENDALL's " a s s " and that he was her w h i l e GEORGE
was attempting to make I asked HIKE what was i t about KENDALL's
b u t t o c k s t h a t turned h i a on and he s a i d he d i d not know but t h a t was th e
o n l y t h i n g was i n t e r e s t e d i n .
GEORGE then got of f the bed q u i e t l y and MIKE s a i d the o n l y thought he had
was that he wanted to make entry into "her a s s " . He grabbed KENDALL around
th e l i f t e d her from th e bed and p l a c e d her s o f t l y on the He
b e l i e v e s th at when he picked he r up from
bed, GEORGE was helping buthe not where GEORGE h o l d i n g her. Was lying face
down on carpet next to the bed and he then s p r e a d her leg s apart. MIKE
s a i d he does not remember whether he had h i s s h o r t s , Completely o f f but he
does
b e l i e v e he d i d .
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TYPE OF REPORTPage - 6
VIC TIM
i , KENDALLOFFICER
between KENDALL t h a t he was k n e e l i n g on th e car pet
then reached down end grabbed KENDALL f r o . th e
moved h e r towards h i s
a s k e d t o l d me t h a t he made " h e r a s s " . I then
he had o then l e gs a l l o v e r h i s Penis
, be f or e MIKE he was . * *
back and f o r t h KENDALL s and was pushing KENDALL's buttocks p e n i s . He does not know th e amount o f time that i t
took h i . t o e j a c u l a t e b ut he does know t h a t i t w., not
he saw GEORGE with
with a f u l l e r e c t i o n . He was holding
p u t t i n g KENDALL's mouth o v e r
i s .
he then e j a c u l a t e d and pushed
b u tt o c k s
then reached down and p u l l e d up s h o r t n t o c l e a n o f f
Ho
he remembers c l e a n i n g some f e c e s from p e n i s onto h i s
n o t i c e d t h a t KENDALL had some f e c e s on he r p a n t i e s .
s a i d that when he f i n i s h e d , GEORGE had ao e r e c t i o n bu t that
mouth. GEORGE not
of wha t l o do next and
take KENDALL o u t s i d e
down t he s t r e e t and leave h e r .
t h e n
and and s t u f f e d underneath t h e c h e s t
commented t h a t
t h e reason GEORGE GEORGE then
o f baby o i l
had h U
KENDALL down onto
t e n n i s s h o e s . He then n I k e d
KENDALL and they cont inu ed out the k i t c h e n a r e a ,
•
mm
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Page - 7
TYPE VICTIM
J tfBHMfe. KENDALL J ATE
door. MIKE s a i d t h a t the c a r p o r t door i s alw ays l o c k e d and for that
r e a s o n , GEORGE us ed the keys to un lo ck the door . They then c a r r i e d he r out
the c a r p o r t door to th e front of a wh it e v e h i c l e and l a i d he r on the
cement f l o o r between the f r o n t of the wh it e v e h i c l e and t he back of th e
GEORGE then went t o th e c a r p o r t door and l o c k e d th e door from th e
o u t s i d e . I then asked MIKE why they d i d t h i s and he s a i d that GEORGE di d
t h i s bec aus e he didn't want to wake up w h i l e they were gone and
check the doors as he does on o c c a s i o n and f i n d th e door un lo ck ed . He s a i d
i f h i s b r o t h e r would have done t h i s , he would have immed iat ely gone to
t h e i r bedroom and c o n f r o n t e d the® about the f a c t of not locking the door
as they had been by him b e f o r e he went to s l e e p .
He and GEORGE then walked from the c a r p o r t door out
the front of thedriveway of th e bouse towards the He s a i d they were looking
for anyone around the s t r e e t or any c a r s but d i d not see any. GEORGE,
who was h o l d i n g the b o t t l e of o i l , t h e n t r i e d to t o s s i t as f a r as he
could but the b o t t l e o f o i l landed in the c e n t e r of the s t r e e t . MIKE does
not remember the b o t t l e making very much n o i s e but they agai n looked up
and down the s t r e e t to see i f anyone A f t e r seeing no one,,
they walked back into the c a r p o r t and a g a i n GEORGE p i c k e d KENDALL from
around the chest ar ea and he picked h e r up from th e a n k l e s , I then ask ed
MIKE why he neede d to p i c k up KENDALL s i n c e i t was ay that KENDALL
d i d n ' t weight that much. MIKE then s a i d t h a t he thought KENDALL only
weighed about 60 or 70 pounds, but t h a t when GEORGE p i c k e d her up, he kind
of f e l t f o o l i s h j u s t w a l k i n g b ehi nd him, not do in g a n y t h i n g so he picked
up her f e e t .
MIKE s a i d that both he and GEORGE were c a r r y i n g KENDALL and that they ran
on the s i d e w a l k fo r a s h o r t d i s t a n c e and t h e n c r o s s e d the s t r e e t u n t i l
they got to the where he and GEORGE l a i d h er down.-. (hat
they r e a l l y had no i n t e n t i o n s of p l a c i n g her underne ath t h i s p a r t i c u l a r
t r e e but t h a t i t J u s t there. Aft er doing t h i s , they ra n back to the
house and stood by the o u t s i d e of the c a r p o r t door for j u s t a co up le of
seconds to se e i f anyone was They unlo cke d the entered i t .
and t h e n re i t . then walked back to t h e i r bedroom, got bed
and f e l l a s l e e p .
The next morning, he s a i d that he and GEORGE d i d n ' t t a l k about what had
happened but i n s t e a d avoi ded the s u b j e c t . He d i d ge t up and answe r a phone
h i s f r i e n d and t h a t GEORGE d i d ge t up and go t o the s t o r e and
buy m i l k . I asked why he d i d t h i s , s i n c e they both knew that
KENDALL would not be up to eat any c e r e a l . MIKE t h e n q u i c k l y responded
we needed lo e a t . " MIKE s a i d that he and GEORGE did get together and
walked up and down the s t r e e t that they made a point to only walk down the
east side of the s t r e e t so they would not f i n d
body, When they went In
GEORGE's a l s o d rove around the a r e a but s t a y e d from
h a v i n g to d r i v e by KENDALL so they woul d not have t o se e the body.
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EXHIBIT E
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m
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IN THE 3UPERI0U COURT OF THE STATE OF ARIZOIiJA
IN AND FOR THE COUNTY OF MARICOPA
STATE OF ARIZONA,
Plaintiff,
vs.
GEORGE ANTHONY vSMALLWOOD
efendant
No.
CR 90-03339b
REPORTER'S TRANSCRIPT OF PROCEEDINGS
State's Motion to Dismiss
Phoenix, Arizona
June 29, 1990
Is35 p.m.
BEFORE: THE HONORABLE JEFFREY A. HOTUAM,
Judge of the Superior Court
Prepared by Teresa Louis,
Official Court Reporter
)
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APPKARAI>3CES
MR, LOUIS STALZER,
Deputy County Attorney
For the States
MR. PETER CLAUSSEN,
Deputy Public Defender
For the Defendant
Phoenix, Arizona^
June 29, 1990
1:35 p.m.
THE COURTS Criminal cause 90-03339, State vs.
George Anthony Smallwood. Counsel may note their presence.
MR. STALZER3 Louis Stalzer for the State,
MR. CLAUSSENs Peter Claussen on behalf of Mr.
Smallwood. Your Honor, who is present.
THE COURT: I have in front of me the State's
motion to dismiss and order and the defendant's motion to
release the defendant on his own recognizance. We will take th
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1 state's motion to dismiss at this time.
2 MR. STALZERi Yes , Your Honor. I filed the motion
3 previous to today based on the fact that I had verbal
4 confirmation from the laboratory in Maryland indicating that
5 there was no evidence apparent from their testing of the various
6 forensic samples which would implicate Mr , Sinailwood in the
7 crime charged.
B For that reaso n, the State believ es that it would
9 have inadequate evidence to prove his guilt beyond a reasonable
10 doubt at the pres ent time, and therefore moves for the dis»7iissal
11 without prejudice so as not to keep him incarcerated any longer,
12 THE COURT: V?ould counsel pleas e approach the
13 bench?
14 (V-^hereupon a discussion was held at the bench
15 between Court and counsel, outside the hearing of the jury and
16 the court reporter. )
17 THE COURT Good cause appearing, it is ordered
18 granting the motio n of the State, dismiss ing the charges against
19 the defendant without prejudice.
20 MR. CLAUSSEN: Your Hono r, could I be heard on the
21 point of prejudice?
22 THE COURT; Yes , you may.
23 MR, CLAUOSENs Your Honor, this case arose March
24 17, Mr. Smallwood was charged quite openly, quite publicly. He
25 appeared on every television statio n in tow n. The story was
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1 carried in both local news papers, in the Mesa Tribune, carried
2 in the Flagstaff newspaper, where Mr , Smallwood lives ,
3 His name has been sullied. His reputation has been
4 muddied terribly. The crimes involved here are incredibly
5 heinou s. His name has been dragged through the mud. There's
6 been extreme prejudice to Mr , Smallwo od, The victim here is his
7 sister. He has never been given the opportunity to grieve for
8 her, as he would obviously. The opportunity to grieve was
9 really torn from him because he was in jail being charged for
10 this crime, and he's
been
extremely confused about that from the
11 very beginning,
12 There's been prejudice to him. There is no need to
13 have this hang over his head any further. To make it without
14 prejudice is not to give him the exoneration that he clearly
15 should be given at this point . His name should be cleared as
16 completely as can possibly be do ne,
17 You can't give him back his good name, but you can
18 at least make it with prejudice so that it can be clear to
19 anyone wh o might ever ask that it's now acknow ledged he is
20 innocent, he had nothing to do with
this.
To make it without
21 prejudice is to make it sound as if so meho w or other in the
22 future the State may choos e to charge him again,
23 There is no evi dence . There's never been any
24 evidence. There is a statement by a co-defendant, and that's
25 it.
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1 THE COURT There are of course under Arizona law
2 sev eral civil remedies available to Mr . Sraallwood. The Court's
3 order will be without prejudice,
4 It's ordered further releasing the defendant from
5 incarceration as soon as pos sibl e,
6 Thank you, couns el.
7 MR. STALZER: Your Honor , I believe as a result of
8 your order all pending motions are rendered mo ot .
9 THE COURT Yes , that's correct. Thank you.
10 (Whereupon at 5 40 p.m. these proceedings
11 concluded,)
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EXHIBIT F
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RICHARD M.
ROMLE\
MARICOPA
COUNTY
ATTORNEY
L o u i s
F. S t a l z e r
BAR ID : 010471
Deputy C o un t y A t t o r n e y
111 West Monroe, S u i t e 1800
P h o e n i x ,
AZ 85003
T e l e p h o n e : 602 256-5780
A t t o r n e y for P l a i n t i f f
J Jl
2
?3
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
THE STATE OF
ARIZONA,
P l a i n t i f f
v s .
GEORGE SMALLWOOD,
D e f e n d a n t .
NO. CR 90-03339,B
STATE'S
MOTION
TO DISMISS
AND ORDER
A s s i g n e d to the H o n o r a b l e
J e f f r e y A. Hotham - Div. 46)
COMES
NOW the S t a t e of A r i z o n a , by and t h r o u g h u n d e r s i g n e d
c o u n s e l , and moves t h i s C o u r t to d i s m i s s the
a b o v e - e n t i t l e d
c a u s e
w i t h o u t
p r e j u d i c e as to
GEORGE
SMALLWOOD
o n l y ,
f o r
the
r e a s o n
t h a t :
The S t a t e w o u l d be u n a b l e to p r o v e the d e f e n d a n t
g u i l t y
of
t he c r i m e s c h a r g e d
beyond
a r e a s o n a b l e d o ub t .
C o u n s e l c e r t i f i e s t h a t t h i s m o t i o n i s b r o u g h t i n good f a i t h
a nd not for the p u r p o s e of a v o i d i n g the p r o v i s i o n s of R u l e 8,'
A r i z o n a R u l e s of
C r i m i n a l
P r o c e d u r e .
MEMORANDUM
OF POINTS AND AUTHORITIES
R u l e
16.5,
A r i z o n a R u l e s
of
C r i m i n a l P r o c e d u r e .
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R e s p e c t f u l l y S u b m it t e d
t h i s <c£day
o i J u n e , 1990.
RICHARD M. ROMLEY
MARICOPA COUNTY ATTORNEY
BY
Copy
of the
f o r e g o i n g
m a i l e d / d e l i v e r e d
t h i s
jZfc? day of
J u n e , 1990, t o : .
T he H o n o r a b l e
J e f f r e y A. Hotham
Judge of the
S u p e r i o r C o ur t
P e t e r Cl a u s s e n
D e p u t y
P u b l i c
D e f e n d e r
132
S o u t h
C e n t r a l
P h o e n i x ,
AZ
85004
G r e g
C l a r k
45
W.
J e f f e r s o n ,
11th
F l o o r
P h o e n i x ,
A r i z o n a 85003
l i s
F.
S t a l z e i
D e p u t y C o u n t y
A t t o r n e y
BY
L o u i s F. S t a l z e r
D e p u t y C o u n t y A t t o r n e y
2
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ORDER
IT IS HEREBY ORDERED t h a t the a b o v e - e n t i t l e d c a u s e be d i s m i s s e d
w i t h o u t p r e j u d i c e
i n CR
90-03339,B
as to GEORGE
SMALLWOOD o n l y .
DONE IN OPEN COURT
t h i s
L F S : k g
2 . 2 1 f s
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EXHIBIT G
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F I L E D
D E C
9
i g g 4
r
9 4 0 3 8 9
N O E L K . D E S S A I N T
CLERK SUPREME COURT
2
3
4
5
6
7
I N THE S U P E R I O R C O UR T OF T
i
ZOWA
n V
t-^ <^ V
a^
'
IN AND FOR THE COUNTY OF MARICOPA
C ^ O M < ^ O ^ _ - P H ^ - ^
THE STATE OF ARIZONA,
PLAINTIFF,
V S
MICHAEL STEVEM GALLEGOS,
DEFENDANT =
N O
CR 90-033=t9
o
5
dAi hoH Af
F I L E D
J U N
1 9
1 9 9 1
NOELK.DESSAINT
C L E ^ ^ I P g E M E COURT
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.6 E F R E :
PREPARED
FOR
SUPERIOR COURT
ORIGINAL)
PHOEHIX, ARIZONA
AUGUST 3 1990
BY
THE HONORABLE JEFFREY A. HOTHAM, JUDGE.
REPORTER S TRANSCRIPT
OF
PRETRIAL MOTIONS
CYNTHIA
S.
ZAMENSKI,
OFFICIAL COURT REPORTER,
:i3llGGveiT m mwmmnP
MATERL I
SUPWRXOR COURT
Phoe ni x. Ai izona
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23
1 A . H E W A S 1 8 Y E A R S O L D .
2 Q . D I D Y O U D I S C U S S I F H E H A D A N Y P R O B L E M S I N S C H O O L ?
3 A . Y E S , W E D I B .
4 Q , W H A T D I D H E S A Y T O Y O U ?
5 A . I A S K E D H I M A B O U T H I S S T U D Y S K I L L S I N S C H O O L A N D
6 H E I N D I C A T E D T O M E T H A T H E W A S I N S P E C I A L E D U C A T I O N , T H A T
7 H E W A S C O N S I D E R E D A S L O W L E A R N E R = H E S A I D T H A T H I S P R O B L E M
8 A R E A W A S M A T H A N D C O N S I D E R E D H I M S E L F A L E V E L C)B' 9 T H G R A D E
9 I N M A T H . H E I N D I C A T E D T H A T M O S T O F H I S O T H E R S T U D I E S W E R E
1 0 C O M P A R A B L E W I T H H I S G R A D E L E V E L A N D I A S K E D H I M A B O U T H I S '
1 1 R E A D I N G S K I L L S A N D j E S A I D T H A T H E C O N S I D E R E D H I M S E L F
1 2 S E N I O R L E V E L .
1 3 Q , D I D Y O U A S K H I M A B O U T H I S S T U D Y H A B I T S O R H I S
1 4 A B I L I T Y T O D O H O M E W O R K ? I F Y O U R E M E M B E R -
1 5 A . I D O N ' T R E C A L L .
1 6 Q , D I D Y O U A T A N Y T I M E A D V I S E H I M O F H I S M I R A N D A
1 7 R I G H T S ?
1 8 A , Y E S , I- D I D .
1 9 • O . C A N Y O U T E L L J U D G E H O T H A M H O W T H A T W A S
D O N E .
2 0 A . I R E M O V E D A M I R A N D A C A R D , L I S T I N G H I S M I R A N D A
2 1 R I G H T S ; T H A T ' S I S S U E D B Y T H E P H O E N I X P O L I C E D E P A R T M E N T . I
2 2 H A D I T I N M Y W A L L E T . I R E M O V E D T H E C A R D . I H A N D E D H I M T H E
2 3 C A R D A N D A S K E D H I M T O R E A D T H E R I G H T S O U T L O U D T O M S T O
2 4 ' E N S U R E T H A T H E U N D E R S T O O D T H E R I G H T S , I W A N T E D T O A L S O S E E
2
5
I F H E C O U L D R E A D T H E M C L E A R L Y ; A N D T E S T H I S S T AT E Mf i NT T O M E
S U P E R I O R C O U R T
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1 THAT H E C O U L D R EAD R A T H ER ^ JELL.
2 Q . H O W D I D H H R E A D F R O M T H E C A R D ?
• A . H E H A D H O P R O B L EM I N R E A D I NG T H E C A R D . H E M E V E R
4 H E S I T A T E D O N A N Y W O R D . H E R E A D I T V E R Y C L E A R L Y A M D WI T H O U T
5 H E S I T A T I O N .
6 Q= D I D H E A P P E A R T O B E A L E R T W H E N H E W A S T A L K I NG
•7 WIT H YO U ?
8
A . O H , Y E S .
3
Q .
WHEJJ
H E W A S
R E A D I H G F R O M
T H E
CARD ,-
D I D Y O U
H E A R
1 0 H I M M E N T I O N T H A T H E H A D T H E R I G H T T O R E M A I M S I L E N T ?
1 1 A . YES . HE- R EA D T H E E NT I R E R I G H T S C A R D .
1 2 O . A N D T H A T A L S O A D D R E S S E D T H E I S S U E T H A T H E H A D T H E
1 3 R I G H T T O A N A T T O R N EY ?
1 4 A . T H A T IS C O R R E C T .
X5 O . AND T H A T IF HE C O U L DN T A F F O R D AN A T T O RNEY, ONE
1 6 WO U L D BE A P P OINTED F O R KIM ?
1 7 A . T H A T IS C O R R E C T .
1 8 O . A M D DID YO U HEA R HIM S AY F R O M T HE C A R D , A S IT S
19 PRINTED.. TH AT ANYTH ING HE SAID COU LD BE US ED AG AINST HIM IN
2 0 A C O U R T O F L A W?
2 1 , A . T H A T IS C O R R E C T .
22 Q. NOWf DID YOU DO ANYTHING ELSE TO KIND OF
2 3 REINFORC E FOR YOUR OWN PIECE OF MIND TH AT HE UNDERST OO D
2 4 T H O S E R IG H T S ?
26 k A F T ER R EA DING T HE RIG H T S I A S KED H IM IF HE
S U P E R I O R C O U R T
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1 UNDERSTOOD, AMD
HE
IMMEDIATELY SAID THAT
HE
DID.
i
ASKED
2
FIM IF HE
UMDERSTOOD WHAT
A
LAWYER
WAS AMD HE
SAID THAT
HE
3
DID I
ASKED HIM IF HE OMDERSTOOD THAT
HE
DIDN T HA E
TO
4 TALK
TO ME
RIGHT NOW AND
HE
SAID THAT
HE
DID. THEN
HE
MADE
5 OUESTIONED ABOUT VlAS
HE A
SUSPECT AND
I
TOLD HIM THAT
AT
6 THIS POINT
I
DIDM T HAVE ENOUGH FACTS
TO
SAY
WHETHER
HE WAS
7
OR
WAS NOT
A
SUSPECT AND THAT
I
WAS JUST GOIMG
TO
ASK HIM
8 WHERE
HE
WAS LAST NIGHT, WHAT
HE
DID,
AJMD IF HE
KNEW
9 AMYTHING ABOUT KENDALL S DEATH, AND
HE
IMMEDIATELY SAID
HE
10 WOULD B ULLY COOPERATE WITH ME.
O
AND
IS
I T- NOT
CORRECT THAT
HE
BEGAN
TO
EXPLAIN
12 THE COURSE
OF
EVENTS
TO
VOU FROM THE NIGHT
OF
THE iSTH
OF
13 MARCH OVER INTO THE EARLY MORNING HOURS
OF
APPROXIMATELY:
14 9*00 O CLOCK
OR SO
ONCE THE YOUNG GIRL WAS FOUND
TO BE
15 MISSING S^ WOULD THAT
BE A
FAIR STATEMENT?
16
A
YE S,
17 Q, AlID V»OULD l i
AJ IOO
iS^ixi ji
^ ^
j.j j-.i. i- i»-L
^^.^ ^
18 INITIAL COMMENTS
TO
YOU WOULD NOT
IN
ANY *AiAY INDICATE ANY
19 WRONGFUL INVOLVEMENT
SY
HIM
IN
THE YOUNG GIRL S DEATH?
20
A
THAT
IS
CORRECT.
21
n
WHAT HAPPENED AFTER THAT POINT, CAN YOU TELL US^
A
WELL, AFTER HEARING WHAT
HE
HAD TOLD ME,
I
TObu
9 HIM fHaT
f -fiffu v
THAT MAYBE
HE
WAS INvCiLvED.
I
EJ.PLAINED
TC
24 HIM ABOUT THE SITUATION
OF
THE HOUSE. THAT
IT
WAS LOCKED
^ UP. THERE WAS
MO
INDICATION
OF
ANYONE BREAKING IN,
NO
SUPERIOR COURT
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1 INDICATION OF ANYONE BREAKING OUT. IT WAS JUST — THE
2 HOUSE WAS SECURED. AND WE DISCUSSED THAT AND HE AGREED.
3 Q, WHEN YOU SAY HE AGREED, DO YOU MEAN HE
4 ACKNOWLEDGED THAT THE RESIDENCE WAS LO CK ED .—
5 A, THAT S CORRECT,
g O. — THE NIGHT BEFORE THE GIRL WAS FOUND TO BE
7 MISSING?
8 A, THAT S CORRECT
9 Q. YOU WERE BRIEFED ON WHAT WAS FOUND AT THE SCENE,.
10 AS FAR AS PHYSICAL EVIDENCE; IS THAT NOT CORRECT?
11 A. YES.
12 0, WHEN YOU SAY THE HOUSE WAS NOT BROKEN INTO, WOULD
13 IT BE FAIR TO SAY THERE WAS NO OBVIOUS SIGN OF BREAK-IN
14 THROUGH ANY MEANS —
15 j^, THERE WAS NO OBVIOUS SIGNS OF FORCED ENTRY AT ALL
16 IN THE HOUSE.
17 o. AFTER THAT BRIEF CONVERSATION DO YOU RECALL
18 MAKING THE STATEMENT TO HIM SOMETHING TO THE EFFECT THE
19 BEST THING WOULD BE TO TELL THE TRUTH AND THAT YOU WEREN T
20 THERE TO JUDGE HIJl?
21 A. THAT IS CORRECT-.
22 Q. WHAT OCCURRED NEXT THAT YOU RECALL?
2 3 A, I BELIEVE WE BEGAN TALKIN G ABO UT ME EXPLAINING TO
2 4 HIM THAT I WAS JUST THER E TO GET THE TRUTH AN D THAT IT WA S
2 5
BEST FOR HIM TO TELL M E T H E TRUTH A N D A T LEAST HAVE AN
SUPERIOR COURT
pnoenix
•
Arizona
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•
1 EXPLAHATIOH FGR WHAT KAPPEHSD.
0, AT THAT POIMT IN TIME WOULD YOU DESCRIBE HIS
3 EMOTIONAL STATE FOR US , IB' YOU RECALL =
4 • A. HE — HE HADN'T CHANGED AT ALL, HE WAS vERY
5 CALM. VERY COOPERATIVE. SOB'T SPOKEN, AS HE IS ,
6 Q. DID HE APPEAR EMOTIONALLY AGITATED IN ANY WAY?
7 A= NOT AT THAT POINT, NO.
8 Q. DID HE APPEAR TO BE UPSET IN ANY WAY?
9 A. NO.
10 Q. WAS HE CRYING?
11 A- NOT AT THAT POINT, NO.
12 O. DID YOU, IN THE COURSE OF THOSE STATEMENTS THAT
13 YOU JUST TOLD US, RECALL HIM MAKING THE COMMENT DO VOU
14 REALIZE WHAT YOU'RE ASKING OF ME?
15 A. YES,- I DO.
16 o, NOW; YOU PREPARED A REPORT, DID YOU MOT, OF YOUR
17
18 A. YES ,
19 Q. — INTERVIEW WITH HIM?
20 AND IF SOMETHING IS PUT IN YOUR REPORT IN QUOTES,
21 WOULD THAT BE MORE OR LESS A DIRECT QUOTE FROM THE
22 IMDIVIDUAL ?
23 A. THAT WOULD BE, YES.
2d O- DID HE SAY TO YOU, '^WHAT DO YOU THINK MY BROTHER
25 WILL THIHK OF MS?
SUPERIOR COURT
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?s
1 A. THAT IS CORRECT.
2 Q. WHAT.DO YOU RECALL HIM SAYIMG AFTER THOSE TWO
3 COMMENTS WERE MADE?
4 A, I BSLIEVE HE BEGAN DISCUSSING THE POINT OF --
5 IMDICATIMG WHAT IF HE WAS INVOLVED, BUT THEN HE QUICKLY
6 SAID I'M MOT ADMITTING IT; BUT LET'S JUST SAY WHAT IF I «AS
7 INVOLVED, WHAT WOULD HAVE HAPPEMED OR WHAT WOULD HAPPEN TO
8 ME?
9 0. ME SAID THAT TO YOU?
10 A- YES.
11 Q. WHAT DID YOU SAY IN RESPONSE, IF ANYTHING?
I V ii. I TOLD HIM THAT HE WOULD BE PLACED UNDER ARREST
13 AND HE WOULD BE PUT IN JAIL AND CHARGED WITH MURDER,
14 O. DO YOU RECALL HIM SAYING, AGAIN, LET^S JUST SAY
15 I DID DO IT, BUT I'M NOT ADMITTING TO IT, LET'S JUST SAY I
16 DID. WOULD THERE BE ANYTHING I COULD SAY TO KEEP FROM
17 GOING TO JAIL? DO YOU RECALL HIM MAKING THAT COMMENT?
i Q a
WH D I D
.
19 Q, DID YOU MAKE A RESPONSE 'TO HIM?
20 A. YES, I DID.
21 Q. WHAT DID YOU SAY TO HIM?
0 0
A
I
TOLD
H I M
THERE
W A S
NOTHING THAT
H E
COULD
SAY TO
23 KEEP H I M FROM GOING T O JAIL,
24 O, DO YO U RECALL H I M AS KI NG YOTJ, D O Y O U THINK I DI D
2 5
IT BY MYSELF?''
SUPERIOR COURT
Phoen5.x.- Arizona
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^ i
1 Al YES, HE DIB ASK THAT.
2 O, AND WHAT DID YOU SAY, IF ANYTHING, IM RESPONSE?
-, _ ^ I TOLD HIM I DIDN^T KNOW. I TOLD HIM I DIDN'T
4 KNOW WHETHEE HE HAD DONE IT BY HIMSELF, I ONLY EXPECTED
5 HIM TO TELL ME THE TRUTH AND THAT IF SOMEONE ELSE WAS
6 INVOLVED WITH HIM. I MOULD EXPECT HIM TO TELL ME MHO THAT
7 PERSON WAS AND TO TELL ME THE ENTIRE TRUTH OF WHAT
8 .HAPPENED,
9 0. DID HE PROCEED TO TELL YOU FACTS THAT IfssDICATED
10 HE WAS INVOLVED IN THE DEATH OF KENDALL WISHOH?
11 A, YES , HE DID.
10 O DT^^ YOU AT ANY TIME THREATEN MICHAEL GALLEGOS?
13 A. NEVER.
14 O. DID YOU MAKE HIM AMY TYPE OF PROMISES IN EXCHANGE
15 FOR ANY FORM OF ADMISSION OR CONFESSION?
16 A, NEVER.
17 O. DID YOU COERCE HIM IN ANY WAY TO MAKE ANY TYPE OF
18 INCULPATORY STATEMENT?
19 A. ABSOLUTELY NOT,
20 Q. AT ANY TIME DURING THE INTERVIEW YOU HAD WITH
21 MICHAEL GALLEGOS. DID HE EVER REQUEST TO HAVJi AN ATTORWEV?
22 A, ABSOLUTELY NOT.
23 Q, YOU'RE POSITIVE?
24 A. I AM POSITIVE=
25 O, IF HE WOULD HAVE ASKED FOR AM ATTORNEY, MOULD YOU
SUPERIOR COURT
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1 Q, WHO WOULD THAT PERSON BE?
2 A. DETECTIVE MIKE CHAMBERS.
3 , Q, HOW LONG DID THE SECOND INTERVIEW LAST,
4 APPROXIMATELY?
5 A. 10, 15 MINUTES; MAYBE.
6 Q. DID YOU AT THAT SECOND INTERVIEW NOTE AMY
7 SUBSTANTIALLY DIFFERENT FACTS THAN WHAT YOU WERE GIVEN
8 DURING THE FIRST INTERVIEW?
9 A, NO. THE SECOND INTERVIEW HE O UST BRIEFLY WENT
10 OVER WHAT HAD TRANSPIRED.
11 Q. WERE ANY THREATS MADE TO MR. GALLEGOS?
12 A, ABSOLUTELY NOT.
13 Q. DID YOU PROMISE HIM ANYTHING DURING THE SECOND
14 INTERVIEW?
15 A. ABSOLUTELY NOT.
16 O. DID YOU COERCE HIM IN THE SECOND INTERVIEW?
17 A. ABSOLUTELY NOT.
18- Q
AT THE SECOND INTERVIEW DID HE SAY HE WANTED THE
19 SERVICES OF AM ATTORJJSY?
20 A= HE DID NOT.
21 O, ARE YOU SURE?
22 A. ABSOLUTELY.
23 Q- DID YOU ATTEMPT TO GET AM — EXCUSE ME- STRIKE
24 THAT.
25 WAS THERE A TIME WHEN YOU TRIED TO HAVE A TAPED
SUPERIOR COURT
Phoenix
Arisona
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96
1
A. HE SITS DOWN AND HE BEGINS THE CONVERSATiON WITH,-
2 HE SAYS, I THINK YOU DID IT.
3 O. OKAY. WHAT'S YOUR RESPONSE TO THAT?
4 A, I DENY IT.
5 Q. OKAY. NOW,- PRIOR TO HIM SITTING DOWN AND
6 BEGINNING THIS CONVERSATION, YOU'VE HEARD HIM TESTIFY THAT
7 HE WENT THROUGH THIS EXPLANATION OF MIRANDA RIGHTS. BY
8 HAVING YOU PHYSICALLY READ THE CARD.
9 NOW, DID THAT HAPPEN AS DETECTIVE SALDATE HAS
10 TOLD THE COURT?
11
k
NO,, SIR.
12 Q. HOW DID IT HAPPEN?
13 A, IT HAPPENED AFTER I HAD GIVEN THE CONFESSION,
14 Q. OKAY.
15 A. HE HAD READ ME MY RIGHTS.
16 O, OKAY. DID HE EVER GIVE YOU THE CARD TO READ?
17 A. YEAH,- I READ THE CARD.
18 Q. AND WHEN DID THAT HAPPEN?
19 A, AFTER THE CONFESSION WAS GIVEN.
20 Q. OKAY . AND IS THAT BEFORE YOU ARE ~ YOU CONFRONT
21 MR. SMALLWOOD?
22 A, YEAH.
23 O. OKAY.- NOW, THE ONLY PERSON IN THAT ROOM AT THAT
24 POINT IN TIME IS YOU AND DETECTIVE SALDATE• CORRECT?
25 . A. YES,- SIR.
SUPERIOR COURT
Phoenix, Arisona
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Q 7
1 Q-, • THERE'S NO TAPE RECORDER; IS THAT RIGHT?
2 • A.- NO TAPE RECORDER.
3 Q. WE'VE HEARD DETECTIVE CHAMBERS SAY HE TOOK SLIGHT-
4 NO TE S. I>S T HAT A FAIR ASSESSMENT? WAS HE TAKING LOTS OF
5 NOTES, WAS HE TAKING A FEW NOTES —
6 A. FAIR.
7 Q. OKAY.
8 Q. AT ANY POINT IN TIME DID YOU EVER ASK FOR A
9 LAWYER?
10 A. YES , I DID.
11 Q. WHEN?
12 A. I ASKED FOR IT AFTER I — BEFORE I HAD GIVEN THE
13 CONFESSION, REPEATED TIMES DURING THE CONFESSION AMD AFTER,
14 AND HE WOULD JUST IGNORE MY REQUESTS FOR COUNSEL.
15 O. WHAT WOULD YOU SAY TO HIM?
16 A. I WISH TO BE REPRESENTED BY COUNSEL,
17 Q. OKAY. DID YOU — IS THAT EXACTLY HOW YOU SAID IT
18 OR DID YOU SAY I WANT A LAWYER OR WHAT?
19 A. YEA H, I SAID I WANT A LAWYER AND I SAID NUMEROUS
20 TIMES I WANT COUNSEL,
21 Q. OKAY. WHAT WAS DETECTIVE SALDATE
REACTION TO
22 THAT?
23 A. HE WOULD JUST LOOK AT ME AND JUST KEEP WRITING,
24 Q. HE BASICALLY IGNORED YOU WHEN YOU SAID THAT?
25 K LIKE IT WENT IN ONE EAR AND OUT THE OTHER.
SUPERIOR COURT
Phoenix, Arizona
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Q R
'• 1
Q^
DID HE KEEP SPEAKING WHEN YOU WOULD SAY THIS OR
2 WOULD HE STOP AND LISTEM AND KEEP OM, OR HOW WOULD THAT
3 HAPPEM?
4 A. IT WAS JUST LIKE I DIDN'T SAY ANYTHING.
5 Q. OKAY. YOU'VE HEARD DETECTIVE SALDATE TELL THE
6 COURT THAT HE TOLD YOU THAT HE BELIEVED YOU WERE INVOLVED^
7 A. YES.
8 Q. DID HE SAY THAT TO YOU?
9 A. YES.
10 Q. WHEN DID HE SAY THAT TO YOU? '
11 A, HE SAID THAT AT THE BEGINNING OF THE
12 INTERROGATION
13 Q. OKAY. AND YOU'VE ALSO HEARD HIM TESTIFY THAT
14 YOUR RESPONSE WAS BASICALLY A DENIAL. IS THAT FAIR OR
15 WHAT?
16 A. YEAH.
17 O. WHAT DID YOU RESPOND?
18 A. HOW DID I RESPOND?
19 Q YES.
20 A . I DENIED IT.
21 Q. WHAT WAS HIS RESPONSE TO THAT?
22 A. HE
GOES,
NO, HE
GOES,
''DON'T LIE TO ME, WE
23 GOT ALL NIGHT,
24 Q. DID HE SAY ANYTHING ELSE?
25 A. HE SAID, DON'T LIE AND TELL THE TRUTH.
^
SUPERIOR COURT
Phoenix, Arizona
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118
1 CHRONOLOGICAL AGE OF THE DEFENDANT AND THE APPARENT MENTAL
2 AGE OF THE DEFENDANT AND THE EDUCATIONAL LEVEL OF THE
3 DEFENDANT, HIS PHYSICAL CONDITION, HIS PRIOR EXPERIENCE
4 WITH THE POLICE, AND THE MANNER IN WHICH HE CONDUCTED
5 HIMSELF AT THE HEARING TODAY, INDICATE TO ME THAT IT S
6 APPROPRIATE TO TREAT HIM AS AN ADULT AND THAT HE HANDLES
7 HIMSELF FAIRLY WELL AS AN ADULT.
8 . ON THE BASIS OF THE RECORD THE COURT FINDS THAT
9 THE STATEMENTS MADE BY THE DEFENDANT TO DETECTIVES SALDATE
10 AND CHAMBERS WERE MADE INTELLIGENTLY, KNOWINGLY,- AND
11 VOLUNTARILY.
12
FRANB:LY,
I MUST STATE I AM UNABLE TO BELIEVE THE
13 DEFENDANT WHEN HE ASSERTS THAT ~ HE ASSERTED HIS
14 CONSTITUTIONAL RIGHTS NUMEROUS TIMES AND THAT DETECTIVE
15 SALDATE IGNORED THEM, AND THAT DETECTIVE SALDATE DID NOT
16 GIVE HIM HIS CONSTITUTIONAL RIGHTS UNTIL AFTER HE HAD
17 CONFESSED, I FIND TO THE CONTRARY, THAT THE STATEMENTS
18 MADE BY THE DEFENDANT WERE NOT THE RESULT OF FORCE,- THREATS
19 OR PROMISES OF LENIENCY AND THE STATEMENTS WERE MADE AFTER
20 THE DEFENDANT WAS PROPERLY ADVISED OF HIS CONSTITUTIONAL
21 RIGHTS AND THAT THEREFORE THE STATEMENTS OF THE DEFENDANT
22 MADE TO THE DETECTIVES SALDATE AND CHAMBERS ARE ADMISSIBLE-
23 • YOU WON T NEED TO FILE A BRIEF, MR, STALZER, I
24 WASN T SURE PRIOR TO THE EVIDENTIARY HEARING WHETHER I
25 WOULD NEED MORE OR NOT ON THAT.
SUPERIOR COURT
Phoenix, Arizona
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EXHIBIT H
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•?
:
D E
- 9 1994
9iv-0389-.
OELK DESSAINT
CLEF^^PREMECOUFrr
i i
IN
THE
SUPERIOR COURT
OF THE
STATE
OF
ARIZONA
5d^ 3:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
33
IN AND FOR THE COUNTY OF MARICOPA
o
THE STATE OF ARIZONA,
PLAINTIFF,
V S.
MICHAEL STEVEN GALLEGOS,
DEFENDANT.
N O . R
9 0 - 0 3 3 3 9
U G
" 5 1991
NQELK DESSAINT
LERK SUPREME C 0 U R 7 | /
PHOENIX, ARIZONA
MARCH
7, 1991
B E F O R E : THE HONORABLE JEFFREY A. HOTHAM, JUDGE.
REPORTER'S TRANSCRIPT
OF PR^
-.tis^s?
MOTIONS
JURY TRIAL
CLERK U S DtSTRiCittCOyHT
DISTRICT OF Afl il ON; ^.
BY .
O j i r ^ p ^ ^
PREPARED
FOR
APPEAL
CYNTHIA S. ZAMENSKI,
OFFICIAL COURT REPORTER.
O R IG IN A L )
© IS C O V E RY ^D COM RDENTIAL MATERIAL
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4 0
ROOF, HITTING THE v'SROUND DIRECTLY BELOW, YOU HAD
2 BREAKFAST. YOU LOOKED OUTSIDE. YOU SAvv' MOISTURE AND YOU
3 SAID, SURE ENOUGH, IT WAS RAIM THAT I HEARD. BUT DID YOU
4 SEE IT? CIRCUMSTANTIAL. YOU HAV E NO ACTUAL FIRSTHAND
5 AWARENESS, BUT BY YOUR SENSES, YOUR COMMON SENSE, YOU DRAW
6 THAT CONCLUSION.
7 THE WEIGHT YOU GIV E EITHER ONE IS UP TO YOU. THE
8 LAW DRAWS NO DISTINCTION.
9 GETTING YOU TO THE ULTIMATE DESTINATION, THE
10 FACTS, THE REAL GUTS OF THE BOOK, THE REAL POINTS IN
11 BETWEEN A AND B ON^,OUR ROAD MAP, YOU'RE GOING TO HEAR
12 PROBABLY FROM A FEW POLICE OFFICERS OR DETECTIV ES. YOU'RE
13 GOING TO HEAR FROM THE V ICTIM'S MOTHER. YOU'RE GOING TO
14 HEAR FROM THE DEFENDANT'S FAMILY MEMBERS POSSIBLY.
15 YOU WILL HEAR WHAT MAY BE IN THIS CASE POSSIBLY
16 SOME STIPULATIONS, AND STIPULATIONS AMOUNT TO AN AGREEMENT
17 BETWEEN THE PARTIES, THE STATE AND THE DEFENSE, THAT A
18 CERTAIN FACT EXISTS, SUCH AS THE CAR WAS RED. WHETHER YOU
19 WANT TO BELIEVE IT OR DISBELIEV E IT, AGAIN, IS UP TO YOU TO
20 WEIGH THAT EV IDENCE, TO ACCEPT HOW MUCH YOU BELIEV E OR HOW
21 MUCH YOU DISBELIEV E.
22 THE KEY IN THIS CASE WILL FALL WITH TESTIMONY BY
23 DETECTIV E SALDATE, IT MAY FALL WITH THE TESTIMONY OF THE
24 MEDICAL EXAMINER WHO IS CURRENTLY IN SAN DIEGO FOR
25 SOMETIME, DR. BOLDUC. THE ISSUE TO FOCUS ON IS WHAT IS
SUPERIOR COURT
Phoenix, Aris&na
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bO
1 OUR DECISION TO PICK YOU .
2 YOU CAN'T MAKE THAT DECISION IN A CASE OF THIS
3 MAGNITUDE, I BELIEV E, UNLESS YOU HEAR FROM HIM. AND YOU
'
4 WILL. HE WILL GET UP AND HE WILL TELL YOU WHAT HE TOLD
5 DETECTIV E SALDATE.
HE WILL TELL YOU OF HIS RESPONSIBILITY
6 IN THIS CASE; THAT HE IS RESPONSIBLE. HE WILL TELL YOU OF
7 MR. SMALLWOOD. MY CLIEMT WILL GET UP THERE AMD HE WILL
8 LITERALLY BEAR HIS SOUL TO YOU SO THAT YOU CAN MAKE A FAIR
9 AND ADEQUATE DECISION IN THIS CASE.
10 NOW, PROCEDURALLY WHAT'S GOING TO HAPPEN HERE IS
11 THAT THE STATE IN ANY TRIAL, IN ANY CRIMINAL TRIAL, HAS THE
12 BURDEN OF PROCEEDING FIRST. THEY WILL PUT ON THEIR
13 EV IDENCE FIRST, OR THEY WILL CALL ALL THEIR WITNESSES AND
14 AT THAT POINT THEY WILL REST AND WE WILL PROBABLY TAKE A
15 SHORT BREAK FOR A WHILE, AND THEN WE WILL COME BACK AND
16 BEGIN AGAIN, ONLY AT THAT POINT IN TIME THE DEFENDANT GETS
17 TO PRESENT HIS CASE,. HE GETS TO PRESENT HIS EV IDENCE. AND
18 AT THE CONCLUSION OF THE DEFENDANT'S EVIDENCE, THE CASE IS
19 BASICALLY OV ER. I WILL GET TO COME BACK UP HERE ONCE MORE
20 TO TALK TO YOU. MR. STALZER WILL GET TO COME UP TWICE,
21 NOW, THE REASON THE STATE PROCEEDS FIRST IS
22 BECAUSE THEY HAVE THE BURDEN. AS YOU ALL ALREADY KNOW, AS
23 WE SIT HERE RIGHT NOW, MR. GALLEGOS WHO IS SITTING OVER
24 THERE IS PRESUMED TO BE INNOCENT. HE IS INNOCENT, YOU
25 HAV E SWORN TO THAT, IF WE STOPPED THIS RIGHT NOW, HE WOULD
SUPERIOR COURT
Phoenix, Arizona
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•?
:
D E
- 9 1994
9iv-0389-.
OELK DESSAINT
CLEF^^PREMECOUFrr
i i
IN
THE
SUPERIOR COURT
OF THE
STATE
OF
ARIZONA
5d^ 3:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
33
IN AND FOR THE COUNTY OF MARICOPA
o
THE STATE OF ARIZONA,
PLAINTIFF,
V S.
MICHAEL STEVEN GALLEGOS,
DEFENDANT.
N O . R
9 0 - 0 3 3 3 9
U G
" 5 1991
NQELK DESSAINT
LERK SUPREME C 0 U R 7 | /
PHOENIX, ARIZONA
MARCH
7, 1991
B E F O R E : THE HONORABLE JEFFREY A. HOTHAM, JUDGE.
REPORTER S TRANSCRIPT
OF PR^
-.tis^s?
MOTIONS
JURY TRIAL
CLERK U S DtSTRiCittCOyHT
DISTRICT OF Afl il ON; ^.
BY .
O j i r ^ p ^ ^
PREPARED
FOR
APPEAL
CYNTHIA S. ZAMENSKI,
OFFICIAL COURT REPORTER.
O R IG IN A L )
© IS C O V E RY ^D COM RDENTIAL MATERIAL
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57
1 A. YES.
2 Q. COULD YOU TELL US WHO LIVED IN THE RESIDENCE WITH
3 YOU AND JERRY?
4 A. AT FIRST IT WAS ALL OF US ALL FOUR — ALL THREE
5 CHILDREN. BUCK WHEATON LIVES WITH MY EX-HUSBAND IM
6 OKLAHOMA BUT IT WAS JULIET SMALLWOOD GEORGE SMALLWOOD
7 KENDALL AND MYSELF AND JERRY.
8 Q. IN THE MONTH OF MARCH 1990 WAS JULIET LIVING OW
9 HER OWN?
10 A. YES.
11 Q. DID SHE HAVE HER OWN APARTMENT OR LIVING WITH A
12 FRIEND? COULD YOU TELL US A LITTLE BIT.
13 A. YES- SHE WAS AN ASSISTANT MANAGER OF A STORE
14 AND SHE MOVED OUT AND GOT HER OWN APARTMENT WITH A FRIEND.
15 Q. SO THAT LEFT YOU AND JERRY — WAS BUCK LIVING
16 WITH YOU AT THE TIME?
17 A. NO.
18 Q WAS HE LIVING WITH HIS FATHER?
19 A. YES HE WAS THERE DURING THE SUMMERS.
20 Q WAS THERE A TIME WHEN GEORGE MOVED OUT OF THE
21 HOUSE?
22 A. YES.
23 Q. WOULD YOU TELL US ABOUT THAT.
24 A IN NOVEMBER —
25 O. WOULD THAT BE NOVEMBER OF 1989?
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58
1 A. YES.
2 Q, WHAT OCCURRED AROUND THAT TIME?
3 A, HE MOV ED TO FLAGSTAFF TO TRY AND FINISH SCHOOL UP
4 THERE.
5 Q. WHO DID HE LIV E WITH UP IM FLAGSTAFF?
6 A, NAN AND JERRY GALLEGOS .
7 Q. IS THAT A RELATIONSHIP TO YOUR HUSBAND JERRY?
8 A. YES.
9 Q, IN WHAT WAY?
10 A. HIS PARENTS. ,
11 O. DID JERRY HAV E ANY BROTHERS OR SISTERS?
12 A. YES.
13 Q, WAS ONE OF THEM MICHAEL GALLEGOS?
14 A. YES.
15 Q, IS MICHAEL HERE IN THE COURTROOM?
15 A. YES.
17 Q. IS HE THE PERSON SEATED NEXT TO MR. CLARK?
18 A. YES.
19 Q, WHAT HIGH SCHOOL DID GEORGE ATTEND IN FLAGSTAFF?
20 A. C0C0NIN9 HIGH SCHOOL.
21 Q. WAS GEORGE FRIENDS WITH MICHAEL GALLEGOS?
22 A. YES.
23 Q, DID MICHAEL ATTEND SCHOOL?
24 A. YES.
25 Q. WAS THAT ALSO THE SAME COCONINO HIGH SCHOOL?
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59
A. YES,
O, • IN MARCH OF 1990, WOULD IT BE CORRECT PEOPLE
LIVING OM FULL-TIME BASIS WOULD BE YOU, JERRY, AND KENDALL? '
A. YES.
Q. LET ME SHOW YOU WHAT HAS BEEN PREVIOUSLY MARKED
STATE'S EXHIBIT 1 FOR IDENTIFICATION PURPOSES. IT'S THIS
DIAGRAM.
CAN YOU SEE IT OKAY FROM WHERE YOU ARE SEATED?
YES,
DO YOU RECOGNIZE IT?
YES
WOULD YOU TELL THE JURY HOW YOU RECOGNIZE THE
1
2
3
4
5
6
7
A,
Q.
A.
Q.
DIAGRAM?
A. IT'S THE LAYOUT OF THE HOME WE LIVED ON, ON 71ST
AVENUE.
Q. HOW MANY BEDROOMS DID YOU HAVE IN THE HOME?
A. THREE. ,
Q. DID YOU HAVE ANY SPECIAL SLEEPING ARRANGEMENT
BETWEEN THE THREE OF YOU IN THE HOUSE?
A. WELL; JERRY AND I WERE IN THE MASTER BEDROOM; AND
KENDALL HAD HER OWN ROOM, AND THEN THERE WAS A SPARE ROOM.
Q. WHICH BEDROOM ON THE DIAGRAM WOULD INDICATE THE
BEDROOM KENDALL WOULD OCCUPY?
A. THE UPPER LEFT.
Q. AND I'M PUTTING A PEN IN THIS ONE ROOM HERE AS I
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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•?
:
D E
- 9 1994
9iv-0389-.
OELK DESSAINT
CLEF^^PREMECOUFrr
i i
IN
THE
SUPERIOR COURT
OF THE
STATE
OF
ARIZONA
5d^ 3:
3
4
5
6
7
8
9
10
11
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13
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IN AND FOR THE COUNTY OF MARICOPA
o
THE STATE OF ARIZONA,
PLAINTIFF,
V S.
MICHAEL STEVEN GALLEGOS,
DEFENDANT.
N O .
CR 9 0 - 0 3 3 3 9
U G
" 5 1991
NQELK DESSAINT
LERK SUPREME C 0 U R 7 | /
PHOENIX, ARIZONA
MARCH
7, 1991
B E F O R E : THE HONORABLE JEFFREY A. HOTHAM, JUDGE.
REPORTER'S TRANSCRIPT
OF PR^
-.tis^s?
MOTIONS
JURY TRIAL
CLERK U S DtSTRiCittCOyHT
DISTRICT OF Afl il ON; ^.
BY .
O j i r ^ p ^ ^
PREPARED
FOR
APPEAL
CYNTHIA S. ZAMENSKI,
OFFICIAL COURT REPORTER.
O R IG IN A L )
© IS C O V E RY ^D COM RDENTIAL MATERIAL
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130
1 Q. IM THE AFTERNOON, ON THURSDAY, DID YOU EVER SEE
2 YOUR BROTHER MICHAEL OR GEORGE SMALLWOOD?
3 A. IN THE AFTERNOON, LATE AFTERNOON, AFTER, SAY,
4 QUITTING TIME? YES, I DID.
5 0. WHERE WOULD THAT HAVE BEEN?
6 A, THEY CAME DOWN TO MY frfORK.
7 Q. DO YOU KNOW HOW THEY GOT DOWN TO YOUR EMPLOYER'S
8 LOCATION?
9 A, YES. GEORGE DROVE — BOTH OF THEM DROVE IN
10 GEORGE'S TRUCK. GEORGE DROVE,. AND THEY WERE SITTING OUT IN
11 THE BACK,
12 O, WERE THEY WAITING FOR ALL THE WORKERS TO LEAVE
13 AND BASICALLY THE WORK PLACE TO SHUT DOWN FOR THE EVSMING?
14 A. YES, SO WE COULD WORK ON THE VEHICLES,
15 Q. COULD YOU TELL US WHAT WAS GOING ON AS THE
16 WORKERS LEAVE AMD YOU START HAVING THEM COME INTO THE
17 ESTABLISHMENT TO .HELP THEM WORK ON VEHICLES?
18 A. AS FAR AS?
19 Q. WHAT WERE THEY DOING? WHAT WERE YOU DOING?
20 A, OKAY. I WAS HELPING MICHAEL WITH HIS
21 TRANSMISSION, WHICH WAS OUT OF THE CAR AND ON A BENCH, AND
22 I WAS HELPING GEORGE WITH THE FRONT END, TIE
RODS,
OF HIS
23 JSEP,
24 Q, DID YOU NOTICE ANYTHING UNUSUAL ABOUT EITHER
25 YOUNG MAN WORKING ON THE RESPECTIVE AUTO PARTS, OTHER THAN
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131
1 MAYBE NOT KNOWING ALL THE TECHNICAL STUFF YOU MIGHT KNOW?
2 A. NO. THEY WERE — THEY WERE BOTH LEARNING,
^'
Q
DIB
THEY BOTH APPEAR
TO BE
MORMAL
AS YOU
NORMALLY
4 WOULD OBSERV E THEM
ON ANY
GIVEN DAY?
5 A. YEAH. THEY SEEMED OKAY TO ME.
6 Q, HOW LONG DID YOU,- GEORGE, AND MICHAEL STAY AT
7 YOUR EMPLOYER'S THAT EV ENING
OR
EARLY
—
LATE AFTERNOON?
8
A.
WELL,
WE GOT OFF AT
ABOUT
— I GOT OFF
ABOUT
9
4:30. IT WAS
DARK
BY THE
TIME
WE GOT
HOME.
IT S
HARD
TO-
10
SAY. IT WAS
PROBABLY ABOUT 7;00, 7:30, 8:00.
I
DON'T
11 KNOW.
12 Q. WHEN YOU WERE IN THE SHOP, IT S MID-MARCH, IS IT
13 HOT, COLD, OR COMFORTABLE WORKING ON THE VEHICLES?
14 A. WHEN THE SUN WENT DOWN, IT WAS COMFORTABLE.
15
O. DID
YOU, YOUR BROTHER,
OR
GEORGE HAVE ANYTHING
TO
16 DRINK THAT EV ENING?
17 A. YES, WE DID.
18
Q.
COULD
YOU
TELL
US
WHAT
YOU
WERE DRINKING?
19
A.
BEER,
20 Q, ALL OF YOU?
21
A. I
GAV E THEM SOME BEER, YES,
I DID.
22. Q, HOW MANY BEERS DID YOU GIV E TO GEORGE SMALLWOOD,.
23 THE BEST YOU CAN REMEMBER?
24 A. WELL, IT S HARD TO SAY, I WAS — LIKE I SAID, I
25
WAS
WORKING
ON
BOTH, HELPING BOTH,
AND
BOUNCING AROUND,
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132
1 IT'S HARD TO SAY. A COUPLE, THREE. I B O N' T KNOW, I
2 REALLY WASN'T KEEPING TRACK.
3 Q, WERE YOU DRINKING AMY BEER THAT EV ENING?
4 A. YES, SIR.
5 Q. KIND OF RELAXING WITH THE BOYS, O'UST NOT WORKIHG
6 REAL HARD LIKE YOU NORMALLY DO?
7 A, YES, SIR.
8 Q. DO YOU REMEMBER HOW MANY BEERS YOU MAY HAV E BEEN
9 DRINKING AT THE SHOP?
10 A. ME?
11 Q. YES, SIR,,
12 A, I GUESS PROBABLY RIGHT AROUND FIVE OR SIX,
13 Q. AT THE TIME YOU AND THE YOUNG MEN WERE LEAV ING,
14 DID YOU NOTICE ANYTHING UNUSUAL AS FAR AS THEIR SOBRIETY?
15 A. NO. I REALLY WASN'T PAYING ATTENTION.
16 Q. DID YOU NOTICE ANY SLURRED SPEECH BY EITHER
17 GEORGE OR MICHAEL?
18 A. NO.
19 Q. WOULD YOU SAY THEY APPEARED TO BE NORMAL AS THEY
20 NORMALLY ARE AMY DAY OF THE YEAR?
21 A. I GUESS FROM WHAT I REMEMBER —
22 Q, WHEN YOU LEFT THE SHOP, DID YOU LEAV E WITH GEORGE
23 AND MICHAEL IN THfi SCOUT?
24 A, NO, GEORGE HAD — WENT HOME AMD HE FOLLOWED US
25 DOWN THE ROAD, AND WE STOPPED AT A — I GUESS
LT
WAS A
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133
1 WALGREEKS AND I GOT SOME MORE BEER,
2 Q. HOW MUCH BEER DID YOU BUY?
3 A. I WOULD SAY ABOUT A CASE,
4 - Q. DO YOU REMEMBER WHAT KIND?
5 A, KEYSTONE,
6 Q. AND AFTER PURCHASING THE BEER, DID YOU PROCEED
7 DIRECTLY HOME OR DID YOU GO TO ANOTHER LOCATION?
8 A. I WENT HOME.
9 Q. WOULD THIS BE THE TIME OF NIGHT SOMEWHERE BETWEEN
10 7:30 AND 8:00 O'CLOCK?
11 A. APPROXIMATELY.
12 Q. DO YOU REMEMBER WHAT HAPPENED ONCE YOU AND
13 MICHAEL ARRIVED AT HOME? WAS GEORGE THERE?
14 A. YES.
15 O. WHAT DID THE THREE OF YOU DO WHILE AT THE HOUSE?
16 A. WELL, WE ALL SAT OUT IN THE CARPORT, AMD I TOLD
17 GEORGE — W E L L , HE JUST TURMED 18. I THINK HE WAS 18 AT
18 THE TIME. AMD I SAID YOU GUYS CAN HAV E SOME BEER, AND SO I
19 GAV E THEM SOME MORE BEER.
20 O. HOW MUCH BEER DID YOU GIV E HIM AT THE CARPORT?
21 A. WELL, I GUESS THEY HAD ABOUT MAYBE TWO OR THREE
22 EACH. I'M NOT SURE,
23 O. DID YOU HAV E A COUPLE MORE BEERS THAT EV ENING?
24 A. YES, I DID,
25 Q, WERE YOU OR MICHAEL OR GEORGE DOING ANY TYPE OF
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134
1 WORK OUTSIDE IN THE CARPORT?
2 A. I WAS JUST — I WAS JUST TINKERING WITH MY TRUCK
3 AND JUST CHECKING THE OIL AND SHINING IT. JUST BASIC
4 STUFF.
5 Q. VfflEN YOU WERE DOING THOSE ACTIVITIES, WERE GEORGE
6 AMD MICHAEL IN THE IMMEDIATE AREA WITHIN THE CARPORT?
7 A, YES=
8 . Q. WERE THEY DOING ANY WORK OF ANY SORT ON THE
9 VEHICLES OR HELPING YOU?
10 A. WELL, EVERYBODY WAS DOING THEIR OWN THING,
11 REALLY. MIKE WAS WORKING ON HIS TRUCK, AND GEORGE WAS
12 WORKING ON HIS SCOUT. JUST EVERYBODY WAS JUST IN AND OUT
13 OF THE HOUSE AND GETTING SOMETHING TO EAT, WHATEVER,
14 Q. WHO MADE DINNER THAT EVENING?
15 A> I DON'T REMEMBER.
16 Q. DID YOU MAKE DINNER?
17 A. NO.
18 Q. WAS KENDALL HOME THAT EVENING?
19 A, YES.
20 0. WAS SHE INSIDE OR OUTSIDE?
21 A. SHE WAS INSIDE.
22 Q, WAS THERE A TIME WHEN YOU EVENTUALLY WENT INSIDE
23 TO THE HOUSE?
24 A. OH, YEAH.
25 Q, DID MICHAEL AND GEORGE ALSO COME IN AT SOME POINT
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13 5
IN TIME?
2 A. YEAH, THEY DIB.
3 Q. I KNOW IT S A TOUGH QUESTION, WHAT WOULD BE ABOUT
4 THE EARLIEST THAT YOU CAM REMEMBER AS FAR AS THE ACTUAL
5 TIME BETWEEN WHEN YOU CAME INSIDE AND THE OTHER TWO MEN
6 WERE THERE ALSO?
7 A. THE APPROXIMATE TIME, I GUESS BY THE TIME WE GOT
8 ALL DONE TINKERING, TALKING, WHATEVER, I GUESS IT WAS
9
10:00, 10:30 .
I M NOT SURE.
10 0. DID YOU SEE KENDALL WHEN SHE WAS IM THE HOUSE
11 THAT EVENING, AROUI jD 10:00?
12 A. IT WAS PROBABLY A LITTLE EARLIER THAN THAT, I
13 DID,
14 Q, DID SHE TALK TO YOU?
15 A. WELL, SHE HAD — SHE HAD JUST GOTTEN OUT OF THE
16 SHOWER, T WAS O OKING AROUND WITH HER. AND THEN SHE WENT
17 AND PUT HER PAJAMAS ON.
18 0. DID SHE GIVE YOU A KISS AND GO TO BED?
19 A, NO, THAT WAS PROBABLY THE ONLY NIGHT SHE HADN T,
20 Q, WHEN YOU WERE INSIDE, DID YOU DO ANYTHING SPECIAL
21 INSIDE THE HOUSE WITH ANY OF THE OTHER TWO MEN, GEORGE AND
22 MICHAEL?
23 A. WELL, I EVENTUALLY WENT
IM
AND TOOK A SHOWER BY
24 THE TIME EVERYBODY WAS IN, AND THEY WERE PLAYING A NINTENDO
25 GAME.
u
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EXHIBIT K
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•?
:
D E
- 9 1994
9iv-0389-.
OELK DESSAINT
CLEF^^PREMECOUFrr
i i
IN
THE
SUPERIOR COURT
OF THE
STATE
OF
ARIZONA
5d^ 3:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
33
IN AND FOR THE COUNTY OF MARICOPA
o
THE STATE OF ARIZONA,
PLAINTIFF,
V S.
MICHAEL STEVEN GALLEGOS,
DEFENDANT.
N O . R
9 0 - 0 3 3 3 9
U G
" 5 1991
NQELK DESSAINT
LERK SUPREME C 0 U R 7 | /
PHOENIX, ARIZONA
MARCH
7, 1991
B E F O R E : THE HONORABLE JEFFREY A. HOTHAM, JUDGE.
REPORTER S TRANSCRIPT
OF PR^
-.tis^s?
MOTIONS
JURY TRIAL
CLERK U S DtSTRiCittCOyHT
DISTRICT OF Afl il ON; ^.
BY .
O j i r ^ p ^ ^
PREPARED
FOR
APPEAL
CYNTHIA S. ZAMENSKI,
OFFICIAL COURT REPORTER.
O R IG IN A L )
© IS C O V E RY ^D COM RDENTIAL MATERIAL
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122
1 REDIRECT EXAMINATION
2 BY MR. STALSER^
3 Q. CINDY, WHO ENROLLED GEORGE INTO COCOMINO HIGH
4 SCHOOL?
5 A. MRS, GALLEGOS.
6 Q. MR, CLARK ASKED YOU SOMETIME AGO SOME QUESTIONS
7 ABOUT YOUR MEMORY OF WHAT HAPPENED ON THAT FRIDAY, THE
8 15TH. WHAT WAS YOUR EMOTIONAL STATE IN THE AFTERNOON?
9 A, IN THE AFTERNOON?
10 Q. YES.
^1 ^ I WAS REALLY HYSTERICAL. I WAS WAITING IN THE
12 CARPORT FOR MY FATHER TO GET THERE FROM BULLHEAD CITY.
12 Q- YOU WERE ASKED ABOUT JULIET AND GEORGE GOING INTO
14 KENDALL S ROOM. DO YOU KNOW IF ANYONE DIRECTED THEM TO
15 THAT ROOM?
1^ A. I TOLD THEM TO GO LOOK TO SEE IF HER CLOTHES WERE
17 GONE. BECAUSE THE DETECTIVE WAS SAYING MAYBE SHE WENT
18 OUTSIDE, GOT UP BEFORE THE
BOYS,
AND WENT OUT TO PLAY. SHE
19 WORE HER L.A. GEARS AND SPANDEX SHORTS, AND I KNEW IF SHE
20 GOT DRESSED, I SAID GO LOOK IN HER ROOM AND SEE IF YOU CAN
21 FIND THOSE L.A. GEARS. SHE ALSO HAD AN OLD PAIR OF RAGGEDY
22 SHOES AND SEE IF THEY RE IN HER ROOM. BECAUSE IF SHE GOT
23 DRESSED, SHE WOULD HAVE PUT THEM ON.
2^ Q. DO YOU REMEMBER THE NIGHTGOWN THAT I SHOWED YOU
25 EARLIER?
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123
1 A. YES.
2 Q WAS THAT ONE OF THE ITEMS RETRIEV ED FROM HER
3 ROOM?
4 A. YES.
5 Q. WAS ANY OTHER CLOTHING OR ITEM RETRIEV ED?
6 A. SOME UNDERWEAR.
7 Q. A PAIR OF PANTIES?
8 A. YES.
9 Q. WHERE WERE THOSE ITEMS PLACED?
10 A. ON THE KITCHEN TABLE.
11 Q. DID ANYOi^E TAKE THOSE ITEMS?
12 A. IT WOULD HAV E HAD TO HAV E BEEN THE POLICE. I
13 DIDN T SEE ANYONE TAKE THEM.
14 Q. WAS AiSfYTHING MISSING FROM YOUR HOUSE BROUGHT TO
15 YOUR ATTENTION THAT DAY?
16 A. YES. WHEN THE DETECTIVE WAS TAKING ME THROUGH
17 AND HE WAS LETTING ME KNOW THAT HE FELT IT WAS AN INSIDE
18 JOB, WHEN WE WERE IN HER ROOM, THERE WAS LIKE OIL ALL OVER
19 HER BEDDING, AND WHEN HE TOLD ME THAT, IT JUST CLICKED AND
20 I REMEMBERED — BETWEEN MY MIRROR AND MY BLUE WICKER STAND
21 I HAD PUT A BOTTLE OF BABY OIL THERE BECAUSE WE HAD SOME
22 FRIENDS DOWN, COMPANY DOWN FROM FLAGSTAFF THE WEEKEND
23 BEFORE, AND SHE HAD LEFT HER BOTTLE OF BABY OIL THERE, SO I
24 PUT IT IN THERE SO THAT NEXT TIME I SAW HER I COULD RETURN
25 IT TO HER. AND I WENT INTO THE BATHROOM AND IT WAS GONE,
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1 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
2 IN AND FOR THE COUNTY OF MARICOPA
3
4 THE STATE OF ARIZONA, )
)
5 PLAINTIFF, )
)
g VS . ) NO. CR 90-03339
7 MICHAEL STEVEN GALLEGOS, )
8 DEFENDANT. )
9
10
11 PHOENIX, ARIZONA
MjyiCH 11, ltSl
^f^
12
13
1 4
B E F O R E :
THE
HONOR BLE JEFFREY
A .
HOTHAM J UDGE .
1 5
16 REPORTER'S TRANSCRIPT OF PROCEEDINGS
17 JURY TRIAL
18
19
20
21
22
23 PREPARED FORI
24 PUBLIC DEFENDER
APPEALS DIVISION CYNTHIA i. ZAMENSKI,
25 (COPY) OFFICIAL COURT REPORTER.
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13
1 UNDERNEATH?
2 K. NO, I WASN'T LOOKING,
3 Q. OKAY, WHEN YOU WALKED INTO THAT ROOM WITH GEORGE
4 AND JULIET, WERE PEOPLE ACTUALLY DOWN ON THE GROUND LOOKING
5 FOR ITEMS, OR DO YOU KNOW?
6 A, EVERYBODY WAS JUST LOOKING, LOOKING FOR CLUES, I
7 DON'T KNOW,
8 Q. OKAY, ARE YOU TELLING US , THEN, THAT THl ITEMS
9 THAT GEORGE FOUND UNDERNEATH THE DRESSER WERE NOT READILY
10 APPARENT?
11 MR. STALZERS OBJECTION TO THl FORM OF THE QUESTIOH AS
12 TO ITEMS.
13 THE COURT; SUSTAINED,
14 BY MR. CLARK',
15 Q. ARE YOU TELLING US THAT THl UNDERWEAR THAT GEORGE
16 FOUND WAS NOT READILY APPARENT WHEN YOU WALKED INTO THE
17 ROOM?
Ig ^ I DON'T KNOW. I WASN'T LOOKING. I WASN'T
19 LOOKINO FOR THAT.
20 a. OKAY. WHEN HE FOUND THIS ITEM, THIS PAIR OF
21 UHDIEWEAE. WHAT DID HI DO? YOU WERl IN THERE. DID HE
22 STAND UP AND SAY, LOOK WHAT I FOUND ? DESCRIBE HOW THAT
23 OCCURRED.
24 A, WELL, HE SAID, HERE'S HER UNDERWEAR.
25 . Q. DID HE GIVE THEM TO YOU?
SUPERIOR COURT
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14
1 A. I DON'T REMEMBER.
2 Q, OKAY. WHAT DID JULIET DO?
3 A. SHE FOUND HER — SHE FOUND HER SHIRT.
4 Q. OKAY. WHAT DID SHE DO WITH THAT SHIRT?
5 1 , TOOK THEM IN AND PUT THEM ON THE KITCHEN TABLE.
g Q. DID SOMEBODY LATER RETRIEVE THOSE OR TAKE CUSTODY
7 OF THEM?
8 A. I GUESS SOMEBODY PICKED THEM UP, DETECTIVES OR
9 WHATEVER, BUT THEY — YEAH, THAT'S WHAT HAPPENED.
10 SOMEBODY. I DON'T KNOW WHAT HAPPENED TO THEM.
^^ Q. OKAY. AFTER YOU SEARCHED THE ROOM, THEN WHAT
12 HAPPENED?
13 A. I JUST LEFT THE ROOM.
^^ Q. OKAY. AT THIS POINT IN TIME IT'S APPROXIMATELY
15 1130 OR A LITTLE BIT AFTER. ARE THERE A LOT OF POLICE IN
16 YOUR HOUSE NOW? IS THERE STILL ONI POLICE OFFICER OR DO
17 YOU KNOW?
18 A. NO, THE CARS STARTED COMING. A LOT OF OFFICERS
19 STARTED SHOWING Uf.
20 Q. OiaY. AND WHAT DO YOU DO WHEN THE OFFICERS SHOW
21 UFT
22 A. WHAT DO YOU MEAN?
23 Q. WHAT DID YOU DO? DID YOU SPEAK TO THEM? DID YOU
24 CONTINUE YOUR SEARCH?
25 A. NO. I SPOKE TO THEM, HANDED OUT HER PICTURES,
SUPERIOR COURT
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miQR COURT OF THE
FOE THE COUNTY OF
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. 21
22
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JI IY
A<
F O
Qiitlilh COUET ElfORTll
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29
a
IT
OR sen
7 ITEMS FOR EVIDI
11
12
13
14
16
TILL US ABOUT THOSE IT
(
OR LEOTARD TYPE 1°
„ AMD IT
Wl FOUMD'SOME RED STAINS
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S
T KHOW OF
YOU IDEWTIFI
A . I
m
SOME IX H IB IT i
l
1 3
1 5
17 FAMILYo I
HAD BU M DIST UR BIB BY ANY Of
K 1 CMI
25 AT TH l TIME Of
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36
rAMlLY MIGHT HAVE DO Ml
O TH AT S NOT MHAT
A S r a O
YOU INDICATED TO MR.
11
TH&«t BIO YOU UOO K IN
HS DID LOOK ASB HB BIB
a OiaY. BID VOU LOOK OUT IH ™.
; « IB«. Mm«BLOO«BM.«
H.
C . « 0 « WHBK. «B .OUHB 0 « S H m KS VS -
•m
TM
T H A T SAMB B.RBA'
, Y M © OM THE GROUND. AND IN THAT
^ ^
CM.BOM.. BOX.
.KB «« - ^ —
A
™..« O . « « .BS. HIOH ™ . . «.S .... O.
Q^ WHAT TYPE OF
k
™B
»
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EXHIBIT L
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STATE
OF
All^OMA
IH
THE
SUPERIOR COURT
OF THE
I« AND FOR THE COUNTY
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JU L
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99
STATE OF ARI^OHA
pl inti s
•
V 8
MICHAEL STEVIM GALLI
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15
IS
If
IS
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25
At first, it was my understanding after I got
2 there, that it was being handled as a missing person.
3 Ultimately they found the person dead, Thusly, it became
4 a homicide, and they called our offi ce.
5 A team was summoned. I was part of that team
6 that went out to that address and waited the re.
7 Ultimately supervisors arrived and began to give
8 assignments, and, therefore, I ended up with the job as
9 case age nt, or the person responsible for the actual
10 murder case.
Q. could you tell us a little bit more ab®ut
12 what precisely is the case agent?
A. well, the case agent is nothing — I mean, t
14
15 detectives.
j g
• Howev er, an assignment has to be made to
17 someone that has to look over the ca se . He doesn t -
18 that doesB t aean that he does everything in the case.
19 That just a«ans that other detectives that are working th
20 ca8« al«« report to you, and you re just a gathering poin
21 of the rep ort s.
22 You re also the person that s responsible f
23 going to all the hearing s. You re responsible for
24 basically the investigation of the cas e, if further
^ 25 investigation needs to be done.
be the case agent, you are just, of course, one of the
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59
1 gen era lly what he had told me to Det ect ive MiKe Cha mbe r,,
and I asked George If we could tap e-r eco rd the inte rvie w,
and he said no, that he just didn t feel very comf orta ble
with going over it all over again, and that he felt very
5 com fo rta ble with the fact that he had told .e ev ery th ing .
O IS it correct there was like a rei nte rvi ew
7 with Detective chambers presen t?
There was more of a rei nte rvi ew, but mo re of
li.e a highligh t int erview. I told Mi.e to tell Detective
Ch am be r, gen era lly what he had told «,e, and he wen t into
the fact about his admissions, what happened, that George
; ,, was resp onsi ble with hi™, and Just hig hlig hte d gener al
13 are as, admit ting his guilt, adiuitting Geor ge s guil t,
,4 admi ttin g the fact that they had dispos ed of the body , an
15 the fact th.t they also inte nded later - both attend ed
1, looking .or the body later on. and t h a f s when we asKed
1, him about the tap e-r eco rde r and him not want ing to go
18 t.ir.u,h the wh ole story ag ai n, and I don-t blam e him .
^, Q. in the course of some follow- up work by yo u
20 did you at any time in the days fol low ing attend the
21 autopmy of Kenda ll Wish on7
22 A. 0£ cou rse .
^3 Q. At the time of the aut opsy , did you secure
24 any art icle s that woul d be used for any scientific
25 anal ysis at a later date?
2
3
4
8 A.
9
10
11
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EXHIBIT M
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IK THE SUPERIOR COURT OF THE STATE OF ARIZONA ^^^^^^^
IN mD FOR THE COUNTY OF MARICOPA ^C
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STATE OF ARIZONA^
Plaintiff*
V S
CR 90-03339
MICHAEL STEVEH GALLEGOS, )
)
Defendants
Phoenix, Arizona
March 13. 1991
^
ll ToTT^^'sZllfr
IIZT
DONALD E« MOLL
Court Reporter
• C O P Y
PREPARED FOR
I
O N A P P E A L
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17
1 the witBess, and have on the record what he would respond
2 to those questions that he heard in my offer.
3 THE COURTi All right, Mr, Smallwood. what is your
4 intention, if you were asked the questions that Mr. Clark
5 is saying that he is going to ask you during the trial.
6 what is your intention about answering those questions?
1 THE WITNESS
I
Take the 5th»
8 THE COURTi Are you telling me, sir, that you would
9 invoke the 5th Amendment privilege aa to each and every
10 one of those questions that Mr. Clark says that he may be
11 asking you?
12 THE WITNESSi Yes, sir«
^
THE
C O U R T I
Mr. Clark, do you want to coranent on
14 the appropriateness of that invocation of his rights as to
15 all of the questions?
Ig MR. CLAEKs well. Judge, from my standpoint, I
17 don't believe that it would be an appropriate response to
18 all o£ the qmi^tions, but I do understand that he is
19 acting uadiir th« advice of a lawyer, and 1 have no qualms
20 with that. 1 d^n't think it is proper to invoke it as to
21 every question, but 1 understand what he is doing and why.
22 THE C O U R T I Mr. Stalzer, do you have anything that
23 you wish to say aa to the defendant being able to call Mr.
24 Smallwood as a witness and proceed now that we have heard
25 that he wishes, to invoke his 5th Amendment privilege?
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c\ I MR« STALZERi No, Your Honor. I think the case law
2 is quite clear. I don't have anything to add to this
3 hearing right now«
4 THE COURTS Other than giving his name^ some
5 identifying features and biographical data^ I think that
6 this witness could legitimately refuse to answer
7 essentially all of the other questions^ the relevant
8 questions that would be propounded by the defense, and 1
9 have weighed the importance to Mr, Gallegos of calling
10 this witness versus the importance of Mr« Smallwood'B
11 invocation of his right not to incriminate himself, and 1
^ ^ 12 am, therefore/ going to rule that the witness, Mr .
•^ 13 Smallwood, can properly invoke his 5th Amendment privilege
14 at this timep and he will be totally excused from
15 testifying^
^g I understand that it somewhat impinges on Mr,
17 Gallegos' 6th Amendment rights, but I believe in this
18 situatioa that Mx. Smallwood's 5th Amendment rights are
19 eq ua l^. «• important, and on that basis. I will not allow
20 the de£en*« to call Mr . Smallwood as a witness, because it
21 is obvious to me that he would be called, and would
22 properly invoke the 5th Amendment privilege, and, in my
23 view, even though 1 accept what you're telling me , Mr.
y 24 Clark, about some of the corroboration points, I think
25 that the main gist of what the jury, would get would be the
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19
1 inference that Mr. Smallwood is equally guilty, if not the
2 only perpetrator here, and I don't think that that
3 inference is appropriate by being brought out by having
4 called Mr. Smallwood and having him take the chance.
5 Was there some other comment that you wanted
6 to make?
7 MH« CLARK
I
No, Judge^
g THE COURTi All right. Thank you. sir. You may
9 step down« You»re excused from your subpoena.
j _ Q All right. And. Mr, Stalzer. if you will,
11 over the lunch break, review with with the clerk what
12 eKhibits you still want to move in.
) ^^ ^^^ Clark, does it make any difference to you
14 when we have argument on the remaining inflammatory
15 pictures that you the ones that you have described as
16 inflammatory?
^^ m. CLAKKi Judge, it really doesn't matter. You
18 k B O w ' ^ poBttloa. already as to the majority of those
19 exhibl-^. w whether you want to do it later today, I
20 • don't h«T« any reason not to.
21 THE COURTI Because of our time constraints, I will
22 keep under advisement the issue about the inflammatory
23 photos. I appreciate your consideration on that, and
24 we'll resume the trial at li30«
25 . MR. CLARK Okay. Judg e. I assume that we're going
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EXHIBIT N
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IK THE SUPERIOR COURT OF THE STATE OF ARIZONA ^^^^^^^
IN mD FOR THE COUNTY OF MARICOPA ^C
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STATE OF ARIZONA^
Plaintiff*
VS
CR 90-03339
MICHAEL STEVEH GALLEGOS, )
)
Defendants
Phoenix, Arizona
March 13. 1991
^
—
ll ToTT^^'sZllfr
IIZT
DONALD E« MOLL
Court Reporter
• C O P Y
PREPARED FOR
I
O N A P P E A L
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J
1 NO ie««. was detected on vaginal or oral swabs.
Further, the stipulation being that items
2
3
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5
6
7
8
9 a blood sample from Michael Gallegos.
The results of their testing is as follows,
11
«ere submitted to CellmarK Diagnostic In Oernantown,
Maryland, and they were the following lte.s= Three rectal
swabs, carpet, underwear, panty crotch, front and back;
filter paper labeled introitus l-n-t-r-o-l-t-u-s, left
buttocks and inner left thigh, along with blood samples
..o. Kendall Wishon. blood sa.ple of .eorge S^allwood and
Hu,nan DNA was extracted fro. the itens listed above, and
^2 insufficient .uanity of DHA was obtained fron, the carpet
J
13 ,, continue any testing. No DKA banding pattern was
14 Obtained fron> the combined filter papers labeled
15 introitus. left buttocKs and upper left thigh due to an
16 insufficient quanity of human DNA.
DNA banding patterns were obtained from the
three e»bin.d r ctal swabs, the material labeled
u n d e r « « . th. material labeled panty crotch, front and
baclc.
t h. blood ..mples of Kendall wishon. the blood
sample of George S.allwood and the blood sample of Michael
17
18
19
20
21
22 Gallegos
23
in a report of laboratory examination dated
0 24 August 9. 1990. it was concluded that the D.A banding
,5 pattern obtained fr o. the stained material labeled panty
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crotch, front/ back, matches the DNA banding pattern
Obtained from the blood sample labeled Michael Gallegos.
The frequency in the Caucasian population for
another person being a contributor of the DNA banding
pattern obtained from the panty crotch and Michael
Gallegos is approximately
in 10 million.
The frequency in the Hispanic population for
another person being
a
contributor
of
the DNA banding
pattern obtained from the panty crotch and Michael
Gallegos is approximately 1 in 67 million.
That is the extent of the stipulations. Your
Honora
THE COURTi All right. Mr. Clark do you agree
with the reading and so stipulate?
MR CL RK I Yes. I do. Judge«
THE COURTI Thank you. sir. All right. Thank you.
Mr.
Stalzer.
tod does the State rest at this time?
MR. STALZBRi Your Honor, the State does reit at
this ti^«
THE COURT
I
Thank you^
Members the jury, the State having rested its
case,
there are some legal issues that I am going to be
discussing with the lawyers, and rather than having you
wait around, what we re going to do is send you to lunch
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EXHIBIT O
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c
D E C - 9 1994
N O E L K . D E S S A I N T
C L E R K SUPREME C O U R T
IN THE SUPERIOR COURT O
r a DiAJ. \ s
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IN AMD FOR THE COUNTY OF MARICOPA
? 9 4 3 8 9 A P
-g?«
)
HE STATE OF ARIZONA,
P L A I N T I F F ,
) WT91~01 7r
V S .
)
)
)
)
)
)
)
)
)
N O . CR 9 0 - 0 3 3 3 9 .
MICHAEL^ STEVEN GALLEGOS,
DEFENDANT.
A U G
5
1991
^PHOEisilX, ARIZONA
MARCH 14 /^1991
N0EL1C.DESSAINT
ay ^
i - ^
V
B E F O R E ;
THE HONOR^^LE JEFFREY A. HOTHAM, JUDGE,
REPORTER'S TRANSCRIF^^ OF PROCESSINGS
f f L E D
R ECEIV ED
URY TRIAL
.
N O V : ^
8
Z O 1
L RK U S [ J U T B I C T G O U B T
D f S - m i C r Q F A R i ^ N A
B Y 11 D E P U TY
PREPARED FOR APPEAL
CYNTaXA-#r^AMENSKI,
OFFICIAL COURT REPORTER.
O R IG IN A L )
D I S C O V E R Y A N D C O N F ID E N T IA L y A T E
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45
*• 1 A VER Y EMOTIONAL A N D TRYING TIME FOR EVERYONE, AND YOU A LL
2 ACT ED VERY W ELL W ITH YOUR DECORU M, A M D THAT, ALSO, IS VERY
3 HELPFUL I N MAK ING SURE THA T A FAIR TRI AL W A S CONDUCTED. So
4
I
ALSO W ANTED
T O
TELL
Y O U
THAT
I
APPREC IATED YOUR ACTIONS
AND YOUR BEH AVIOR.
IF COU NSEL W ILL PLEASE LEAVE YOUR PHONE N UMB ERS
W I T H
M Y
JUDICIAL ASSI STANT, W E'LL
L E T Y O U
KNOW
I F W E
HAVE
A
Q U ESTION OR A VERDICT,
AND WE'LL
B E
ADJOURNED
N O W A T
THIS TIME .
(A RECESS.)
(THE FOLLO W ING PROCEE DINGS TOOK PLACE IN OPEN
COURT:)
THE COURT: THANK YOU,
MEMBERS OF THE JURY, HAVE YOU REACHED A VERDICT?
JUROR CHRISTENSEN: YES , W E HAVE.
THE COURT: MR. CHRISTENSEN, W ILL YOU PLEASE HAND ALL
THE VERDICT FORMS TO MY BAILIFF.
THE BAILIFF: THANK YOU.
THE COURT: THANK YOU.
MR. GALLEGOS/ WOULD YOU PLEASE STAND.
THE CLERK WILL PLEASE READ AND RECORD THE
VERDICT.
THE CLERK: W E, THE JURY, DULY EMPANELED AND SWORN IN
THE ABOVE ENTITLED ACTION, UPON OUR OATHS, DO FIND
DEFENDANT, MICHAEL S. GALLEGOS, GUILTY OF FIRST DEGREE
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SUPERIOR COURT
Phoenix, Arizona
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46
1 MURDER; UNANIM OUS AS TO FIRST DEGREE MURDER BUT SPLIT AS TO
2 WHETHER IT W AS PREMEDITATED MURDER OR FELONY MURDER, SIGNED
3 SCOTT CHRISTENSEN, FOREMAN,
^ . ^^' '^^^ ^URY, DULY EMPANELED AND SW ORN IN THE
ABOVE ENTITLED ACTION, UPON OUR OATHS, DO FIND DEFENDANT,
MICHAEL S. GALLEGOS, GUILTY OF COUNT II , SEXUAL CONDUCT '
WITH A MINOR, SIGNED SCOTT CHRISTENSEN, FOREMAN.
ARE THESE YOUR TRUE VERDICTS, SO SAY YOU ONE AND
9 ALL?
10 THE JURY: YES .
11 THE COURT: THANK YOU.
5
6
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12
MR. CLARK, DO YOU WISH TO HAVE THE MEMBERS
'''' 13 POLLED?
1^ MR. CLARK: YES..
15 THE COURT: MEMBERS OF THE JURY, MY CLERK W ILL BE
ASKING YOU IF THIS IS YOUR INDIVIDUAL VERDICT. PLEASE LET
17 HER KNOW, ONE BY ONE.
18 THE CLERK: WILLIAM FULLER, ARE THESE YOUR TRUE
19 VERDICTS?
20 JUROR FULLER: YE S.
21 THE CLERK: ROBERT CROW E, ARE THESE YOUR TRUE
22 VERDICTS?
23 JUROR CROW E: YES.
24 THE CLERK: JULIE ALDEN, ARE THESE YOUR TRUE VERDICTS?
25 JUROR ALDEN: YES.
16
SUPERIOR COURT
Phoenix, Arizona
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EXHIBIT P
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A R
1 1 9 9 5
C l £ R K S U P R E M E C O U R T
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
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F I L E D
M A R 1 1 9 9 5
NOELK.DESSAINT
THE STATE OF ARIZONA,
PLAINTIFF,
V
MICHAEL STEVEN GALLEGOS,
DEFENDANT.
O CR 9 0 0 3 3 3 9
CR 94 03 89 flP
PHOENIX, ARIZONA
OCTOBER 24, 1994
B E F O R E : THE HONORABLE JEFFREY A. HOTHAM, JUDGE
REPORTER'S TRANSCRIPT OF PROCEEDINGS
RESENTENCING
PREPARED FOR APPEAL
CYNTHIA S. ZAMENSKI,
OFFICIAL COURT REPORTER.
(ORIGINAL
SUPERIOR COURT
Phoenix, Arizona
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1 EVIDENCE IN SUPPORT OF THE AGGRAVATING CIRCUMSTANCE AS SET
2 FORTH IN
A.R.S.
13-703(F) 1, 2 3, 4, 5, 7, 8, AND 10.
3 THEREFORE, THE COURT FINDS THAT NONE OF THESE AGGRAVATING
4 CIRCUMSTANCES ARE PRESENT IN THIS CASE.
5 AS TO STATUTORY AGGRAVATING CIRCUMSTANCE (F) 6,
6 THE COURT FINDS BEYOND A REASONABLE DOUBT THAT THE
7 DEFENDANT COMMITTED THE OFFENSE IN AN ESPECIALLY HEINOUS,
8 CRUEL OR DEPRAVED MANNER.
g THE TERMS IN QUESTION ARE DEFINED IN
10 STATI_ VS,_MA PP- CRUELTY INVOLVES THE PAIN AND STRESS
11 SUFFERED BY THE VICTIM, WHEREAS HEINOUS AND DEPRAVED GO TO
12 THE MENTAL STATE'AND ATTITUDE OF THE DEFENDANT AS REFLECTED
13 IN HIS WORDS AND ACTIONS.
^^ THE DEFENDANT COMMITTED MURDER HERE IN AN
15 ESPECIALLY CRUEL MANNER BECAUSE KENDALL SUFFERED PAIN AND
16 MENTAL DISTRESS. THE COURT FINDS BEYOND A REASONABLE DOUBT
17 THAT SHE WAS CONSCIOUS AS SHE WAS BEING SUFFOCATED. THE
18 MEDICAL EXAMINER'S TESTIMONY INDICATED THAT THERE WERE
19 SEVERAL PREMORTEM INJURIES TO HER BODY, AND THAT IT WOULD
20 TAKE AT LEAST A MINUTE BEFORE GOING UNCONSCIOUS IF BOTH AIR
21 PASSAGES WERE COMPLETELY SHUT OFF. THE DEFENDANT ADMITTED
22 THAT KENDALL AWOKE, MOVED AND TURNED HER BODY ON THE BED
23 AND LOOKED AT^HIM WHILE TRYING TO BREATHE AS SHE WAS BEING
24 SUFFOCATED, GRUNTED LIKE A PIG AS SHE WAS BEING SUFFOCATED,
25 STRUGGLED AS SHE AWOKE FURTHER, FLAILED HER
ARMS,
AND TRIED
SUPERIOR COURT
Phoenix, Arizona
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181
1 TO PUSH HERSELF UP OFF THE BED AS HE HELD HIS HAND OVER HER
2 NOSE. HE FURTHER ADMITTED THAT AS HE HELD HER DOWN, SHE
3 WAS FIGHTING FOR HER LIFE.
4 . THE DEFENDANT COMMITTED THE MURDER IN AN
5 ESPECIALLY HEINOUS AND DEPRAVED MANNER BECAUSE OF THE
5 HELPLESSNESS OF THE VICTIM, BECAUSE IT WAS A SENSELESS
7 CRIME, AND BECAUSE OF THE GRATUITOUS VIOLENCE INFLICTED ON
8 THE VICTIM. THE VICTIM WAS HELPLESS IN THAT SHE WAS ONLY 8
9 YEARS OLD, WEIGHED ONLY 57 POUNDS, WAS ONLY 4" 5" TALL, AND
10 WAS ASLEEP IN HER BED AT THE TIME OF THE ATTACK. SHE WAS
11 EASY PREY. SHE NEVER HAD A CHANCE. THE CRIME WAS
12 SENSELESS BECAUSE KENDALL LOVED AND TRUSTED THE DEFENDANT,
13 WHO ESSENTIALLY WAS HER UNCLE AND HAD KNOWN HER FOR SIX
14 YEARS. THE CRIME WAS ALSO SENSELESS IN THAT THE DEFENDANT
15 COULD HAVE ACHIEVED HIS SEXUAL GOALS WITHOUT TAKING
16 KENDALL'S LIFE. THE DEFENDANT INFLICTED GRATUITOUS
17 VIOLENCE ON THE VICTIM. HE ADMITTED THAT HE HAD HAD
18 INTERCOURSE WITH THE VICTIM, THINKING THAT SINCE SHE WAS
19 ALREADY DEAD, HE MIGHT AS WELL FINISH UP WHAT HE STARTED.
20 THAT'S THE STANDARD DEFINITIONS FOR NECROPHELIA. THE
21
MEDICAL EXAMINER TESTIFIED THAT THE INJURIES TO KENDALL'S
22 RECTUM WERE INFLICTED EITHER PREMORTEM OR CONTEMPORANEOUSLY
23 WITH HER DEATH AND AFTER THE INTERCOURSE HER - THE
24 VICTIM'S NUDE BODY WAS DUMPED ON THE GROUND AND ABANDONED.
25 . ADDITIONALLY, AS AN ELEMENT OF ANY HEINOUS AND
SUPERIOR COURT
Phoenix, Arizona
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EXHIBIT Q
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
STATE OF ARIZONA,
Plaintiff,
NO. CR 90-03339
vs.
MICHAEL STEVEN GALLEGOS,
Defendant
Phoenix, Arizona
December 1, 2000
9:10 a.m. •
BEFORE:
The Honorable JEFFREY A. HOTHAM, Judge
REPORTER S TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
FOR THE PLAINTIFF:
Mr.
Jon G. Anderson
FOR THE DEFENDANT:
Mr.
Richard D. Gierloff
PREPARED BY:
Pamela D. Remus, RPR
Official Court Reporter
PREPARED FOR:
MR. RICHARD D. GIERLOFF
Attorney at Law
SUPERIOR COURT
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outside.
I can t listen and hear everything with the
children making noises, please.
Go ahead, Mr. Gierloff.
Q. BY MR. GIERLOFF: Thank you.
Do you recall making an opening argument in
the case?
A. Absolutely.
Q. Was your opening argument based on any
strategy or tactic?
A. Yes.
Q. What?
A. Well, this was a case based upon my
recollection, and I haven t seen the file in a number of
years, but we had litigated pretrial in front of Judge
Hotham a number of issues. We had litigated specifically
whether or not to my recollection, Michael s confessions,
his statements were going to come in. Those went against
us. They were going to come in. And factually when you
look at the case, it was not a very good case for the
defense. It was DNA. There was Michael s statements, and
basically it was decided, and I discussed this with
Michael of my recollection of the opening statement is
that I mentioned in my opening that Michael would be
taking the stand. I also mentioned, you know, quite
clearly, that this was a case where he was basically
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SUPERIOR COURT
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guilty. And what we were attempting to do, and I
discussed this with Michael, and I subsequently wrote him
a letter about it. We were attempting to somewhat
mitigate through the evidence that we expected to come in
his ultimate responsibility. I mean, it was a death case.
He was charged with first degree murder. But, in my
opinion, his actions and the evidence was not suggestive
of a first degree. We were attempting to at least portray
his involvement as something less than that.
Q. You mentiohed on not seeing the file in a
number of years. I made several requests of you --
A. You have.
Q. -- over during my period of representation;
is that correct?
A. Yes.
Q. Did you ever provide me anything?
A. I have never given you a file. My
recollection, I believe, I indicated to you sometime ago
when you requested it was that I had pulled all of
Michael s files for, I believe it was John Antieau. They
sat in my conference room for approximately three weeks
until -- and this was years ago -- until John actually
came and picked them up. And I remember it because the
boxes, you know, there were these big large banker s
boxes,
and some of them came apart and we actually taped
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SUPERIOR COURT
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49
was vehemently opposed to that. I certainly asked him
that.
I wanted to know that up front, you know, just to
know where we were going to go to a certain extent. But,
you know, it was a decision that was made in discussing it
with him.
Q. And that was part of your defense strategy?
A. Well, I don t know if it is necessarily a
part of it, but it was an event that I needed to know, and
I would have liked to have known it pretrial or at least
pre-opening statement which we did, you know, and I don t
know if he could always characterize it as being strategy.
In this case it turned out to be, yes , it was .
Q. It is a defense decision whether to testify
or not; isn t that correct?
A. Yes.
Q. Why not just rely on the defendant s
confessions to Saldate to tell the defendant s story?
A. Well, you know, coming from a police officer
that s somewhat cold-hearted and dispassionate, and it is
a little bit worse than, you know, coming from a
defendant. I think in Michael s situation he was a young
man.
He was 18 years old, you know. He was not
sophisticated. He was not somebody that was cold-blooded
and uncaring, and I thought that the jury needed to see
that, to see that he literally was a child. That he was
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•
SUPERIOR COURT
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50
not, you know, the man that the State was trying to
portray him as. I mean, he was not that type of pers on.
Q. And didn t the defendant testify on the
stand that he was sorry?
A. Sure, yes .
Q. Saldate didn t testify to Mr . George
Smallwood s,
past, did he?
A. You know, I don t think he did. No .
Q. The defendant was able to prov ide some of
that information?
A. It was my undertanding that he did, ye s .
Q. Saldate didn t testify about the defendant s
history of drinking?
A. I don t believe so, no .
Q. You wanted to get jury sympathy for the
defendant, didn t you?
A.
Well,
we attempted to.
Q. Because basically you felt he was an honest
and polite young pers on?
A. You know, absolutely. I mean, you know,
Michael,
it was evident -- I mean, he came from a good
family. I mean, I had met the family. It was obvious
that,
you know, he was not some, you know, poor, abused
mistreated child off the streets, a run-away type
situation. I mean, he had a good, strong family. He had
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SUPERIOR COURT
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EXHIBIT R
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•
01/04/2001
HON.
JEFFREY A.
BOTHAM
CR
90-03339
STATE
OF
ARIZONA
v.
MICHAEL
STEVEN GALLEGOS
A)
FILED:
CLERK
OF THE
COURT
FORM
ROOOA
L. Chapman
Deputy
ATTORNEY
GENERAL
BY:
JON
G. ANDERSON
RICHARD D. GIERLOFF
AZ DOC MAIL
CODE 481
VICTIM WITNESS DIV-AG-CCC
MICHAEL STEVEN GALLEGOS
85586
PO BOX
4000
FLORENCE AZ 85232
MINUTE ENTRY
On December 1,
2000,
the Court
conducted
an ev iden t ia ry
hear ing on
P e t i t io n e r s
claims
of ine f fec t ive ass i s t ance
of
counsel ,
and
the
mat te r
was
taken under advisement .
The
Court
regues ted
supplemental b r i e f i n g from
the pa r t i e s , and rece ived
those memoranda.
The Court
has cons idered
a l l of the
evidence,
the arguments
of
counsel , and the r e levan t case law.
IT IS ORDERED
denying Pe t i t i one r s Pe t i t i on for
Pos t -
Conviction Rel ie f .
A
formal wri t t en
Order
i s s igned January 3,
2001 and
f i l e d (entered) January 4, 2001.
Docket
Code 019
P a g e ~ ~
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01/04/2001
TJPERIOR COURT OF ARI
ZONl)
MARICOPA COUNTY
CLERK OF THE COURT
FORM ROOOA
HON. JEFFREY A
HOTHAM L.
Chapman
Deputy
CR
90-03339
As to Pe t i t i one r ' s
cla ims
regarding
i n e f f e c t i v e ass i s tance
o f counsel , pre l iminar i ly , the Cour t has determined
to
apply the
s tandard o f St r ick land
v.
Washington, 466 U.S. 668, 104 S.Ct .
2052,
80 L.Ed.2d
674 (1984), and
not the s t andard from
United
Sta tes
v.
Cronic , 466 U.S. 648, 104 S.Ct . 2039,
80
L.Ed.2d 657
(1984) . Under)tbe f ac t s
of
the
pre sen t
case
the
Court w i l l not
presume pre judice because t r i a l counse l ' s performance did not
cons t i tu t e
abandonment.
The
Cronic, . ~ u p r a except ion
i s
reserved
for these
r a re
ins tances
where defense counse l ' s
conduct
i s so
egregious t h a t
t
i s the
func t iona l
equiva lent of
ac tua l absence of counsel .
Under
the Str ickland,
supra , s tandard , P e t i t i o n e r has the
burden
of proving
t ha t : (1) counse l ' s performance was so poor
t ha t
t f e l l
below an objec t ive s tandard
of
reasonableness ;
and
(2) the re i s
a reasonable p r o b ab i l i t y
t ha t , but
fo r
counse l ' s
d e f i c i e n t performance, the r e s u l t would have been
di f fe ren t .
As to
the
f i r s t
prong,
the
Cour t
f inds
t ha t
Pet i t ioner
has
not
s u f f i c i e n t ly shown t ha t t r i a l counse l ' s
performance
was
d e f i c i e n t . Because of
the
overwhelming
evidence
o f
Defendant 's
gu i l t , t
was
reasonable for t r i a l counsel
to
adopt a
s t r a t eg y
t ha t
could
r e s u l t
in a
convict ion for
a l e s se r - inc luded
offense
such as
second
degree
murder
or
manslaughter ,
thereby
avoid ing
the death pena l ty . This
s t r a t eg y
was
endorsed
as acceptable
performance in
S ta t e v.
Sprei tz , 190 Ariz .
129,
945
P.2d 1260
(1997).
To make a
reques t
fo r
manslaughter ,
as t r i a l counsel
did
in
h is
c los ing argument here ,
t
was important for
him to
mainta in c r e d i b i l i t y
with
the j u ro rs , which might exp la ih h i s
t a c t i c s
and
h i s
choice
of
wording
used
during
h i s
opening
s ta tement . His
words
about
the
desp icab le conduct
of
the
Defendant
were
harsh ,
but probably
added to
co u n s e l ' s
c red i b i l i t y
with
the jury
when
plead ing for
manslaughter ;
t he re
simply i s no way to sugar -coa t the
sodomizat ion
and murder of an
e igh t
year
old female ch i ld .
Docket
Code
019
Page 2
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01/04/2001
·rPERIOR
COURT
OF ARIZONA
MARICOPA COUNTY
CLERK OF
THE
COURT
FORM ROOOA
HON
JEFFREY A
BOTHAM
L. Chapman
Deputy
CR
90-03339
Cal l ing
the
Defendant as
a
witness was a l so r e s o n b l ~
s t r a t e g y because
t ha t
was
the only
way·to
emphasize the
Defendant s
extreme
in tox ica t ion t ha t night , which was very
i m p o ~ t n t to de fea t
the
S t a t e s
c la im of
premedi ta t ion
and
s pe c i f i c i n t en t . The
Defendan t s
t e s t imony
a l so
, ra i sed the
i s sue
of
George
Smallwood s
compl ic i ty and the f a c t
tha t it
was
George
who
pu t h i s harid over Kenda l l s
mouth, causing
her dea th
by
asphyxia t ion .
Even
i the
prong
of d e f i c i e n t
performance was proven,
P e t i t i o n e r still
would not be e n t i t l e d to r e l i e f because
he
has
not
proven t he p re jud ice prong. As ment ioned previous ly , the
S t a t e s evidence was completely
overwhelming:
The
Defendant
confessed twice to two
di f fe ren t
po i ice de tec t ives , and the
DNA
evidence
in
Kenda l l s rectum
l inked
to the Defendant
was
devas t a t ing
to
the
defense;
a l l the
o ther
evidence cor robora ted
the Defendan t s g u i l t . There i s
no
reasonab le probab i l i ty
tha t ,
but for any
e r rors
made by t r i a l counse l ,
the r e su l t
of
the
t r i a l
would
have
been
any
d i f f e r e n t .
P e t i t io n e r s
other
cla ims regard ing ine f fec t ive
ass i s tance
of
counsel
have
no meri t .
Docket
Code 019 Page 3
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EXHIBIT S
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C h i c a g o Neuropsychology Group
333 North M i c h i g a n A v e n u e , S u i t e 1801
C h i c a g o , Illinois 60601
P h o n e : 312-345-0933
Facs im i l e ; 312-345-0934
Director
Robert L. Heilbronner Ph.D.
A B PP GN
Karen
W i lk inson
Office
o f the Federal Defender Program •
For the
District
of Ar i zona
Capital Habeas Uni t
850 West. Adams Street, .Suite 201
Phoenix, A Z
85007
R e : State,
o f
A r i zona v . M i ch a e l Gallegos
Dear M s .
Wi lk inson
I have completed a review of records and my evaluation of M r . Gallegos and wanted to provide
you
with, a summary of my opinions to date. As you know, he has been tried and convicted
o f
first degree
murder and sexual conduct with a minor. He was sentenced to death. His.
case
is currently in the Federal
habeas corpus phase. M r Gallegos was a senior i n high school at the time of the offense and was three
months short of graduating. He was in special education classes throughout
M s academic
career,
including placement in classes for Emotionally Handicapped/Learning Disabled students. His history
includes three incidents
with
associated head trauma and the
use/abuse
of alcohol and other drugs. The
present evaluation was for the purpose of documenting his current
neuropsychological
ftmctioning.
Records Reviewed: School documents, Reports
of Dr
Conor
din
and
D r
DiBacco, letter from
Dr
Shaw, Declarations from family members and friends, Presentencing Report, Sentencing transcript
(5/24/91), Resentencing transcript (10/24/94),. Arizona Department
of
Corrections medical
re
cords.
Results of Previous Examinations Mr .
Gallegos
underwent a Psychological Evaluation
with
D r . John
D i
Bacco in
May
1991:
this
was requested hy the Court tb answer
specific
questions pursuant to his
pending sentence, surrounding the first degree murder and sexual misconduct
conviction.
The issues to
be addressed at that time included: 1). A determination of whether, as of the time the defendant
committed the crime, his capacity to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a
defense to prosecution; 2). The defendant s ability to be rehabilitated; 3 , If the defendant is
rehabilitatable, a recommendation for place, form and terms
o f rehabilitation
treatment; and
4 ) . Whether
the defendant is a danger to self,
others
and /or community and the best method for controlling that
danger.
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Michael Gallegos Decem ber
12,
2011
In his report, Dr. DiBacco w rites that Mr. Gallegos informed h im that he ...h as had chronic learning
problems and, in fact, has participated in special education as a learning disabled student since
approximately the fourth grade . He also admitted that he has had ..
.chronic
drug and alcohol problems
since approximately 14 or 15 years of age. Mr. Noah Stalvey, a juven ile probation officer indicated to
the Court (9/5/89) that Mr. Gallegos at the time ...h ad not developed the ability to think before he
acted. He said further that Mr. Gallegos tended to behave impulsively, without considering the
consequences of his behavior.
Mr. Gallegos admitted to Dr. DiBacco excessive drinking and marijuana use, as well as
methamphetamine use. He acknowledged a history of prior juvenile offenses that began in 1984, at
which time h e was charged with a w eapon offense and possession of a BB gun: he also had offenses for
marijuana possession and theft. He had been on probation but never did any jail time prior to this
incarceration. He participated in counseling in the past following his last juvenile offense, but he has
never received any treatment for drug and/or alcohol abuse. Mr. Gallegos reported to Dr. DiBacco that
he had suffered an injury in an ATC accident, but denied any subsequent physical problems. He was
suicidal when he was first arrested for the current offense.
Results of the cognitive assessment indicated that Mr. Gallegos showed below average scores on tests
measuring verbal comprehension and processing. It was felt that he may have difficulty with complex
material which may have to be reinforced and repeated to him. He did better on the performance
subtests, with scores suggesting at least average fluid intellectual abilities. This verbal-performance split
on the WAIS-R was felt to be not uncom mon with learning disabled people. Dr. DiBacco wrote that Mr.
Gallegos was not mentally deficient although he may have some initial difficulty with more complex
verbal interaction. His judgment in socially problematic situations was suspect, but he did appear to
have the ability to understand the consequences of his behavior once he has com mitted
himself.
Personality assessment indicated that Mr. Gallegos may have very poor social judgment and also may
not be able to benefit much from past exp erience. This was alluded to by his previous probation officer
(Mr. Stalvey). It was also felt that he probably had chronic problems with interpersonal relationships and
self-esteem which could impair his sexual functioning and also precipitate acting-out behavior. Further,
he may have significant repressed anger as a result of being misunderstood and oftentimes criticized. He
has little insight into what mo tivates and drives him and probably ...h as never felt quite norm al and
oftentimes m ay be confused by his own behavior. Dr. DiBacco also felt that Mr. Gallegos has som e
semblance of conscien ce and has expressed some regret concerning what he had done to the victim. His
learning problems were felt to play a role in reducing his self-esteem and ability to interact normally
with o thers. His chronic drug use, more likely than not, w as a means of establishing som e status, as well
as self-medicating against what appeared to be rather chronic identity problems and depression. Dr.
DiBacco diagnosed Mr. Gallegos with: Axis I Adjustment Disorder with mixed emotional features;
Alcohol dependence;
R/O
alcohol abuse; cannabis dependence;
R/O
cannabis abuse;
R/O
psychoactive
substance abuse, NOS. On Axis II, Personality disorder, NOS, not anti-social, schizoid, and borderline
features.
Mr. Gallegos underwent an Individual Assessment Report with Dr. Nancy Cowardin in May, 2002 as
part of a federal habeas corpus proceeding. In her report, Dr. Cowardin does a comprehensive job of
describing Mr. Gallagos' educational background, including having been placed in self-contained
special education classes beginning in the 4
th
Grade, and having been diagnosed with one or
more
cognitive disorders that impede academic learning. In her report, Dr. Cowardin identifies the impact of
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Michael Gallegos Decem ber
12,
2011
learning and attentional disorders in childhood. She writes ...w he n a child like Michael has additional
difficulties involving emotional, attention, and language processing issues, LD (learning disability) can
present an insurmountable hurdle with lifelong effects. Dr. Cowardin goes on to write LD is not
confined to school-age children as some people think, and this is because one's inborn processing style
affects the learning of social as well as academic information. Related deficits and the host of behavioral
ramifications that accompany them go well beyond the classroom, affecting learning and processing in
the world of work, domestic life, community use, and social interactions. To understand this, one must
remember that LD is a
lifelong processing disorder.
Dr. Cowardin writes that ...th e picture Michael
Gallegos presented as an
18
year old youth was not a promising one. His attentional deficits remained
untreated through medical sources; his language processing deficits continued to impede age-appropriate
comm unication; and only marginal, erratic academic progress had been m ad e. .. in spelling and math,
since the elementary grades. Furthermo re, it is ...therefore reasonable to conclude that at the time this
crime was comm itted, M ichael operated cognitively in much the same mann er as a far younger child.
In her report summ ary, Dr. Cow ardin concludes that M ichae l's ...l ow average comp osite profile
represents a normal intellect, yet significant attention, language, and information processing deficits that
com prom ise adult functionin g. Learnin g style differences and attentional deficits involv ing slowed
reaction time, cycling peak performances, and extreme response variability were noted. His academic
skills, language fundamentals, and overall information processing were below expected levels based
upon years of educational attainment. It was Dr. Cowardin's opinion that Michael functioned at ... an
even lower levels at the time (of) h is arrest in this matter,' further red ucing h is ability to self-advocate.
Executive decision-making skills were not fully developed as these typically develop in the late teens or
early twenties. She also felt that this had implications for Michael's limited capacity for personal control
and decision-making. Finally, Dr. Cowardin opined that the previous psychological examination (cited
above) that was done prior to his sentencing omitted important information, particularly with reference
to diagnose and explain educational deficits. She indicated that individuals with the types of deficits
Michael had ...a re often at a loss in making appropriate adaptive decisions on confrontation, and can
be easily manipulated due to their outerdirectedness in social settings. She wrote, It was therefore not
a surprise to learn that Michael neither preplanned nor initiated the crime on his own, but followed the
direction of another who he perceived as more competent.
Current Neuropsychological Exam ination
Interview Information Mr. Gallegos was interviewed in advance of the testing. At the outset, he
seemed to have a reasonable understanding of the purpose for the present evaluation, knowing that an
interview and testing would take place. He cam e across as an honest and reliable informant for personal
and current information.
Mr. Gallegos knows he has been convicted of 1
st
degree murder and sexual conduct with a minor,
arising from a March 16
th
, 1990 crime. He indicated that there were recently oral arguments in the 9
th
Circuit Court citing ineffective assistance of counsel as a defense. He added that the attorney in the trial
phase of
his
case had not investigated nor asked the court to consider his history of learning disability as
a mitigating factor in his sentencing; the role of possible brain damage from three head traumas w as also
not considered. There was very little emphasis directed towards relevant events preceding, during, and
subsequent to the crime. The focus on the interview was largely directed toward Mr. Gallegos's
background, including his history of education, alleged head trauma, substance abuse, and previous legal
infractions.
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Michael Gallegos December
12, 2011
jMr. Gallegos finished the 11 Grade. He did not graduate from high school; the murder took place three
mon ths before he was to graduate. He reports a history of learning disability and said that math w as the
toughest subject. Even when things were explained to m e he said, I didn 't follow. He reports that
he was in classes for children with learning disabilities from the 4
th
Grade up through his last year of
highschool. His use of substances is limited primarily to alcohol, marijuana, and methamphetamine but
he also said tried acid and cocaine a few tim es and also psilocybin mushrooms. He said that he would
mostly use substances on the weekends. On the day
ofthe
m urder, he said that he had drank Cutty Sark
and a whole bunch of beers. I was about as drunk as I've ever been he said. It
would've
been better if I
wo uld've p assed out. He said that he usually stayed away from hard alcohol because he would get sick
from it or get into trouble.
Mr. G allegos reports a history of head trauma w hen he was about 16 or 17 years old. He said that he and
a friend had been drinking at the time and h e tried to jump over a flower bed, but fell backwards and hit
his head on a concrete block. He has no memory of what happened the rest of the night. On another
occasion, he was riding a 3-wheeler which apparently crashed; he recalls waking up on the living room
floor the next day and the back of his shirt was bloody. He did not go to the hospital. He said that he
still has the bump on my hea d and experienced headaches for awhile afterwards, but no other
symptom s. He described another event on a 3 wheeler when he hit the back of a tree and was out for
aw hile. He said that the helmet he was wearing came apart in six pieces. He does not recall
experiencing any sym ptoms after that event. Importantly, all three of these events include a period of
altered mental status and memory loss surrounding the incident (termed post-traumatic amnesia). This
indicates the occurrence of at least three concussions, if not more mod erate to severe trauma to the brain.
Mr. Gallegos does not have a history of previous incarcerations. He said that his only previous legal
incidents were for: 1). shooting a BB gun; and 2). he once stole a scale to give to a dealer in order to
obtain marijuana. He was charged with theft and possession of stolen property and was placed on
probation until he was 18 years old.
Tests Adm inistered Wechsler Test of Adult Reading (WTAR), Wechsler Adult Intelligence
Scale-4
th
Edition
(WAIS-4),
Wechsler Mem ory Scale-4
th
Edition (WMS-4: select subtests), Wide Range
Achievement Test-4
th
Edition (WRAT -4), Repeatable Battery for the Assessment of N europsychological
Status (RBA NS), California V erbal Learning Test-2 (CVLT-2), Brief Visual Mem ory T est-Revised
(BVMT-R), Trailmaking A & B, Delis-Kaplan Executive Function Scales (DK-EFS: select subtests),
Wisconsin Card Sorting Test (WCST), The Short Category Test, Boston Naming Test (BNT), tests of
verbal fluency, Visual Form D iscrimination (VFD), Judgmen t o f Line O rientation (JLO), Beck
Depression
BDI-2)
Inventory, The Fifteen Item Test (recall & recognition), Test of Memory
Malingering (TOMM ), Wender-Utah Rating Scale (WUR S).
Test Results
Validity & Test Interpretation Considerations:
In order to assess effort, motivation, and potential
response bias on cognitive testing, performances on measures sensitive to malingering, erratic
performance, and invalid response patterns were assessed. Mr. Gallegos's scores on the 15 Item Test,
TOMM, Reliable Digit Span, and other embedded neuropsychological measures reflected no signs of
suboptimal performance. Taken together with his observed test-taking behavior, these test results
suggest that he put forth adequate effort and did not attempt to feign or exaggerate impairment
cognitive impairmen t. Thus, the current cognitive results are considered reliable and valid.
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Michael Gallegos Decem ber 12, 2011
Intellectual/Academic Functions: Mr. Gallegos is presently functioning in the Borderline to Low
Average range of intelligence with a WAIS-4 FSIQ of 79
(8*%ile).
This means that he scored lower
than 92% of those his age in the general population. The Verbal Comprehension Index (VIQ=102, 55
th
%ile) is in the Average range; Perceptual Reasoning skills (PRI=8 2, 12
th
%ile) are in the Low Average
range. The 20 point discrepancy between the VCI and PRI is considered statistically significant and
reflects a significant w eakness in the nonverbal realm compared to the verbal realm. T his is contrary to
the pattern observed in 1991 in the examination with Dr. DiBacco. The Processing Speed Index
(PSI=76,
5
th
%ile)
was Borderline and Working Memory (WMI=63, l
st
%ile) was Extremely Low,
representing a significant weakness relative to the other cognitive domains. Overall, Mr. Gallegos's
current IQ and Index scores are below the level expected for same age and education peers based on an
estimate derived from demographic factors (WTAR Demographic FSIQ=93) and based on word
reading skills (WTAR Reading FSIQ=103). However, his current verbal comprehension abilities are
generally at the level expected based on the w ord reading score.
Mr. Gallegos was given a number of measures to assess academic skills. A look at the profile reveals
scores that are below the expected level for som eone who has com pleted 11 years of formal education.
A mild weakness was demonstrated on a task measuring Spelling (6.3 Grade). Written math skills (2.9
Grade) were the lowest and reflect a significant w eakness in this dom ain. Like the IQ assessment, this
is a pattern of performance which has been evident throughout M r. G allegos's life and does not reflect
an acquired impairment as a result of a recent event or condition that might affect cognitive functions.
WR AT-4 R eading (12.9 G rade) was good, as reflected by his ability to simply spell words; he also did
well on the Sentence Completion (11.5 Grade) component.
Impaired Cosnitive Functions:
Mr. Gallegos' scores on The Immediate
(7
th
ile)
and Delayed
(9
th
ile)
Memory Index scores of the RBANS, a neuropsychological screening instrument, were mildly
impaired. His scores on other tasks requiring attention, concentration, and working m emory skills were
also below expectation, even in the context ofthe present examination environment (e.g., one on one
with an examiner and relatively-free of external distractions). He demonstrated problems on tasks
measuring digit recall, mental arithmetic, and the RBANS Attention Index (SS: 53; 0.1%ile) was
severely impaired, largely accounted for by his low score on a task requiring processing speed, and it
represents a prominent weakness for him. His score on a complex sequencing task (Trails B) that
requires mental flexibility and set shifting abilities, was moderate to severely impaired. He also
performed poorly on tasks (DK-EFS Interference) requiring rapid visual processing, and response
inhibition; his score on the most difficult version was the lowest, suggesting problems screening out
the effects of interference. Mr. Gallegos had some mild problems on a task requiring the learning and
recall of visual information for simple (BVMT-R) material, although he showed improved learning
across trials and retained almost all of the information after a delay. His score on a phonemic fluency
task was moderately impaired. He had significant difficulty on the JLO, a task requiring him to
perceive and accurately judg e the angles of lines, with the score falling in the severely d efective rang e.
Intact Cosnitive Functions: Mr. Gallegos generally did well on most of the memory tasks, including
those requiring the learning and recall of auditory (e.g., a word list, short stories) and visually-
presented (e.g., figures) material, object naming, semantic fluency, proverb interpretation, and visual-
form discrimination skills. Mental and perceptual-motor processing speed and simple sequencing skills
were w ithin normal lim its. His scores on tests measuring verbal and nonverbal abstract reasoning skills
were average and below average, respectively. Tasks requiring nonverbal abstract reasoning and
cognitive flexibility were also performed without error.
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Michael Gallegos Decem ber 12, 2 11
Emotional Functions: Mr. Gallegos was administered the BDI-II to assess symptoms of possible
depression. He obtained a score of 19 which falls in the mild range. He endorsed a number of items,
most
of
them were emotional (e.g., pessimism, thoughts
of
past failures, feelings
of
guilt,
self-
criticism)
in
nature,
but
also physical (sleep disturbance) ones.
The
score
(32) on the
WURS,
a self-
report inventory inquiring about symptoms of possible Attention Deficit Hyperactivity Disorder
(ADHD)
as a
child,
is not at a
level
to
suggest this d iagnosis.
Summary nd Opinions The current neuropsychological evaluation was warranted in order to
examine
Mr.
Gallegos' neuropsychological abilities with particular emphasis directed towards
any
events
or
conditions which
may
have caused brain damage that
was not
previously evaluated
in the
prior assessments. By his report, Mr. Gallegos sustained what appear to be at least three significant
head traumas when he was a youth: this was not explored during the trial or sentencing phases of his
case; it was also not investigated during the appeals process. He has history that includes objective
evidence
of
learning disabilities requiring special education
in
grammar school
and
high school. This
not only includes academic deficits (e.g., problems with verbal skills, attention, etc.),
but
psychosocial
deficits including gullibility, an external locus of control, tendency toward impulsivity, and being
easily led by others. This has implications for the events surrounding the murder back in 1989. Given
his age, educational deficits and
inadequately developed higher level brain functions
(previously
described by Dr. Cowardin), this limited his capacity to exercise good adequate judgment and to
defend against
the
direction
of
another
who he
perceived
as
more competent than he. Furthermore,
his
slowed information processing speed also negatively affects his capacity to reason and think things
through, particularly in situations where rapid problem solving is required.
Results of the current assessment reflect neuropsychological impairment that is above and beyond that
which can be explained by the effects of limited educational background and a history of learning
disability. Mr. Gallegos' current intellectual abilities are in the borderline to low average range. Verbal
and nonverbal intellectual skills are significantly different from each other with nonverbal skills
representing
a
relative weakness.
His
verbal abilities
are
higher than they were
in 1991
when
he was
examined by Dr. DiBacco but they more closely approximate the verbal IQ score from the evaluation
with Dr. Cowardin. What brought down his current overall FSIQ score was the low scores on tests
measuring working memory and processing speed. These indexes were not available and thus not
utilized in generating the overall FSIQ score back in 1991, when Dr. DiBacco examined Mr. Gallegos.
Thus, this left
an
impression
of a
higher level
of
intellectual functioning.
To the
degree that other
neuropsychological abilities were
not
assessed
by Dr.
DiBacco
it
also
had the
potential
to
leave
the
trier of fact to believe that Mr. G allegos did not have any cognitive imp airments, e.g.,
that ..
.he is not
mentally deficient and ...h e does appear to have the ability to understand the consequences of his
behavior once he has committed him sel f (Page 4).
In
my
opinion,
the
improvement
in
verbal intellectual abilities
in
someone
who has
previously been
diagnosed
as
having
a
verbal learning disability
is a
product
of
having been incarcerated
for
over
20
years, indeed,
such a lengthy incarceration has provided Mr. Gallegos with a structured environment
that has helped to improve his reading and other verbal com prehension ab ilities. Nonverbal intellectual
abilities remain largely the same (and may have even declined since Dr. Cowardin's assessment).
Beyond the intellectual and academic domains, Mr. Gallegos shows deficits in a number of cognitive
domains that were
not
assessed
in
either
of
the previous
two
examinations.
He
demonstrates
a
rather
concrete approach to solving problems and limited cognitive flexibility, thereby reducing the potential
to come up with alternative solutions to problems. This is particularly relevant in situations where
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Michael Gallegos December 12, 2011
coming up with an alternative solution very rapidly is required. It is conceivable that these abilities
would have been even poorer back in 1989 when the crime was committed as Mr. Gallegos' brain was
even less developed back then, given his age and the associated lack of neural maturation that is
evident in the brains of adolescents, especially those with learning disabilities and in those who have
sustained b rain damage as a result of multiple head injuries.
Overall, considering the history, interview information, and neuropsychological profile elucidated
above, it is my opinion that there is objective evidence of cognitive dysfunction reflecting brain-based
disturbances in functioning. In other word s, the cognitive deficits cannot be explained by other factors
such as normal aging, psychological/emotional issues (e.g., depression, anxiety), or any other type of
current environmental stressors. It is my opinion, based upon all of the available information (e.g.,
records, interview, and test results), that Mr. Gallegos' brain damage was present at the time he
committed the crimes and is a significant factor to consider in the current habeas corpus case. The
brain damage played a role in the commission of the offense through a lack of planning and
organization (e.g., premeditation) and an impaired ability to consider the consequences of his actions.
In combination with the cognitive and psychosocial effects of a learning disability, this compromised
his capacity to inhibit and/or control his behavior at the time of the offense and also made him
susceptible to the influence of others.
The current neuropsychological profile satisfies criteria for a
DSM-IV
diagnosis of: Cognitive
Disorder, NOS (294.9). This is reserved for disorders that are characterized by cognitive dysfunction
presumed to be due to the direct physiological effect of a general medical condition that do not meet
criteria for any of the specific deliriums, dementias, or amnestic disorders listed in the DSM -IV. By
his report, at the time ofthe crime Mr. Gallegos was suffering from the effects of Alcohol Intoxication,
which also significantly limited his capacity to inhibit his impulses and to consider the consequences
of his actions. On top of a brain that was not fully developed, it appears to have had a synergistic and
negative effect.
I declare, under the penalty of perjury, that the information in this report represents an accurate and
true account of my opinions to date.
ff~2^ 64€iA^^^AL.t^€
c
CC
Robert L. Heilbronner, PhD, A BPP-CN
Director / Clinical N europsychologist
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EXHIBIT U
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EXHIBIT V
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Office of the
FEDERAL PUBLI C DEFENDER
for the District of Arizona
Cap ital Habeas Unit
Jon M . Sands
d i r ec t l i ne
.
602-382-2744
Federal Public Defender „ , , ^-^<M
email: [email protected]
March 25,
2013
Bill Montgomery-
Maricopa County Attorney
301 W . Jefferson, Suite 800
Phoenix, AZ
85003-2143
RE:
Reque st for Public Records
Dear M r. Montgomery:
Pursuant to Arizona Revised Statutes §
39-121,
et seq. I am requesting an
opportunity to review and copy all files, records and other documents in your
possession pertaining to the investigation, arrest, incarceration, pre-trial
preparation, trial and any post-trial matters or proceedings in the matters of State of
Arizona v. Michael Steven Gallegos, Case No. 90-03339 (A), and State of A rizona
v. George Anthony Smallwood, Case No.
90-03339(B),
which were conducted in
Maricopa County, Arizona, including any and all files, records and other
docum ents relating to the investigation into the death of Kendall W ishon, which
occurred in March, 1990.
In addition, I am requesting an opportunity to review and copy all files,
records and other documents in your possession pertaining to former Phoen ix
Police Department Detective Armando Saldate. The requested records pertaining
to Mr. Saldate are not limited to Mr. Saldate s participation in the Michael
Gallegos and George Smallwood m atters, but also include any files, records and
other documents that relate to any complaints, investigations, or disciplinary
recomm endations or actions concerning the performance and conduct of Mr.
Saldate in any criminal investigation or legal case.
In accordance
with
the procedures outlined in §39 -121 .01 (E), which
requires a prom pt response , I am reque sting a response from your office within
850 West Adams Street, Suite 201, Phoenix, Arizona 85007
(602) 382-2816 / (800) 758-7053 / facsimile (602) 889-3960
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Request for Public Records
March 22, 2013
JL d Lw J
five (5) business days, confirming that you received the letter and explaining your
position regarding this request. In the event that any records are deemed
unavailable for inspection, I am also requesting that your office furnish an index
of records or categories of records that have been withheld as provided by § 39-
121.01(D)(2).
For the purposes of this request, the terms records and documents include,
without limitation, any and all written, typed, printed, recorded, graphic,
electronically or digitally stored, computer-generated, or other any other medium
for creation, storage or transmission of information, or from which information can
be derived, whether p roduced, reproduced, or stored on paper, cards, tapes, files,
electronic facsimiles, or computer storage dev ices. They include, withou t
limitation, letters, e-mail, text messages, memoranda (including internal
me m oranda ), calendars, schedules, books, notices, minutes, summaries or
abstracts, reports, files, recordings (including both video recording and audio
recordings), as well as any reproductions thereof that differ in any way from any
other reproductions, such as copies containing marginal notations.
Thank you for your assistance. If you have any questions or need additional
information, please contact me at your earliest convenience.
Sincerely,
.aura M. Berg
Asst. Federal Public Defender
Capital Habeas Unit
LMB/rs
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EXHIBIT W
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B I L L M O N T G O M E R Y
W E S T J E FFE R S O N S TR E E T ,
8 0 0 P H. ( 6 0 2 )
1
8 5 0 0 3 T D D ( 6 0 2 ) 5 0 6 - 4 3 5 2
F A X ( 6 0 2 )
OFFICE OF THE MARICOPA COUNTY ATTORNEYCUSTODIAN OF RECORDS
Administration Building, 301 West Jefferson Street, Suite 800
Phoenix, Arizona 85003
INVOICE
DATE:
2013
2013-0405-1
Number of Copies: N/A
Other fees: Two CD-Roms @ $0.60 each or two blank CD-Roms in trade
TOTAL PAYMENT: or two blank CD-Roms in trade
Laura Berg, Federal
Name
850 W. Adams, Suite 201
Phoenix, AZ 85007
City, State, Zip
Signature (Requestor)
Custodian of Records
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EXHIBIT X
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
STATE OF ARIZONA,
Plaintiff,
NO. CR 90-03339
vs.
MICHAEL STEVEN GALLEGOS,
Defendant
Phoenix, Arizona
December 1, 2000
9:10 a.m. •
BEFORE:
The Honorable JEFFREY A. HOTHAM, Judge
REPORTER S TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
FOR THE PLAINTIFF:
Mr.
Jon G. Anderson
FOR THE DEFENDANT:
Mr.
Richard D. Gierloff
PREPARED BY:
Pamela D. Remus, RPR
Official Court Reporter
PREPARED FOR:
MR. RICHARD D. GIERLOFF
Attorney at Law
SUPERIOR COURT
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I N D E X
WITNESS:
CLARK Greg
Direct Examination by Mr. Gierloff
Cross Examination by Mr. Anderson
Redirect Examination by Mr. Gierloff
CONTRERAS
Joe W.
Direct Examination by Mr. Anderson
Cross Examination by Mr. Gierloff
STERLING George M.
Direct Examination by Mr. Anderson
Cross Examination by Mr. Gierloff
Redirect Examination by Mr. Anderson
Recross Examination by Mr. Gierloff
STALZER Louis
Direct Examination by Mr. Anderson
Cross Examination by Mr. Gierloff
Redirect Examination by Mr. Anderson
GALLEGOS
Michael Steven
Direct Examination by Mr. Gierloff
Cross Examination by Mr. Anderson
Redirect Examination by Mr. Gierloff
EXHIBITS MARKED
Number Description
1 Death Certificate
2
Page
4
33
54
59
62
63
67
68
69
70
74
80
82
88
90
Page
109
SUPERIOR OURT
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35
defendant, had participated in the death in this case?
A. No.
Q, There were confessions in this case, weren t
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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there?
A. Yes,
Q. There were two confess ions; isn t that
correct?
A. Yes.
Q. There was also DNA evidence found in the
victim s rectum that tied Michael to the crime?
A. Yes, there was .
Q. Did Hortencio Gallegos testify at trial
about Michael s fingernails?
A. Yes.
Q. Was that testimony better than the
photographs?
MR. GIERLOFF: Objection. That seems awfully
argumentative or speculative.
THE COURT: Yes . Rephrase the question, counsel.
Q. BY MR. ANDERSON: In your professional
opinion, was that better evidence than the photographs?
A. Seeing as I had made the decis ion not to put
in those photographs for the reasons that I stated, I
mean, it was evidence that was descriptiv e, you know, from
somebody who would know that would corroborate what
SUPERIOR COURT
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EXHIBIT Y
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
12/19/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR 1989-012631 12/18/2013
Docket Code 926 Form R000A Page 1
CLERK OF THE COURT
HON. ROSA MROZ J. Matlack
Deputy
STATE OF ARIZONA VINCE H IMBORDINO
v.
DEBRA JEAN MILKE (A) MICHAEL D KIMERER LORI L VOEPEL
LARRY L DEBUS
CAPITAL CASE MANAGER
UNDER ADVISEMENT RULING
The Court has considered the following: (1) State’s Memorandum Regarding Witness
Invocation of Fifth Amendment Privilege and Request for Hearing; (2) Defendant’s Preliminary
Response to State’s Memo to Correct Record re: Saldate’s Expressed Intent to Invoke 5thAmendment Privilege and Consult with Counsel; (3) State’s Reply to the Defendant’s
Preliminary Response; (4) Defendant’s Responsive Memo re: Witness Invocation of 5th
Amendment Privilege and Request for Hearing; (5) Saldate’s Response to State’s Motion re:
Saldate’s Right to Invoke His 5th Amendment Privilege; (6) State’s (Second) Memorandum re:Witness Invocation of 5th Amendment; (7) Defendant’s Response to State’s (Second)
Memorandum regarding Witness Invocation of Fifth Amendment Privilege; (8) Saldate’s
Supplemental Response to State’s Motion re: Saldate’s Right to Invoke his 5th Amendment
Privilege; (9) Supplement to Defendant’s Response to State’s (Second) Memorandum regardingWitness Invocation of Fifth Amendment Privilege; (10) the Ninth Circuit opinion in Milke v.
Ryan1; (10) State’s Notice of United States Department of Justice Decision; (11) Notice of Letter
from United States Attorney’s Office, and (12) oral arguments made.
1 711 F.3d 998 (9th Cir. 2013)
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR 1989-012631 12/18/2013
Docket Code 926 Form R000A Page 2
Preliminary Matters
First, the Court wants to address the State’s contention that this Court should not have
asked whether Detective Saldate (“Saldate”) needed a lawyer before he testifies in this case. The
Court agrees with the State that courts do not generally inquire if witnesses need lawyers to
protect their rights when a conviction is overturned and a new trial is ordered. However, this isnot a normal case. The Ninth Circuit specifically referred Saldate “to the United States Attorney
for the District of Arizona and to the Assistant United States Attorney General of the Civil
Rights Division, for possible investigation into whether Saldate’s conduct, …, amounts to a
pattern of violating the federally protected rights of Arizona residents.”
2
This Court would beremiss in its duties were it to ignore such an obvious issue.
Second, the parties have asked this Court to address whether the Ninth Circuit’s
interpretation of the eight cases cited in the Opinion can be challenged, or are subject to “law ofthe case” or “collateral estoppel” determinations. This issue is the subject of a separate motion
filed by the defense and will be decided at a later date. The Court reviewed the information
about these eight cases at this time only for the purposes of determining the legitimacy of
Saldate’s invocation of his Fifth Amendment rights. While this Court does not fully agree withthe conclusions reached by the Ninth Circuit in every case, the Court finds that Saldate does have
a legitimate reason to fear prosecution arising out of his conduct in these cases.
Invocation of Fifth Amendment Privilege
At the December 13, 2013 hearing, Saldate confirmed that he is asserting his privilege
against self-incrimination. He further stated that if ordered to testify, he will testify consistent
with his previous testimony.
The court must assess the legitimacy of any claim of privilege.3 In assessing the claim of
privilege, the court considers whether the witness has provided a factual predicate sufficient for
the court to evaluate the claim of privilege,4 and whether the witness has demonstrated areasonable apprehension of danger.5
2 Id. at 1019-20.3 See State v. McDaniel, 136 Ariz. 188, 193-195, 665 P.2d 70 (1983); State v. Cornejo, 139 Ariz. 204, 677 P. 2d
1312 (App. 1983); State v. Maldonado, 181 Ariz. 208, 211, 889 P.2d 1, 4 (App. 1 1994).4 State v. Rosas-Hernandez, 202 Ariz. 212, ¶17, 42 P.3d 1177 (App. Div.1 2002)).5 Flagler v. Derickson, 134 Ariz. 229, 231, 655 P. 2d 349, 352 (1982)(“witness must apprehend a real and
appreciable danger of prosecution”); United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir. 1998)(privilege
justified on showing of “substantial and real, and not merely trifling or imaginary, hazards of incrimination”).
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR 1989-012631 12/18/2013
Docket Code 926 Form R000A Page 3
Factual Predicate:
Saldate was the main witness at the Defendant’s 1990 trial, at the Rule 32 hearing, and atthe federal habeas proceeding in 2010. The Court has reviewed the trial, the Rule 32/post-
conviction and the habeas proceedings and is familiar with the questions asked of Saldate. The
State confirmed that the relevant questions to be asked of Saldate by the State in any future court
hearings would be substantially similar to those previously asked. Additionally, the Courtanticipates questions from the Defendant related to the impeachment materials described in the
Ninth Circuit opinion.
THE COURT FINDS that Saldate has provided a factual predicate sufficient for thecourt to evaluate the claim of privilege.
Reasonable Apprehension of Danger:
The Ninth Circuit opinion makes it clear that the court believed that Saldate lied under
oath or disregarded suspects’ constitutional rights and the court referred Saldate “to the United
States Attorney for the District of Arizona and to the Assistant United States Attorney General of
the Civil Rights Division, for possible investigation into whether Saldate’s conduct, …, amountsto a pattern of violating the federally protected rights of Arizona residents.”6 As stated supra,
while this Court does not fully agree with the conclusions reached by the Ninth Circuit in every
case, the Court does find that Saldate has a legitimate reason to fear prosecution arising out of hisconduct in the cases cited by the Ninth Circuit. Furthermore, the Ninth Circuit concluded, inadvance, that if Saldate testifies consistently with his previous testimonies, he would expose
himself to a perjury prosecution.7
The State argues that Saldate does not have a reasonable apprehension of danger becausefederal authorities declined to prosecute Saldate and the Maricopa County Attorney’s Office
does not intend to prosecute Saldate for any past testimony.
A. U.S. Attorney’s Letter
On August 30, 2013, the U.S. Attorney for the District of Arizona wrote a letter
indicating that it received an Order from the Ninth Circuit for a possible investigation of whether
6 Milke, 711 F.3d at 1019-20.7 The Court is aware that a witness may not invoke the Fifth Amendment privilege in connection with the potential
for perjury charges related to future truthful testimony. United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir.
1998) (fear of perjury prosecution as result of future truthful testimony insufficient to support claim of privilege;
“shield against self-incrimination…is to testify truthfully, not to refuse to testify on basis witness may face
prosecution for lie not yet told.”).
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR 1989-012631 12/18/2013
Docket Code 926 Form R000A Page 4
Saldate’s conduct as identified in the Milke opinion constituted viable civil rights violations. It
concluded that “any criminal prosecution would be barred by the applicable federal statute of
limitations period. As a result, this office declines to pursue charges for the referred conduct.”8
Although the U.S. Attorney appears to have declined criminal charges, the declination is
very limited:
1. The U.S. Attorney only addressed “viable civil rights violations” and did not address
any possible federal perjury charges arising from any of Saldate’s testimony.
2. The U.S. Attorney declined prosecution on the basis of “applicable federal statute oflimitations period.” The applicable federal statute of limitations period is 5 years.9
While the statute of limitations may have run in reference to Saldate’s 1990
testimony, the statute of limitations has not expired for Saldate’s 2010 testimony.
3. If Saldate testifies consistently with his prior testimonies in future court proceedings,
he may be subject to prosecution under a theory of continuing conspiracy to violation
of civil rights because some of the defendants in the eight cases mentioned in the Milke opinion are still serving sentences, and some are still in the process of
appealing their conviction.10 The statute of limitations does not begin to run until the
last overt act leading to accomplishment of the conspiracy was committed.11
Furthermore, as to the Defendant specifically, each time Saldate testifies against hercould be deemed a re-violation of her civil rights which would allow the statute of
limitations to begin anew.
4. This U.S. Attorney did not grant immunity for past acts or future testimony toSaldate.
5. The U.S. Attorney specified that he “cannot speak for any other prosecution agencythat may have, or have had, jurisdiction over Mr. Saldate’s conduct.”
8 August 30, 2013 letter from Monica Klapper, Assistant United States Attorney, to Vince Imbordino, DeputyCounty Attorney, attached to the Notice of Letter from United States Attorney’s Office.9 18 U.S.C., Chapter § 213.10Exhibit A of the Supplement to Defendant’s Response to State’s (Second) Memorandum Regarding WitnessInvocation of Fifth Amendment Privilege.11Culp v. United States, 131 F.2d 93, 100 (8th Cir. 1942).
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR 1989-012631 12/18/2013
Docket Code 926 Form R000A Page 5
B. DOJ Letter
On December 6, 2013, the Civil Rights Division of the U.S. Department of Justice wrotea letter stating:
“The Criminal Section of the Civil Rights Division…specifically reviewed whether the
facts and circumstances surrounding Saldate’s conduct in the State v. Milke prosecutionand subsequent habeas proceedings supported a prosecutable violation of the federal
criminal civil rights statutes. …we have reviewed the available evidence in this
matter…and concluded that the evidence does not support a prosecutable violation of the
applicable federal criminal civil rights statutes. Accordingly, the Criminal Sectiondeclines prosecution in this matter.”12
Similar to the U.S. Attorney’s letter, DOJ’s letter declining to prosecute Saldate is
limited:
1. The Ninth Circuit specifically asked DOJ to investigate whether “Saldate’s conduct,
and that of his supervisors and other state and local officials, amounts to a pattern of
violating the federally protected rights of Arizona residents.” (Emphasis added).Instead, the DOJ only declined prosecution related to “the facts and circumstances
surrounding Saldate’s conduct in the State v. Milke prosecution and subsequent
habeas proceedings”. (Emphasis added). The DOJ’s letter did not make anyreferences to Saldate’s conduct in the eight other cases that the Ninth Circuit found
problematic nor did it make any references to the 2009 allegations involving Belinda
Reynolds. It is important to note that Saldate was not cross-examined about these
cases at the previous trial. The defense has already indicated that Saldate will be
cross-examined about them in any future proceedings in this case. Depending on howSaldate answers those questions, his testimony could be used against him to support
any potential federal criminal civil rights charges from these eight cases and the
Reynolds case.
2. DOJ did not decline to prosecute any perjury charges arising from any of Saldate’s
testimony.
3. DOJ did not grant immunity for past acts or future testimony to Saldate.
12December 6, 2013 letter from Robert Moossy, Jr., Chief of the Criminal Section of the Civil Rights Division, to
Bill Montgomery, Maricopa County Attorney, attached to the Notice of United States Department of Justice
Decision.
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR 1989-012631 12/18/2013
Docket Code 926 Form R000A Page 6
C. Perjury Charge
Mr. Imbordino, the representative of the current Maricopa County Attorney, BillMontgomery, orally confirmed that his office does not intend to prosecute Saldate for any past
testimony. The Court notes, however, that MCAO did not provide Saldate with a written letter
guaranteeing him that he is free from prosecution now and in the future.13 The Court simply
notes that under Arizona law, perjury is a class 4 felony.14 The statute of limitations on a class 4felony is seven years.15
Furthermore, MCAO has no jurisdiction over any federal perjury charges arising from
Saldate’s 2010 testimony, and cannot assure Saldate that he will not be prosecuted in federalcourt.
Based on the foregoing,
THE COURT FINDS that Saldate has demonstrated a reasonable apprehension of
danger that, if compelled to answer, he would face criminal charges based on his past testimony
and/or present disclosures, and that the Fifth Amendment affords protection.
Blanket Assertion of Privilege:
Generally, a blanket privilege cannot be asserted. The claim of privilege may be raisedas to specific relevant questions; each question must clearly seek testimony incriminating to thewitness.16 However, if a judge determines that a witness could legitimately refuse to answer
essentially all relevant questions, then that witness may be totally excused without violating the
witness’s Sixth Amendment right to compulsory process.17 “…[T]his exception is a narrow one.
It is only applicable when the trial judge has extensive knowledge of the case and rules that theFifth Amendment would be properly invoked in response to all relevant questions that the party
calling the witness plans on asking.”18
The Court has extensive knowledge about this case because it has reviewed most of thetranscripts from the trial, transcripts and exhibits from the 2010 federal court hearing, the Ninth
13The Court does not know if an oral confirmation would suffice to bind future Maricopa County attorneys from prosecuting Saldate.14A.R.S. § 13-2702(B).15A.R.S. § 13-107(B)(1).16State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983), abrogated on other grounds by State v. Walton, 159 Ariz.
571, 769 P.2d 1017 (1989); see State v. Maldonado, 181 Ariz. 208, 211, 889 P.2d 1, 4 (App. 1 1994).17 McDaniel, 136 Ariz. at 194, 665 P.2d at 76.18 Id.
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR 1989-012631 12/18/2013
Docket Code 926 Form R000A Page 7
Circuit Opinion and records from the eight cases cited in the Ninth Circuit Opinion, as well as a
number of exhibits submitted by the State and the defense. The State has confirmed that the
relevant questions to be asked to Saldate in future proceedings will be substantially similar tothose asked of Saldate previously. The defense has confirmed that it will impeach Saldate with
the information from the cases mentioned in the Ninth Circuit opinion.
THE COURT FINDS that Saldate may make a blanket assertion of privilege.
Conclusion
A judge may deny the claim of privilege only where it is “‘perfectly clear’ from a carefulconsideration of all the circumstances in the case, that the witness is mistaken and that the
answer cannot possibly have such tendency to incriminate.” 19 This places a heavy burden on the
judge who decides to compel testimony over a Fifth Amendment claim.
After careful consideration of the totality of the circumstances, the Court finds that it is
not “perfectly clear” that Saldate is mistaken and that his testimony could not possibly have the
tendency to incriminate him. Accordingly,
IT IS ORDERED denying the State’s request to compel Saldate to testify over Saldate’s
Fifth Amendment claim.
IT IS FURTHER ORDERED setting a Status Conference on January 17, 2014 at 2:00p.m. to discuss what issues remain given the Court’s decision.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.
Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determinetheir mandatory participation in eFiling through AZTurboCourt.
19 Malloy v. Hogan, 378 U.S. 1, 12 (1964), citing Hoffman v. United States, 341 U.S. 479, 488 (1951).
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EXHIBIT Z
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NOTICE: NOT FOR PUBLICATION.UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
A RIZON
C
OURT OF PPE LS
DIVISION ONE
STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, MaricopaCounty Attorney, Petitioner ,
v.
THE HONORABLE ROSA MROZ, Judge of the SUPERIOR COURT OFTHE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,
ARMANDO SALDATE, DEBRA JEAN MILKE,Real Parties in Interest.
No. 1 CA-SA14-0028
Petition for Special Action from the Superior Court in Maricopa CountyNo. CR1989-012631 A
The Honorable Rosa Mroz, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Maricopa County Attorney’s Office, PhoenixBy Diane MelocheCounsel for Petitioner
FILED 4-17-2014
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2
Law Office of Treasure VanDreumel, PLC, PhoenixBy Treasure VanDreumelCounsel for Real Party in Interest Saldate
Kimerer & Derrick, P.C., Phoenix
By Michael KimererAnd Jones, Skelton & Hochuli, PhoenixLori L. VoepelCounsel for Real Party in Interest Milke
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in whichPresiding Judge Peter B. Swann and Judge Patricia K. Norris joined.
T H O M P S O N, Judge:
¶1 This special action came on regularly for conference on the9th day of April, 2014, before Presiding Judge Peter B. Swann, and Judges Jon W. Thompson and Patricia K. Norris.
¶2 Special action jurisdiction is available when there is no otherequally plain, speedy or adequate remedy by appeal. Ariz. R. Spec. Act.1(a). Special action jurisdiction is appropriately invoked when there is anissue of state-wide importance. See State v. Bernini, 230 Ariz. 223, 225, ¶ 5,282 P.3d 424, 426 (App. 2012), citing State ex rel. Romley v. Martin, 203 Ariz.46, ¶ 4, 49 P.3d 1142, 1143 (App. 2002). Special action jurisdiction isappropriate in cases involving confidential and privileged matters.Cervantes v. Cates, 206 Ariz. 179, 181, ¶ 8, 76 P.3d 449, 452 (App. 2003);Blazek v. Superior Court, 177 Ariz. 535, 536, 869 P.2d 509, 510 (App. 1994).For these reasons, we accept special action jurisdiction.
¶3 Real party in interest Armando Saldate was noticed as awitness in an upcoming criminal re-trial in which Debra Jean Milke is thedefendant. Saldate seeks to invoke a Fifth Amendment privilege,refusing to answer questions in this case. After considering factualsubmissions, record material, and briefing submitted by Petitioner State ofArizona, Saldate, and Milke, the superior court ruled that Saldate couldmake a blanket invocation of the privilege. The State challenges that
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State v. Hon. Mroz/Saldate/MilkeDecision of the Court
3
ruling in this special action and, further, argues that on the existingrecord, Saldate has not shown he is entitled to invoke the privilege.
¶4 A legitimate claim of Fifth Amendment privilege mustestablish that the witness has a real and appreciable risk of prosecutionunder the “ordinary operation of law in the ordinary course of things”and not an imaginary or extraordinary “barely possible contingency.”Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 190 (2004); United States v. Apfelbaum, 445 U.S. 115, 128 (1980) (the witness justifiably claims theprivilege if he is “confronted by substantial and ‘real’, and not merelytrifling or imaginary, hazards of incrimination”) (citation omitted); State v.Rosas-Hernandez, 202 Ariz. 212, 216, ¶ 11, 42 P.3d 1177, 1181 (App. 2002).(to invoke privilege, witness “must demonstrate a reasonable ground toapprehend danger from being compelled to testify”). The privilegeextends beyond obvious admissions of guilt and encompasses statements
that may tend to incriminate by furnishing one link in a chain of evidencerequired to convict. Flagler v. Derickson, 134 Ariz. 229, 231, 655 P.2d 349,351 (1982). To assess a claim of privilege, the trial court must consider allof the attendant circumstances. Id. at 232, 655 P.2d at 352.
¶5 Relying on an August 30, 2013, letter from the United StatesAttorney for the District of Arizona and a December 6, 2013, letter fromthe U.S. Department of Justice the State argues that Saldate had no realand appreciable risk of prosecution for committing civil rights violations.The superior court closely reviewed these letters, outlined various
ambiguities and uncertainties in them, and essentially concluded they didnot negate a real and appreciable risk of prosecution. We agree the lettersdo not conclusively negate a real and appreciable risk of prosecution,though they lend weight to the State’s position. Although the State arguesthe letters demonstrate the applicable statute of limitations had run withrespect to the cases and incidents discussed by the Ninth Circuit in itsdecision, see Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013), possible conspiracyclaims under federal law may not be time barred. For example, see Culp v.United States, 130 F.2d 93 (8th Cir. 1942); 18 U.S.C. § 371; 18 U.S.C. § 242.
¶6 Nevertheless, based on a review of the record before us,Saldate has not shown a real and appreciable risk of prosecution for suchclaims. Saldate has argued his Fifth Amendment privilege claim centersaround accusations he engaged in a pattern of Miranda and otherconstitutional violations while interrogating criminal suspects. Althougha conspiracy to violate civil rights, like any conspiracy, does not require anexplicit agreement and can be inferred from facts and circumstances, therecord before us fails to show the existence of a conspiratorial agreement
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State v. Hon. Mroz/Saldate/MilkeDecision of the Court
4
that would warrant Saldate’s invocation of the privilege, either on ablanket or on a more specific basis. “The essence of a conspiracy is theagreement to engage in concerted unlawful activity. To connect thedefendant to a conspiracy, the prosecution must demonstrate that the
defendant agreed with others to join the conspiracy and participate in theachievement of the illegal objective.” United States v. Grassi, 616 F.2d 1295,1301 (5th Cir. 1980) (citations omitted). The record before us contains nosuch evidence. Saldate must do more than show the possible lack of alimitations defense on a possible charge that does not appear to besupported by the record – he has defined at most a speculative andacademic risk, not a real and appreciable risk.
¶7 Further, a witness may not invoke the Fifth Amendment outof a fear he will be prosecuted for perjury for what he is about to say.United States v. Whittington, 780 F.2d 1210, 1218 (5th Cir. 1986). “The shield
against self-incrimination in such a situation is to testify truthfully, not torefuse to testify on the basis that the witness may be prosecuted for a lienot yet told.” Id.; see also, Earp v. Cullen, 623 F.3d 1065, 1070 (9th Cir.2010).
¶8 Upon his appearance being appropriately secured fortestimony and on this record, Saldate may be compelled to testifytruthfully in the upcoming trial. As citizens, each of us has a duty totestify in criminal proceedings in our courts when called upon to providerelevant information. See State of New York v. O’Neill, 359 U.S. 1, 11 (1959).
¶9 For the foregoing reasons and based on this record, we grantspecial action relief, vacate the superior court’s ruling and hold Saldatehas failed to show a real and appreciable risk of prosecution for invocationof the Fifth Amendment privilege against self-incrimination.
MJT
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EXHIBIT AA
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Page 1 of 1
Re: Armando SaldateLippyT
' to:Karen_Wilkinson
12:14 PMHide
From: [email protected]: [email protected],
Hello Karen, thank you for your email.
As you may likely suspect, we are in the process of preparing a Petition for Review to
the Arizona Supreme Court regarding Mr. ability to invoke the FifthAmendment. We thus must respectfully decline your request for interview with Mr.
Saldate.
Regards, Treasure
In a message dated 3:01:41 P.M. US Mountain Standard Time,
[email protected] writes:
Treasure,
d d f h ' d i i d h A d
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