cunts mexDozA Fu INMY OFFICE SECOND JUDICIAL DISTRICT COURT BERNALILLO COUNTY, NM JAMES A. NOEL. STATE OF NEW MEXICO S7a81016 441 PM COUNTY OF BERNALILLO SECOND JUDICIAL DISTRICT COURT STATE OF NEW MEXICO, Plaintiff, vs, Case Number: D-202-CR-2015-000104 D-202-CR-2015-000105 KEITH SANDY, DOMINIQUE PEREZ, Defendants. DEFENDANT KEITH SANDY’S MOTION FOR SANCTIONS FOR PROSECUTORIAL MISCONDUCT. Defendant Keith Sandy, by and through his counsel, Bregman & Loman, P.C. (Bric Loman) moves the Court to sanction the State for its several and cumulative acts of prosecutorial misconduct. For his Motion Mr. Sandy states the following: Introduction Mr. Sandy is currently on trial for second degree murder and aggravated battery. Since the beginning of this trial, the State has continuously pushed the boundaries of prosecutorial ethics and professionalism. These acts have included misrepresenting the cvidence of the case and openly defying the Court's orders. Over the course of several days of trial, the cumulative efffect of these actions have risen to the level of prosecutorial misconduct and should be addressed by the Court. Points and Authority The State’s offensive actions include the following: 1. During opening statement, making numerous misrepresentations of what the evidence would show. These misreprescntations were demonstrated through cross examinationof Detective Geoffery Stone. The State's misrepresentations in its opening statement violate Rule 16-303(A)(1) (prohibiting a lawyer from knowingly making false statements of fact to a tribunal) and Rule 16-394(E) (prohibiting a lawyer during trial from alluding to a matter that the lawyer does not reasonably believe is relevant or will be supported by admissible evidence). 2. Constantly asking leading questions during direct examinations. The Court has sustained dozens, if not hundreds, of objections for leading made by the defense. Despite the Court's consistent rulings on these objections, the State has continued to suggest the answer that it wants in the questions asked to its witnesses. 3. Displaying a large photograph of James Boyd to the jury. The State clipped a large photograph of Mr. Boyd to the side of the lectern, such that it was displayed facing the jury. During a bench conference, the defense complained and the State represented that it would place the photograph face-down on State’s counsel table. However, the State instead propped the photograph up against a large binder, such that it was displayed upright facing and just a few feet away from the jurors. 4. Improperly eliciting a response to a question. During its examination of Mikal Monette, the defense objected to a question asked by the State and the objection was sustained. The State then, through mannerism, prompted the witness to respond to the question anyway, which he did. This was in clear defiance of the Cour'’s ruling on the objection. 5. Improperly coaching a witness. The Court recessed during Mikal Monette’s cross examination. During that recess, the State privately coached Mr. Monette on a line of questioning about the Tueller Drill. A nearly identical situation was considered in State v. Prater, 468 N.E. 2d 356 (Ct App. Ohio 1983) (overruled on other grounds by State v. Heidelburg, 507 N.E.2d 1149 (Ct. App. Ohio 1986)). In that case, trial was recessed during thecross examination of prosecution witness. During that recess, the prosecutor coached the witness, When testimony resumed, it was clear that the witness's memory had been “refreshed”. Id, 359-360. The court held that a “prosecutor cannot use trial recesses to “coach” or otherwise “rehabilitate” witnesses before defense counsel has finished his cross-examination.” Jd. (emphasis in original). 6. The State altered State’s Exhibit 46, a diagram prepared by the Office of the Medical Investigator. This was done in an attempt to redact the notation on the diagram showing, where Mr. Boyd’s arm was amputated, This alteration was prohibited by Rule 16-304(A). In addition to the specific violations noted above, the State has generally failed to abide by the ethical duties assigned to prosecutors. The Committee Commentary to Rule 16-308 provides that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided on the basis of sufficient evidence.” The Court should examine each individual allegation of misconduct, but should also consider “their cumulative effect”. See State v. Tryjillo, 2002-NMSC-005, § 48, 131 N.M. 709. To this point, the State has not acted as a dispassionate prosecutor seeking justice, but as an advocate who will resort to whatever shenanigan is necessary to secure a conviction of the Defendants. The cumulative effect of these improper acts is a body of misrepresentations and improper suggestions made to the jury, such that these finders of fact must wade through very muddy water. This issue is particularly concerning as trial approaches its final stage. During closing arguments, the State will have the final opportunity to address the jury. The defense will have no‘opportunity to refute whatever mistepresentations the State has planned for its rebuttal. Mr. Sandy respectfully requests that the Court find that the State has engaged in prosecutorial misconduct. Mr. Sandy respectfully suggests that an appropriate sanction would be an admonishment to the State in the presence of the jury. Such admonishment should include that the Court has found that the State has engaged in prosecutorial misconduct and that the State is instructed not to engage in further improper acts, including those specified in this Motion. Mr. Sandy further requests that the Court repeat its instruction to the jury that the statements of counsel are not evidence, WHEREFORE Mr. Sandy respectfully requests that the Court sanction the State for prosecutorial misconduct by admonishment and instruction as set forth above, Respectfully submitted, BREGMAN & LOYAN, P.C. Eric Loman Attorney for Keith Sandy 901 Third St. N.W., Ste. A Albuquerque, NM 87102 (508) 761-5700 certify that the fo to all parties sping was hand-delivered ber 28, 2016. Eric Loman