Fatal shooting was 'tragic accident,' not murder, attorney tells jurors

Olivier Uyttebrouck, Albuquerque Journal, N.M.
·2 min read

Sep. 21—Robert Herrera fatally shot himself in the head while he was "playing around with the gun," an attorney for the man charged in the killing told jurors Tuesday.

Prosecutors countered that Francis Fair intentionally shot 27-year-old Herrera while the two men were drinking and smoking marijuana in 2019.

"Robert Herrera's death was a tragic accident," Fair's attorney, Noah Gelb, told jurors during opening statements. "This was not a murder. This was not a deliberate act."

Fair, 32, is charged with first-degree murder and tampering with evidence in the Sept. 20, 2019, death of Herrera in the Southwest Albuquerque home of Fair's mother.

Fair, Herrera and two other men were in Fair's second-floor bedroom at the time of the shooting, both defense and prosecution attorneys said in opening statements in 2nd Judicial District Court.

The two others — Fair's brother and Herrera's cousin — were preoccupied with a cellphone and a video game at the time of the shooting, attorneys said.

"These are all friends," Gelb said. No argument preceded the shooting, he said. "They're all just hanging out with each other. This isn't a lead-up to a murder."

Fair didn't think the gun was loaded, Gelb said.

Assistant District Attorney Jolanna Macias said in the opening statement that both Fair and Herrera were handling Fair's pistol in the moments before the shooting.

"Robert Herrera was shot and killed by Frankie Fair," Macias told jurors. "At the conclusion of this trial, we will ask that you see Frankie as we do — not as Robert's friend, but as an enemy."

According to a criminal complaint filed in Bernalillo County Metropolitan Court, officers responded to the shooting in the 10800 block of Cenote SW, near 118th and Dennis Chavez. Fair's sister told a police dispatcher that her brother had shot Herrera accidentally and fled the house, yelling he was "going to jail forever."

Fair later returned to the scene where he told police that Herrera had shot himself while "playing" with Fair's pistol, the criminal complaint said.

Findings by the Office of the Medical Investigator appeared to contradict Fair's account of the shooting.

An autopsy found that Herrera died of a single gunshot wound to his left temple with an exit wound behind the right ear, according to the criminal complaint.

OMI reported that the contact wound on Herrera's left temple did not appear to be self-inflicted, "but would be consistent with someone else holding the gun to the victim's head," according to the criminal complaint.