Judge to consider dismissal in Smelser trial as state rests its case

LAS CRUCES - The judge presiding over a murder trial involving a former police officer announced Wednesday that he would hear arguments regarding a directed verdict.

3rd Judicial District Judge Douglas Driggers disclosed the hearing just after prosecutors rested their case Wednesday afternoon. He told the attorneys to prepare arguments in support of and against the defense's motion to dismiss the lone charge against Christopher Smelser.

In 2020, a grand jury indicted Smelser, 29, on one count of second-degree murder. Smelser's trial began on July 11 and is scheduled to end on July 22. However, it may end sooner if Driggers accepts the defense's motion. Since Monday, prosecutors from the state Attorney General's Office have called 13 witnesses to testify.

Smelser, they argued, is a well-trained police officer who could've used any other tactic to detain Antonio Valenzuela. But Smelser chose to use a vascular neck restraint — a grapple hold approved by LCPD at the time but which has since been banned by the department — that restricts the blood flow to the brain from the neck. The grapple causes someone to pass out, if applied correctly, but does not restrict airflow.

More:Former Las Cruces police officer Christopher Smelser on trial for second degree murder

As the state's expert testified, it's a dangerous technique that can cause great bodily harm or death if misapplied. Smelser knew through his training that the VNR was a risky maneuver when he tried it, according to two LCPD trainers that testified. Nevertheless, he did it anyway, messed it up, and killed Valenzuela in the process, the state's argument goes.

Now, Smelser's defense has several days to pick that argument apart. Or Driggers may choose to end the case before the jury is seated Thursday morning via directed verdict. In the legal system, a directed verdict is a ruling from a judge who determines there is not enough evidence for a reasonable jury to reach a different conclusion. It is customary for the defense to ask for a directed verdict after the prosecution rests its case.

Former LCPD trainer reaffirms Smelser’s VNR unreasonable

Shane Brisco delivered one of the most compelling testimonies of the State's case.

Brisco is a retired LCPD police officer. He spent nearly his whole career training cadets in LCPD's academy on the use of force and defensive techniques. But, for the department, Brisco wasn't just another trainer. He testified that he wrote the department's curriculum on defensive tactics.

"It's 90 plus hours on how to take someone into custody," he said.

In the aftermath of Valenzuela's death, the department tasked Brisco with determining whether Smelser's VNR was reasonable. Brisco wrote in a department memo that Smelser's VNR was not reasonable.

Reasonableness, in this context, means that a reasonable officer in the same position and tasked (like Smelser was) to detain a person would use the same amount of force.

But after Brisco made his determination, he said to the jury that something gnawed at him. The investigation prohibited him from interviewing Smelser, but he wanted to know what was going through Smelser's mind during the altercation.

He added that he knew Smelser and his partner, Andrew Tuton, believed Valenzuela had a weapon. Tuton testified on Wednesday that he thought Valenzuela held a gun in his right pocket. In reality, police found no firearms at the scene, and there's no evidence to suggest Valenzuela ever held a gun on Feb 29, 2020. But, if Smelser and Tuton believed Valenzuela had a gun in his right pocket, Brisco said he wondered why Smelser and Tuton didn't try to gain control of that hand. Brisco also wanted to connect with Smelser.

"I just wanted to give him a hug," he said.

Smelser's attorney, Amy Orlando, gave him a chance. She set up a face-to-face meeting between the two after Brisco left the department. It's unclear if this violated court orders that bar defendants from speaking with witnesses. But Brisco testified it happened and said he got his hug and the answers to his questions. That incident raised the question of whether Brisco still believed that Smelser's VNR was unreasonable.

On cross-examination, Brisco also became emotional. He held back tears but had to take several seconds to collect himself. Zack Jones, one of the assistant attorneys general prosecuting the case, expressed concern.

"Is it fair to say that you're on the defense's side?" Jones asked Brisco.

Brisco said he was on the side of the truth, although he concurred that he'd told an NMSP investigator leading the case he hoped his testimony could help Smelser. Despite the meeting between Brisco and Smelser and Brisco's expressed sympathy, Brisco made his opinion on Smelser's conduct clear.

"They did have a tactical advantage," Brisco said. "They did have a size advantage. They did have a numbers advantage … I believe (Smelser's) position is more consistent with what's called a bulldog choke."

Brisco also made another point. While the court did not consider him an expert (meaning his testimony could only range from his personal experience), Jones asked Brisco how long someone should hold a VNR. Brisco answered with about 40 seconds.

The expert says…

"I thought it was ridiculous," Damon Fay, the state's expert use of force, said, referring to Brisco's comments.

Fay is a 24-and-half-year veteran of the Albuquerque Police Department. After retiring in 2004, Fay testified that he does training across the country and has a blackbelt. Prosecutors hired Fay as their expert witness, who gave an opinion on Smelser's conduct.

Fay said Smelser's conduct was unreasonable, his grapple around Valenzuela was terrible, and he held it for about six to seven times longer than he should have. Fay said that a successful VNR should last less than ten seconds.

"If it's not working within 3 to 7 seconds, you're doing something wrong," he said, adding that he believed Smelser held Valenzuela in the VNR between 66 and 75 seconds.

After Fay gave his opinion, Smelser's defense attorney grilled him about how he determined how long Smelser held the VNR. Mark Pickett, Orlando's co-counsel, asked him to pick a moment in the body camera footage when he begins the count. Fay couldn't. Instead, Fay said he relied on several factors to determine an approximate length of time for the VNR hold.

Pickett also aimed at Fay when Fay said that Valenzuela suffered damage to his neck. Fay said that part of his process for judging Smelser's conduct was reviewing the medical examiner's report. When asked, Fay wrongly said that Valenzuela had suffered damage to his trachea. However, the doctor who supervised Valenzuela's autopsy noted that Valenzuela's laryngeal prominence of the thyroid cartilage sustained damage, not the trachea.

But what happened to the pocket knife?

News outlets, including the Sun-News, reported early on that Valenzuela possessed a pocket knife. Many might assume that the pocket knife would play a significant role in the trial. But, in the state's case, it didn't.

After Valenzuela passed out, one of the officers who responded to the chase searched his body. The officer found a Leatherman-like pocket knife or utility tool in Valenzuela's pocket. However, that evidence wasn't initially cataloged or even collected by investigators. Instead, it sat in the pants of Evert Garibay for several days.

Garibay was a first responder after Smelser and the other officers notified dispatch that they'd used force on someone. Garibay, a Las Cruces firefighter, testified that he saw the knife on the ground and picked it up. Garibay said that the pocket knife was his. Later, he returned to his station, retired into his civilian clothes and left work.

When a new shift resumed and Garibay put his work clothes back on, he noticed he had two pocket knives. He testified that he notified the police, who then took the knife into evidence.

When given a chance to cross-examine Garibay, Orlando and Pickett declined.

Justin Garcia is a public safety reporter for the Sun-News. He can be reached via email at JEGarcia@lcsun-news.com.

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This article originally appeared on Las Cruces Sun-News: Smelser trial update: Judge considers dismissal as prosecution rests