Smelser trial locks in for mid-July after judge tosses request for dismissal
LAS CRUCES - Outside the 3rd Judicial District courthouse, a half dozen protestors set up near the street last week. They called out to passing cars and people heading into the courthouse, demanding an end to police brutality and justice for Antonio Valenzuela.
"The message we're trying to get out is accountability," Valerie Valenzuela, Antonio's sister, said during a brief interview with the Sun-News. "What they did was wrong and they need to pay for it."
Inside, family members of the defendant, former Las Cruces Police Department Officer Christopher Smelser, and the man he is on trial for killing sat on opposite sides of a packed courtroom. They rarely made eye contact.
At the end of a grueling three hours of legal proceedings, the judge thanked the hearing's observers — who number just under 40 — for their silence. Respect was not necessary, 3rd Judicial District Judge Douglas Driggers said, only their muteness during proceedings.
Wednesday afternoon marked the beginning of a two-month process that, if uninterrupted, will end with a jury deciding whether 29-year-old Smelser is guilty of second-degree murder. Smelser stands accused of killing Valenzuela, then 40, on February 29, 2020. Smelser is set to face a jury on July 11, over two years after the incident occurred.
An uncertain timeline of Feb. 29, 2020.
Made clear from the hearing on Wednesday, many of the finer details reported so far are being called into question. From the possession of a multi-tool to the chemical identification of substances found on Valenzuela's body, it's clear that prosecutors and defense attorneys plan to battle over who had what and when they had it.
But for now, a collection of publically available reports and body camera footage sheds some light on what happened on Feb. 29, 2020.
Police say that LCPD Sgt. Sean Terry and officers Andrew Tuton and Christopher Smelser were assisting in a search for a reported burglar in the 3 Crosses Avenue area around 2:30 a.m. Feb. 29. when Tuton observed a truck driver hesitate while turning onto a main road. Terry pulls over the truck as Tuton and Smelser both arrive on the scene. Valenzuela is sitting in the back seat.
When officers run Valenzuela's name, they learn that a court has issued a warrant and accused Valenzuela of a parole violation. After Valenzuela steps out of the car and has a brief interaction with Smelser, he flees. Tuton and Smelser then give chase.
Smelser finally catches up with Valenzuela and grabs onto his jacket but Valenzuela gets free. Tuton catches up and tackles Valenzuela, taking him to the ground 24 seconds after the chase began.
A minute into the altercation, Smelser tries to apply a vascular neck restraint, commonly called a chokehold, and says, "Alright, you know what? I'm going to f***ing choke you out, bro."
The vascular neck restraint requires Smelser to bring his arm around Valenzuela and apply force to Valenzuela's neck. The choking causes Valenzuela to suffocate and pass out. A similar restraint was used against Eric Garner in New York City in 2014.
In all, Smelser held Valenzuela with the chokehold of some degree for 1 minute and 51 seconds. Valenzuela was declared dead at a hospital a few hours later.
Another officer then arrives at the scene and begins helping with the investigation as Valenzuela remains visibly asleep. At some point, a multi-tool is found by either a police officer or a firefighter and believed to belong to Valenzuela.
An autopsy revealed Valenzuela died from asphyxial injuries from physical restraint. It also states methamphetamine played a role in his death.
Smelser is later charged with involuntary manslaughter and fired from LCPD. The charge was then modified to second-degree murder. Unlike many other defendants facing murder charges in Doña Ana County, Smelser is allowed to wait for his trial outside of jail. Over two years later, Smelser's day in court has nearly arrived.
Controversial police killings
A multi-purpose hearing on Wednesday afternoon saw Judge Driggers review two motions to dismiss the charges and omit several witnesses and exhibits ahead of the trial. Driggers also outlined a timeline for the next two months as the court undergoes the task of jury selection.
The trial comes as Las Cruces grapples with another controversial police killing. On April 16, an LCPD officer killed 75-year-old Amelia Baca at her home in Las Cruces. Baca, who is undergoing a mental health crisis stemming from dementia, was holding two knives when an LCPD officer shot her twice. The killing rang familiar for Valenzuela's family before the hearing.
"The way they did my brother — something should have happened," Valerie Valenzuela said, referring to her belief that the police should have reformed to the point that the Baca shooting was not possible. "Police brutality is getting really bad here. And we need to put a stop to it."
In August 2020, the city agreed to pay the Valenzuela estate $6.5 million as part of a civil lawsuit filed by Sam Bregman, who is also representing the Baca family.
The settlement with the Valenzuela family also asked LCPD to ban all forms of chokeholds, implement mandatory yearly mental health exams for officers and require empathy, de-escalation and racial bias training on an annual or at least biannual basis.
In December 2020, the Las Cruces City Council agreed to consider updating its police use-of-force policies, though it was noted in a council meeting that some of the policies would have to be negotiated with the police union.
Motions to dismiss trashed
At the onset of the hearing, Driggers told Smelser's attorneys that their request for dismissal was not well taken. Without hearing an argument or discussion on the matter, Driggers denied the motions.
Amy Orlando and Susana Macias Muñoz, Smelser's defense attorneys, said in a motion that Driggers should dismiss the case against Smelser. Specifically, Orlando and Muñoz said in a motion that improper evidence was considered during a preliminary hearing and that probable cause wasn't demonstrated back in 2020.
Orlando and Muñoz said that two expert witnesses were questioned about the reasonableness of Smelser's conduct surrounding his use of a chokehold against Valenzuela. Both experts, Orlando and Muñoz said, told the court that Smelser's use of the chokehold was inappropriate.
Additionally, the second expert witness — Damian Fey of the Albuquerque Police Department — commented on the credibility of the first expert witness — former LCPD trainer Shane Brisco. Not that any of that matters, Orlando and Muñoz said, because they argued that there was no way Smelser could've committed second-degree murder as its defined in New Mexico's law.
New Mexico law states that a person has committed second-degree murder if a court finds:
The defendant was not sufficiently provoked such as in a sudden fight or in the heat of passion and;
The defendant did not act with lawful justification or excuse and;
The defendant knew of the strong probability of death or great bodily harm.
"With or without the expert testimony, the evidence shows that the defendant did act with lawful provocation," Orlando and Muñoz wrote in their motion.
Zach Jones, an assistant attorney general representing the state of New Mexico, said in a response brief that the time had come and gone to challenge probable cause. Doing so was unreasonable and impractical even if there were grounds, Jones said. Jones also said that Orlando and Muñoz did not provide proof that any improper evidence was submitted regarding the expert witness testimony.
Ultimately, Driggers accepted Jones' reasoning and did not hear arguments during the hearing on Wednesday.
Jury selection spectacle
Instead, the hearing focused largely on the process of jury selection and appropriate evidence for the trial.
Because the case is high-profile, Driggers said that the court will survey 184 community members. They'll answer some basic questions about their knowledge of the case but will answer questions about how they feel about policing in general.
Those questions include:
Have you ever applied for any position with a police department or a detention center and not been hired?
Do you support defunding the police?
Yes or no. Police officers should be held to a higher standard than non-officers when charged with a crime.
The survey results will be dispersed and collected over June. Once the results are collected, Driggers said the court will create four panels of 12 potential jurors before selecting the final jurors to review the case in July.
During that period, Driggers told Jones, Orlando, and Muñoz they should finish pretrial interviews and finalize their witness lists. Come mid-July, Driggers said the lawyers should be ready to go for the 10-day trial.
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Justin Garcia covers crime, courts, public safety, and politics in Doña Ana County. They can be reached via email at JEGarcia@lcsun-news.com.
This article originally appeared on Las Cruces Sun-News: Smelser trial locked in for mid-July after judge tosses dismissal
