Gallegos' "Brady" claim

8/18/2019 Gallegos' "Brady" claim

http://slidepdf.com/reader/full/gallegos-brady-claim 1/165

1

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

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 1 of 165



2

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




APPENDIX 1




1

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.)




2

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




3

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.)




4

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




5

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.




6

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.)




7

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




8

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




9

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




10

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.




11

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).




12

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.)




13

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.)




14

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.




15

(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.




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




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.




EXHIBIT A




• 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 .




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 .




'_' ' '

"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




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




!

'• -

! #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. ' '






EXHIBIT B




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




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

•

•




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




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




- 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-




EXHIBIT C




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




NOTE: FILL IN EVERY SPACE UNLESSTHE INFORMATION IS NOT AVAILABLE.PRINT LEGIBLY IN INK.

? PROPERTYONE ONLY)

FOUND, WILLCLAIM?EVIDENCE SAFEKEEPING

PRISONER'S FOUND } YES NO

DATE/TIME OF IMPOUND

OF VICTIM OR (LAST, FIRST, MIDDLE)

OF RESPONSIBLE PARTY OR NEXT OF KIN

NAME OF SUSPECT /

DOB

FIRST, MIDDLE)

DOB

NAME OF SUSPECTFIRST, MIDDLE)

DOB.

NAME OF FINDER OR PERSON REPORTING FOUND PROPERTY DOB

TYPE OF OFFENSE IF KNOWN

ADDRESS TELEPHONE NUMBER

AADDRESS

A, A

TELEPHONE NUMBER

ADDRESS

ARREST NUMBER

ARREST NUMBER

TELEPHONE NUMBER

LOCATION OF OCCURENCE PRECINCT

BRIEF SYNOPSIS OF OCCURRENCE (ALSO USE FOR

SEARCH WARRANT

•

t .

PROPERTY — LIST ONLY ONE ITEM PER LINE. NUMBER EACH ITEM ON THE FORM, TAG, AND CONTAINER, TAG ALL

A

•NUMBERS, OFFICER'S NAMES AND SERIAL NUMBERS ON THE ENVELOPE,

AMOUNT OF ITEM

z

X

z/

. -

. , A /

1

s

J -

• «

/A

r

1 TOTAL AMERICAN CURRENCY

. SERIAL |

OF

DISPOSITION OF PROPERTY CIRCLE ONE ONLY

PROPERTY RETURNED OWNER AT NIGHT IMPOUND

WERE: PLACED IN BIKE RACK (PRECINCT) No,

OVER TOCUSTODIAN IN PERSON

3032 S,22nd Ave.

PLACED IN LOCKER

No.

TAKEN TOPOLICERANGE

FOR CUSTODIAN USE ONLY: REMARKS

RECEIVED BY

BOOK:

DATE

PAGE:

TIME

LINE:

LAWFUL DISPOSITIONAUTHORIZED BY:

' CITY OF PHOENIX, ARIZONA POLICE DEPARTMENT PROPERTY INVOICE AND RECEIPT Rev. 3/89




NOTE: IN E V E R Y SPACE

THE INFORMATION IS NOT AVAILA BLE.LEGIBLY IN INK.

PROPERTYONLY)

FOUND, WILL

EVIDENCE SAFEKEEPING CLAIM?

D A T E / T I M E O F I M P O U N D

NAME OF VICTIM OR OWNER (LAST, FIRST, MIDDLE)

OR NEXT OF KIN DOB

SUSPECT /NAME OF SUSPECT

NAME OF SUSPECT(LA

NAME OF FINDER OR REPORTING FOUND PROPERTY

ADDRESS

A

ADDRESS

TYPE

IF KNOWN

(ALSO USE HIS SPACE FOR

D,R. NUMBER

TELEPHONE NUMBER

ARREST NUMBER

PRECINCT

SEARCH WARRANT

•

OTilm

NUMBERS THE

CITY OF PHOENIX, ARIZONA POLICE DEPARTMENTPROPERTY INVOICE AND RECE IPT

Rev, 3/89




EVERY SPACE UNLESSTHE INFORMATION IS NOT AVAILABLE.PRINT

IN INK.

PROPERTYONE ONLY)

EVIDENCE SAFEKEEPING

CLAIM?

PRISONER'S

. FOUND

•

DATE/TIME OF IMPOUND

NAME OF VICTIM OR

OF SUSPECT

(LA!

DOB

AST, FIRST, MIDDLE)

NAME OF SUSPECT —' DOB

f.

, .

1 i iNAME OF FINDER OR REPORTING FOUND PROPERTY DOB

TYPE OF

IF KNOWN

NUMBER

ADDRESS

.

TELEPHONE NUMBER

ADDRESS

ADDRESS

A

ADDRESS

LOCATION OF OCCURENCE PRECINCT

(ALSO USE THIS SPACE FOR ADDITIONAL SUSPECTS OR VICTIMS)

/ .

-•

SEARCH WARRANT

•

NUMBERS, OFFICER'S NAMES AND NUMBERS ON THE ENVELOPE

AMOUNT

Z

SERIAL NO.

OF ITEM~? )

< —

fed Z

- DISPOSITION OF PROPERTY CIRCLE ONE ONLY

PROPERTY RETURNED TO OWNER AT NIGHT IMPOUND

TEMS WERE: PLACED IN BIKE RACK (PRECINCT) No,

SERIAL

TOTAL AMERICAN CURRENCY

$

TURNED OVER TOCUSTODIAN IN PERSON

3032 S.22nd Ave.

IN LOCKER

No.

TO

POLICE

CUSTODIAN U S E ONLY:REMARKS

BOOK:

. DATE

PAGE:

TIME

LINE:


CITY OF PHOENIX, ARIZONA POLICE DEPARTMENTPROPERTY INVOICE

RECEIPT80-130 Rev, 3/89




EVERY 8PACE UNLESSTHE INFORMATION IS NOT AVAILABLE.PRINT LEGIBLY IN INK.

WILL

PROPERTY SAFEKEEPING

ONE ONLY)

FOUND •

OF IMPOUND

O F VICTIM OR (LAST, F IRST, MIDDLE) DOB

OF RESPONS IBLE PARTY OR NEXT OF KINDOB ADDRESS

TELEPHONE NUMBER

A

) F SUS PEC T - .

V

A D D R E S S

OF SUSPECTADDRESS

J I

V

NAME OF FINDER OR PERSON REPORTING FOUND PROPERTY DOBADDRESS

TELEPHONE NUMBER

TYPE OF pFFENSE IF KNOWNPRECINCT

BRIEF-SYNOPSIS OCCURRENCE (ALSO USE THIS SPACE.FOR ADDITIONAL SUSPECTS OR VICTIMS)SEARCH WARRANT

Ay

NAMES AND SERIAL NUMBERS ENVELOPE, •

, •

ITEM AMOUNTSERIAL NO,

OF ITEM

-

. P.. SERIAL

TOTAL AMERICAN CURRENCY

5

PAGE OF

I DISPOSITION OF PROPERTY CIRCLE ONE ONLY

RETURNED TO OWNER LEFT AT NIGHT IMPOUND

WERE; IN BIKE RACK (PRECINCT) No.

TURNED TOCUSTODIAN IN PERSON

S,22nd Ave.

PLACED IN LOCKER

No,

TAKEN TOPOLICERANGE

USE ONLY;REMARKS

RECEIVED BY

BOOK:

CITY OF PHOENIX, ARIZONA POLICE DEPARTMENT

DATE

PAGE!

TIME

LINE:


PROPERTY INVOICE AND RECEIPTRev.




EXHIBIT D




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

...

,,

—




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




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 *




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




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 .




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




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.







EXHIBIT E




m

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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

)




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

2U

21

22

23

24

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




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




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.




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,)

12

13

14

15

16

17

13

19

20

21

22

23

24

25




EXHIBIT F




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


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 .




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




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




EXHIBIT G




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^

'


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

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

.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




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




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




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

iSîxi 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




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




•

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




?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




^ 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




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




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




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




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




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




EXHIBIT H




•?

:

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


o


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




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




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




EXHIBIT I




•?

:

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


o


PLAINTIFF,

V S.


DEFENDANT.

N O . R

9 0 - 0 3 3 3 9

U G

" 5 1991

NQELK DESSAINT


PHOENIX, ARIZONA

MARCH

7, 1991



OF PR^

-.tis^s?

MOTIONS

JURY TRIAL



BY .

O j i r ^ p ^ ^

PREPARED

FOR

APPEAL



O R IG IN A L )





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?

SUPERIOR COURT




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?

SUPERIOR COURT




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

SUPERIOR COURT




EXHIBIT J




•?

:

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


o


PLAINTIFF,

V S.


DEFENDANT.

N O .

CR 9 0 - 0 3 3 3 9

U G

" 5 1991

NQELK DESSAINT


PHOENIX, ARIZONA

MARCH

7, 1991


REPORTER'S TRANSCRIPT

OF PR^

-.tis^s?

MOTIONS

JURY TRIAL



BY .

O j i r ^ p ^ ^

PREPARED

FOR

APPEAL



O R IG IN A L )





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

SUpKRiOR COURT




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,

SUPERIOR COURT

Phoenix, Ai isona




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

SUPgRIOR COURT




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

SUPERIOR COURT

Phoenix, Arizona




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

SUPERIOR COURT




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

SUPERIOR COURT

Phoenix, Arizona




EXHIBIT K




•?

:

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


o


PLAINTIFF,

V S.


DEFENDANT.

N O . R

9 0 - 0 3 3 3 9

U G

" 5 1991

NQELK DESSAINT


PHOENIX, ARIZONA

MARCH

7, 1991



OF PR^

-.tis^s?

MOTIONS

JURY TRIAL



BY .

O j i r ^ p ^ ^

PREPARED

FOR

APPEAL



O R IG IN A L )





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?

SUPERIOR COURT




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 ANYOiÊ 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,

SUPERIOR COURT

Phoenix, Arizona




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.




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




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




miQR COURT OF THE

FOE THE COUNTY OF

1

2

3

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

. 21

22

23

24

25

JI IY

A<

F O

Qiitlilh COUET ElfORTll




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




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




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

»




EXHIBIT L




STATE

OF

AllÔMA

IH

THE

SUPERIOR COURT

OF THE

I« AND FOR THE COUNTY

4

5

6

7

8

JU L

6

99

STATE OF ARIÔHA

pl inti s

•

V 8

MICHAEL STEVIM GALLI

11

15

IS

If

IS




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




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




EXHIBIT M




IK THE SUPERIOR COURT OF THE STATE OF ARIZONA ^^^^^^^

IN mD FOR THE COUNTY OF MARICOPA ^C

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

)

)

)

)

)

)

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




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?




18

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




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




EXHIBIT N




IK THE SUPERIOR COURT OF THE STATE OF ARIZONA ^^^^^^^

IN mD FOR THE COUNTY OF MARICOPA ^C

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

)

)

)

)

)

)

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




J

1 NO ie««. was detected on vaginal or oral swabs.

Further, the stipulation being that items

2

3

4

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 Sâllwood 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




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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25




EXHIBIT O




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

3

4

5

6

7

8

9

10

1 1

12

1 3

14

15

16

17

18

19

20

2 1

22

23

24

25

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-#rÂMENSKI,


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




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

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

SUPERIOR COURT

Phoenix, Arizona




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,

^ . ^^' '^^^ ÛRY, 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

7

8

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




EXHIBIT P




A R

1 1 9 9 5

C l £ R K S U P R E M E C O U R T



1

2

3

4

5

5

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

F I L E D

M A R 1 1 9 9 5

NOELK.DESSAINT


PLAINTIFF,

V


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



(ORIGINAL

SUPERIOR COURT

Phoenix, Arizona




180

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




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




EXHIBIT Q






STATE OF ARIZONA,

Plaintiff,

NO. CR 90-03339

vs.


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


PREPARED FOR:

MR. RICHARD D. GIERLOFF

Attorney at Law

SUPERIOR COURT




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

1

2

3

4

5

6

7.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

SUPERIOR COURT




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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

SUPERIOR COURT




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

1

2

3

4

5

6

7

8

.9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

•

•

SUPERIOR COURT




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

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

SUPERIOR COURT




EXHIBIT R




•

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 ~ ~




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




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




EXHIBIT S




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

[email protected]

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.




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

Page 2 of 7




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.

Page 3 of 7




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.

Page 4 of 7




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.

Page 5 of 7




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

Page

6

of 7




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^^ÂL.t^€

c

CC

Robert L. Heilbronner, PhD, A BPP-CN

Director / Clinical N europsychologist

Page

7 of 7




EXHIBIT U







EXHIBIT V




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




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




EXHIBIT W




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




EXHIBIT X






STATE OF ARIZONA,

Plaintiff,

NO. CR 90-03339

vs.


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


PREPARED FOR:

MR. RICHARD D. GIERLOFF

Attorney at Law

SUPERIOR COURT




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.



Redirect Examination by Mr. Anderson

Recross Examination by Mr. Gierloff

STALZER Louis



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




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

16

17

18

19

20

21

22

23

24

25

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




EXHIBIT Y




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)





MARICOPA COUNTY

CR 1989-012631 12/18/2013


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”).





MARICOPA COUNTY

CR 1989-012631 12/18/2013


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.”).





MARICOPA COUNTY

CR 1989-012631 12/18/2013


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).





MARICOPA COUNTY

CR 1989-012631 12/18/2013


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.





MARICOPA COUNTY

CR 1989-012631 12/18/2013


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.





MARICOPA COUNTY

CR 1989-012631 12/18/2013


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).




EXHIBIT Z




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




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




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




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




EXHIBIT AA




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


Documents

Gallegos' "Brady" claim