Judge Neiley rejects call for mistrial in Olivo-Tellez murder trial
Defense attorney claims to be 'silenced,' immigration issues off the table
February 13, 2019
Ninth District Judge John Neiley denied a request for a mistrial Wednesday morning and declined to recuse himself in the first-degree murder trial of Gustavo Olivo-Tellez, 29, who is accused of killing his ex-wife, Blanca Salas-Jurado, in October 2016.
Ryan Dawson, a lawyer for the defense, asked Neiley to recuse himself and declare a mistrial Wednesday related to a Tuesday afternoon discussion during which Neiley rejected an argument lead defense attorney Garth McCarty had made on the admission of evidence.
McCarty had argued to admit hearsay evidence of Michelle Castillo, 26, an ex-girlfriend of Olivo-Tellez, based on a theory that she may be an "alternate suspect" in Salas' shooting death. Salas was found dead in her apartment with four bullet wounds Oct. 7, 2016.
As an alternate suspect, Castillo's previous statements to law enforcement would be admissible, even if they were hearsay, if she were considered a party opponent, McCarty argued.
Neiley told McCarty after a late afternoon recess Tuesday, without the jury present, that his argument was inconsistent with opening statements. In those statements, McCarty said Olivo-Tellez carried out the shooting in a heat of passion and under the intoxication of methamphetamine and alcohol.
Since McCarty had admitted his client did shoot the victim, and the trial had been framed by the defense as to whether Olivo-Tellez had the requisite intent for first-degree murder, the alternate suspect theory was no longer a viable defense, Neiley contended.
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Making an argument based on an alternate suspect theory could raise concerns that the opening statements were not made in good faith, Neiley said. McCarty replied that if there were professional conduct concerns, the court should file a complaint.
On Wednesday, McCarty did not speak to the court before Neiley ruled on the mistrial.
Dawson responded, "Mr. McCarty has been silenced, and will be until he sees counsel on this issue" and a review can be made of the official transcript. If the judge believed there had been misconduct, he should report it, Dawson said.
Neiley said Wednesday that his statement was in no way intended to imply that there had been misconduct, but he was pointing out that there was an ethical obligation to present opening statements relating to how counsel will pursue the trial.
"I did not see anything that even approached the obligation of the court to report any misconduct," Neiley said.
Deputy District Attorney Donald Nottingham urged the court not to declare a mistrial. "There is a good-faith basis that the defendant did indeed shoot and kill" the victim, based on McCarty's opening arguments, Nottingham said.
"A continuance would only serve to delay and inconvenience things," including the time of the jury, witnesses and the defendant, Nottingham said.
Neiley said he would not recuse himself, as he had no bias against the defense team.
"I will state for the record that I have no bias whatsoever toward defense counsel," Neiley said, adding, "I was focusing on that concise, and somewhat complicated evidentiary issue.”
McCarty advised the defense attorneys without speaking in open court. He spoke once Wednesday to remind the court that Castillo should remain in the Garfield County Jail in case she will be called as a defense witness.
Castillo appeared in custody, while serving her sentence for pleading guilty to accessory murder after the fact in the shooting of Salas. She testified Tuesday that she had retained counsel to withdraw her guilty plea.
IMMIGRATION STATUS OFF THE TABLE
Judge Neiley, also outside of the jury’s presence, declined to reverse his order that Olivo-Tellez' immigration status should not be discussed as part of the murder trial.
District Attorney Jeff Cheney Wednesday argued that Olivo-Tellez' lawyers had already brought up the defendant’s presumed undocumented status as a key part of defense.
The defense holds that it was common for Castillo to purchase ammunition for Olivo-Tellez's 9 mm handgun because she had a valid identification, and he did not.
Castillo mentioned the identification as the reason she purchased ammunition at a Denver-area Walmart the morning of Salas' shooting, but did not expand upon the issue.
The court is allowing the defense to use the identification issue as a "sword and a shield in this issue," Cheney said. Olivo-Tellez' lack of identification is a "cornerstone" of the argument that Castillo always bought ammunition, he said.
Several jury-submitted questions for Castillo honed in on the identification issue as related to purchasing bullets, and purchasing alcohol later on the day of the shooting, Cheney said. He asked the judge to reconsider.
Neiley said arguments about immigration status were not something he wanted to venture into as it was irrelevant to the charges, and did not allow further questions regarding Olivo-Tellez' lack of identification.
Jurors did hear from security personnel and owners of various businesses where Olivo-Tellez and Castillo stopped Oct. 7, 2016. However, video surveillance, including footage purported to show Castillo purchasing ammunition from Walmart while Olivo-Tellez avoided the register and sales representatives, was not shown to the jury.
Prosecutors also showed the jury a waterlogged box of ammunition in an evidence bag, and a black handgun recovered from the Roaring Fork River, and heard testimony from Garfield County Sheriff's Office deputies who said Olivo-Tellez described where the items were thrown.
Two officers with the Grand Junction Police Department testified to finding loose ammunition, a car key, and cash on Olivo-Tellez after arresting him at the Clarion Inn in Grand Junction around 7 a.m. Saturday, Oct. 8, 2016. They said he did not exhibit symptoms of impairment from drugs or alcohol at the time of arrest.
The trial is in recess until Friday.