Dressed in red jail clothes, Carlos Fierro appeared in state District Court on Wednesday, just five days after a jury convicted him of vehicular homicide.

This time, however, Fierro was in court to testify at a preliminary hearing held to determine if evidence exists to charge the man sitting next to him when he struck and killed a pedestrian crossing Guadalupe Street in November. But aside from confirming his name, Fierro asserted his Fifth Amendment right against self-incrimination and declined to answer any other questions after conferring with his attorney, Jason Bowles.

Red jail clothes indicate Fierro is being held in the medical section of the jail. Bowles said he didn't know why his client might be housed in the medical section, but said he was "distraught" over the proceedings Monday. Bowles said he had notified the prosecutor in the case that Fierro would assert his Fifth Amendment right and said his client's appearance was unnecessary.

"It was a show," Bowles said.

Former state police Sgt. Alfred Lovato, 38, is charged with the same counts Fierro was charged with — vehicular homicide and causing a fatal accident. The preliminary hearing was not completed Monday, so state District Judge Michael Vigil told lawyers he will schedule the continuation at a date to be determined in late October.

Prosecutor Donna Bevacqua-Young told Vigil she will attempt to prove the charges against Lovato using a recent Court of Appeals decision and the party-to-a-crime statute that's been law in New Mexico since the 1950s.

The Court of Appeals decision upheld the state's ability to charge a passenger in a car driven by a drunken man who plowed into another vehicle and caused two deaths and five injuries. In that case, the passenger encouraged the driver to drive and purchased more alcohol, which the two men drank before the crash.

There must be evidence of "shared conscious wrongdoing," the Court of Appeals said in affirming the case.

At the end of the hearing, Vigil told lawyers he wanted them to present him with briefs before the continuation of the hearing that explored how that standard of shared conscious wrongdoing would affect a voluntarily intoxicated person.

During the hearing Monday, Santa Fe police Detective John Boerth said he interviewed Lovato three days after the crash that killed William Tenorio, 46, of San Felipe Pueblo. He said Lovato's recollections of the night became increasingly scattered the later the hour.

He said Lovato told him he remembered being at WilLee's Blues Club on Guadalupe Street because he recalled seeing the bar's sign while dancing on the dance floor. Boerth said Lovato barely remembered being at Allsup's before the crash, he said. Lovato told him that they were driving down the street just prior to the crash when he heard a loud bang and the next thing he knew, he was covered with glass, including in his mouth, Boerth said.

Several prosecution witnesses toward the end of Monday's hearing testified about a Coors Light beer can found in Fierro's glovebox that was found to have Lovato's DNA on it.

Sam Bregman, Lovato's attorney, said the state came "nowhere near establishing probable cause."

"There's not one shred of evidence to say that my client encouraged Carlos Fierro to drink," he said. "There's no way they'd be prosecuting this if my client wasn't a state police officer at the time."

Lovato, a 17-year veteran of the state police, was a member of Gov. Bill Richardson's security detail and resigned not long after the crash.

Fierro was convicted of vehicular homicide Friday. The jury could not agree on the charge against him of causing a fatal accident.

Bowles filed a motion Monday asking Vigil to grant Fierro a new trial on the vehicular homicide charge. The motion says a new trial should be granted because prosecutors used a law-enforcement-only database to vet jurors and didn't share that information with police, and that a crucial jury instruction was changed after the jury had already deliberated 20 hours.

The District Attorney's Office now must respond to the motion.

Contact Jason Auslander at 986-3076 or :jauslander@sfnewmexican.com.