A state District Court judge on Wednesday denied a motion to dismiss the case against Carlos Fierro, saying the district attorney did not act illegally during jury selection. Defense attorneys wanted Judge Michael Vigil to dismiss the case because prosecutors vetted at least one of the two panels of prospective jurors using a secure law enforcement-only database called the National Crime Information Center. They didn't share the information with defense attorneys.

Meanwhile, jurors in the case heard from police officers who responded both to the scene of the crash that killed a pedestrian, William Tenorio, on Guadalupe Street last November, as well as officers who pulled Fierro over a few blocks away. They also saw videos from the officers' cars and heard a statement Fierro gave a police officer about five hours after the crash.

In that statement, Fierro admitted that he and former state police Sgt. Alfred Lovato, his passenger at the time of the crash, had been drinking but that they weren't "unconscious or incognizant or something like that." He said the two men had been at WilLee's Blues Club but that someone said something to Lovato, a member of Gov. Bill Richardson's security detail at the time, about being a cop that made them think it was a wise idea to leave.

The two men drove to Allsup's on North Guadalupe Street for something to eat, then returned to WilLee's because Fierro said he thought he left his credit card there. Once they arrived back to the area near WilLee's, Fierro said he saw numerous people outside the bar screaming and yelling.

He said he thought they might be yelling at him because of the previous interaction at the bar with Lovato. Fierro said he was not only looking to his left at the people yelling, but was also getting ready to make a left turn on Garfield Street.

"When I looked left, I think whoever it was either ran in front of the car or something happened because it was like ... a quick hit and there was nobody in the immediate way," Fierro said. "... (In) my head, I was like, you know what, Jesus, somebody threw a rock in front of the car. ... And like I said, it wasn't until your officer told me that we possibly hit somebody, I was like, are you kidding me?"

Tenorio, who was wearing dark clothing and possibly looking at his cell phone, was hit by the right side of Fierro's BMW, which kept going, just south of the crosswalk at the intersection of Montezuma Avenue and Guadalupe Street, according to numerous witnesses.

Fierro said he didn't know he might have hit a person until officers were escorting him out of Christus St. Vincent Regional Medical Center after a nurse took a sample of his blood and a doctor checked him for injuries.

Santa Fe police Officer James Plummer testified that he thought Fierro was being honest with him during the questioning.

Officer Ben Valdez, who pulled Fierro over after seeing his damaged BMW pass by the officer on Grant Avenue near the Santa Fe County building, said Fierro smelled of alcohol and stumbled when he got out of the car. Valdez said he first noticed the car because it didn't have headlights on.

The video from Valdez's car shows the BMW pass by with some light coming from the area of its headlights. However, the video also shows the car's taillights were not on when Valdez U-turned and drove behind it just prior to pulling Fierro over. Later in the same video, which was also shown during Fierro's preliminary hearing, Fierro appears unsteady on his feet when he gets out of the car, and Valdez helps him to the curb.

Another video of Fierro's sobriety tests, done by another officer, shows him unable to stand on one foot for more than a few seconds. In that video, Fierro first tells the officer he'd had nothing to drink that night, then says he had two drinks.

Fierro's blood alcohol content was later determined to be .21, more than twice the legal driving limit. Tenorio's blood alcohol content was .14.

Heidi Schwalbe, who was in charge of the Christus St. Vincent emergency room the night of the crash, testified that she drew Fierro's blood using a different needle than the one supplied in the blood draw kit from the state Scientific Laboratory Division. Schwalbe, who was combative with defense attorneys at Fierro's preliminary hearing in February and at a motions hearing in August, was calm this time around and was on the stand for only about 10 minutes. Defense attorneys didn't ask her any questions.

Jeff Jinnett, president of the company that owns the Rio Chama Steakhouse downtown, said Fierro and Lovato drank a Tanqueray and tonic, a Crown Royal whiskey and Diet Coke, four shots of Crown Royal neat, six 16-ounce draft beers, three 12-ounce Coors Light beers and a 22-ounce beer. Another man joined them that night but testified Tuesday that he drank only one beer.

A waiter from the restaurant said Fierro was drinking Crown Royal and Coors Light.

In addressing the defense's motion to dismiss the case, Vigil said it was the first time in his career as a judge and an attorney that he'd ever heard of the National Crime Information Center database — which includes a person's criminal history — being used in jury selection, but he found that the procedure has been approved in at least six other states. In addition, since the FBI said it was an acceptable use of NCIC, the District Attorney's Office didn't act illegally, Vigil said.

Defense attorney Robert Gorence, a former longtime federal prosecutor, said he also had never heard of NCIC being used in jury selection. The person at the District Attorney's Office in charge of running NCIC requests for the last three years testified Tuesday that she'd never been asked to run juror names before.

However, prosecutor Juan Valencia introduced a recent motion from a local defense attorney asking for all discovery materials related to jury selection in another case.

"The trend is to request discovery for voir dire (jury selection)," Vigil said.

Finally, Vigil said only one of the jurors who had an NCIC history was picked for the trial. That juror also knew a jury consultant hired by the District Attorney's Office, he said. Vigil made that juror an alternate in the case instead of one of the main 12 jurors.

The jury consultant — Santa Fe attorney Diego Zamora — was not disclosed to defense attorneys, the media, prospective jurors or the judge. Vigil said he wondered why the man was there and midway through the proceeding sent his bailiff to find out. Usually jury consultants sit at the table with the lawyers doing the selecting — Zamora sat in the back of the room — and Vigil said that should have happened in the Fierro case.

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

TRIAL AT A GLANCE

Monday: Defense attorneys said during opening arguments the crash that killed William Tenorio was unavoidable because the victim had consumed alcohol, was jaywalking, wore dark clothing and was inattentive.

Tuesday: Witnesses testified how Carlos Fierro behaved while in a bar the night of the accident and how Fierro's car, careening down Guadalupe Street with a flat tire, hit Tenorio while he crossed the street.