Judge rules Santa Fe teen can await trial out of jail

Zachary Gutierrez, center, walks out of District Judge Mary Marlowe Sommer’s courtroom Tuesday after she ruled he will be allowed to remain out of jail on electronic monitoring while awaiting trial on a second-degree murder charge. Matt Dahlseid/The New Mexican

Lawyers for a Santa Fe teenager charged with second-degree murder in connection with the 2018 shooting death of a Michigan man told a district judge during a Tuesday hearing that another man may have pulled the trigger.

Zachary Gutierrez is accused of killing Richard Milan, 64, who police say had stopped in Santa Fe with his wife during a cross-country trip and was walking his dog near the intersection of Airport Road and Lucia Lane on the evening of Sept. 26, 2018, when he encountered a group of teens, exchanged words with Gutierrez and was shot twice.

Gutierrez, 17, at the time of the shooting, was charged with the crime in 2018, but District Attorney Marco Serna dismissed the charges about a month later, saying he didn’t have enough evidence to present the case to a grand jury before a December 2018 deadline.

Serna’s office refiled the charges — first in juvenile delinquency petition and then through a grand jury indictment — in September.

But Gutierrez’s attorneys said in court Tuesday the case against Gutierrez is far from open and shut, claiming another young man — a Mexican national charged in U.S. District Court with unlawful possession of a firearm — may be responsible for Milan’s death.

Lawyers Stephen Aarons and Hugh Dangler said evidence has come to light in the year since the shooting that indicates it may have been Jesus Arrieta-Perez who shot Milan, then stood over his body laughing.

“A lot of evidence suggest he [Gutierrez] is not the shooter, that Mr. Arrieta was,” Aarons said.

Aarons said two of the three females in a group of five teens who allegedly witnessed the incident texted each other afterward, saying it “wasn’t fair” Gutierrez, now 18, had been charged.

Arrieta-Perez’s attorney did not immediately respond to a message seeking comment late Tuesday.

Aarons said Arrieta-Perez initially had said he didn’t see who shot Milan. But after being arrested earlier this year on a weapons charge and questioned by federal agents from the Department of Homeland Security, Arrieta-Perez claimed Gutierrez was the shooter.

Aarons on Tuesday referenced a video recording of an interview in which he said agents told Arrieta-Perez “we have a lot to offer you in terms of your cooperation. … It’s going to depend on what you have to offer us.”

Prosecutor Heather Smallwood told Judge Mary Marlowe Sommer at Tuesday’s hearing the state’s case is “not as weak” as the defense claimed, adding it wasn’t just Arrietta-Perez who told police Gutierrez was the shooter.

“One of the girls also initially said that,” Smallwood said, referring to one of the three female witnesses, “and people in the car heard him say he did it.”

According to online court records, Arrieta-Perez was charged with possession of a firearm or ammunition by an alien illegally or unlawfully present in the United States in March, after investigators found a 9mm handgun that was not registered to him under a mattress at his house in southwest Santa Fe.

The Department of Homeland Security special agent who filed the criminal complaint against Arrieta-Perez said in his report he obtained a search warrant for Arrieta-Perez’s home based on evidence gathered by a Santa Fe County Sheriff’s deputy who was monitoring phone calls of two county jail inmates suspected of shooting into an occupied dwelling on Agua Fría Road in November.

Special Agent Michael McCluskey said in his report that one of inmates, 19-year-old Said Awawd, called Arrieta-Perez from jail, asking — using code — what had become of his gun.

According to McCluskey’s report, Arrieta-Perez assured him the gun was safe.

Aarons said during Tuesday’s hearing that Arrieta-Perez is living at a halfway house in Albuquerque while his case is pending.

Gutierrez — who has been on electronic monitoring in another, unrelated shooting case for the past six months — mopped tears from his face at his release hearing Tuesday as a state prosecutor argued he was a danger to the community and should be kept in jail.

Sommer acknowledged the charges against Gutierrez are serious, noting he has a long history as a juvenile delinquent. But she ruled the defendant will be allowed to remain out of jail on electronic monitoring while awaiting trial on the second-degree murder charge.

The judge said she based her decision in part on Gutierrez’s compliance with the terms of his release in a February case, in which the teen is suspected of firing shots with a gun he’d taken from another man during a drug deal at Alto Park, according to police.

No one was injured in the incident and Gutierrez was released with an ankle bracelet in April.

“I’m going to deny the state’s motion for a no-hold bond and allow you to continue on electronic monitoring,” Sommer said Tuesday.

“But you have to do this perfectly, as you’ve been demonstrating. … I’m not taking this lightly, Zachary, you need to stay away from ‘the life,’ ” Sommer told Gutierrez. “… A person was shot dead by someone who was caught up in ‘the life.’ It shouldn’t have happened and it didn’t need to happen.”

Sommer’s remarks were a reference to statements made Tuesday by Dangler.

The attorney said Gutierrez used to be caught up in “the life … a sort of parallel world” inhabited by delinquent youth. But he added Gutierrez has been working full time for the past six months while under court supervision and has become a respectful and responsible person.

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(1) comment

jan Brooks

an innocent man doing what many of us do in the evening here in Santa Fe --- he was out taking his dog for a walk not knowing he was putting his life at risk thanks to being near a group of Santa Fe's finest thugs. These kids think nothing of taking someone's life. It's frankly devastating and Marlowe is far too generous. The idea that this kid has spent six months working and behaving properly will NEVER bring this man's life back to his family.

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