TAOS — An Ojo Caliente man charged in a 2017 shooting rampage that killed five people across Northern New Mexico, including three of his family members, was admitted to a state psychiatric hospital last month for treatment after doctors found he was mentally unfit to face trial in two separate murder cases.
Doctors from the New Mexico Behavioral Health Institute in Las Vegas, N.M., say they have been “making progress” with 23-year-old Damian Herrera, but they need more time to ensure he can stand trial on five counts of murder and other charges tied to the series of slayings on June 15, 2017.
The finding of mental incompetence means doctors believe Herrera is unable to understand charges filed against him or court proceedings, or that he is unable to rationally assist in his own defense.
But according to a report attorneys reviewed during a status hearing Thursday in the state District Court in Taos, the condition could be treatable. The report says Herrera might achieve a level of awareness of his legal situation and recommends he receive further treatment, possibly including psychiatric medication.
Authorities accuse Herrera of fatally shooting his mother, Maria “Brenda” Rosita Gallegos, 49; his brother, Brendon Herrera, 20; and his stepfather, Max Trujillo Sr., 55; at the family home in La Madera — a rural Rio Arriba County community near Ojo Caliente — and then fleeing in a truck. He is suspected of later encountering 61-year-old Michael Kyte of Tres Piedras, a Taos County community, asking the man for help, and then killing Kyte and stealing his truck.
Later that evening, after a long drive that took him across the Colorado line, authorities have said, Damian Herrera killed Manuel Serrano, 59, of Cañones at an Abiquiú gas station before leading Rio Arriba County sheriff’s deputies on a high-speed pursuit. The chase ended when Herrera crashed the stolen truck into a tree near Española.
Questions about Herrera’s mental health have resulted in multiple delays in both cases — one in Rio Arriba County on four counts of murder in the deaths of Gallegos, Trujillo, Serrano and Brendon Herrera; and another in Taos County in Kyte’s death.
A public defender assigned to Herrera’s case, Todd Ellis Farkas of Albuquerque, said an update from the New Mexico Behavioral Health Institute regarding Herrera’s progress is expected at least every six months.
If the hospital determines he isn’t responding to treatment, Farkas said, the court will hold an evidentiary hearing rather than a criminal trial, “where the government will have to prove by clear and convincing evidence what crimes he committed.”
That’s a lower standard of evidence than is required in a criminal trial, where a defendant’s guilt must be determined by a jury “beyond a reasonable doubt.”
If a judge determined the state had enough evidence to prove Herrera murdered any of the five homicide victims, he would be committed to the state psychiatric facility for the same length of time he would have served in prison if he were convicted at trial — likely a life sentence — said Marcus Montoya, the newly appointed district attorney of the 8th Judicial District in Taos County.
Farkas said there is no time limit imposed on the doctors working with Herrera, so it could be some time before the case reaches a conclusion.
During the status hearing Thursday in Taos, District Judge Jeff McElroy, who is scheduled to retire in October, said, “The state will be monitoring progress at the state hospital and the court will await further reports from the hospital.”
Information from The New Mexican was used in this report.
A version of this story first appeared in The Taos News, a sister publication of The Santa Fe New Mexican.