The Santa Fe Police Department is asking a judge to reconsider his decision earlier this week to throw out all the evidence against a city snowplow driver who struck and injured two pedestrians in downtown Santa Fe in January.
Santa Fe County Magistrate David Segura granted a motion Wednesday to suppress evidence police obtained against Billy Kavanaugh, charged with careless driving after the Jan. 11 incident that sent a couple to the hospital with serious injuries.
The motion, filed last month by Kavanaugh’s attorney, Rikki-Lee Chavez, cited the police department’s “failure to adhere to the rules regarding the timely disclosure of discovery” — a process of sharing evidence between the prosecution and defense in a case.
But Deputy Chief Robert Vasquez pointed the finger at Chavez and said the officer on the case — Juan De La Rosa — filed a motion Thursday asking the judge to reconsider his decision.
Vasquez provided a timeline of events that shows the police department offered Chavez a “complete discovery packet available for pick up” May 6, about a week after Chavez filed her motion to suppress evidence.
Chavez “refuses the documents and advises they will wait for the suppression hearing,” Vasquez wrote in an email.
In her motion, Chavez contends all discovery in the case “was required to be disclosed” by Santa Fe police by March 22, or no more than 45 days after the criminal complaint against her client was filed.
Asked what will happen to the case, Vasquez said police are taking a wait-and-see approach.
“The officer is waiting to see if the courts will consider his motion based on the … sequence of events and improper discovery request submitted by the defendant’s legal counsel,” he wrote. “The officer is also consulting with legal counsel to address the courts [sic] decision through a higher court.”
Chavez did not return messages seeking comment but said in her motion the police department “failed to provide Mr. Kavanaugh with any discovery, not once, but twice.”
“The Rules of Criminal Procedure required disclosure of discovery initially by March 22, 2019, which went unheeded by the SFPD,” she wrote.
The police department got a second chance to provide the evidence to Chavez on April 5 after her so-called entry of appearance, or request to appear in court on behalf of her client, and moved for discovery, according to her motion.
“Counsel provided all contact information to the SFPD and has yet to be contacted by the SFPD or receive any discovery,” Chavez wrote. “Such a lack of interest of prosecution in this matter does not merit another continuance but requires that all withheld evidence in this matter be suppressed.”
Segura, a former Santa Fe police captain, apparently agreed and granted the motion.
The Albuquerque Journal reported Wednesday that Assistant District Attorney Martin Maxwell told the judge the evidence had been available for some time and that he had it with him at Wednesday’s hearing.
James Hallinan, who is working on contract as a spokesman for District Attorney Marco Serna, referred media inquiries to Serna’s executive assistant.
Chief Deputy District Attorney Jennifer Padgett Macias said Maxwell “did not seek authorization from management” prior to attending Wednesday’s court hearing.
“The prosecutor acted on his own volition to assist an officer with a suppression hearing,” Padgett Macias wrote in an email. “… However, this is not a First Judicial DA’s Office case.”
According to Vasquez’s timeline, De La Rosa, the officer on the case, went to Municipal Court on Tuesday to get advice from an unidentified assistant city attorney “on how to proceed with the suppression hearing” the next day.
“It was suggested that he ask an assistant district attorney for assistance,” Vasquez wrote.
The case generated a lot of attention in January.
Kavanaugh, a streets equipment operator, was plowing snow the evening of Jan. 11 when he hit and seriously injured Joseph and Toni Fammartino in the intersection of Paseo de Peralta and Galisteo Street as they started to move into the crosswalk. A police report cited “driver inattention” as a contributing factor to the crash.
Kavanaugh, who police said was “really remorseful” and “really concerned” about the couple, told investigators he didn’t intentionally hit the couple and didn’t even know he had hit them until later.
A city spokeswoman said Kavanaugh is still employed by the city and working on modified duty.
“He is not driving a city vehicle,” the spokeswoman wrote in an email.
An attorney for the couple, Lee Hunt, filed a tort claim notice with the city nearly three weeks after the crash. Hunt did not return a message seeking comment.
Follow Daniel J. Chacón on Twitter @danieljchacon.