LOS LUNAS — A man convicted 10 years ago for the January 2004 shooting death of former Belen police officer Debbie Roach will not get a new trial despite arguing he had ineffectual council.
Cecil Boyett, now 62, was found guilty of first-degree murder by a jury in December 2005 and sentenced a month later to life in prison. District Judge James Lawrence Sanchez ruled Monday that Boyett’s trial attorney, Tom Esquibel, made a “tactical decision” to claim self defense rather than argue his client couldn’t form specific intent to commit the crime.
Boyett’s new attorney, Robert Tangora, put on several witnesses last week who testified that because Boyett had a previous head injury and he had taken his prescription medication and was high on cocaine, he didn’t have the ability to form specific intent to kill Roach.
Sheila Lewis, a lawyer who primarily worked as an appellate defense attorney, testified that Esquibel failed his client when a psychologist who had evaluated Boyett refused to testify during the trial.
“Mr. Esquibel failed in many ways,” Lewis said. “He intended to bring (Lori) Martinez, a psychologist who treated him at the state mental hospital, to the stand but she refused to testify. She changed her mind, saying she wasn’t sure he could form specific intent.”
Lewis said Esquibel should have asked for either a continuance until he could find another medical professional to evaluate Boyett or ask for a mistrial because the testimony Martinez would have provided was central to the defense’s case. She also testified Esquibel didn’t subpoena the doctor.
“This case required an expert witness because of the brain injury in combination with drugs,” Lewis said.
She said another doctor is willing to testify in a new trial that Boyett wasn’t able to form specific intent at the time of the shooting.
On cross examination by special prosecutor Bruce Boynton, Lewis testified that at the end of the trial, Esquibel attempted to introduce a jury instruction relating to specific intent, but because there wasn’t testimony from an expert, the instruction was left out. She also said it was a mistake that Esquibel didn’t put an expert witness on the stand to counter retired State Police agent Art Ortiz’s expert testimony about blood splatter and crime scene reconstruction.
Boynton questioned Paul Kennedy, a former supreme court justice and criminal defense attorney, about Esquibel’s defense. Kennedy testified he read the transcript of the trial as well as the petition of habeas corpus, some case law and another doctor’s evaluation of Boyett.
Kennedy testified Monday that Esquibel’s decision to claim self defense was reasonable, and “he had a lot to work with.”
“There were two instances when Ms. Roach threatened (Boyett) with a weapon, she always carried a .380 semiautomatic and there was motivation for anger and revenge because of the relationship of Boyett and (his fiancé) Ms. Wilder,” Kennedy said. “The most powerful was the state’s own witness, Art Ortiz.”
The Albuquerque attorney said Ortiz testified during the trial that Roach’s weapon was out, making an inference she drew her weapon. Kennedy said that may have been justification for Boyett to defend himself.
When asked why an attorney wouldn’t use both self defense and the inability to form specific intent as defenses, Kennedy said there was a “tension” between the two tactics, saying a jury might not agree that it was self defense if he couldn’t clearly perceive there was a danger.
“If he was so impaired that he couldn’t deliberate, then could he perceive a threat from the decedent?” Kennedy asked.
Kennedy testified if he were in Esquibel’s shoes, he probably would have “done it the way (he) did it,” in terms of his trial strategy.
At the end of the hearing, Judge Sanchez said he would wait for the attorney’s final briefs on the matter, but ruled that he didn’t believe Boyett received ineffectual council.
“That new defense, that new evidence is something you say the jury should consider,” the judge told Tangor. “In my mind, and maybe I’m wrong, I don’t see a definition of what is prejudice to the defendant in failing to present a defense or not ...
“You have to make decisions (as an attorney) ... maybe it was a tactical decision by Mr. Esquibel, but I think there is a clear tension between the claim of not being able to form specific intent and the claim of self defense,” the judge said. “The better defense was self defense rather than the impairment.”
Sanchez said after reading the trial transcripts, he found the defense was not credible but it was the best defense raised.
“This is what feels right in my stomach and I trust my stomach,” Sanchez said. “I’m instinctual and my instinct says this is the correct decision. The Supreme Court might reverse me and I’ll learn from it, but maybe they’ll agree with me ...”
Boyett testified during the 2005 trial he shot Roach in self-defense after she went to his Los Chavez home. But the prosecution contended that Roach never revealed her gun and Boyett shot and killed her out of jealousy and anger.
According to testimony presented during the week-long trial, when Boyett saw Roach arrive at his house, he armed himself with a gun. The defendant opened the door and told Roach to get off his property. Seconds later, he shot Roach one time in the head. She died hours later at an Albuquerque hospital.
During his closing argument at the trial, Esquibel said Roach was the aggressor that day and that she was intent on preventing Boyett from marrying her best friend, Renata Wilder.
“Debbie Roach would go to any lengths to prevent that,” Esquibel told the jury in December 2005. “This was a person with a plan. She got a gun, which she loaded, and went over there to make sure this wedding wouldn’t take place.”
In contrast, prosecutor Sue McLean told the jury that there was no evidence Roach was aiming a gun at Boyett at the time he shot her. McLean argued that the defendant was angry with Roach because his fiancé was with the victim for days without calling him.
“Did he form intent? He had been forming intent for months,” McLean said. “Renata hadn’t come home and he blamed Debbie Roach for that. Cecil Boyett looked through the peep hole that day and saw his chance — he saw his chance and he took it. There is no evidence that when he looked out that peep hole, he saw a person there who wanted to kill him.”