Updated: Suspect released

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 Court lets Joe Gallegos walk after testimony fails to connect him with case of burning body near Bernardo

State police and Socorro County Sheriff’s Department personnel surround the Socorro Magistrate Court building Monday providing security during an all-day preliminary hearing held for Joe Gallegos, who was being held in the case involving a burning car and body found in the area of Bernardo on Nov. 12.
 

It did not happen like it does on TV for prosecutors Thursday in Socorro Magistrate Court when Joe Lawrence Gallegos was set free — at least for now — because the judge found no probable cause to bind the case over to 7th Judicial District Court following a day of testimony in the preliminary hearing.
“And I’m sorry to say that,” Magistrate Court Judge Jim Naranjo said after announcing his decision.
District Attorney Clint Wellborn said charges can be brought again if more evidence is gathered, but Gallegos is free to go for now.
Joe Gallegos and his younger brother Andrew, also known as “Smiley”, Gallegos have been accused of murdering Adrian Burns and burning his body on Nov. 12.

Veguita Volunteer Fire Department firefighters found the charred body near a burning car that evening in a wooded area near Bernardo and called the Socorro County Sheriff’s Office, who in turn called New Mexico State Police to investigate the murder.
Burns’ cause of death, according to testimony from an Office of the Medical Investigator forensic pathologist, was a gunshot to the head.
Andrew Gallegos remains in custody at the Socorro County Detention Center pending the preliminary hearing in his case, which has not yet been scheduled. Naranjo has been excused from hearing the case against Andrew Gallegos, according to the Magistrate Court clerk’s office, although the clerk did not know the reason. Another magistrate judge from a county within the 7th Judicial District will hear that case.
The state, represented by Wellborn and Assistant District Attorney Ricardo Berry, called 10 witnesses: Jose “Tony” Ortega, the chief of the Veguita VFD; Burns’ girlfriend, who lived with him until he was killed; Dr. Cecelia Wu, forensic pathology fellow at the state Office of the Medical Investigator who performed the autopsy on Burns; an assistant manager of the Giant convenience store in Belen; Kevin Streine, forensic firearms examiner for the New Mexico Department of Public Safety crime lab; Audi Miranda, a New Mexico State Police officer who specializes in auto theft and vehicle identification; Warren Pershall, NMSP crime scene investigator; Loren Milligan and James Mowduk, NMSP investigations bureau agents; and Rich Williamson of the NMSP investigations bureau, the case agent who directed the investigation of Burns’ murder.

Morning witnesses
Ortega, who has been chief of the Veguita VFD since 1983, was first to testify. He said firefighters found the body after they had begun spraying the burning car with water and were making a fire break with their shovels. He said the body was 10 to 15 feet from the back of the burning car.
Burns’ girlfriend, a medical assistant from Belen who had been in a relationship with Burns for 3 1/2 years, was next on the stand. She testified Burns received a call at 7:33 p.m. Nov. 12, and when he hung up he grabbed his cigarettes and said he was going to meet Joe Lawrence and Smiley, and that he would be right back. That was the last time she saw Burns alive. Crying, she explained Joe Lawrence and Smiley were customers who bought heroin from Burns.
Burns’ girlfriend testified Burns did not stay out all night on occasions when he left their home. She said if Burns was not at home, he could usually be found at his mother’s house. When Burns did not return as promised, his girlfriend called his mom and then called her mom to come help look for Burns. She testified they went to Joe Lawrence’s house but didn’t see her car, a pearl white 2012 Mitsubishi Gallant that Burns had been driving. She explained the car was in her name, but she considered it “our car,” and it was the only transportation for their household.
After attempting without success to find Burns, his girlfriend and her mother returned to the home of Burns’ mother to pick up the girlfriend’s young son.
“Then I went home, and Adrian was not there,” the girlfriend testified, crying.
She said the next morning, she went to Allsups with her mother and Burns’ mother. After that she received a text from NMSP about the burning car found by the Veguita VFD. She explained she was already in contact with the state police because Burns and her car never returned home the night before. The women then went to the site where the burning car was found.
Burns’ girlfriend said NMSP agent Nathan Lucero talked to her and Burns’ mother and asked what Burns was wearing when he left. She described Burns’ clothing, as well as jewelry and tattoos. She said about 11:20 a.m. the agent came back and said he couldn’t be 100 percent certain the body found with the burning car was Burns’ as they needed medical or dental records to be sure. He then advised the women to leave because news reporters were on their way to the scene.
Burns’ girlfriend testified that when the women arrived at the NMSP office, agents asked more questions about Burns.
“He looked at me and said, ‘It’s your car.’ Then he looked at his (Burns’) mother and said, ‘A mother knows when her child is not coming home,’” Burns’ girlfriend testified. “That’s when we knew it was Adrian.”
Burns’ girlfriend was crying so hard at that point the judge had to take a break in the proceedings because he could not understand her testimony. She returned a few minutes later and answered more of Wellborn’s questions, as well as questions from Joe Gallegos’ public defender, Lee Deschamps.
She said Burns also went by the nickname “Babylon” and he sold heroin regularly, but he did not sell other drugs. She described the way Burns packaged the bindles of heroin, in $10 and $20 amounts, with red marks on the $10 bindles. She also said she didn’t agree with him selling drugs, and they had arguments about it.
She said Burns carried no wallet, just a rubber band around his driver’s license and cash. She said he usually carried $2,000 to $3,000, but couldn’t say how much he had Nov. 12 as the amount varied.
Burns’ girlfriend testified she pulled her phone records up on the Internet for state police, and that she last saw Burns at 7:15 p.m. Nov. 12 as he left to sell heroin to the Gallegos brothers.
Dr. Wu testified next. Wu specializes in forensic pathology and is a forensic fellow at the Office of the Medical Investigator in Albuquerque, where she has worked for a month. She explained a forensic fellow is a doctor in training. She said the OMI conducts mainly autopsies; then pull the information together in an autopsy report on the cause and manner of death.
Wu testified she examined Burns’ body Nov. 14. When Berry asked what was most striking about the body, Wu answered that the hands were cuffed behind the deceased’s back and the body was severely charred and burned. She said her first thoughts as to the cause of death were burning or suffocation. Pershall, NMSP crime scene investigator, testified later in the day that when investigators removed the hood from Burns’ head, they saw what appeared to be a plastic bag — it appeared to have been placed over his head with the hood pulled over.
Wu said other injuries were mostly in the head area, and described scrapes on the forehead and a gunshot wound to the left temple. There was one entrance wound, but two bullet fragments were recovered from Burns’ skull. She testified the fragments were almost equal in size, so they had to have been two bullets fired into the one wound on Burns’ temple, or one bullet that fragmented about in half. Streine, forensic firearms examiner for the New Mexico Department of Public Safety crime lab, testified later in the day that the two fragments were two .22-caliber bullets.
Wu said further testing revealed Burns was not alive when his body was set on fire.
Deschamps cross examined Wu, and asked her how many autopsies she had performed, considering she just started working at the OMI a month ago. Wu said she started Nov. 5, and prior to that date, she had conducted about 60 autopsies herself with the supervision of attending physicians. She added Dr. Ian Paul supervised her autopsy of Burns, as well as assisted in the removal of the bullet fragments.
Wu testified Burns’ death was “fairly rapid” when Deschamps asked if it was instantaneous.
Next, the assistant manager from Giant in Belen testified she worked in the convenience store from 2 p.m. to midnight on Nov. 12. She testified she was familiar with Smiley Gallegos and that he came into the store a little after 4 p.m. on Nov. 12 to buy gas, a little over $4 worth, which he pumped into a gas can. She expressed her opinion that it was not enough gas for him to make it to a gas station.
The Giant employee said Smiley was not his usual self; he seemed nervous. He was wearing a camouflage jacket she had seen him wear once or twice before. She said a couple of days later, NMSP asked for the videos from Giant’s security cameras. She said the video shows Smiley pace in front of the door, then come inside, pay, pump gas and walk away with the gas can. Wellborn said he wanted the video shown in court; Judge Naranjo said he took note that Smiley had been wearing the camouflage jacket, and the video was not shown.
Wellborn showed the witness photos of a jacket, which she said appeared to be the same jacket Smiley was wearing in the store Nov. 12, but the jacket was not torn and burnt then as it was in the photo.
The woman said she had no further contact with Smiley later on Nov. 12, and did not see Joe.
Deschamps cross examined the Giant employee, who further testified Smiley arrived at Giant on foot, and it was closer to 5 p.m. She said she asked him why he needed the gas, and he said he ran out “down the road” but didn’t specify where. Deschamps asked how she knew it wasn’t enough gas for him to get to a station, and she said she surmised it from what he said, how far he had to walk. She said gas was $3 and change per gallon that day. Deschamps estimated that Smiley’s car would have to be more than 10 or 20 miles from a gas station for that gallon or so of gas not to be enough to get him to a station.

Afternoon witnesses
After a lunch break, Streine, the forensic firearms examiner, testified he compared the bullets found in Burns’ skull to see if they were fired from the same gun but was unable to determine that because the amount of damage to the bullet fragments was “more than slight.”
Miranda, who specializes in auto theft and identification, testified he identified the Mitsubishi Gallant by the engine number since the VIN plate was completely melted out.
Pershall, a crime scene investigator, testified he was the crime scene manager and photographer at the burnt car scene and the Gallegos brothers’ home at No. 4 Erin Court, Los Lunas. At the Erin Court address, he said state police found handcuffs in the cab of Gallegos’ Chevrolet flatbed pickup. They also found gas cans, a gun cleaning kit, a leather holster and .22-caliber ammunition, although no firearms.
Pershall also testified they found the camouflage jacket, allegedly the same jacket the convenience store clerk had seen Smiley wearing Nov. 12 but by then charred around the bottom. He said they found it on the living room floor just inside the front door.
Deschamps later pointed out the jacket was more likely burnt in the course of the Gallegos brothers’ work than from setting fire to the Gallant; they scrap metal for a living, and utilize blow torches to cut metal.
Milligan testified state police served a search warrant for Room 239 at the Imperial Inn Motel in Albuquerque on Nov. 21. Andrew and Joe Gallegos were in the room, along with Angela Gallegos and another woman. He said police found five cell phones; letters from a penitentiary in Pennsylvania; other notes on lined paper, including one marked “Q and A”; drugs and a syringe. He said sweat pants and jeans with blood on them were also found, but it is not yet known whether the blood was animal or human.
Mowduk testified about interviewing the Gallegos brothers on Nov. 20. He said it was six to eight hours, broken into two sessions with a half hour or so in between and other breaks for restroom visits and smoking.
Mowduk testified the defendant admitted to calling Burns at 6:52 p.m. Nov. 12, when he asked him to come to his house and sell him some heroin. At 7:33, Burns called and said he was out front. Mowduk said the defendant told him he met Burns at the end of the driveway and bought $50 worth of drugs, and Burns never left his car. Mowduk said the defendant told him Burns then left and that was the last he saw of him.
Mowduk said Joe was pretty much unable to account for the next four hours after buying the heroin.
“He was vague,” Mowduk said. “His main answer was ‘I don’t know, I don’t remember.’”
Mowduk testified Joe told police he and his brother were driving around looking for someone to party with, but police were unable to verify anything until four hours later when the brothers were at an Allsups in Belen sometime after 11 p.m. Nov. 12. He said that was when Joe said his brother Andrew bought toilet paper, then they went home.
“I asked if they bought beer — Bud Light — but he didn’t remember for sure,” Mowduk said.
Mowduk said eventually police advised Joe Gallegos they had him on video buying Bud Light, but nothing about toilet paper. He said Joe didn’t have a reaction to that. Mowduk said other than having a bad memory, Joe was unable to offer an explanation of what he was doing after he bought the drugs from Burns. Deschamps later proposed the brothers might have been high on the heroin they had bought from Burns, and so were unable to give an account of that four hours.
Williamson testified the stories from each brother had numerous disparities. Joe said he bought the heroin in the street, but Andrew said Burns came in and smoked a joint of marijuana with them in their house.
Williamson said as for the letters found at the motel room, one was from Joe to his daughter apologizing for his drug use and for not being there for her as much as he would like. He added that apparently the brothers had heard police had killed their pets when they searched their Erin Court home.
“We actually fed their pets,” Williamson said. “We had to tranquilize three of the more aggressive dogs so we could do the search.”
Williamson said on the “Q and A” page, there was a statement written that the brothers were “easy scapegoats” for the crime against Burns. At the bottom of the page there appeared to be study notes for questions police might ask them. One said Andrew lives in Belen, and helps his brother with his scrap metal business in his spare time — a reply consistently given by Andrew when police questioned him.

Probable cause?
Deschamps, during his cross examination, asked Williamson what evidence NMSP had placing Joe Gallegos at the scene of the Mitsubishi fire.
Williamson said Joe mentioned the brothers thought Burns had a quarter million dollars in cash hidden somewhere in his residence. Williamson said he believed the brothers killed Burns to obtain his drugs and money.
Deschamps asked why the police thought Burns had that kind of money, and Williamson said Joe Gallegos’ mention of it was all police knew of it.
Deschamps asked about probable cause the police had for arresting the Gallegos brothers instead of someone else for the crime. Williamson said the brothers had motive to kill Burns to get his drugs and money, plus people who knew the Gallegos brothers allegedly saw them hanging out at the Allsup’s in Belen for an hour starting at 11:30 p.m. Nov. 12.
The Magistrate Court file contained no statement of probable cause for the arrest of the brothers, nor did the District Attorney’s office have any such document available when the Chieftain requested a copy of it Wednesday. The court files did contain an affidavit for arrest warrant for each of the brothers. That document referenced interviews with friends of Burns who said the brothers were at the Belen Allsup’s from 11:30 p.m. Nov. 12 until 12:30 a.m. Nov. 13. They saw the brothers put gas into a white Chevrolet flatbed pickup then park it in front of the store. They also allegedly saw Joe Gallegos buy beer, as well as sell heroin outside the store. The heroin he was allegedly selling was packaged the same way Burns would package his heroin for sale.
When, during the hearing, Deschamps asked what evidence presented at Thursday’s hearing shows probable cause for the brothers’ arrest, Williamson said they were the last to see Burns alive, and they were seen at the Allsup’s afterward. Also, he said Andrew Gallegos was seen buying gas before the time of the murder.
“Maybe he ran out of gas,” Deschamps said.
Williamson said the brothers had gas, but they told Burns they had no gas and that’s why he came to their house on Erin   Court when he usually didn’t. Deschamps wanted to know how Williamson knew what the brothers told Burns, since he was deceased. Wellborn objected, saying it was up to attorneys to establish probable cause, not an officer giving testimony.
“Enumerate why you think my client killed Adrian Burns,” Deschamps said.
Williamson said the Gallegos brothers were the last to have contact with Burns; they had no explanation where they were for the next four hours; and they had no explanation why civilians like themselves would have handcuffs in their possession.
Deschamps said the state threw in a bunch of photos and said it must have happened because the brothers cannot prove they didn’t do it. He noted that is not the way prosecutions are handled in this country, for the burden of proof is on the state.
“I haven’t proved I’m innocent,” Deschamps remarked.

Closing
In his closing remarks, Wellborn said it was a circumstantial case. The brothers had the last contact with Burns, they had handcuffs and they had .22-caliber ammunition, although no firearm was found. He said they had blood on their pants, burns on Andrew’s jacket and burns on another jacket at the motel where the brothers were arrested.
Wellborn said the distances between the scene of the burning car and locations the brothers were seen at were short distances, and the brothers were vague about their activities during the time the murder took place. And, he said, Burns didn’t make calls or answer any more calls after the time he met with the Gallegos brothers.
“We feel with the circumstantial evidence, we feel we have probable cause to bind this case over to District Court,” Wellborn said.
Deschamps said as for the .22-caliber ammunition found at Joe Gallegos’ house, “How come nobody else with .22 ammunition was interviewed in this case?”
Deschamps said they don’t even know yet if the blood on the pants found at the motel is human or not. He said the burns on the jackets are likely from a blow torch the brothers used to scrap metal, plus the state had no evidence of how old the burns were or if an accelerant was used. He said the only scientific evidence the state had was the bullets taken out of Burns’ skull, and the bullets don’t connect back to the Gallegos brothers.
“The only proof you have is my clients have not proved their innocence,” Deschamps said. “And that’s not due process.”
Deschamps said as far as the tampering with evidence charge, the state can’t show any evidence.
“It all goes to the same thing,” he said. “If these guys can’t prove they didn’t do it, they must have probably did it.”
Berry said the evidence in the case so far is circumstantial, like a wet street after a rain that happened while a person was sleeping. He said the murder of Burns couldn’t have been committed by one person; it would have required two people.
Berry focused on the location of the body, which was a few feet behind a burning vehicle with an open trunk.
“He wasn’t pulled out of the car dead,” Berry said. “He was alive and shot dead — kneeling, with his hands cuffed, and he slumped over in the fetal position.”
Berry said Andrew Gallegos bought a can of gas the afternoon of Nov. 12.
“This is premeditation,” he said. “This was planned — to torch the vehicle and destroy the evidence.”
As for the jackets, Berry said the witness said Andrew’s jacket wasn’t burned when he came into the store to buy the gas.
Berry said they tampered with evidence because they burned the vehicle and body. He said they kidnapped Burns; they put him in the trunk and took him to that location.
“It is a circumstantial case, but it’s strong,” Berry said. “It meets the criteria for probable cause.”
Judge Naranjo said the only thing that really stuck out in the case was the defendant was the last person known to have made contact with the victim, but that doesn’t make him a murderer.
“There are a lot of theories, but no real probable cause — not yet,” Naranjo said.

 

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