Day one in the State of New Mexico versus Israel Herrera began State’s evidence, Tuesday.
After jury selection, Judge Charles Currier outlined the charges, felony murder and tampering with evidence, following the shooting death of Stephen Foster, 25.
In opening statements, Assistant District Attorney Matthew Stone gave a bare recital of the facts surrounding the incident. “On the night of Nov. 22, 2010, the victim drove to 1104 W. Walnut St. with a companion Christina (Tina) Rodriguez, also known as Herrera.”
According to Stone, Foster left the vehicle and went to the door of the residence. “He engaged in conversation with the defendant and returned to the van. He (Foster) began to back up and proceeded to lean down away from the driver’s side of the car,” said Stone.
He then described the sound of gunfire and the van veering out of control and up over the curb.
Stone relayed the situation when police arrived at the scene. “They found Ms. Rodriguez wandering around the alley. She was frantic. They saw the defendant climbing over a fence.
They found a rifle cartridge in his (Herrera’s) pocket, rifle in a crawlspace under the house, along with rifle cartridge pack, and a cartridge casing in the front yard.”
Defense attorney Jesse Cosby followed, filling in the events that occurred prior to the shooting. He noted that there was a dispute over who was driving the van before Foster and Rodriguez went to Walnut Street.
He mentioned that Foster and Rodriguez went to Hastings to sell CDs and that Rodriguez reported a shot had been directed at Foster while they were at the book store.
“They come to my client’s residence. He (Foster) was in no mood for anything besides getting his own way. He keeps banging, screaming and yelling.” Cosby acknowledged that his client went to get his gun. He said that Foster threatened Herrera, saying: “I’m going to spray the house.”
Cosby admitted, “My client fired that shot. It enters his (Foster’s) back and comes out through his cheek.”
Cosby told the jury the case was one of imperfect self-defense, which involves the use of deadly force when the defendant has an honest but unreasonable belief that the actions were necessary to counter an attack. “It depends on whether or not my client thought clearly.
The prosecution called its first witness, the mother of the deceased, Dana Dryden.
She said that her son, Foster, was living with her at the time of his death. Assistant District Attorney Debra Hutchins asked about the things Dryden acquired after her husband, Cory Beck, had died in 2006. Some of the items, Dryden planned to give away. Others she wished to keep and some, such as the CDs, she told her son he could sell.
During redirect, Hutchins asked her what had happened to her since her son’s death. Dryden described how difficult it was for her and how things began to blur. “I can tell you there are things I can’t remember. I cried a lot of the time. Mother’s Day was the worst, and August 28th, his birthday, was awful. He would have been 26 years old.”
During cross examination, Cosby asked if her son had permission to sell the ring which allegedly caused the altercation between Herrera and her son. She replied she would not know until she saw the ring. “I would have to authorize my son to sell my jewelry.”
However she conceded that she had given him permission to sell some jewelry, but could not specify which ones.
Cosby pointed out that if he had permission then he (Foster) would not have a reason to ask for it back.
He also addressed the topic of her knowledge of Foster’s alleged drug use as given in her interviews with Detective Scriber, where she said she knew he smoked pot and had found a piece of pot in her home.
Dryden responded that she suspected, but he had never smoked it in front of her.
The State has some 20 witnesses scheduled to appear and the jury trial is expected to continue through Saturday.