Testimony continues in Herrera trial

September 29, 2011 • Local News

The prosecution continued to present evidence Wednesday in the State of New Mexico versus Israel Herrera. Herrera is accused of felony homicide for the Nov. 22, 2010, shooting of Stephen Foster, 25.

Eyewitness Tina Rodriguez (Herrera) told about the events of the evening [auth] and how, when she went inside Hastings, she heard gun fire. Foster told her later that someone had driven past and shot at him.

Foster and Rodriguez eventually drove to Herrera’s house at 1104 W. Walnut St., she said.

After a short conversation Foster returned to the car visibly upset. As he went into reverse, she said, “He was ducking behind the dashboard, leaning to his right, over my lap.”

Rodriguez described a “pop, glass breaking, and his eyes closed and he melted on to the floor.”

She admitted under cross examination that Foster had argued with a couple of people on the phone that evening, but she said she could not say what topic was being discussed.

Assistant District Attorney Debra Hutchins then called Herrera’s girlfriend, Joanna Peña, to the stand. She was reluctant to answer questions, until Hutchins asked Judge Charles C. Currier if she could treat Peña as a hostile witness. Peña repeated that she was frightened when Foster kept banging on the door. She took her 3-year-old child and left the house. “I didn’t see nothing. I heard shots, maybe one or two.”

Roswell Police Officer Jeff Gazik, the first officer on the scene, relayed what he found when he arrived at West Walnut, “There was a woman (Rodriguez) crying and screaming and the victim slumped over the passenger side of the vehicle, with a pool of blood under his head.”

Gazik testified that he encountered Herrera behind 202 S. Delaware Ave., which Herrera indicated was his home. “We heard a commotion and found a man in the alley. He appeared to be walking away. He was wearing blue jeans … a tan jacket, and no shoes,”
Gazick said Herrera had blood on his hands and on his jacket. “When I patted him down I found a live round of ammunition in his pocket. … and a wireless monitor to a surveillance camera that would allow him to view his yard (at 1104 W. Walnut) remotely.”

Defense Attorney Jesse Cosby brought out dispatch lists where it was noted that Gazick had been sent to two separate locations that night for threat calls. Gazik stated the second complaintant named Foster as the person who had called.

Andrew Gross of Roswell Animal Services testified about containing two dogs in a portable pen when he found a magazine of ammunition in Herrera’s yard. Gross helped to move a dog house away from the residence where they located a door to a crawl space in which a rifle had been concealed.

The primary TSU technician at the scene, Laverne Amir, gave an overview of what was done to preserve evidence. She told defense that she had arrived after Emergency Services left.

Cosby informed her that five emergency personnel had been there and he wondered what she had done to preserve footprint evidence. He noted, “That means seven different people had been wandering around.”

During her preliminary investigation of the van, Amir said Detective Kim Northcutt located a projectile near the gas pedal on the driver’s side of the vehicle.

Cosby wanted to know where she found the iPod that Rodriguez was listening to during the time when Foster was talking to Herrera. Amir said the iPod was located inside the glove box.

Cosby asked, “Was there any evidence that my client had been in the yard?

Amir replied, “Besides the rounds of ammunition, the magazine, the gun and the chain, no.”
Patrol Sergeant Ty Sharpe confirmed both Gazik’s and Amir’s testimony about finding Herrera and searching the Delaware-Avenue yard.

“He (Herrera) said he was walking the dogs, but he had no dogs,” commented Sharpe. When asked by the officers where he lived, Herrera pointed at a house. “At that time, a woman walked out of the house. We asked her if she knew him, and she said she’d never seen him before in her life,” Sharpe said. “We asked her if we could search the yard and that’s when we found the 45-caliber handgun stuck in a bucket.”

Detective Jeff Prince of TSU conducted the search warrant of Herrera’s person, including fingerprinting, obtaining DNA evidence and GSR (gunshot residue). Cosby argued that GSR was no longer considered valid by most federal laboratories.

Dr. Ross Reichard came in from Albuquerque to report on the autopsy findings. He said the bullet entered the left side of Foster’s back, passed through the ribs, through the lungs, the carotid artery (which feeds blood from the heart to the neck and the head) through the spine and out the right side of Foster’s face.

He also gave the results of the toxicology report, which indicated a blood alcohol content of .18, along with the presence of marijuana and methamphetamine.

Cosby inquired about the effects of methamphetamines on behavior and personality. Reichert declined to comment, saying only that the effects varied depending upon the individual.

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