The jury delivered a guilty of second- degree murder verdict against Israel Herrera, 22, Friday, after three hours of deliberation. Herrera was charged with felony murder after the Nov. 22, homicide of Stephen Foster, 25.
The shooting took place after Foster arrived at Herrera’s home on West Walnut Street, around 10 p.m. According to State’s witness, Foster returned to the vehicle, backed out of the driveway and started to drive away when a single shot rang out.
In New Mexico, felony murder is a capital offense and refers to any killing that results during the commission of a felony, in this case shooting at or from a motor vehicle. The sentence for felony murder is 30 years to life imprisonment.
Generally speaking, second-degree murder is killing another without sufficient provocation, but without premeditation or deliberation, in other words, killing someone without planning to do so in advance. The sentence for second-degree murder is 15 years.
Before the jury went into deliberation, the defense provided a taped deposition from Ray Burrola of an [auth] incident that took place the evening of Nov. 22, when Foster threatened various family members of Sophia Burrola.
During his closing arguments, Herrera’s lawyer Jesse Cosby said, “We’re not going to deny anything. We’re going to tell you that he fired the shot. We’re not going to say he (Herrera) knew anything that had happened to the Burrola family.”
Herrera testified in his own defense. He admitted grabbing his rifle when Foster arrived at his door and threatened to “spray the house.”
“I fired one round at the van …. I was scared for my life, my friend and my child. I fired one round to stop him from carrying out his threat,” Herrera said.
During cross-examination, Assistant District Attorney Debra Hutchins pointed out, “You admit you saw no gun at the time he was at the door. No gun when he was running to the van.
She noted that he had, despite his testimony that he was scared, taken time to unload the gun and put it under the house.
In his closing statement, ADA Matthew Stone said, “Israel Herrera shot Stephen Foster in the back.”
He argued that Herrera could not claim self-defense. “Israel Herrera never saw a gun.”
He provided the jury with the legal definition of self-defense as what a “reasonable person” would do to protect his home, his life and his family. Stone concluded, “This is not what a reasonable person would do.”
Cosby disputed the State’s assessment of self-defense and quoted General Ferdinand Foch, (1851 – 1929), “None but a coward dares to boast that he has never known fear.”
Cosby said that some people are immobilized by fear. “To prevent the danger that causes fear is self-defense. Don’t let fear immobilize you; let fear energize you.”
He again pointed to discrepancies in Christina Rodriguez’s portrayal of the night’s events, those shown from the threats reports, and the differences noted by the various officers who conducted the investigation.
He reiterated that Joanna Peña was afraid for her life and the life of her child.
Hutchins gave the final summation. “You alone are the judges of the credibility of the witnesses. I’m going to shock you and tell you that our police are human.”
She reminded the jury of certain undisputed facts. “Stephen Foster was shot in the back. He was shot when he was driving away from the residence.”
She discussed the fact that Herrera had attempted to conceal the crime.
The jury agreed with the State that Herrera did not act in self-defense, which could have resulted in the lesser charge of manslaughter. In addition, they agreed that he had tampered with evidence when he hid the gun that he used in the commission of the crime.
After the verdict, Hutchins said, “The jury deliberated for quite a bit of time so we know they gave it quite a bit of thought. We are pleased with the verdict. Justice has been done.”
District Attorney Janetta Hicks concurred. “Justice has been done.”
The sentencing hearing has been set for 3 p.m. on Nov. 7.