District Attorney Janetta Hicks ruled that no criminal charges would be filed against the officers who were involved in the Cody Towler in-custody death. The letter dated Nov. 13 said: “This office declines prosecution at this time. … (After) review of the thorough investigation conducted by agents of the New Mexico State Police, Chaves County Sheriff’s Office and Roswell Police Department.”
Towler died after police responded to disorderly subject calls in the 1600 block of South Union Avenue on Feb. 4. The first officer arrived at the scene around 2:03 a.m. Towler was pronounced dead at 3:01 a.m. by a representative of the Office of the Medical Investigatory.
Hicks’ letter cited Towler’s ongoing medical problems, including depression, high blood pressure and seizures and near toxic levels of methamphetamines in the blood at the time of the incident as contributing factors in the death.
She quoted the OMI report released on Aug. 8 which listed excited delirium as the cause of death “in which an autopsy fails to reveal sufficient trauma or natural disease to explain the death.” She noted that excited delirium is officially recognized as a unique syndrome by medical examiners and the American College of Emergency [auth] Physicians. She also pointed out that “A finding of homicide does not equate to murder.”
Hicks called it a tragedy when any young man dies and she said it was a tragedy for the police, too.
Radio logs, 911 calls and communications event reports indicated the first call was received at 1:59 a.m. on Feb. 3. Second and third calls were received at 2:01 a.m. and 2:02 a.m. The first police unit arrived a minute later. A Code 3 call went out notifying others of emergency and an officer in need of assistance. According to the investigative reports, Towler charged the police officers several times, armed with an ASP baton, and threatened to kill them.
Officer Jonathan Kelton deployed his taser after Towler’s final charge which brought him within three to four yards of the officers. The report states Towler fell to his knees and threw his baton away. Kelton cycled his taser for a full five seconds and Officer Dylan Thomas deployed his taser. Both officers cycled their tasers a second time. Officer Arroyo arrived and likewise deployed his taser, once or possibly twice. Towler pulled out the prongs and continued to struggle.
The investigative report says: “Officers Thomas and Arroyo used pain compliance with kicks to the shoulder” to subdue him. Around 2:16 a.m. Emergency Medical Services were contacted. CPR was initiated by officers around 2:21 a.m., 18 minutes after the first officer arrived. By 2:29 a.m., Towler was declared Code 9, deceased. By 2:38 a.m., a call went out saying he was “Code Blue.”
The autopsy that declared Towler’s death a homicide listed more than 45 wounds — including the scrapes where hand restraints had been applied.
The NMSP investigation confirms that Towler was tased five times in a period of less than 10 minutes. Officer Arroyo admitted to kicking Towler in the lower abdomen and then striking Towler with his baton twice on the upper thigh.
NMSP investigator interviewed Officer Ryan Craine who said when he arrived at the scene Towler was already cuffed. Craine observed Officer Brokowski on the subject’s legs; Kelton was on the middle of the suspect’s back. EMS personnel interviewed by NMSP investigators included firefighter Jamie Higgins and Lt. Heath Metcalf. Metcalf confirmed officers were giving CPR when the emergency services arrived, around 2:26 a.m. according to radio logs. They started an IV and maintained airway until the on-call doctor told them to stop.
Towler’s estranged girlfriend told officers that Towler was a drug user and she had an active restraining order on him. A search of her premises revealed damage to two doors where Towler attempted to gain entry to her home.
When Towler’s mother, Sherrie, heard about the DA’s conclusions, she said: “I’m not going to stand for this. These men murdered my son and I’m not going to let them get away with it.”
Towler’s attorney, Ken Egan, said they will continue to investigate the facts and reports that the police have released to them.
Since that time, the RPD has implemented classes on how to handle excited delirium cases. Police Chief Phil Smith said the class, taught by NMSP Sgt. Justin Fredric, was held last week and more than 60 officers took it.
“Our goals for providing the training are two-fold: the first is to better serve our community by having responding officers recognize symptoms and to react appropriately in conjunction with other emergency personnel. The second is to establish our own facility as a certified training plant for the course in excited delirium cases.”