Attorney seeks sanctions for destroyed evidence

Steve Garrison
Calvin Finch

FARMINGTON — Calvin Finch, 55, was first accused more than six years ago of causing a man's death by driving drunk on the Fourth of July. But his conviction was overturned in 2012 on appeal due to an error in the jury's instructions and the appellate court ordered a retrial.

Now District Public Defender Matthew Cockman is arguing the state should be sanctioned for destroying a blood sample taken from Finch on the day of the crash. Cockman is also requesting that Judge Karen Townsend prohibit the state from introducing — at the retrial scheduled to begin on March 1 — the prior testimony of a witness who has died since the appellate court's ruling.

San Juan County Chief Deputy District Attorney Brent Capshaw said Thursday the defense should have requested independent blood sample testing in 2009, when Finch was first arrested, and disagreed with the arguments for suppressing a recording of the witnesses' testimony, which included not being able to conduct a cross-examination.

Cockman could not be reached for comment Thursday.

Deputies from the San Juan County Sheriff's Office were dispatched the afternoon of July 4, 2009, to the intersection of County Road 2105 and U.S. Highway 550 north of Aztec in response to a crash involving a pickup truck and a motorcycle, according to the arrest warrant affidavit.

Deputies determined at the scene that the pickup truck, operated by Finch, failed to yield to the motorcycle while turning onto County Road 2105, causing the crash, the affidavit states.

The motorcyclist, Harry Irvin, was killed. Finch and a passenger in the pickup truck, Craig Stahle, were not injured.

Finch was asked to perform a field sobriety test at the scene, which he passed, the affidavit states.

But Finch had five prior drunken driving convictions and no valid license, according to court records. He was arrested on his sixth offense only 11 days before the July 4 crash and later pleaded guilty to that offense, according to court records.

Finch also said he had his last drink at 3 a.m. that day.

So deputies asked him to perform a blood test, according to the affidavit.

Finch's girlfriend drove him to San Juan Regional Medical Center, where Finch's blood was drawn. The sample was tested July 14, 2009, and the results showed Finch had a 0.13 blood-alcohol content, above the state limit of 0.08, according to the affidavit.

Finch was charged July 23, 2009, with homicide by vehicle and two minor traffic violations, according to court records, and a two-day trial was held in August 2010.

Finch testified at the trial he was sober at the crash scene. He said he returned to his girlfriend's house after the crash, but before going to the hospital for the blood test, and at the house had several swigs of 100-proof Peppermint Schnapps.

Finch said at the trial he "just wasn't thinking" in his panicked state and agreed it was "stupid."

Finch was convicted of vehicular homicide and sentenced to 27 years in prison, according to court records, but the conviction was overturned by the New Mexico Court of Appeals.

A three-judge panel ruled on Oct. 30, 2012, that the jury's instructions failed to indicate that the state needed to prove that Finch's intoxication was a proximate cause of the fatal crash.

There was then a "distinct possibility" that the jury convicted Finch without agreeing that Finch's intoxication caused the crash, according to the court's opinion.

The justices ordered a new trial for Finch, an order reaffirmed on appeal to the New Mexico Supreme Court.

Cockman, Finch's attorney, filed five motions on Dec. 28 attacking the state's evidence in the case.

The defense argues in a motion for sanctions that the state mishandled and subsequently destroyed the blood sample taken from Finch after the crash.

A deputy from the San Juan County Sheriff's Office testified at Finch's first trial that he tore an integrity seal on the blood sample and then attempted to re-seal it before placing it into the office's evidence locker, according to the motion.

The sample was tested by the New Mexico Department of Health's Scientific Laboratory Division and subsequently destroyed before trial, the motion states.

Since the defense cannot now independently test the blood sample, Cockman is requesting the court sanction the state by dismissing the vehicular homicide offense or excluding the 0.13 blood alcohol result.

Failing that, Cockman requests in the motion that the jury be instructed they may infer the evidence was destroyed because it was unfavorable to the state.

Capshaw, who prosecuted Finch in 2009, said he has not yet filed a response to the motion, but said the defense had an opportunity to independently test the sample.

"He had his chance at an independent test in 2009 and he failed to exercise it," Capshaw said.

Cockman is also requesting that the state be barred from introducing as evidence a recording of Stahle's testimony from Finch's first trial.

Stahle was the owner of the pickup truck being operated by Finch at the time of the crash. He allowed Finch to test drive the truck because Finch expressed interest in purchasing it.

Stahle died on Nov. 29, 2011, according to an obituary, but the state would like to play a recording of his prior testimony for the jury.

Cockman argues in the motion that Finch's previous defense attorney, Cosme Ripol, provided ineffective counsel to Finch and failed to cross-examine Stahle.

Since Stahle is now dead, the defense is unable to effectively cross-examine him, according to Cockman.

Ripol, who is contracted as a defense attorney by the public defender's office, said he made a conscious decision not to cross-examine Stahle.

"I've done scores of trials," Ripol said. "A lot of times when an attorney cross-examines a witness, all it does is the witness starts to battle with the attorney, and the jury turns on the attorney."

Ripol said he first raised the argument that he provided ineffective counsel to Finch, which he does regularly on appeal.

"I was the one who raised the issue, and the reason I raised the argument was because I was trying to defend my client," he said, adding later, "My loyalties and ethical duties are to the client."

Capshaw said he could not agree Ripol's defense was ineffective.

Cockman is also asking the judge to sanction the state due to the failure of a deputy to collect statements from two witnesses to the July 4 crash.

Capshaw said he did not believe the facts of the crash were in dispute, so the witnesses were not needed to testify.

Cockman is also requesting that a recording of Finch's testimony at the first trial be barred as evidence and that another witnesses testimony be limited to prevent her from making prejudicial statements.

Asked why, with a key witness dead and forensic evidence destroyed, he did not offer a plea bargain, Capshaw said Finch was not interested in one. A motion trial has not yet been scheduled, according to court records.

Steve Garrison covers crime and courts for The Daily Times. He can be reached at 505-564-4644.