Defense attorney Bill Tryon successfully argued that former city councilor Alonzo F. “Lonnie” Clayton and city police chief Michael Geier could not testify to anything not already in documents, either the police report, charging document or witness interviews, and would add nothing new to the case.
Division III Magistrate Judge Delilah Montano-Baca noted that the police report stated that Clayton said he was at a medical facility at the time of the alleged incident when one of Bency’s campaign signs near Meadowlark Senior Center was damaged. She also apparently believed Geier’s statement to Tryon that he was not aware of the specifics of the case.
Prosecuting attorney Mark Drebing, a retired Bernalillo County attorney who now works as a private contractor, argued Clayton was the de facto victim in the case since the report filed by Bency identified Clayton. Bency has repeatedly said Clayton was identified off pictures on the city web site by a witness, Joe Nieto, who told Bency of the incident.
Drebing was assigned the case when 13th Judicial District Attorney Lemuel Martinez declined to prosecute, citing a lack of evidence. Then Rio Rancho city attorney Jennifer Vega-Brown got Martinez to appoint her as a special prosecutor in the case, but then had to recuse herself because she provided legal advice to Bency in his capacity as a city councilor.
Vega-Brown, herself a former Bernalillo County prosecutor, no longer works for the city.
The hearing confirmed that at least two witnesses will be called. Joe Nieto, who saw the alleged incident and identified Clayton as the offender to Bency, will testify as will Rio Rancho police Det. Greg Herrera.
Montano-Baca questioned Tryon on his inclusion of Mayor Gregg Hull on his witness list. Tryon interviewed Hull but said in court he does not plan to call the mayor as a witness.
Tryon said he interviewed Geier and that “the chief of police indicated that nothing rose to his level and to have him comment on it would be prejudicial. And I’m just trying to anticipate what Mr. Clayton would want to testify to because he had nothing to do with the actual charge. Mr. Clayton has nothing to do with anything.”
This case involves a single count of filing a false report. The allegation led the defendant to file a police report claiming that his opponent, during the city council election, was involved in tearing up or defacing one of his campaign signs.
Drebing called Clayton “the alleged victim” because the former councilor was identified in Bency’s filing. “Mr. Clayton would testify that he was nowhere near the location at the time; in fact, he would testify that he was at the hospital with his wife at the time the incident allegedly occurred,” Drebing said. “I think his testimony would be important as to the alleged victim, essentially, just to establish that he could not have done this.
“With regard to the chief of police, Michael Geier, the chief was interviewed by (defense) counsel. There were some allegations that these charges were somehow politically motivated or that the police department was receiving some kind of political pressure to either go forward or not go forward. I think his testimony would be important strictly for that purpose, to indicate that the charges in this case were just like any other case they deal with and there was no political pressure.”
Tryon said: “The point to the defense is that the chief has been interviewed already and he has indicated that he had no specific knowledge of what happened. I think allowing him to testify now would add to the prejudice.
“In our interview he stated that the chain of command is such that it did not reach him. So he had no knowledge is the way I understood what he said and as a result of that his testimony in court would not be helpful. It would be prejudicial rather than probative.”
“The charge against my client is filing a false statement. He (Geier) has nothing to do with that; Mr. Clayton has nothing to do with that.”
Said Drebing: “My recollection of the chief’s testimony is different than Mr. Tryon’s. I believe in this case he was aware of this incident; he wasn’t involved with the details of what his department was doing but that he was aware of it and he wasn’t receiving any pressure from anyone to go forward.”
Montano-Baca noted that there was no mention of Geier in the charging document filed by Herrera.
“If he was going to be this prominent witness as the state indicated, you’d think that the officer would list him, at least on the criminal complaint,” she said. “And I understand after doing the interviews the state might feel he has a substantial role as fare as testimony is concerned, but I don’t see his information or even a reference to him in this criminal complaint at all, and that is the charging document. So I’m going to grant defense’s motion as fare as chief of police is concerned.
“As fare as Mr. Clayton, I’m guessing that through the interviews there was some information as far as his whereabouts. It’s listed in the criminal complaint. The state has already made reference that he wasn’t made anywhere near that area. So I am going to grant defense’s motion as far as Mr. Clayton as well.”
Asked if the state could go forward without the two witnesses, Drebing said, “Yes, your honor, but may I respond with regard to Mr. Clayton?”
The judge cut him off, saying, “I think I have already ruled on that. If we have any other information or motions, I’ll hear those.”
Drebing pressed the issue, saying, “He is the victim in the case. I think that his testimony is relevant to show that he is not in the area.”
Montano-Baca said, “So according to the criminal complaint, if he wasn’t in the area, I’m still trying to figure out how the state is going to prove that he’s the victim in a criminal case. I can see that maybe there might be sine issues as far as civil is concerned, but as far as this is listed, he wasn’t in the area, so I’m not going to allow his testimony.
“If he wants to be present at the hearing, e has the right to do that. As far as a victim in the case, or an alleged victim, the criminal complaint doesn’t list him at all. It indicates he was not in the area, he was at a medical facility. So I’m going to stay with the motion and the order that his testimony will not be allowed.”
The Sept. 1 hearing will be exactly six months after the initial city election and more than 4½ months after runoff election. Bency defeated Clayton handily in both contests.
The hearing will begin with jury selection starting at 10 a.m.
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