Gallegos' "Brady" Claim

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 1 of 165
Michael Gallegos v. Charles L. Ryan

Case No. 08-99029
Exhibits to Appendix to Motion to Clarify Relief Requested in Motion to Stay
Proceedings and Remand to the District Court and Request for Authorization of
Federal Habeas Counsel to Appear in State Court Litigation
Appendix 1
Brady Claim
Exhibit A
Supplemental Police Report (excerpt) by Michael Chambers,

03/17/90
Exhibit B
Supplemental Police Report by Michael Chambers Regarding

Interview of Cindy Wishon, 03/17/90
Exhibit C
Phoenix Police Department Evidence Reports and Results of

Scientific Analysis, 03/19/90
Exhibit D
Supplemental Police Report by Armando Saldate, 03/21/90
Exhibit E
Transcript (excerpt) of Hearing on Motion to Dismiss George

Smallwood, 06/29/90
Exhibit F
States Motion to Dismiss George Smallwood and Order

Granting the Motion Without Prejudice, 07/02/90
Exhibit G
Transcript (excerpts) of Voluntariness Hearing, 08/03/90
Exhibit H
Transcript (excerpts) of Opening Statements, 03/07/91
Exhibit I
Trial Testimony (excerpt) of Cindy Wishon, 03/07/91
Exhibit J
Trial Testimony (excerpt) of Jerry Gallegos, 03/07/91
Exhibit K
Trial Testimony Regarding Panties (excerpts) -- of Cindy

Wishon, 03/07/91; Jerry Gallegos, 03/11/91 a.m. session; Harvey
Hamrick, 03/12/91 a.m. session
Exhibit L
Trial Testimony (excerpts) of Armando Saldate, 03/12/91 p.m.

session
Exhibit M
Testimony (excerpt) of George Smallwood Asserting Fifth

Amendment Right Against Self-Incrimination, 03/13/91
Exhibit N
Trial Testimony Regarding Stipulation of DNA Evidence,

03/13/91
Exhibit O
Jury Verdict on First Degree Murder, 03/14/91
Exhibit P
Transcript (excerpt) of Resentencing, 10/24/94
Exhibit Q
Transcript (excerpts) of State Post-Conviction Relief Evidentiary

Hearing, 12/01/00
Exhibit R
State Court Order Denying Petition for Post-Conviction Relief,

01/05/01
Exhibit S
Report by Dr. Robert L. Heilbronner, 12/12/11
Exhibit U
Declaration of John Castro, 04/04/14
Exhibit V
Letter to Bill Montgomery Requesting Records, 03/25/13
Exhibit W
Invoice from Maricopa County Attorneys Office Regarding

FOIA Records, 07/11/13
Exhibit X
Transcript (excerpt) of State Post-Conviction Relief Evidentiary

Hearing, 12/01/00
Exhibit Y
Minute Entry Regarding Asserting Fifth Amendment Right

Against Self-Incrimination of Armando Saldate, 12/19/13
Exhibit Z
Arizona ex rel. Montgomery v. Mroz Court Opinion, 04/14/14
Exhibit AA
Email from Treasure VanDreumel Regarding Armando Saldate,

04/22/14
APPENDIX 1
I.
The States Suppression of Material Exculpatory and Impeachment

Evidence Regarding its Lead Detective, Armando Saldate, Contrary to
its Duties under Brady v. Maryland and Progeny, Violated Mr.
Gallegoss Constitutional Rights to Due Process and a Fair Trial under
the Fifth, Sixth, and Fourteenth Amendments.
This claim has not yet been presented to the Arizona Supreme Court. It is
based on new evidence that was recently discovered despite the states ongoing
failure to disclose it to Mr. Gallegos. The States suppression constitutes cause for
Mr. Gallegoss failure to discover this evidence earlier. See Banks v. Dretke, 540
U.S. 668, 691-92, 703 (2004) (citation omitted) (rejecting the states argument that
the Brady claim was procedurally defaulted).
A.
Factual Background.
Detective Armando Saldate was the lead detective in this case. (Ex. L at
25.) Within 24 hours of the offense, he interrogated Michael Gallegos, an 18-yearold high-school student in special education classes. (Ex. D at 1.) 1 Det. Saldate
did not tape record the interrogation, secure a written confession, or get a signed
waiver of Miranda rights from Mr. Gallegos.
After Mr. Gallegos allegedly
confessed, Det. Saldate purportedly conducted a re-interview in the presence of his

partner, Detective Chambers, lasting only 10 or 15 minutes. (Ex. G at 32.) Det.
1
Later testing by Dr. Heilbronner, a neuropsychologist, revealed that at the time

of the offense, Mr. Gallegos suffered not only from a learning disability, but also
from brain damage, which made him susceptible to the influence of others. (Ex.
S at 7.)
Saldate testified that in this highlight interview, he told Mr. Gallegos to tell
Detective Chambers generally what he had told me, and that Mr. Gallegos just
highlighted general areas. (Ex. L at 59.) Det. Chambers (now deceased) wrote
two lengthy reports, but never included anything about this highlight interview.
(Exs. A & B.) Like the initial interrogation, the second interrogation was not
recorded, and there was no signed written confession or waiver of Miranda rights.
The State charged two defendants: Mr. Gallegos and George Smallwood,
the 18-year-old half-brother of the victim.
Mr. Gallegos purportedly gave a
statement that implicated both codefendants. (Ex. D at 3-4.) Mr. Smallwood

purportedly told Det. Chambers that I could have done this, but I dont remember
it, I black out a lot. State v. Gallegos, 870 P.2d 1097, 1116 (1994).
Both teenagers lived together and were high school students in Flagstaff,
Arizona, but at the time of the offense, were visiting family in Phoenix. (Ex. I at
57-59.) During the day and night before the offense, they had been together
working on cars, playing a Nintendo game, and drinking. (Ex. J at 130-35.)
About three months after the offense, on June 29, 1990, the State informed
the Court that it had no DNA evidence implicating Mr. Smallwood (ex. E at 3) and
moved to dismiss the charges against Mr. Smallwood (ex. F at 1). The court
granted the motion. (Id. at 3.) 2
After dismissing the charges against Mr. Smallwood, the trial court
conducted a pre-trial voluntariness hearing regarding Mr. Gallegoss alleged
confession. Det. Saldate testified that he reviewed Mr. Gallegoss Miranda rights
with him before his confession, and that Mr. Gallegos never requested counsel.
(Ex. G at 23-25, 29.)
Mr. Gallegos also testified at the voluntariness hearing,
but his testimony differed significantly from that of Det. Saldate. He testified that
Det. Saldate repeatedly ignored his requests for counsel: He would just look at
me and just keep writing. . . . Like it went in one ear and out the other. . . . It was
just like I didnt say anything. (Id. at 97-98.) Mr. Gallegos also testified that Det.
Saldate did not inform him of his Miranda rights until after he confessed. (Id. at
96.) The court relied on Det. Saldates testimony and held that Mr. Gallegoss
statements were voluntary and admissible:
Frankly, I must state I am unable to believe the defendant when he
asserts that he asserted his constitutional rights numerous times and
2
While the State reportedly had no DNA evidence implicating Mr. Smallwood, it
did have other physical evidence linking Mr. Smallwood with the offense.
Specifically, the State laboratory found oil on the dark blue fitted bottom sheet
of the lower bunk bed, identified by Cindy Wishon, the mother of Mr. Smallwood,
as Mr. Smallwoods bed, that matched both the oil found on the victims sheets
and pillowcase and the oil in the bottle found in the road near the victims body.
(Ex. C; Ex. B at 4.)
that Detective Saldate ignored them. And that Detective Saldate did
not give him his constitutional rights until after he had confessed. I
find to the contrary, that the statements made by the defendant were
not the result of force, threats or promises of leniency and the
statements were made after the defendant was properly advised of his
constitutional rights and that therefore the statements of the defendant
made to the Detectives Saldate and Chambers are admissible.
(Id. at 118.)
What the trial court did not know when it made this ruling was that Det.
Saldate had a history of both lying in judicial proceedings and ignoring defendants
constitutional rights. Neither the court nor defense counsel knew the following:
On June 22, 1990, less than two months earlier, a court found that Det.
Saldate lied under oath and continued to interrogate the defendant despite
the defendants demand to cease questioning. Milke v. Ryan, 711 F.3d 998,
1020 (9th Cir. 2013) (Appendix) (discussing State v. King, No. CR90-00050
(Ariz. Super. Ct. June 22, 1990)). The trial judge in that case suppressed the
portion of the confession that followed the defendants request to end the
interview. Id.
On October 16, 1989, less than ten months earlier, another court held that
Det. Saldate misled a grand jury by omitting some of the defendants
statements to make him look more culpable, and remanded for a new finding
of probable cause. Id. at 1014, 1020 (Appendix) (discussing State v. Rangel,
No. CR89-08086 (Ariz. Super. Ct. Oct. 16, 1989)).
On February 27, 1989, less than 18 months earlier, another court found that
Det. Saldates false statement to a grand jury denied [the defendant] his
right to due process and a fair and impartial presentation of the evidence
and granted the motion for a new finding of probable cause. Id. at 1013
(discussing State v. Reynolds, No. CR88-09605 (Ariz. Super. Ct. Feb. 27,
1989)).
On November 20, 1986, less than four years earlier, another court ordered a
redetermination of probable cause because Det. Saldate testified to the grand
jury that there were four shots, when it was undisputed that the victim was
4
shot only once. Id. at 1013-14 (discussing State v. Rodriquez, No.

CR 161282 (Ariz. Super. Ct. Nov. 20, 1986)).
On August 31, 1973, 27 years earlier, a Phoenix Police Department Internal
Affairs investigation concluded that Det. Saldate lied about an incident
where, in exchange for a kiss and other advances, he allowed a female
motorist to leave without checking on a possible warrant. The report
concluded that because of this incident, your image of honesty,
competency, and overall reliability must be questioned and Det. Saldate
was suspended for five days. Id. at 1020 (Appendix).
Det. Saldate testified at trial about Mr. Gallegoss alleged statement. His
testimony was critical to Mr. Gallegoss conviction and sentence. The prosecutor
emphasized in his opening statement that [t]he key in this case will fall with
testimony by Detective Saldate. (Ex. H at 40.) On habeas review, the district
court agreed:
[T]he information most damaging to Petitioners defense was
contained in Detective Saldates testimony. (ECF No. 111 at 34.) 3

Upon advice of counsel, Mr. Gallegos testified at trial. Mr. Gallegoss trial
counsel, Greg Clark, testified during state post-conviction proceedings that he
advised Mr. Gallegos to testify because he knew Det. Saldates testimony would be
admitted at trial and that the testimony would be detrimental to the defense. Mr.
Citations to the District Court record are cited as ECF No. Citations to the
Ninth Circuit record in this case, Gallegos v. Ryan, No. 08-99029, are cited as
Ninth Circuit ECF No. Citations to electronic filings in other cases include the
specific case name in the citation before the ECF filing number.
Clark believed the testimony of Mr. Gallegos, a young unsophisticated defendant,

was necessary to mitigate Det. Saldates testimony. (Ex. Q at 7-8, 49-50.)
After Mr. Gallegoss trial but before he was resentenced, yet another court
held that Det. Saldate violated a defendants right to remain silent when he
continued to interrogate a defendant after an unequivocal invocation of the right
to remain silent. See Milke, 711 F.3d at 1021 (Appendix) (discussing State v.
Mahler, No. 1 CA-CR 90-1890 (Ariz. Ct. App. Oct. 2, 1992)). To date in this case,
the State has never disclosed any of this impeachment evidence to any court or Mr.
Gallegoss counsel.
Recent attempts by Mr. Gallegoss defense team to speak with Det. Saldate
have been unsuccessful. He did not respond to attempts by an investigator in the
office to speak with him (ex. U) and more recently, through counsel, has refused
to speak with Mr. Gallegoss defense team (ex. AA). On December 13, 2013, Det.
Saldate asserted his Fifth Amendment right against self-incrimination and refused
to testify in the retrial of Debra Milke. (Ex. Y at 2.) While the state trial court
held that Det. Saldate could assert the privilege (id. at 7), the Arizona Court of
Appeals recently reversed, holding that Mr. Saldate could not invoke this right and
may be compelled to testify truthfully in the upcoming trial. Arizona ex rel.
Montgomery v. Mroz, No. 1 CA-SA14-0028 (Ariz. Div. 1, 4/17/14) at 4. (Ex. Z.)
Recent attempts to secure the previously suppressed documents from the

Maricopa County Attorneys Office, have similarly failed. On March 25, 2013,
Mr. Gallegoss defense team requested documents from the Maricopa County
Attorneys Office, specifically requesting all files, records and other documents
pertaining to Det. Saldate. (Ex. V.) When those documents were finally received
on July 11, 2013 (Ex. W), they did not include any documents about Det. Saldate.
Mr. Gallegos subsequently discovered that in June and July of 2013, the state, in
the Milke case, filed affidavits indicating that all of Det. Saldates files had been
destroyed by unknown persons on unknown dates. Milke v. Ryan, No. 98-cv00060-RCB (ECF Nos. 205 & 210).
B.
The States Continuing Failure to Disclose Exculpatory and

Impeachment Evidence Violates Mr. Gallegoss Constitutional
Rights.
In 1963, the Supreme Court held that a prosecutors suppression of evidence

favorable to an accused violates due process when the evidence is material to either
guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). This principle is
inexplicably woven into the fabric of our jurisprudence.
We now hold that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.
The principle [] is not punishment of society for misdeeds of a
prosecutor but avoidance of an unfair trial to the accused. Society
wins not only when the guilty are convicted but when criminal trials
7
are fair; our system of the administration of justice suffers when any
accused is treated unfairly.
Id.; see also Banks, 540 U.S. at 691, Kyles v. Whitley, 514 U.S. 419, 421 (1995).
Under Brady, a defendants due process rights are violated whenever
evidence favorable to the defendant whether labeled exculpatory evidence,
impeachment evidence, or perjury is withheld or suppressed by the prosecution.
Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006); Brady, 373 U.S. at 87.
A Brady claim lies when three elements exist:
The evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.
Banks, 540 U.S. at 691 (internal quotations omitted) (citing Strickler v. Greene,
527 U.S. 263, 281-82 (1999)).
Once established, a Brady violation requires
reversal. United States v. Bagley, 473 U.S. 667, 678 (1985). Evidence is favorable
if it is exculpatory, impeaching or establishes the use of perjured testimony. Id. at
676-77, 678 n.8 (citing Mooney v. Holohan, 294 U.S. 103 (1935)). Suppression
occurs when the prosecution fails to turn over evidence, whether or not the
prosecutor personally knows that the evidence exists. Kyles, 514 U.S. at 437-39.
Finally, to show prejudice, it isnt necessary to find that the jury would have come
out differently.
Milke. 711 F.3d at 1018.
Prejudice is shown when the
governments evidentiary suppression undermines confidence in the outcome of

8
the trial. Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)); see also
Bagley, 473 U.S. at 682.
1.
The suppressed evidence is favorable to Mr. Gallegos.
Any evidence that would tend to call the governments case into doubt is
favorable for Brady purposes. Milke, 711 F.3d at 1012. The Ninth Circuit
already has held that Det. Saldates personnel file, as well as the court orders
showing that Det. Saldate lied under oath, were favorable to the defense in the
Milke case. Id. at 1012-16. The Milke court found that the non-disclosed evidence
would have shown that Det. Saldate had no compunction about lying during the
course of his official duties, id. at 1012; had repeatedly lied under oath in order
to secure a conviction or to further a prosecution, id. at 1013 (citation omitted);
and kept asking questions long after the defendant indicated he no longer wanted
to answer, id. at 104.
2.
The prosecution, either willfully or inadvertently, failed to

disclose the evidence.
The State never disclosed the exculpatory impeachment evidence regarding

Det. Saldate.
Brady protects against both willful and inadvertent failures to
produce evidence. Milke, 711 F.3d at 1012. Here, regardless of whether the
particular prosecutor in this case knew about Det. Saldates impeachment

evidence, the state had an obligation to produce it. Milke, 711 F.3d at 1016.4
Mr. Gallegos cannot be faulted for failing to discover this evidence. The
Supreme Court has rejected the proposition that the prosecution can lie and
conceal and the prisoner still has the burden to . . . discover the evidence . . . so
long as the potential existence of a prosecutorial misconduct claim might have
been detected. Banks v. Dretke, 540 U.S 668, 696 (2004) (citation omitted). A
rule thus declaring prosecutor may hide, defendant must seek, is not tenable in a
system constitutionally bound to accord defendants due process. Id.
Regarding the court records at issue here, the Milke court expressly rejected
the argument that trial counsel should have found them on their own. Moreover,
the Court found that Ms. Milkes post-conviction team spent nearly 7000 hours
sifting through court records to discover the Brady evidence and that a reasonably
diligent lawyer couldnt possibly have found these records before trial. Milke,
711 F.3d at 1018.
That assessment similarly applies to Mr. Gallegoss current
situation.
While Mr. Gallegos has met the test for inadvertent failure to disclose, it also
stretches credibility to believe that a prosecutor, in a capital case, would be
ignorant of Det. Saldates prior dishonest and discrediting acts.
10
3.
Had the evidence been disclosed, there is a reasonable

probability that the outcome would have been different.
Defense counsel develops a trial strategy based on evidence that is available.

The Supreme Court has recognized that when the State withholds evidence, the
State is essentially telling the defense that the evidence does not exist. Bagley,
473 U.S. at 682-83. Relying on this misrepresentation, defense counsel might
abandon lines of independent investigation, defenses, or trial strategies that it
otherwise would have pursued. Id. When the withheld evidence affects the
defense strategy, courts have found the evidence to be material and prejudicial to
the defendant. See, e.g., Kyles, 514 U.S. at 445-49 (noting that the defendant could
have used the suppressed evidence to outline an alternative defense attacking the
integrity of the police investigation).5
Here, Mr. Gallegoss trial counsel developed a trial strategy based on an
understanding that Det. Saldate would testify at trial against Mr. Gallegos and that
his testimony could not effectively be impeached. Det. Saldate had testified at the
5
See also United States v. Lee, 573 F.3d 155, 165 (3d Cir. 2009) (information
suggesting that defendant was in a hotel room contrary to his alibi defense was
material because the defendant would have likely crafted a different trial strategy
that might have proven more effective in light of the information resulting in a
lack of confidence in the verdict); United States v. Spagnoulo, 960 F.2d 990, 995
(11th Cir. 1992) (report was material because it could have made an insanity
defense a viable option); DAmbrosio v. Bagley, No. 1:00 CV 2521, 2006 WL
1169926, at *31-33 (N.D. Ohio Mar. 24, 2006) (evidence was material because it
could have been used to impeach witness and alter the entire defense strategy).
11
voluntariness hearing, and even though Mr. Gallegos contradicted him, the trial
judge believed him. It was not unreasonable for counsel to assume that, like the
judge, the jury would believe Det. Saldate over Mr. Gallegos.
Faced with
apparently unassailable testimony by the case agent, trial counsel chose to not
contradict Det. Saldate at trial, but to attempt to mitigate the impact of his
testimony by having Mr. Gallegos testify.
Had the impeachment evidence been disclosed, there is a reasonable
probability that the trial court would have suppressed Mr. Gallegoss statement.
See, e.g., Milke, 711 F.3d at 1020 (Appendix) (citing State v. King, State v. Yanez,
State v. Conde, and State v. Mahler as cases where the court suppressed the
defendants statements after Det. Saldate violated the defendants Fifth
Amendment rights). Without Det. Saldates testimony, Mr. Gallegos would not
have testified. Without this testimony, the States evidence would have been
insufficient to support a guilty murder verdict. The State had no witnesses to the
crime. The only substantial physical evidence linking Mr. Gallegos to a crime was
the States evidence that Mr. Gallegoss DNA was found in the victims panties.
(Ex. N at 5-6.) While this evidence is relevant to Count 2, Sexual Conduct with a
Minor, it does not provide evidence of first-degree murder, even murder based on a
felony murder theory. This is especially true here, where the jury split on the firstdegree murder theories of premeditation and felony murder. (Ex. O at 45-46.)
12
Moreover, this evidence had problems. Before the victims body was found,
the police and family members were searching the house. Hearsay testimony
admitted at trial indicated that co-defendant Smallwood reportedly found panties in
the victims bedroom during this search and that a family member placed them on
the kitchen table where they were collected by the police. (Ex. K (3/7/91 at 12223; 3/11/91 a.m. session at 13-14; 3/12/91 a.m. session at 29, 35-36).) There was
no reliable chain of custody regarding the panties, and Mr. Smallwood did not
testify at trial. 6 Notably, the panties (and Mr. Gallegoss DNA) were not found on
or near the body of the victim. While the State had submitted samples collected
from the victims mouth, vagina, or rectum for DNA testing, no evidence linking
these test results with anyone was presented. (Ex. N at 5-6.)
One of the inaccurate and damning myths found in both the state and federal
post-conviction record is that Mr. Gallegoss DNA was found in the victims
rectum. In denying the state petition for post-conviction relief, the trial judge,
based on a misapprehension of the facts, found that even if deficient performance
had been proven, Mr. Gallegos failed to show prejudice:
As mentioned previously, the States evidence was completely
overwhelming: The Defendant confessed twice to two different
police detectives, and the DNA evidence in Kendalls rectum linked
6
Mr. Smallwood invoked his Fifth Amendment right against self-incrimination,

and did not testify before the jury. (Ex. M at 17-19.)
13
to the Defendant was devastating to the defense; all the other evidence
corroborated the Defendants guilt.
(Ex. R at 3.)7 The State then perpetuated this inaccuracy in proceedings before the
Ninth Circuit. (See, e.g., Ninth Circuit ECF No. 32 at 3 (quoting the state trial
judges inaccurate statement), at 20 (referring to Mr. Gallegoss DNA evidence in
the victims rectum).)
This representation of the trial DNA evidence is wrong. The parties, at trial,
stipulated to the DNA evidence. That stipulation did not include a match between
Mr. Gallegoss DNA and the sample taken from the victims rectum, but rather
provided the following:
In a report of laboratory examination dated August 9, 1990, it was
concluded that the DNA banding pattern obtained from the stained
material labeled panty crotch, front, back, matches the DNA banding
pattern obtained from the blood sample labeled Michael Gallegos.
The frequency in the Caucasian population for another person being a
contributor for the DNA banding pattern obtained from the panty
crotch and Michael Gallegos is approximately 1 in 10 million.
The frequency in the Hispanic population for another person being a
contributor of the DNA banding pattern obtained from the panty
crotch and Michael Gallegos is approximately 1 in 67 million.
During the evidentiary hearing, similarly inaccurate testimony was introduced.

At that hearing, the state asked Mr. Gallegoss trial counsel, Greg Clark, There
was also DNA evidence found in the victims rectum that tied Michael to the
crime? Mr. Clark, who was defending his performance at trial, answered, Yes,
there was. (Ex. X at 35.) But there was no such evidence, and state PCR counsel
ineffectively failed to correct the inaccurate testimony.
14
(Ex. N at 5-6.)8
In addition to these subsequent misrepresentations, the stipulation had other
problems. The Arizona Supreme Court, sua sponte, held that while the standards
used by the States DNA lab, Cellmark, to declare a match complied with those
generally accepted in the relevant scientific community, Cellmarks procedures
used to determine statistical probabilities were not similarly accepted and were
inadmissible. State v. Gallegos, 870 P.2d 1097, 1109-10 (1994). In light of Mr.
Gallegoss confession and testimony at trial, however, the court found no
fundamental error. Id. Had Det. Saldates testimony been suppressed, there is a
reasonable probability that the Arizona Supreme Court would have found
fundamental error.
Even if the court did not suppress Det. Saldates statement after the
voluntariness hearing, trial counsel still could have attacked Det. Saldates
testimony at trial. The Ninth Circuit in Milke believed that the withheld Brady
evidence showing Det. Saldates lying would have been a game-changer:
With court orders in hand, defense counsel would have had a goodfaith basis for questioning Saldate about prior instances where he had
lied on the witness stand. If Saldate admitted the lies, his credibility
8
The only references in the stipulation to rectal swabs merely provided that rectal
swabs had been submitted for testing, and that, like the blood samples of the
victim, Mr. Gallegos and Mr. Smallwood, DNA banding patterns had been
obtained. (Ex. N at 5-6.) To conclude from this statement that there was a match
between Mr. Gallegos and the rectal swabs would have been total speculation.
15
would have been impaired. If he denied them, he would have exposed

himself to a perjury prosecution. If he claimed he couldnt remember,
defense counsel could have shown Saldate the documents to refresh
his memory. And if Saldate still couldnt recall, the jury would have
had reason to doubt, not only his veracity, but his memory as well.
Milke, 711 F.3d at 1009 (citations omitted).
The States failure to disclose the Brady evidence regarding Det. Saldate
also prejudiced Mr. Gallegoss sentencing. In finding the heinous and depraved
aggravator, the trial judge expressly relied on Mr. Gallegoss trial testimony
regarding the offense. (Ex. P at 180-81.) The state similarly acknowledged to the
Ninth Circuit that Det. Saldates testimony was relevant to the sentencing
aggravators. (Ninth Circuit ECF No. 32 at 22.)
Finally, when viewed in light of his past misconduct, Det. Saldates recent
attempts to assert his Fifth Amendment right against self-incrimination in the Milke
retrial and his refusal to speak with Mr. Gallegoss defense counsel, indicate a
reasonable probability that he committed perjury in both of these trials.
As stated by this Court, the information most damaging to Petitioners
defense was contained in Detective Saldates testimony. (ECF No. 111 at 34.)
The states suppression of critical impeachment evidence denied Mr. Gallegos the
opportunity to meaningfully cross-examine Det. Saldate. It caused Mr. Gallegoss
trial counsel to pursue a strategy based on the erroneous assumption that Det.
Saldates testimony was unassailable. Det. Saldates known misconduct, together
16
with his recent conduct that suggests that he committed perjury at Mr. Gallegoss
trial, show that there can be no confidence in either Mr. Gallegoss guilty verdict
or sentence of death.
C. Conclusion.
The states failure to provide this information to Mr. Gallegos violated
Brady and Mr. Gallegoss constitutional rights.
17
EXHIBIT A
SUSPECT
ANTHONY-
INTERVIEW:
w i t h JERRY a n d HORTENCIA
S t u d e n t - C o c o n i n o H i g h S c h o o l , Grade 12, 5 y e a r p l a n
Employed: Woodman's R e s t a u r a n t ,
Shopping P l a z a ,
as b u s b o y ,
ADVISEMENT
RIGHTS:
G e n e r a l I n v e s t i g a t i o n s B u r e a u , 3-16-90,
4:25 p.m. b y DETECTIVE
CHAMBERS #1678. "Yes"
n o d d i n g a f f i r m a t i v e l y when a s k e d i f he u n d e r s t o o d .
OF
SERGEANT
a t t h e scene. . I p r o v i d e d
a- SUSPECT
take-place a t
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directly'
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for
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SMALLWOOD a t t h e w e s t c u r b of. 7 1 s t
was s i t t i n g on t h e -.
.-
.
-
I
t e s t s as
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understanding and would
t o t h e Main P o l i c e S t a t i o n
these purposes.
i n d i c a t e d t o h i m when a P o l i c e O f f i c e r w o u l d a r r i v e on
t h e second
"he
be d r i v e n d i r e c t l y and I w o u l d f o l l o w .
I asked
him t o r e m a i n w i t h t h e O f f i c e r he was w i t h f o r t h e
and he
so.
I c o n t a c t e d CINDY WISHON and e x p l a i n e d t o h e r my i n t e n t i n v o l v i n g
- GEORGE
. MS.
was v e r y c o o p e r a t i v e and
w i t h JERRY
t o GALLEGOS
i n t e n d e d t o so s i m i l a r l y
MICHAEL
GALLEGOS... JERRY a l s o a g r e e d t h i s w o u l d be a p p r o p r i a t e .
indicated
12
Page
>
.
OFFICER .
#1678
-.
to
to
''
'
v'
Bureau
include blood
and
t r a n s p o r t him to t h e
"
SALDATE
would i n t e r v i e w
We a r r i v e d a t
Investigations
standing by with
Desk
Bureau. - We
GALLEGOS and I
I n v e s t i g a t i o n s Bureau.
Bureau t o f i n d uniformed
t o General
a n d GALLEGOS were w i t h i n
adjoining
and
,-,
..
...
'
y
-
:-
-.
GEORGE s a i d MICHAEL
GEORGE h a d w o r k i n g
e s t i m a t e d he
GEORGE d r o v e .
wheel
a r e expected back
had come t o
3-10-90
:
to
drive truck.
. due
He
conditions
a n d h i s s i s t e r KENDALL
' GEORGE s a i d when he .

one t h e r e .
believed h i s '
a t school.
'_' '
"TYPE OF
.
HOMICIDE
brother
'
CHAMBERS
JERRY
able t o o f f e r
opened the
made t h e a p p r o p r i a t e
a custom d r i v e
s t a r t i n g motor
they
l i n e being
new d r i v e
need t o be
......
in.
GEORGE
was
.. p r e v i..o.u s l y
up t o o l s u s e d
he
.
a n d GEORGE
left
....
to
goodnight.
this t o
KENDALL k i s s e d JERRY
:00 p.m.
GEORGE s a i d " i t
games.
this point
JERRY
.. .
they
the
Page
OF REPORT
'!
'
.,
'
. ' i
CHAMBERS
109-04233SA
h i s mother went t o
he h a s
two p l a y e r s
fiEOR5|
wn
KENDALL'S room t o " t u c k h e r
.
one h a l f
seen h e r do t h i s o f t e n i n t h e p a s t .
He e s t i m a t e d
h o u r a f t e r KENDALL h a d gone t o b e d .
h a v i n g t u c k e d KENDALL i n .
GEORGE r e c a l l e d h i s . m o t h e r d o i n g d i s h e s a f
t i m e JERRY g o t
doing dishes
JERRY
t o . CINDY
shortly
to have r u n o u t o f
He p r e p a r e d
CINDY w e n t t o b e d . JERRI
from the previous
h i m s e l f a meal o f r i c e a n d
night's dinner.
JERRY a t e w h i l e c o n t i n u i n g t o
play Nintendo.
.,
I
t o GEORGE he h a d n o t
JERRY.GEORGE
2*."
i t t o be s o c i a l . . I
,
our.
'-
hour.
:.
and '
.
went
h a v i n g h e a r d ' JERRY, .
GEORGE s a i d 'they do n o t a n d s l e e p i n g
He s a i d t h e y -each have t h e i r
or s i x
emphatic x f
l e t alone
MICHAEL g e t s
sleeper.
sleeping.
GEORGE d e s c r i b e s h i m s e l f
a light
and MICHAEL a r e o f t e n c o m p a n i o n s
- s c h o o l ' t o g e t h e r , t h e y l i v e t o g e t h e r , t h e y spend a
,
GEORGE o f f e r e d
go t o
of free time
'
'
!
#1678 '
**'*
v i n g ' arrangement i n F l a g s t a f f . . He d e s c r i b e s
'living'
MICHELLE
19 y e a r s , who i s s i x months p r e g n a n t
and h e r s i s t e r NAOMI, 14 y e a r s , a l s o l i v e a t t h e r e s i d e n c e . He d e s c r i b e s .
a t h r e e s t o r y house h a v i n g
bedrooms.
Four a r e l o c a t e d
a n d one i n t h e basement. The b a s e m e n t bedroom i s o c c u p i e d b y
basement
a l m o s t as a n a p a r t m e n t w i t h t h e
room ,
. .,
. '.
'
to
h i s e a r l i e s t a c t i v i t i e s on t h e m o r n i n g o f
He t o l d me o f h a v i n g been waken b y h i s m o t h e r b e i n g t o l d t o g e t
m i l k f r o m t h e C i r c l e K n e a r b y and b e i n g g i v e n $2.00 i n cash from' h e r . He
e s t i m a t e d t h i s was a p p r o x i m a t e l y 8:30 a.m. He w a i t e d u n t i l she had l e f t
go t o w o r k
drove
t o 75th
McDowell t o t h e C i r c l e
a h a l f g a l l o n o f m i l k a n d a paok o f c i g a r e t t e s f o r h i m s e l f
'
in
same
, a" w h i t e . .
i l l e g a l " ,' and
;
-wearing t o s l e e p
not,'-be c e r t a i n .
GEORGE s a i d
.7
had g o t t e n up t o )
- r e s i d e s ; i n Tucson.
in
f
carport
o a r MICHAEL
t o h i m . GEORGE went ..
to
f o u n d she
He .......
a p p e a r e d as
"someone
in
t h e r e was no
-of
He
o f h a v i n g c h e c k e d a r o u n d t h e house, ' i n a n d o u t o f
,
a
He -and .
-MICHAEL' c h e c k e d i n i
for
one h a l f hour and
became
c a l l e d h i s m o t h e r a t work. .
GEORGE s a i d a f t e r h a v i n g c a l l e d h i s m o t h e r he a l s o c a l l e d t h e P o l i c e , - He
was unsur.e o f
had
phoned t h e P o l i c e .
GEORGE s a i d he
s e n t MICHAEL d r i v i n g " down"
i n t h e "immediate a r e a l o o k i n g f o r
CINDY t o
home.... GEORGE and MICHAEL d r o v e u p
streets
immediate neighborhood.
They d r o v e t o
n e a r b y a p a r t m e n t c o m p l e x e s on McDowell a n d c h e c k e d a f i e l d e a s t o f t h o s e
negative
They d r o v e
a c a n a l bank n e a r b y w i t h
still
s i g n o f KENDALL. ' GEORGE s a i d
they returned t o
he
were
f a t h e r , REX,
as
h i s s i s t e r JULIE.
''
i d e a What
HOMICIDE '
t o a "one
roll" ofhis fingerprints.
I d e n t i f i c a t i o n Bureau b y uniformed O f f
DETECTIVE SALDATE.
GALLEGOS h a d made a
KENDALL
death.
GALLEGOS was v
absence I spoke
GALLEGOS.
o f t h e i r involvement
as t o
GEORGE
..
returned
. .. ..
..
w i t h GEORGE
repeatedly
he w o u l d n e v e r go down
t e l l i n g t h e t r u t h and asked f o r
s t i l l intending to
blood
GEORGE
and
intervention.
p r e v i o u s l y sworn
o v e r a g a i n he was
I t o l d GEORGE o f
. He
.
t h e t r u t h and
or
:
.
,v
ques
p h o t o s . .. I"
,
.
.
a
(GEORGE
the truth
would
indicated
should
be t o l d .
i n d i c a t e d i t w o u l d make t h e
GEORGE r e s p o n d e d t o
involved' i n
S death b u t
done t h i n g s i n t h e
not
about h i s p e r s o n a l i t y i f
true
The i n t e r v i e w
Crime Lab f o r comparison
so s e r i o u s
.....
a
l i k e digging a
a p p e a r even. .,
he may have been'
. ..
he
i n d i c a t e d my c o n c e r n
.
l a t e r obtained a
t a k e n f r o m GEORGE
statement
EXHIBIT B
Page
SUPPLEMENT
HOMICIDE
VICTIM'S
OFFICER
DR
3-17-90
LOCATION
09-0I2335A
O F OCCURRENCE
REPORT'S
M.D.
DATE
18,
& TIME
TYPED
BUREAU
1990-1100
LEAD
OF KIN;
LEE
(rental
3 years),
greens,
Mother o f d e c e d e n t ,
d i r e c t e d by
873-2538
days, various
SUSPECT
to
i n the
it
the ranking
Assault Detail
9-00
b '
KENDALL
her b e i n g
responded
o the
nit ally
fe
::^r::;thTof
She
found
GEORGE
r e p o r t and began a s e a r c h
f a i l e d t o l o c a t e KENDALL.
at the
WOOD
the
the
in
about
from
or
MCCREARY s a i d a p i a s t i o b o t t l e
baby
S r e s i d e n c e per CINDY WISHON.
A pair of g i r l s panties
u r i n e and p o s s i b l y baby o i l were f o u n d i n decedent ' a
c h a r a c t e r i s t i c o f baby o i l was n o t e d on
b e d d i n g by CINDY
A baby o i l b o t t l e urns found by
l i t Avenue.
i n t e r v i e w s i n d i c a t e d premises
sleep this a...
n o t e d KENDALL S bedroom d o o r c l o s e d and as no
respected
p r i v a c y and a l l o w e d
to sleep i n t h i s
was Tor t h i s
as e a r l y as , : 0 0
CINDY
had n o t
i f KENDALL was'
vent t o work w i t h o u t
f i a n c e o f WISHON had
the residence e i t h e r .
GEORGE ANTHONY
and MICHAEL STEVEN GALLEGOS f o u n d KENDALL m i s s i n g when t h e y
awoke a p p r o x i m a t e l y
a.m.
They d i s c o v e r e d h e r
a r t e r the
a d u l t s i n r e s i d e n c e had l e f t f o r
LIEUTENANT MCCREARY f i n a l l y
said
members by SERGEANT BRYANT

ARMANDO SALDATE was a s s i g n e d as Case
DETECTIVE
and I c o n t a c t e d CYNTHIA LEE
within
residence at
SALDATE i n t r o d u c e d h i m s e l f t o h e r .
He i n t r o d u c e d
as
interview her.
He n o t i f i e d
of
KENDALL h a v i n g been found and b e i n g
A b r i e f aoaent o f h y s t e r i a
ensued w i t h CINDY and a t t r a c t e d t h e a t t e n t i o n o f

SMALLVOOD who
had p r e v i o u s l y been o u t s i d e t h e r e s i d e n c e .
JULIETTE
and r e c e i v e d
from CINDY o f KENDALL'S d e a t h .
JULIETTE became h y s t e r i c a l as
to console
t h e n s e p a r a t e d by
I asked JULIETTE t o
o u t s i d e and t o o k
t o t h e l i v i n g room
an
.
biographical
marital
and
WHEATON and
decedent.
The
with his natural
8 years.
her
father
children.
CYNTHIA and a
CINDY has
has
SMALLVOOD,
also
WHEATON.
GEORGE
who l i v e s
The d e c e d e n t
youngest
CINDY s a i d she i s
t o JERRY GALLEGOS.
She has
d i v o r c e d f o r seven y e a r s and i n v o l v e d w i t h GALLEGOS f o r
They have
l i v e d at t h e i r present address f o r three y e a r s .
are r e n t i n g
w i t h no
to
she o f f e r e d GALLEGOS
at
when t h e y
t o l e g a l l y adopt
as h i s own
Page - 3
TYPE OF REPORT
VICTIM
KENDALL
J
S
OFFICER
DR
o f the previous evenings

h a v i n g b a t h e d and gone
"room.She
as
bed and
q u i e t l y e x p e c t i n g KENDALL t o be
KENDALL
her t h e n
q u i e t l y l e f t the
CINDY s a i d she does t h i s r o u t i n e l y e v e r y
She e s t i m a t e d KENDALL f i n d s
and d i d s o .
i v
r
a t 2 pack o f
ounce
o f M i l l e r s beer.
returned
i n a Cabinet i n
b e i n g a Jehovah W i t n e s s and as her
She
when
to practice
though.
She i n d i c a t e d h a v i n g r a i n e d h e r c h i l d r e n
Jehovah W i t n e s s r e l i g i o n b u t
or t h e i r s l e e p i n g a r r a n g e m e n t s .
the
aaater
...
'"
southwest
CINDY s a i d
JERRY s a i d
which
She
routinely
JERRY
would do
He, as a r e s u l t , has
l i v e d s i n c e September
a
and he a g r e e d
with
..........
give
narrative
o f her a c t i v i t i e s this date.

said
t h e n remembered n e e d i n g t o do
laundry.
She
d r e s s e d and h a d s p a r e t i m e .
She
for a
c a r t o o n s on
15.
woke JERRY as she was .
g e t t i n g o u t o f bed.
d r e s s e d a n d l e f t f o r work a t 7 : 3 0
She had
GEORGK and MIKE'S
doors
22,
q u i e t when m o v i n g
t h e house so
n o t t o d i s t u r b KENDALL and a l l o w h e r
"sleep i n " .
the r e f r i g e r a t o r f o r breakfast.
a n d MICHAEL'S bedroom.
on t h e t o p hunk
GEORGE s l e e p i n g i n t h e b o t t o m
milk for
and gave
the
GEORGE a c c e p t e d i
assured
he w o u l d do so and she
made c e r t a i n he awoke.
CINDY t h e n l e f t f o r w o r k w i t h
t h a t had
a r r i v e d a t her
?
MICHAEL s l e e p i n g
noted a f r o n t
a t t h e l i v i n g room c l o s e d and l o c k e d w i t h t h e
bolt.
CINDY s a i d t h a t d o o r i s r a r e l y u s e d a n d a l w a y s k e p t l o c k e d . The
c a r p o r t door lending i n t o the k i t c h e n d i n i n g area
opened.
in
n o t c e r t a i n b u t b e l i e v e s t h e door was l o c k e d when
this
She spoke t o JERRY a b o u t t h i s and he a s s u r e d h e r he had u n l o c k e d
he l e f t .
I noted t h e a r c a d i a door
t h e east area o f
dining
being
a p p r o x i m a t e l y one
CINDY
she opened t h i s d o o r
herself
m o r n i n g h a v i n g found i t aa u s u a l
She
i n the
and l e t s the
d o g , a three year o l d
in the backyard.
She l e a v e s i t opened as t h e t w o
cats
come and
go f r e e l y
t h i s manner.
KENDALL
a b o u t k e e p i n g h e r bedroom
had
the
nj a r
d o g Would
her
bed d i r t y and
a
KENDALL i s
the
p e t b u t does n o t a p p r e c i a t e
s o i l e d bedding.
Note: at the
of
interview
furry
c a t was l y i n g o n c l o t h i n g l e f t
the dining
tab e.
a p a i r o f c l o t h p a n t i e s a n d a n i g h t g o w n were a l s o
the
table.
The t e a s were d e s c r i b e d
h a v i n g been f o u n d by
I n o t e d what
a
a p p e a r e d t o be f e c e s on
crotch
area o f t h e p a n t i e .
t h o r o u g h l y i n v e s t i g a t e JERRY,
MICHAEL.
She i n d i c a t e d u n d e r s t a n d i n g t h r o u g h ay
o f questioning i t
would appear the
was s e c u r e d d u r i n g t h e
I t would t h e n
f u r t h e r a p p e a r a SUSPECT was n o t a n i n t r u d e r b u t someone from w i t h i n t h e
we w o u l d
everyone i n v o l v e d thoroughly.
1 ended
Interview w i t h her
t h i s p o i n t and
her t o a v o i d areas
or the
w h i c h w o u l d be i n v e s t i g a t e d f o r f i n g e r p r i n t s Or t r a c e
evidence.
She a s s u r e d
she w o u l d do
TYPE OF REPORT
HOMICIDE
VICTIM
KENDALL "' '
OFFICER
"
i n f o r m a t i o n w i t h r e g a r d t o KENDALL was o f h e r b e i n g
independent i n n a t u r e , doing
i n s c h o o l r e c e i v i n g A ' a and B ' a and
being considered f o r a
s t u d i e s p r o g r a m . She d e s c r i b e d t h i s
b e i n g an a c c e l e r a t e d s t u d y a t P e r a l t a S c h o o l where KENDALL i s i n t h e
second g r a d e .
has
i n s u r a n c e on any o f h e r C h i l d r e n and
h e a l t h i n s u r a n c e p r o v i d e d i n group by
The i n s u r a n c e i s a
due t o her h a v i n g been a n
f u l l . tits* fCr three years.
o f f e r e d t h e o n l y l i f e i n s u r a n c e she
h e r s e l f i n n minimal
as
mm-
EXHIBIT C
REQUEST
SUSPECT
NAME
S C I E N T I F I C ANALYSIS
R, NO,
FIRST,
09-042335A
MICHAEL
SUSPECT
NAME
TYPE
FIRST,
OF
REPORT
GEORGE
LOCATION OF
ARREST
OCCURRENCE
OATE
-
D e t . N AH.
E.
ME
FIRST,
VICTIM
SERIAL
MIDDLEI
NUMBER
1739
IF
FIRM NAME
'
NO, OR
NO,
4 TIME OF
OCCURRENCE
3-16-90
4 TIME O F THIS
BUSINESS
REQUEST
3-19-90
ANALYSIS REQUESTED!
MARIJUANA
DRUGS
OTHER
E x a m i n e I t e m s 1-31 f o r t h e p r e s e n c e o f semen, b l o o d ,
substance, hairs
and f o r e i g n s u b s t a n c e s .
Compare t o b l o o d a n d h a i r s f r o m M i c h a e l G a l l e g o s
and
to o i l i n Item
and 29
The undersigned
prepared to testify that he Is a criminalist employed by the
day
19
i INVENTORY
That he
March
AS P E R P R O P E R T Y
INVOICE
obtain
90
make an examination and analysis of
Semen was i n d i c a t e d
on t h e f i t t e d
Chemical
testing
Serological
ESD
indicated
indicated
testing
PGM
2-1
PGM
N/A
Semen was
the s t a i n
T h e o i l on t h e
was c o n s i s t e n t
Patel
sheet
(Item
the presence
1
No
EAP
N/A
ADA
N/A
3)
blood
of blood
on t h e f i t t e d
and
the
27) gave t h e f o l l o w i n g
AK
Activity
i d e n t i f i e d on t h e c a r p e t ( I t e m 3 1 ) . S e r o l o g i c a l t e s t i n g o f
p r o d u c e d a 1+1+ PGM Sub t y p e .
stained sheets (Items
& 17)
p i l l o w c a s e ( I t e m 5).
with the o i li n the g l a s s v i a l (Item 30A).
PROPERTY
OF CRIMINALIST
M.
(Item 8 ) .
the presence
At the conclusion of the analysis the evidence on

TO POLICE
i n lab at
of t h e underwear (Item
Sub
1+2-
on the
evidence and In
on t h e p a n t i e s
testing
and that he
EVIDENCE
Semen was i n d i c a t e d
Chemical
of
,,
day
TO
DATE
4 TIME T Y P E D
1515
CLERK
NUMBER
09-042335A
REV

NOTE: FILL IN EVERY SPACE UNLESS
THE INFORMATION IS NOT AVAILABLE.
PRINT LEGIBLY IN INK.
OF VICTIM OR
FOUND, WILL
? PROPERTY
EVIDENCE
PRISONER'S
ONE ONLY)
SAFEKEEPING
FOUND
YES
A, A
NAME OF SUSPECT
FIRST, MIDDLE)
NAME OF SUSPECT
FIRST, MIDDLE)
ARREST NUMBER
ADDRESS
DOB
ARREST NUMBER
DOB
NUMBER
TELEPHONE NUMBER
ADDRESS
DOB
OF RESPONSIBLE PARTY OR NEXT OF KIN
NO
TELEPHONE
ADDRESS
(LAST, FIRST, MIDDLE)
DATE/TIME OF IMPOUND
CLAIM?
NAME OF FINDER OR PERSON REPORTING FOUND PROPERTY
TELEPHONE NUMBER
DOB
LOCATION OF OCCURENCE
TYPE OF OFFENSE IF KNOWN
PRECINCT
SEARCH WARRANT
BRIEF SYNOPSIS OF OCCURRENCE (ALSO USE
FOR
PROPERTY
LIST ONLY ONE ITEM PER LINE. NUMBER EACH ITEM ON THE FORM, TAG, AND CONTAINER, TAG ALL
A
N
UMBERS, OFFICER'S NAMES AND SERIAL NUMBERS ON THE ENVELOPE,
AMOUNT
OF ITEM
z
X
.
A /
/
/A
1 TOTAL AMERICAN CURRENCY
SERIAL
.
DISPOSITION OF PROPERTY
CIRCLE ONE ONLY
PROPERTY
OWNER
WERE:
RETURNED
OVER TO
CUSTODIAN IN PERSON
AT NIGHT IMPOUND
PLACED IN BIKE RACK (PRECINCT) No,
BOOK:
' CITY OF PHOENIX, ARIZONA POLICE DEPARTMENT
3032 S,
22nd Ave.
REMARKS
FOR CUSTODIAN USE ONLY:
RECEIVED BY
OF
DATE
PAGE:
PLACED IN LOCKER
No.
TAKEN TO
POLICE
RANGE
LAWFUL DISPOSITION
AUTHORIZED BY:
TIME
LINE:
PROPERTY INVOICE AND RECEIPT
Rev. 3/89

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Page - 1
TYPE OF REPORT
HOMICIDE
NAME
OFFICER
REPORT'S
DATE & TIME

21, 1990 2:11 FN
Suspect
! SUPPLEMENT DATE
*
OR
J
5
!
TYPED
SUPPLEMENT a
BUREAU
GIB
#1 - GALLEGOS.
MICHAEL S T E V E N ,
>
to
CLERK
c o n t a c t was
H/M,
MICHAEL GALLEGOS
to i n t e r v i e w
in
Paraphrased
620
his
t h e i n t e r v i e w r o o . w h e r e MICHAEL
o f f i c e r e f t e r he
c a r d . MICHAEL
w a s a p o l i c e o f f i c e r and had s e e n
at the
i then
a t t e n d i n g s c h o o l c u r r e n t l y a n d he s a i d t h a t he
s e n i o r a t C o c o n i n o H i g h S c h o o l a n d was g o i n g t o b e one
t h a t he knew I
MICHAEL i
he
did
w t h no
or
I asked
to
if
what he
h. In
...
,,
g o n e t o h i s b r o t h e r ' s employment w h i c h h e i d e n t i f i e d a s MB V a l l e y T r u c k
and T r a i l e r . He s a i d h e and GEORGE
I.WOOD h a d gone
see h i s brother
so they c o u l d
some
o n GEORGE* s
E a r l i e r i n t h e day, h i s
b r o t h e r h a d s a i d t h a t t h e y c o u l d go by t h e s h o p a f t e r 4:30 PM a n d do s o a e
work on
said they arrived a t h i s brother's place
at
4:20 PM a n d t h a t t h e y w a i t e d f o r
of
10
u n t i l t h e s h o p c l o s e d a t 4:30 PM. H i s b r o t h e r
t h e n a l l o w e d GEORGE t o work on h i s t r u c k w h i c h
as an
I n t e r n a t i o n a l Scout
vehicle.
s a i d t h a t they r e p l a c e d
the t i e r o d s on t h e S c o u t and d i d soae
work t o i t u n t i l i t got d a r k .
MICHAEL s a i d h e , GEORGE and h i s b r o t h e r t h e n l e f t f o r
S h o r t l y a f t e r a r r i v i n g a t h i s b r o t h e r ' s h o n e , MICHAEL s a i d he went o u t s i d e
to t h e c a r p o r t a n d b e g a n w o r k i n g a r o u n d h i s c a r w h i c h w a s d i s a b l e d and
p a r k e d i n t h e c a r p o r t because o f a bad
He s a i d he was
w o r k i n g o n h i s c a r f o r s o a e t i n e when h i s b r o t h e r t o l d h i m t h a t i t was
g e t t i n g l a t e a n d t h a t he o u g h t t o c o a e i n s i d e t h e h o u s e . He went i n s i d e
the
t o o k a s h o w e r and t h e n b e g a n p l a y i n g N i n t e n d o w i t h GEORGE a n d
h i s b r o t h e r . They a l l p l a y e d Nintendo u n t i l
1 1 : 3 0 PM when
h i s b r o t h e r g o t t i r e d and went t o b e d .
MICHAEL s a i d
h e a n d GEORGE c o n t i n u e d t o p l a y N i n t e n d o f o r
next
h o u r . At
12:00 o r 1 2 : 3 0
MICHAEL
t h a t GEORGE d e c i d e d
t o go t o
t h e n went i n t o t h e b a t h r o o a a n d t h e n d e c i d e d t o go t o bed
h i m s e l f . When he e n t e r e d t h e b e d r o o m , h e n o t i c e d t h a t GEORGE was a l r e a d y
a s l e e p and t h e p i t
which i s
f a a i l y dog,
l y i n g on
bed
w i t h GEORGE. He
i n b e d a few a i n u t e s
he
asleep.
T h i s morning at
8:30
h e w a s a w a k e n e d b e c a u s e he had a
phone c a l l from a f r i e n d
him who h e
Tucson.
him t o
was
down i n a d a y o r two t o
i t h i t s . He e x p l a i n e d
ANTHONY h a d
gone t o s c h o o l i n F l a g s t a f f t o g e t h e r u n t i l
moVed
ANTHONY
been t r a i n i n g
and was
t o Phoenix Tor
that
A short t
he
t h e phone
h e n o t i c e d t h a t GEORGE g o t
up o u t o f b e d , g o t d r e s s e d a n d t h e n l e f t i n h i s S c o u t . GEORGE t h e n
r e t u r n e d w i t h h i s some m i l k . He t h e n w e n t i n t o
room, c h a n g e d i n t o some
d i r t y c l o t h e s a n d w e n t o u t s i d e t o w o r k o n h i s c a r . He maid J u s t b e f o r e he
w a l k e d o u t s i d e , he saw GEORGE i n t h e l i v i n g room p l a y i n g w i t h t h e N i n t e n d o
game.
MICHAEL s a i d h e c o u l d not e s t i m a t e t h e t i m e
i t was a s h o r t time a f t e r
he h a d w a l k e d o u t t o
w o r k i n g o n h i s e a r when
came o u t and
t o l d h i m t h a t h e c o u l d n o t f i n d KENDALL. GEORGE a s k e d him
he h a d s e e n
KENDALL a n d he t o l d h i m t h a t he h a d n o t . T h e y t h e n w a l k e d b a c k I n t o t h e
home
GEORGE s t a r t e d r a i l i n g s e v e r a l o f
a n d t h a t he
finally called bis
He
that
mother t o l d him t o
c a l l t h e p o l i c e . MICHAEL s a i d
p o l i c e a r r i v e d s h o r t l y b e f o r e GEORGE'S
m o t h e r . MICHAEL s a i d t h a t CINDY,
mora, g a v e the
a l a r g e ft x 10
Page - S
T Y P E OF REPORT
J
J
VICTIM
OFFICER
OR 8
p h o t o g r a p h o f KENDALL t h a t he c o u l d u s e w h i l e he was l o o k i n g f o r KENDALL.

He a n d
went t o g e t h e r a n d w a l k e d down t h e s t r e e t s h o w i n g
p i c t u r e b u t f o u n d no one t h a t h a d s e e n h e r . T h e y w e n t t o
School
w h e r e KENDALL a t t e n d s and a l s o d r o v e a r o u n d i n
Scout
for
KENDALL b u t
not s u c c e s s f u l .
I t o l d MICHAEL t h a t i t was a y
t h a t someone i n t h e h o u s e h a d t o h a v e
k i l l e d KENDALL. I e x p l a i n e d h i m t h a t t h e r e w a s
i n d i c a t i o n t h a t anyone
had b r o k e n i n t o t h e h o u s e b u t r a t h e r t h e h o u s e was l o c k e d and s e c u r e d t h e
e n t i r e n i g h t . MICHAEL a g r e e d w i t h
t h a t t h e h o u s e was l o c k e d a n d c o u l d
n o t u n d e r s t a n d how KENDALL c o u l d h a v e g o t t e n o u t . I t h e n t o l d MICHAEL t h a t
I w a s n ' t t o t a l l y s u r e b u t t h a t i t w a s my b e l i e f t h a t be may h a v e had
s o m e t h i n g t o do w i t h
d e a t h . MICHAEL i m m e d i a t e l y d e n i e d b e i n g
i n v o l v e d a n d s a i d t h a t h e h a d t o l d me
that
occurred
last
n i g h t . I t o l d h i a t h a t I b e l i e v e d t h a t he w a s p r o b a b l y d r i n k i n g and t h a t
d
n o t mean t o
KENDALL.
was s h a k i n g h i s head
he
f r o m s i d e t o s i d e , i n d i c a t i n g no, b u t d i d n o t v e r b a l l y r e s p o n d .
1 told
MICHAEL t h a t t h e b e s t t h i n g f o r h i m t o do was t o t e l l
the
t r u t h a n d t h a t I was t h e r e o n l y t o g e t t h e t r u t h a n d n o t t o j u d g e
I
t o l d h i a t h a t I h a d v i s i b l y e x a m i n e d KENDALL'* body a n d t h a t 1 knew what
he h a d d o n e t o h e r . I e x p l a i n e d t o h i m t h a t I was r e a d y t o h e a r what had
a c t u a l l y h a p p e n e d a n d that. 1 c o u l d b e l i e v e t h a t he p r o b a b l y d i d not i n t e n d
on k i l l i n g KENDALL. He a s k e d i f I r e a l i z e d w h a t
was a s k i n g h i a and I
t o l d h i m t h a t I was o n l y a s k i n g h i m t o t e l l me t h e t r u t h . He s a i d t h a t 1
was a s k i n g h i a t o s a y s o m e t h i n g t h a t w o u l d c a u s e
to l o s e h i s family.
do y o u t h i n k a y b r o t h e r w i l l t h i n k o f
1 t h e n t o l d MICHAEL t h a t
about h i s w e l f a r e
instead o f t e l l i n g the t r u t h .
he was t h i n k i n g
MICHAEL t h e n s a i d " l e t ' s s a y , o k a y , I'm n o t a d m i t t i n g i t , b u t l e t ' s j u s t
say I d i d have something
do
KENDALL, w h a t
would
.
1 t o l d MICHAEL
would
under .
a r r e s t and would
murder of
jail.
asked
s a y I d i d do
not
admitting
i t , l e t ' s j u s t ' say I d i d , would there
I could say.
to keep
going to
I t h e n t o l d MICHAEL t h a t t h e r e was n o t
anything
w o u l d k e e p him f r o m g o i n g t o j a i l b u t t h a t h i s t r u e
s t a t e m e n t w o u l d n t l e a s t be an e x p l a n a t i o n o f what h a p p e n e d i n s t e a d o f
j u s t h e a r i n g one s i d e o f t h e s t o r y . MICHAEL f i n a l l y a s k e d me "do you t h i n k '
1 d i d i t by m y s e l f ? " I t o l d h i a
I d i d not. r e a l l y know but t h a t I
would l i s t e n
t r u t h and I f someone e l s e was I n v o l v e d w i t h h i m . 1
would expect h i a t o t e l l
who t h a t p e r s o n w a s . MICHAEL t h e n t o l d me
" o k a y . I d i d do i t b u t I was n o t by
GEORGE h e l p e d me a n d h e ' s a s
much t o
a s I a n . " I t h e n t o l d MICHAEL t h a t I w a n t e d
t o t e l l me
everything
t h a t h a p p e n e d and t h a t I d i d n o t want
to
his
i n v o l v e m e n t and p l a c e any blame on GEORGE t h a t he w a s n o t d e s e r v i n g o f .
MICHAEL t h e n t o l d a e t h a t he u n d e r s t o o d a n d w o u l d t e l l me t h e t r u t h .
MICHAEL c o n t i n u e d
I n t e r v i e w i n n a r r a t i v e f o r m . He s a i d he a n d GEORGE
had b e e n d r i n k i n g most o f t h e d a y , m i x i n g w h i s k e y w i t h
He s a i d
t h a t e v e r y t h i n g he had t o l d me a b o u t w h a t h a d o c c u r r e d u p
when h i s
b r o t h e r w e n t t o s l e e p was t h e t r u t h . He S a i d
they a r r i v e d a t hi *
TYPE
REPORT
VICTIM
KENDALL
b r o t h e r s w o r k t o w o r k on
that the
were d r i n k i n g
b e e r a n d t h a t he and GEORGE h a d p o s s i b l y 6 o r 7
apiece.
When t h e y
a r r i v e d back
until
he a n d GEORGE a l s o had
a b o u t 6 o r 7 b e e r s . He s a i d t h a t h i s b r o t h e r h a d b o u g h t a c a s e o f
e n r o u t e home b e c a u s e GEORGE h a d
h i a t h e money t o do a o . MICHAEL was
then w o r r i e d whether
were going t o c h a r g e h i s b r o t h e r f o r
l i q u o r to
and 1 t o l d h i a t h a t w a s n o t a y c o n c e r n a t t h i s t i m e .
A f t e r h i s b r o t h e r went
s l e e p , MICHAEL
t h a t he a n d GEORGE
to
N i n t e n d o a n d t h a t t h e y b e g a n t o d i s c u s s s e x . MICHAEL s a i d t h a t he
has o n l y had sexual
on t h r e e
and t h a t t h e l a s t t i m e
was a p p r o x i m a t e l y one y e a r a g o . He s a i d h e a n d GEORGE d i s c u s s e d
fact
one h a d h a d
f o r a p p r o x i m a t e l y one y e a r a n d h e
that
t h a t GEORGE
a l s o not t h a t e x p e r i e n c e d w i t h s e x u a l
intercourse.
S h o r t l y a f t e r midnight,
s a i d h e d o e s n ' t know why,
he t h o u g h t
about p o s s i b l y
into
room a n d
h e r . He s a i d h i s
i n t e n t i o n s were
t o go i n s i d e t h e room a n d t o u c h h e r " a s s " and t h e n
l e a v e . He m e n t i o n e d t h i s i d e a t o GEORGE b u t d i d n o t know how GEORGE
take i t
KENDALL was h i s s i s t e r . MICHAEL s a i d he was somewhat
s u r p r i s e d when GEORGE a g r e e d . MICHAEL s a i d t h i s made h i m
l i t t l e unsure
a b o u t w h e t h e r t h e y s h o u l d do i t a n d t h a t GEORGE a s s u r e d h i m t h a t no one
would
a n d t h a t i f KENDALL d i d w a k e u p , s h e w o u l d n o t t e l l a n y o n e .
M I C H A E L s a i d t h a t he was w e a r i n g a
o f l i g h t c o l o r e d s h o r t s and t h a t
GEORGE w a s a l s o w e a r i n g s h o r t s b u t t h a t t h e y w e r e b l u e
checked.
They t u r n e d o f f the
game a n d t h e y b o t h w a l k e d down
He
s a i d w h e n t h e y g o t t o t h e d o o r , he t o l d GEORGE t o
a
because
w a n t e d t o go i n s i d e t h e b a t h r o o m a n d g e t t h e b a b y o i l . I a s k e d MICHAEL
w h a t he n e e d e d t h e baby
f o r a n d he
he had i n t e n t
of putting
t h e baby
on
b e c a u s e he h a d t h i s t h i n g a b o u t how baby
s k i o f e e l a o s o f t . MICHAEL
a n d s a i d t h a t he went
into
removed t h e baby o i l
the
and t h e n walked
b a c k t o KENDALL'S b e d r o o m d o o r . He n o t i c e d GEORGE
w i t h h i s hand
o n t h e d o o r knob and h i s o t h e r h a n d down t h e f r o n t
Of h i s
MICHAEL s a i d i t w a s o b v i o u s t o h i m t h a t GEORGE was " p l a y i n g w i t h h i m s e l f . "
They e n t e r e d
room, M I K E s a i d t h a t h e saw KENDALL l y i n g on h e r
s i d e f a c i n g the
was n o t c o v e r e d a n d h e p n i g h t s h i r t was j u s t
a b o v e h e r w a i s t . He s a i d t h i s e x p o s e d a s m a l l p a r t o f h e r b a c k a n d h e r
pant
T h e y b o t h w a l k e d up n e x t t o t h e bed a n d t h a t he was s t a n d i n g
the a r e a o f
b u t t o c k s . GEORGE w a s s t a n d i n g n e x t t o h i m
her
MICHAEL s a i d i t
very hard f o r
to
me t h e s e t h i n g s and I
to h i a that I
1
t
to l i s t e n .
MICHAEL s a i d he
p a u s e d f o r a moment a n d t h e n c o n t i n u e d .
MICHAEL s a i d t h a t f o r some r e a s o n , h e
a r e a and
referred to
a s " h e r a s s " . He s a i d he b e g a n r u b b i n g
buttocks
over her
a n d he
t h a t 0KDR0K
breast
a r e a . MICHAEL s a i d
hat
t h i s time,
was
a s l e e p . He
a p p l i e d some baby
to h i s
t o r u b t h e b a b y o i l on t h e a r e a o f
TYPE OF
VICTIM
KENDALL
OFFICER
Page - 5
j
b a c k t h a t w a s e x p o s e d . MIKE s a i d he l i k e s t h e way b a b y o i l f e e l s
on s o m e o n e ' s s k i n a n d was d o i n g i t f o r t h a t r e a s o n . He s a i d t h a t GEORGE
had moved h i s h a n d t o
v a g i n a l a r e a and was
s o r t of rubbing h i s
f i n g e r a r o u n d i t . He s a i d he t h e n p l a c e d h i s h a n d w h i c h h a d o i l
i t on
KENDALL'S b a c k and t h a t a l a o s t
KENDALL b e g a n t o w a k e up. He
believed that i t
have
t h e b a b y o i l a n d t h a t he
was
c o l d a m i t h a t may h a v e b e e n w h a t woke KENDALL u p . He i s n o t r e a l l y s u r e
but he t h i n k s KENDALL had t u r n e d t o l o o k a t them a n d he t h e n saw GEORGE
p l a c e h i s h a n d on
raouthand
hold i t so she could not
KENDALL w a s s t i l l a s k i n g a n o i s e w h i c h he t h e n i l l u s t r a t e d t o
by
c o v e r i n g h i s own mouth and t h e n t a k i n g d e e p b r e a t h s t h r o u g h h i s n o s e . T h i s
made a s o u n d a s a p i g w o u l d do a n d h e s a i d t h a t w a s t h e same s o u n d t h a t
KENDALL w a s m a k i n g . B e c a u s e o f t h a t , he p l a c e d h i s h a n d on t o p o f
hand, c o v e r i n g
n o s e . He d o e s n ' t know how l o n g he a n d GEORGE k e p t
t h e i r h a n d s on KENDALL's mouth a n d n o s e b u t t h e n he r e a l i z e d t h a t KENDALL
went l i m p . KENDALL w a s n o t m o v i n g a n y m o r e a n d he s a i d t h a t he i m m e d i a t e l y
t h o u g h t t h a t t h e y had
h e r . He a n d GEORGE b o t h l e t go o f KENDALL a n d
he i s
s u r e b u t he b e l i e v e s t h a t he w h i s p e r e d t o GEORGE t h a t s h e was
dead.
s a i d t h a t he d i d n o t r e a l l y mean t o k i l l KENDALL b u t t h a t
t h i n g s j u s t g o t c a r r i e d away. I t h e n a s k e d
why t h e y s t i l l
sexually
a s s a u l t e d KENDALL and he s a i d t h a t t h e y knew t h e y h a d a l r e a d y k i l l e d h e r
so t h e y f i g u r e d t h e y s i g h t a s w e l l
finish.
MICHAEL
GEORGE t u r n e d KENDALL o n h e r b a c k . GEORGE g r a b b e d t h e
t h a t K E N D A L L ' s h e a d was l y i n g o n a n d moved I t down a n d p l a c e d i t
underneath her
n o t i c e d t h a t GEORGE
no l o n g e r h a v e
p a n t s on a n d he saw GEORGE g e t on t o t h e bed w i t h KENDALL. He c o u l d s e e
t h a t GECRGE h a d a c o m p l e t e e r e c t i o n a s he d i d . GEORGE t h e n s p r e a d
KENDALL's
a p a r t . He was n o t o n t h e b e d b u t w a s s t a n d i n g i n
he w a s when h e f i r s t
to fondle
the
He d o e s n o t t h i n k t h a t GEORGE e v e r made
KENDALL b e c a u s e
he made t h i s
w h i c h b e a g a i n i l l u s t r a t e d by c l o s i n g
i
opening ,
his
mouth a n d g r i t t i n g h i s t e e t h . He s a i d when he saw t h i s f a c e on
he a s s u r e d t h a t i t was h u r t i n g GEORGE a n d t h a t he a p p a r e n t l y w a s u n a b l e
"get i t i n " . I then asked
w h a t he w a s d o i n g a n d
he had h i s
h a n d u n d e r n e a t h KENDALL's " a s s " a n d t h a t h e w a s
h e r w h i l e GEORGE
was a t t e m p t i n g t o make
I a s k e d H I K E w h a t w a s i t a b o u t KENDALL's
b u t t o c k s t h a t t u r n e d h i a on a n d he s a i d he d i d n o t know b u t t h a t was t h e
only thing
was i n t e r e s t e d i n .
GEORGE t h e n g o t o f f t h e bed q u i e t l y and MIKE s a i d t h e o n l y t h o u g h t he h a d
was t h a t he w a n t e d t o make e n t r y i n t o " h e r a s s " . He g r a b b e d KENDALL around
the
l i f t e d h e r from t h e bed and p l a c e d h e r s o f t l y on t h e
He
b e l i e v e s t h a t when he p i c k e d h e r up from
b e d , GEORGE was h e l p i n g but
he
not
w h e r e GEORGE
holding her.
Was l y i n g f a c e
down on
c a r p e t n e x t t o t h e bed and he t h e n s p r e a d h e r l e g s a p a r t . MIKE
s a i d he d o e s n o t remember w h e t h e r he h a d h i s s h o r t s , C o m p l e t e l y o f f b u t he
does
b e l i e v e he d i d .
TYPE OF
Page - 6
REPORT
VICTIM
i , KENDALL
b e t w e e n KENDALL
OFFICER
t h a t he w a s k n e e l i n g on t h e c a r p e t
down e n d g r a b b e d KENDALL f r o . t h e
moved h e r t o w a r d s h i s
h e made
"her a s s " . I then
then reached
asked
he
t o l d me
had
that
then
a l l over h i s Penis
,
before
MIKE
he was
.
* *
b a c k and f o r t h
KENDALL s
a n d w a s p u s h i n g KENDALL's
buttocks
p e n i s . He d o e s n o t know t h e amount o f t i m e t h a t i t
t o o k h i . t o e j a c u l a t e b u t h e d o e s know t h a t i t w., n o t
legs
he saw GEORGE w i t h
w i t h a f u l l e r e c t i o n . He was h o l d i n g
p u t t i n g K E N D A L L ' s mouth o v e r
is.
he t h e n e j a c u l a t e d a n d p u s h e d
buttocks
t h e n r e a c h e d down a n d p u l l e d up
shortn to c l e a n o f f
Ho
he r e m e m b e r s c l e a n i n g some f e c e s f r o m
p e n i s onto h i s
noticed
that
said
KENDALL had some
that
when
f e c e s on h e r p a n t i e s .
h e f i n i s h e d , GEORGE
h a d ao
m o u t h . GEORGE
erection
but t h a t
not
o f w h a t l o do n e x t a n d
t a k e KENDALL o u t s i d e
down t h e s t r e e t a n d l e a v e h e r .
then
and
and s t u f f e d
underneath the chest
commented t h a t
t h e r e a s o n GEORGE
GEORGE t h e n
o f baby o i l
had
KENDALL a n d
mm
they
continued
out
hU
KENDALL down o n t o
t e n n i s s h o e s . He t h e n n I k e d
the k i t c h e n a r e a ,
Page - 7
TYPE
J
VICTIM
tfBHMfe. KENDALL
ATE
d o o r . M I K E s a i d t h a t t h e c a r p o r t d o o r i s a l w a y s l o c k e d and f o r t h a t
r e a s o n , GEORGE u s e d t h e k e y s t o u n l o c k t h e d o o r . T h e y t h e n c a r r i e d h e r o u t
t h e c a r p o r t d o o r t o t h e f r o n t o f a w h i t e v e h i c l e a n d l a i d h e r on t h e
cement f l o o r between t h e f r o n t o f t h e w h i t e v e h i c l e and t h e back of t h e
GEORGE t h e n w e n t t o t h e c a r p o r t d o o r a n d l o c k e d t h e door from t h e
o u t s i d e . I t h e n a s k e d MIKE why t h e y d i d t h i s a n d he s a i d t h a t GEORGE d i d
t h i s b e c a u s e he d i d n ' t want
t o w a k e u p w h i l e t h e y w e r e gone and
c h e c k t h e d o o r s a s he d o e s on o c c a s i o n a n d f i n d t h e d o o r u n l o c k e d . He s a i d
i f h i s b r o t h e r w o u l d h a v e done t h i s , h e w o u l d h a v e i m m e d i a t e l y gone t o
t h e i r b e d r o o m a n d c o n f r o n t e d the
about t h e f a c t o f not l o c k i n g the door
a s t h e y had been
by h i m b e f o r e he w e n t t o s l e e p .
He a n d GEORGE t h e n w a l k e d from t h e c a r p o r t d o o r o u t
the f r o n t of t h e
d r i v e w a y o f t h e bouse
towards the
He s a i d t h e y w e r e l o o k i n g
f o r a n y o n e a r o u n d t h e s t r e e t o r any c a r s b u t
d i d n o t s e e a n y . GEORGE,
who w a s h o l d i n g t h e b o t t l e o f o i l , t h e n t r i e d t o t o s s i t a s f a r a s he
c o u l d b u t t h e b o t t l e o f o i l l a n d e d i n t h e c e n t e r o f t h e s t r e e t . MIKE d o e s
n o t remember t h e b o t t l e m a k i n g v e r y much n o i s e b u t t h e y a g a i n l o o k e d up
A f t e r s e e i n g no one,,
and down t h e s t r e e t t o s e e i f a n y o n e
t h e y w a l k e d b a c k i n t o t h e c a r p o r t and a g a i n GEORGE p i c k e d
KENDALL from
a r o u n d t h e c h e s t a r e a and he p i c k e d h e r u p f r o m t h e a n k l e s , I t h e n a s k e d
MIKE why he n e e d e d t o p i c k up KENDALL s i n c e i t w a s a y
t h a t KENDALL
d i d n ' t w e i g h t t h a t much. MIKE t h e n s a i d t h a t h e t h o u g h t KENDALL o n l y
w e i g h e d a b o u t 60 o r 70 p o u n d s , b u t t h a t when GEORGE p i c k e d h e r up, he k i n d
o f f e l t f o o l i s h j u s t w a l k i n g b e h i n d h i m , n o t d o i n g a n y t h i n g so he p i c k e d
up h e r f e e t .
MIKE s a i d t h a t b o t h he and GEORGE w e r e c a r r y i n g KENDALL a n d t h a t t h e y r a n
on t h e s i d e w a l k f o r a s h o r t d i s t a n c e and t h e n c r o s s e d t h e s t r e e t u n t i l
they got to the
w h e r e he and GEORGE l a i d h e r down.-.
(hat
t h e y r e a l l y h a d no i n t e n t i o n s o f p l a c i n g h e r u n d e r n e a t h t h i s p a r t i c u l a r
t r e e but that i t
J u s t t h e r e . A f t e r d o i n g t h i s , t h e y r a n back to t h e
h o u s e a n d s t o o d by t h e o u t s i d e o f t h e c a r p o r t d o o r f o r j u s t a c o u p l e o f
s e c o n d s t o s e e i f a n y o n e was
They u n l o c k e d t h e
entered i t .
and t h e n r e
it.
t h e n w a l k e d b a c k t o t h e i r bedroom, got
bed
and f e l l a s l e e p .
The n e x t
happened
m o r n i n g , he s a i d t h a t he a n d GEORGE d i d n ' t t a l k about what had

b u t i n s t e a d a v o i d e d t h e s u b j e c t . He d i d g e t u p a n d a n s w e r a phone
h i s f r i e n d and t h a t GEORGE d i d g e t up a n d go t o t h e s t o r e and
buy m i l k . I
asked
why he d i d t h i s , s i n c e t h e y b o t h knew t h a t
KENDALL w o u l d n o t be up t o e a t a n y c e r e a l . M I K E t h e n q u i c k l y r e s p o n d e d
we n e e d e d l o e a t . " MIKE s a i d t h a t he a n d GEORGE d i d g e t t o g e t h e r a n d
w a l k e d up and down t h e s t r e e t t h a t t h e y made a p o i n t t o o n l y w a l k down t h e
e a s t s i d e o f the s t r e e t so they would not f i n d
body, When t h e y went I n
GEORGE's
a l s o drove around t h e a r e a but s t a y e d
from
h a v i n g t o d r i v e by KENDALL s o t h e y w o u l d n o t h a v e t o s e e t h e body.
EXHIBIT E
fm
1
2
IN THE 3UPERI0U COURT OF THE STATE OF ARIZOIiJA
IN AND FOR THE COUNTY OF MARICOPA
4
5
6
STATE OF ARIZONA,
Plaintiff,
vs.
GEORGE ANTHONY vSMALLWOOD,
10
No. CR 90-03339b
Defendant*
11
12
13
REPORTER'S TRANSCRIPT OF PROCEEDINGS
14
State's Motion to Dismiss
15
Phoenix, Arizona
June 29, 1990
Is35 p.m.
16
17
18
19
BEFORE:
20
THE HONORABLE JEFFREY A. HOTUAM,

Judge of the Superior Court
21
22
23
24
25
)
Prepared by Teresa Louis,

Official Court Reporter
1
APPKARAI>3CES
2
3
4
For the States
MR, LOUIS STALZER,

Deputy County Attorney
For the Defendant!
MR. PETER CLAUSSEN,

Deputy Public Defender
5
6
7
8
9
10
11
Phoenix, Arizona^
June 29, 1990
1:35 p.m.
12
13
14
15
16
17
18
Criminal cause 90-03339, State vs.
19
George Anthony Smallwood.
2U
MR. STALZER3
21
MR. CLAUSSENs
22
Smallwood. Your Honor, who is present.
23
r^.
THE COURTS
THE COURT:
Counsel may note their presence.

Louis Stalzer for the State,
Peter Claussen on behalf of Mr.
I have in front of me the State's
24
motion to dismiss and order and the defendant's motion to
25
release the defendant on his own recognizance.
We will take the
fs
1
state's motion to dismiss at this time.
MR. STALZERi
I filed the motion
previous to today based on the fact that I had verbal
confirmation from the laboratory in Maryland indicating that
there was no evidence apparent from their testing of the various
forensic samples which would implicate Mr, Sinailwood in the
crime charged.
For that reason, the State believes that it would
have inadequate evidence to prove his guilt beyond a reasonable
10
doubt at the present time, and therefore moves for the dis7iissal
11
without prejudice so as not to keep him incarcerated any longer,
12
13
THE COURT:
V?ould counsel please approach the
bench?
14
(V-^hereupon a discussion was held at the bench
15
between Court and counsel, outside the hearing of the jury and
16
the court reporter.)
17
THE COURT!
Good cause appearing, it is ordered
18
granting the motion of the State, dismissing the charges against
19
the defendant without prejudice.
20
21
Yes, Your Honor.
MR. CLAUSSEN:
Your Honor, could I be heard on the
point of prejudice?
22
THE COURT;
Yes, you may.
23
MR, CLAUOSENs
Your Honor, this case arose March
24
17,
Mr. Smallwood was charged quite openly, quite publicly.
25
appeared on every television station in town.
The story was
He
carried in both local newspapers, in the Mesa Tribune, carried
in the Flagstaff newspaper, where Mr, Smallwood lives,
His name has been sullied.
muddied terribly.
heinous.
been extreme prejudice to Mr, Smallwood,
sister.
her, as he would obviously.
really torn from him because he was in jail being charged for
The crimes involved here are incredibly
His name has been dragged through the mud.
There's
The victim here is his
He has never been given the opportunity to grieve for

The opportunity to grieve was
10
this crime, and he's been extremely confused about that from the
11
very beginning,
12
There's been prejudice to him.
There is no need to
13
have this hang over his head any further.
14
prejudice is not to give him the exoneration that he clearly
15
should be given at this point.
16
completely as can possibly be done,
17
To make it without
His name should be cleared as
You can't give him back his good name, but you can
18
at least make it with prejudice so that it can be clear to
19
anyone who might ever ask that it's now acknowledged he is
20
innocent, he had nothing to do with this.
21
prejudice is to make it sound as if somehow or other in the
22
future the State may choose to charge him again,
23
His reputation has been
There is no evidence.
24
evidence.
25
it.
To make it without
There's never been any
There is a statement by a co-defendant, and that's
THE COURT!
several civil remedies available to Mr. Sraallwood.
order will be without prejudice,
4
5
incarceration as soon as possible,

Thank you, counsel.
MR. STALZER:
THE COURT!
10
12
13
14
15
16
17
13
19
20
21
22
23
24
25
Your Honor, I believe as a result of
your order all pending motions are rendered moot.
11
The Court's
It's ordered further releasing the defendant from
There are of course under Arizona law
Yes, that's correct.
Thank you.
(Whereupon at 15 40 p.m. these proceedings

concluded,)
EXHIBIT F
RICHARD M. ROMLE\ '

MARICOPA COUNTY ATTORNEY
J(Jl
-2
Louis F. S t a l z e r
BAR ID #: 010471
Deputy County A t t o r n e y
111 West Monroe, S u i t e 1800
Phoenix, AZ 85003
Telephone:
602 256-5780
Attorney f o r P l a i n t i f f
?3
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

THE STATE OF ARIZONA,
Plaintiff,
vs.
NO. CR 90-03339,B
STATE'S MOTION TO DISMISS
AND ORDER
GEORGE SMALLWOOD,
Defendant.
COMES NOW
(Assigned t o t h e Honorable
J e f f r e y A. Hotham - Div. 46)
t h e S t a t e o f A r i z o n a , by and t h r o u g h undersigned
counsel, and moves t h i s Court t o d i s m i s s t h e a b o v e - e n t i t l e d
cause
without p r e j u d i c e as t o GEORGE SMALLWOOD only, f o r t h e reason t h a t :

The
the
S t a t e would be unable t o prove the defendant
crimes charged beyond a reasonable doubt.

Counsel c e r t i f i e s t h a t t h i s motion i s brought
and
g u i l t y of
not f o r t h e purpose
of avoiding
i n good f a i t h
the p r o v i s i o n s
A r i z o n a Rules o f C r i m i n a l Procedure.
MEMORANDUM OF POINTS AND AUTHORITIES
Rule 16.5, A r i z o n a Rules o f C r i m i n a l Procedure.
o f Rule 8,'
R e s p e c t f u l l y Submitted t h i s
<cday
o i June, 1990.
RICHARD M. ROMLEY
MARICOPA COUNTY ATTORNEY
BY
l i s F. S t a l z e i
Copy o f t h e f o r e g o i n g
mailed/delivered this
jZfc?
day
of
June, 1990, t o : .
The Honorable J e f f r e y A. Hotham
Judge o f t h e S u p e r i o r Court
Peter Claussen
Deputy P u b l i c Defender
132 South C e n t r a l
Phoenix, AZ 85004
Greg C l a r k
45 W. J e f f e r s o n , 11th F l o o r
Phoenix, A r i z o n a 85003
BY
L o u i s F. S t a l z e r
ORDER
IT IS HEREBY ORDERED t h a t t h e a b o v e - e n t i t l e d c a u s e be dismissed
without p r e j u d i c e i n CR 90-03339,B as t o GEORGE SMALLWOOD only.
DONE IN OPEN COURT t h i s
LFS:kg
2.21fs
EXHIBIT G
FILED
(r^
94-03 89-
DEC " 9 igg4

NOELK.DESSAINT
CLERK SUPREME COURT
I N THE SUPERIOR
COURT OF T iM.
t-^'<^
"V "a^ '
ZOWA
C^"O"M<Ô'^_-PH^-Ô^
3
4
nV
PLAINTIFF,
VS.
MICHAEL STEVEM GALLEGOS,
NO.
CR 90-033=t9
o
DEFENDANT =
.05
dAi3hoH%Af
FILED
10
JUN 1 9 1991
11
12
.pw|
PHOEHIX, ARIZONA
AUGUST 3, 1990
NOELK.DESSAINT
CLE^ÎPgEME COURT
BY
13
14
15
.6 E F 0 R E :
THE HONORABLE JEFFREY A. HOTHAM, JUDGE.
16
17
18
19
REPORTER'S TRANSCRIPT OF
20
PRETRIAL MOTIONS
21
22
23
PREPARED FOR
24
SUPERIOR COURT
25
(ORIGINAL)
CYNTHIA S. ZAMENSKI,
OFFICIAL COURT REPORTER,
:i3llGGveiT km mwmmnPL
SUPWRXOR COURT
P h o e n i x . Ai'izona
MATERLÎ

23
A.
H E WAS 18 Y E A R S O L D .
Q.
DID YOU D I S C U S S IF HE HAD A N Y P R O B L E M S IN SCHOOL?
A.
YES, WE DIB.
Q,
WHAT DID HE SAY TO YOU?
A.
I ASKED HIM A B O U T HIS STUDY SKILLS IN SCHOOL AND
HE INDICATED TO M E T H A T HE WAS IN SPECIAL E D U C A T I O N , T H A T
H E WAS CONSIDERED A SLOW LEARNER=
AREA WAS MATH AND C O N S I D E R E D H I M S E L F A L E V E L C)B' 9TH GRADE
IN M A T H .
H E SAID T H A T HIS PROBLEM
HE INDICATED T H A T M O S T OF HIS OTHER STUDIES WERE
10
C O M P A R A B L E WITH HIS G R A D E LEVEL AND I ASKED HIM ABOUT HIS '
11
R E A D I N G SKILLS AND j!E SAID T H A T HE C O N S I D E R E D
12
SENIOR L E V E L .
13
14
Q,
HIMSELF
DID YOU A S K H I M A B O U T HIS STUDY H A B I T S OR HIS
A B I L I T Y TO DO H O M E W O R K ?
IF YOU REMEMBER-
15
A.
I DON'T R E C A L L .
16
Q,
DID YOU A T A N Y T I M E A D V I S E HIM OF HIS MIRANDA
17
RIGHTS?
18
A,
19
O.
20
A.
Y E S , I- D I D .
CAN YOU T E L L J U D G E HOTHAM HOW T H A T W A S DONE.
I REMOVED A M I R A N D A C A R D , L I S T I N G H I S MIRANDA
21
R I G H T S ; THAT'S ISSUED BY T H E P H O E N I X P O L I C E D E P A R T M E N T .
22
HAD IT IN MY W A L L E T .
23
CARD AND ASKED HIM TO R E A D THE R I G H T S OUT L O U D TO M S TO
24
25
I REMOVED THE CARD.
' E N S U R E T H A T HE U N D E R S T O O D T H E R I G H T S ,
I H A N D E D HIM THE
I W A N T E D TO ALSO SEE
IF HE COULD READ T H E M C L E A R L Y ; AND T E S T HIS STATEMfiNT TO ME
SUPERIOR COURT
phop^nix. A r i z o n a
'THAT H E COULD READ R A T H E R '^'JELL.
Q.
H O W DID HH READ FROM T H E CARD?
A.
H E HAD HO PROBLEM IN READING T H E C A R D .
HESITATED ON ANY WORD.
HESITATION.
6
7
H E READ IT VERY C L E A R L Y A M D W I T H O U T
D I D HE A P P E A R T O B E A L E R T W H E N HE W A S T A L K I N G
W I T H YOU?
A.
OH, YES.
Q.
WHEJJ H E W A S R E A D I H G FROM T H E CARD,- D I D Y O U HEAR
10
Q=
H E MEVER
H I M M E N T I O N THAT HE H A D T H E R I G H T TO R E M A I M
SILENT?
11
A.
YES'. HE- READ T H E E N T I R E R I G H T S C A R D .
12
O.
A N D THAT A L S O A D D R E S S E D T H E I S S U E T H A T H E H A D T H E
13
R I G H T TO A N A T T O R N E Y ?
14
A.
THAT IS CORRECT.
X5
O.
AND THAT IF HE COULDN'T AFFORD AN ATTORNEY, ONE
16
WOULD BE APPOINTED FOR KIM?
17
A.
THAT IS CORRECT.
18
O.
AMD DID YOU HEAR HIM SAY FROM THE CARD, AS IT'S
19
PRINTED.. THAT ANYTHING HE SAID COULD BE USED AGAINST HIM IN
20
A COURT OF LAW?
21
22
A.
THAT IS CORRECT.
Q.
NOWf DID YOU DO ANYTHING ELSE TO KIND OF
23
REINFORCE FOR YOUR OWN PIECE OF MIND THAT HE UNDERSTOOD
24
THOSE RIGHTS?
26
k.
AFTER READING THE RIGHTS I ASKED HIM IF HE
^
SUPERIOR COURT
UNDERSTOOD, AMD HE IMMEDIATELY SAID THAT HE DID.
i ASKED
FIM IF HE UMDERSTOOD WHAT A LAWYER WAS AMD HE SAID THAT HE
DID. I ASKED HIM IF HE OMDERSTOOD THAT HE DIDN'T HA^'E TO
TALK TO ME RIGHT NOW AND HE SAID THAT HE DID.
THEN HE MADE
OUESTIONED ABOUT VlAS HE A SUSPECT AND I TOLD HIM THAT AT
THIS POINT I DIDM'T HAVE ENOUGH FACTS TO SAY WHETHER HE WAS
OR WAS NOT A SUSPECT AND THAT I WAS JUST GOIMG TO ASK HIM
WHERE HE WAS LAST NIGHT, WHAT HE DID,
AMYTHING ABOUT KENDALL'S DEATH, AND HE IMMEDIATELY SAID HE
10
11
AJMD
IF HE KNEW
WOULD B'ULLY COOPERATE WITH ME.

O.
AND IS I'T- NOT CORRECT THAT HE BEGAN TO EXPLAIN
12
THE COURSE OF EVENTS TO VOU FROM THE NIGHT OF THE iSTH OF
13
MARCH OVER INTO THE EARLY MORNING HOURS OF APPROXIMATELY:
14
9*00 O'CLOCK OR SO ONCE THE YOUNG GIRL WAS FOUND TO BE
15
MISSING'S^
WOULD THAT BE A FAIR STATEMENT?
16
A.
YE S,
17
Q,
AlID
VOULD
l i
AJ-IOO
iSîxi
ji
^ ^^.^^
^ j.j^^j-.i.î-*i-L
^^.^-^
18
INITIAL COMMENTS TO YOU WOULD NOT IN ANY *AiAY INDICATE ANY
19
WRONGFUL INVOLVEMENT SY HIM IN THE YOUNG GIRL'S DEATH?
20
A.
THAT IS CORRECT.
21
n.
WHAT HAPPENED AFTER THAT POINT, CAN YOU TELL US^
22
A.
WELL, AFTER HEARING WHAT HE HAD TOLD ME, I TObu
9'^
HIM 'fHaT f -fiffu'v THAT MAYBE HE WAS INvCiLvED.
24
HIM ABOUT THE SITUATION OF THE HOUSE. THAT IT WAS LOCKED
2'^
UP. THERE WAS MO INDICATION OF ANYONE BREAKING IN, NO
SUPERIOR COURT
I EJ.PLAINED TC
INDICATION OF ANYONE BREAKING OUT.
HOUSE WAS SECURED.
3
4
THE
AND WE DISCUSSED THAT AND HE AGREED.
WHEN YOU SAY HE AGREED, DO YOU MEAN HE
ACKNOWLEDGED THAT THE RESIDENCE WAS LOCKED.
A,
THAT'S CORRECT,
O.
THE NIGHT BEFORE THE GIRL WAS FOUND TO BE
MISSING?
A,
THAT'S CORRECT -
Q.
YOU WERE BRIEFED ON WHAT WAS FOUND AT THE SCENE,.
10
Q,
IT WAS JUST
AS FAR AS PHYSICAL EVIDENCE; IS THAT NOT CORRECT?
11
A.
YES.
12
0,
WHEN YOU SAY THE HOUSE WAS NOT BROKEN INTO, WOULD
13
IT BE FAIR TO SAY THERE WAS NO OBVIOUS SIGN OF BREAK-IN
14
THROUGH ANY MEANS
15
j^,
16
IN THE HOUSE.
17
o.
THERE WAS NO OBVIOUS SIGNS OF FORCED ENTRY AT ALL
AFTER THAT BRIEF CONVERSATION DO YOU RECALL
18
MAKING THE STATEMENT TO HIM SOMETHING TO THE EFFECT THE
19
BEST THING WOULD BE TO TELL THE TRUTH AND THAT YOU WEREN'T
20
THERE TO JUDGE HIJl?
21
A.
THAT IS CORRECT-.
22
Q.
WHAT OCCURRED NEXT THAT YOU RECALL?
23
A,
I BELIEVE WE BEGAN TALKING ABOUT ME EXPLAINING TO
24
HIM THAT I WAS JUST THERE TO GET THE TRUTH AND THAT IT WAS
25
BEST F O R H I M TO T E L L M E T H E T R U T H A N D A T LEAST H A V E AN
^
SUPERIOR COURT
pnoenix Arizona

? I
EXPLAHATIOH FGR WHAT KAPPEHSD.
2
3
0,
AT THAT POIMT IN TIME WOULD YOU DESCRIBE HIS
EMOTIONAL STATE FOR US, IB' YOU RECALL =
CALM.
A.
HE
HE HADN'T CHANGED AT ALL,
VERY COOPERATIVE.
HE WAS vERY
SOB'T SPOKEN, AS HE IS,
Q.
DID HE APPEAR EMOTIONALLY AGITATED IN ANY WAY?
A=
NOT AT THAT POINT, NO.
Q.
DID HE APPEAR TO BE UPSET IN ANY WAY?
A.
NO.
10
Q.
WAS HE CRYING?
11
A-
NOT AT THAT POINT, NO.
12
O.
DID YOU, IN THE COURSE OF THOSE STATEMENTS THAT
13
YOU JUST TOLD US, RECALL HIM MAKING THE COMMENT "DO VOU
14
REALIZE WHAT YOU'RE ASKING OF ME?"
15
A.
YES,- I DO.
16
o,
NOW; YOU PREPARED A REPORT, DID YOU MOT, OF YOUR
18
A.
YES,
19
Q.
17
20
INTERVIEW WITH HIM?
AND IF SOMETHING IS PUT IN YOUR REPORT IN QUOTES,
21
WOULD THAT BE MORE OR LESS A DIRECT QUOTE FROM THE
22
IMDIVIDUAL ?
23
A.
THAT WOULD BE, YES.
2d
O-
DID HE SAY TO YOU, '^WHAT DO YOU THINK MY BROTHER
25
WILL THIHK OF MS?"
SUPERIOR COURT

?s
A.
THAT IS CORRECT.
Q.
WHAT.DO YOU RECALL HIM SAYIMG AFTER THOSE TWO
COMMENTS WERE MADE?
A,
I BSLIEVE HE BEGAN DISCUSSING THE POINT OF --
IMDICATIMG WHAT IF HE WAS INVOLVED, BUT THEN HE QUICKLY
SAID I'M MOT ADMITTING IT; BUT LET'S JUST SAY WHAT IF I AS
INVOLVED, WHAT WOULD HAVE HAPPEMED OR WHAT WOULD HAPPEN TO
ME?
0.
ME SAID THAT TO YOU?
10
A-
YES.
11
Q.
WHAT DID YOU SAY IN RESPONSE, IF ANYTHING?
IV!
ii.
I TOLD HIM THAT HE WOULD BE PLACED UNDER ARREST
13
AND HE WOULD BE PUT IN JAIL AND CHARGED WITH MURDER,
14
O.
DO YOU RECALL HIM SAYING, AGAIN, "LET^S JUST SAY
15
I DID DO IT, BUT I'M NOT ADMITTING TO IT, LET'S JUST SAY I
16
DID.
17
GOING TO JAIL?"
-i Q
WOULD THERE BE ANYTHING I COULD SAY TO KEEP FROM
WH" D I D
DO YOU RECALL HIM MAKING THAT COMMENT?

.
19
Q,
DID YOU MAKE A RESPONSE 'TO HIM?
20
A.
YES, I DID.
21
Q.
WHAT DID YOU SAY TO HIM?
0,0.
A-
I TOLD HIM T H E R E W A S N O T H I N G T H A T H E COULD SAY T O
23
24
25"
KEEP HIM FROM GOING T O J A I L ,

O,
DO Y O U R E C A L L H I M A S K I N G YOTJ, "DO Y O U THINK I DID
IT B Y MYSELF?''
<4
SUPERIOR COURT
Phoen5.x.- Arizona

'A'î
Al - YES, HE DIB ASK THAT.
2 -
O,
AND WHAT DID YOU SAY, IF ANYTHING, IM RESPONSE?
-^,
_^^
I TOLD HIM I DIDN^T KNOW.
I TOLD HIM I DIDN'T
KNOW WHETHEE HE HAD DONE IT BY HIMSELF,
HIM TO TELL ME THE TRUTH AND THAT IF" SOMEONE ELSE WAS
INVOLVED WITH HIM. I MOULD EXPECT HIM TO TELL ME MHO THAT
PERSON WAS AND TO TELL ME THE ENTIRE TRUTH OF WHAT
.HAPPENED,
9
10
0.
I ONLY EXPECTED
DID HE PROCEED TO TELL YOU FACTS THAT IfssDICATED
HE WAS INVOLVED IN THE DEATH OF KENDALL WISHOH?
11
A,
YES, HE DID.
10
DT^^ YOU AT ANY TIME THREATEN MICHAEL GALLEGOS?
13
A.
NEVER.
14
O.
DID YOU MAKE HIM AMY TYPE OF PROMISES IN EXCHANGE
15
16
17
18
FOR ANY FORM OF ADMISSION OR CONFESSION?

A,
O.
NEVER.
DID YOU COERCE HIM IN ANY WAY TO MAKE ANY TYPE OF
INCULPATORY STATEMENT?
19
A.
ABSOLUTELY NOT,
20
Q.
AT ANY TIME DURING THE INTERVIEW YOU HAD WITH
21
MICHAEL GALLEGOS. DID HE EVER REQUEST TO HAVJi AN ATTORWEV?
22
A,
ABSOLUTELY NOT.
23
Q,
YOU'RE POSITIVE?
24
A.
I AM POSITIVE=
25
O,
IF HE WOULD HAVE ASKED FOR AM ATTORNEY, MOULD YOU
SUPERIOR COURT
Q,
WHO WOULD THAT PERSON BE?
A.
DETECTIVE MIKE CHAMBERS.
Q,
HOW LONG DID THE SECOND INTERVIEW LAST,
3
4
APPROXIMATELY?
A.
10, 15 MINUTES; MAYBE.
Q.
DID YOU AT THAT SECOND INTERVIEW NOTE AMY
SUBSTANTIALLY DIFFERENT FACTS THAN WHAT YOU WERE GIVEN
DURING THE FIRST INTERVIEW?
9
10
A,
NO.
THE SECOND INTERVIEW HE O'UST BRIEFLY WENT
OVER WHAT HAD TRANSPIRED.
11
Q.
WERE ANY THREATS MADE TO MR. GALLEGOS?
12
A,
ABSOLUTELY NOT.
13
Q.
DID YOU PROMISE HIM ANYTHING DURING THE SECOND
14
INTERVIEW?
15
A.
ABSOLUTELY NOT.
16
O.
DID YOU COERCE HIM IN THE SECOND INTERVIEW?
17
A.
ABSOLUTELY NOT.
18-
Q.
AT THE SECOND INTERVIEW DID HE SAY HE WANTED THE
19
SERVICES OF AM ATTORJJSY?
20
A=
HE DID NOT.
21
O,
ARE YOU SURE?
22
A.
ABSOLUTELY.
23
Q-
DID YOU ATTEMPT TO GET AM
24
25
EXCUSE ME-
STRIKE
THAT.
WAS THERE A TIME WHEN YOU TRIED TO HAVE A TAPED
J
SUPERIOR COURT
Phoenix - Arisona

96
A.
HE SAYS, "I THINK YOU DID IT."
O.
OKAY.
A,
I DENY IT.
Q.
OKAY.
WHAT'S YOUR RESPONSE TO THAT?
NOW,- PRIOR TO HIM SITTING DOWN AND
BEGINNING THIS CONVERSATION, YOU'VE HEARD HIM TESTIFY THAT
HE WENT THROUGH THIS EXPLANATION OF MIRANDA RIGHTS. BY
HAVING YOU PHYSICALLY READ THE CARD.
NOW, DID THAT HAPPEN AS DETECTIVE SALDATE HAS
10
HE SITS DOWN AND HE BEGINS THE CONVERSATiON WITH,-
TOLD THE COURT?
11
k.
NO,, SIR.
12
Q.
HOW DID IT HAPPEN?
13
A,
IT HAPPENED AFTER I HAD GIVEN THE CONFESSION,
14
Q.
OKAY.
15
A.
HE HAD READ ME MY RIGHTS.
16
O,
OKAY.
17
A.
YEAH,- I READ THE CARD.
18
Q.
AND WHEN DID THAT HAPPEN?
19
A,
AFTER THE CONFESSION WAS GIVEN.
20
Q.
OKAY.
21
AND IS THAT BEFORE YOU ARE ~
YOU CONFRONT
MR. SMALLWOOD?
22
A,
YEAH.
23
O.
OKAY.-
24
25
DID HE EVER GIVE YOU THE CARD TO READ?
NOW, THE ONLY PERSON IN THAT ROOM AT THAT
POINT IN TIME IS YOU AND DETECTIVE SALDATE CORRECT?

.
A.
YES,- SIR.
^
SUPERIOR COURT
Phoenix, Arisona

Q7
1
2
Q-, THERE'S NO TAPE RECORDER; IS THAT RIGHT?
A.-
NO TAPE RECORDER.
Q.
WE'VE HEARD DETECTIVE CHAMBERS SAY HE TOOK SLIGHT-
NOTES.
I>S T'HAT A FAIR ASSESSMENT?
NOTES, WAS HE TAKING A FEW NOTES
WAS HE TAKING LOTS OF
A.
FAIR.
Q.
OKAY.
Q.
AT ANY POINT IN TIME DID YOU EVER ASK FOR A
LAWYER?
10
A.
YES, I DID.
11
Q.
WHEN?
12
A.
I ASKED FOR IT AFTER I
BEFORE I HAD GIVEN THE
13
CONFESSION, REPEATED TIMES DURING THE CONFESSION AMD AFTER,
14
AND HE WOULD JUST IGNORE MY REQUESTS FOR COUNSEL.
15
O.
WHAT WOULD YOU SAY TO HIM?
16
A.
I WISH TO BE REPRESENTED BY COUNSEL,
17
Q.
OKAY.
18
IS THAT EXACTLY HOW YOU SAID IT
OR DID YOU SAY I WANT A LAWYER OR WHAT?
19
20
DID YOU
A.
YEAH, I SAID I WANT A LAWYER AND I SAID NUMEROUS
TIMES I WANT COUNSEL,
21
Q.
OKAY.
23
A.
HE WOULD JUST LOOK AT ME AND JUST KEEP WRITING,
24
Q.
HE BASICALLY IGNORED YOU WHEN YOU SAID THAT?
25
K,
LIKE IT WENT IN ONE EAR AND OUT THE OTHER.
22
WHAT WAS DETECTIVE SALDATE ^S REACTION TO
THAT?
SUPERIOR COURT
Phoenix, Arizona

QR
''*"'"
DID HE KEEP SPEAKING WHEN YOU WOULD SAY THIS OR
WOULD HE STOP AND LISTEM AND KEEP OM, OR HOW WOULD THAT
HAPPEM?
A.
IT WAS JUST LIKE I DIDN'T SAY ANYTHING.
Q.
OKAY.
YOU'VE HEARD DETECTIVE SALDATE TELL THE
COURT THAT HE TOLD YOU THAT HE BELIEVED YOU WERE INVOLVED^
A.
YES.
Q.
DID HE SAY THAT TO YOU?
A.
YES.
10
Q.
WHEN DID HE SAY THAT TO YOU?
11
A,
HE SAID THAT AT THE BEGINNING OF THE
12
Q^
'
INTERROGATION -
13
Q.
OKAY.
AND YOU'VE ALSO HEARD HIM TESTIFY THAT
14
YOUR RESPONSE WAS BASICALLY A DENIAL.
15
WHAT?
IS THAT FAIR OR
16
A.
YEAH.
17
O.
WHAT DID YOU RESPOND?
18
A.
HOW DID I RESPOND?
19
Q,
YES.
20
A . I
21
Q.
WHAT WAS HIS RESPONSE TO THAT?
22
A.
HE GOES, "NO,"
23
DENIED IT.
HE GOES, ''DON'T LIE TO ME,
GOT ALL NIGHT,"
24
Q.
DID HE SAY ANYTHING ELSE?
25
A.
HE SAID, "DON'T LIE AND TELL THE TRUTH."
<^
SUPERIOR COURT
Phoenix, Arizona
WE

118
CHRONOLOGICAL AGE OF THE DEFENDANT AND THE APPARENT MENTAL
AGE OF THE DEFENDANT AND THE EDUCATIONAL LEVEL OF THE
DEFENDANT, HIS PHYSICAL CONDITION, HIS PRIOR EXPERIENCE
WITH THE POLICE, AND THE MANNER IN WHICH HE CONDUCTED
HIMSELF AT THE HEARING TODAY, INDICATE TO ME THAT IT'S
APPROPRIATE TO TREAT HIM AS AN ADULT AND THAT HE HANDLES
HIMSELF FAIRLY WELL AS AN ADULT.
ON THE BASIS OF THE RECORD THE COURT FINDS THAT
THE STATEMENTS MADE BY THE DEFENDANT TO DETECTIVES SALDATE
10
AND CHAMBERS WERE MADE INTELLIGENTLY, KNOWINGLY,- AND
11
VOLUNTARILY.
12
FRANB:LY,
I MUST STATE I AM UNABLE TO BELIEVE THE
13
DEFENDANT WHEN HE ASSERTS THAT ~
14
CONSTITUTIONAL RIGHTS NUMEROUS TIMES AND THAT DETECTIVE
15
SALDATE IGNORED THEM,
16
GIVE HIM HIS CONSTITUTIONAL RIGHTS UNTIL AFTER HE HAD
17
CONFESSED,
18
MADE BY THE DEFENDANT WERE NOT THE RESULT OF FORCE,- THREATS
19
OR PROMISES OF LENIENCY AND THE STATEMENTS WERE MADE AFTER
20
THE DEFENDANT WAS PROPERLY ADVISED OF HIS CONSTITUTIONAL
21
RIGHTS AND THAT THEREFORE THE STATEMENTS OF THE DEFENDANT
22
MADE TO THE DETECTIVES SALDATE AND CHAMBERS ARE ADMISSIBLE-
23
HE ASSERTED HIS
AND THAT DETECTIVE SALDATE DID NOT
I FIND TO THE CONTRARY, THAT THE STATEMENTS
YOU WON'T NEED TO FILE A BRIEF, MR, STALZER,
24
WASN'T SURE PRIOR TO THE EVIDENTIARY HEARING WHETHER I
25
WOULD NEED MORE OR NOT ON THAT.
^
SUPERIOR COURT
Phoenix, Arizona
EXHIBIT H
9iv-0389-.
?)
DEC - 9 1994
<
NOELK.DESSAINT
CLEF^^PREMECOUFrr
3:
"i"i;
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 5d^' 3:
33
3
4
PLAINTIFF,
NO.
VS.
MICHAEL STEVEN GALLEGOS,
DEFENDANT.
AUG " 5 1991
10
NQELK.DESSAINT
K
^CLERK SUPREME C0UR7|/
PHOENIX, ARIZONA
MARCH 7, 1991
11
CR 9 0 - 0 3 3 3 9
12
13
14
B E F O R E
: THE HONORABLE JEFFREY A. HOTHAM, JUDGE.
15
16
REPORTER'S TRANSCRIPT OF PR^
17
MOTIONS
18
JURY TRIAL
-.tis^s?
CLERK U S DtSTRiCittCOyHT
DISTRICT OF A f l i l O N ; ! ^ .
19
BY
20
Ojir^-p^^.
21
22
23
PREPARED FOR APPEAL
24
25
(ORIGINAL)
OFFICIAL COURT REPORTER.
ISCOVERY^D COMRDENTIAL MATERIAL

40
m
1
ROOF, HITTING THE v'SROUND DIRECTLY BELOW,
BREAKFAST.
SAID, SURE ENOUGH, IT WAS RAIM THAT I HEARD.
SEE IT?
AWARENESS, BUT BY YOUR SENSES, YOUR COMMON SENSE, YOU DRAW
THAT CONCLUSION.
7
8
9
(^
YOU LOOKED OUTSIDE.
CIRCUMSTANTIAL.
YOU HAD
YOU SAvv' MOISTURE AND YOU

BUT DID YOU
YOU HAVE NO ACTUAL FIRSTHAND
THE WEIGHT YOU GIVE EITHER ONE IS UP TO YOU.

LAW DRAWS NO DISTINCTION.
GETTING YOU TO THE ULTIMATE DESTINATION, THE
10
FACTS, THE REAL GUTS OF THE BOOK, THE REAL POINTS IN
11
BETWEEN A AND B ON^,OUR ROAD MAP, YOU'RE GOING TO HEAR
12
PROBABLY FROM A FEW POLICE OFFICERS OR DETECTIVES.
13
GOING TO HEAR FROM THE VICTIM'S MOTHER.
14
HEAR FROM THE DEFENDANT'S FAMILY MEMBERS POSSIBLY.
15
THE
YOU'RE
YOU'RE GOING TO
YOU WILL HEAR WHAT MAY BE IN THIS CASE POSSIBLY
16
SOME STIPULATIONS, AND STIPULATIONS AMOUNT TO AN AGREEMENT
17
BETWEEN THE PARTIES, THE STATE AND THE DEFENSE, THAT A
18
CERTAIN FACT EXISTS, SUCH AS THE CAR WAS RED.
19
WANT TO BELIEVE IT OR DISBELIEVE IT, AGAIN, IS UP TO YOU TO
20
WEIGH THAT EVIDENCE, TO ACCEPT HOW MUCH YOU BELIEVE OR HOW
21
MUCH YOU DISBELIEVE.
22
WHETHER YOU
THE KEY IN THIS CASE WILL FALL WITH TESTIMONY BY
23
DETECTIVE SALDATE,
IT MAY FALL WITH THE TESTIMONY OF THE
24
MEDICAL EXAMINER WHO IS CURRENTLY IN SAN DIEGO FOR
25
SOMETIME, DR. BOLDUC.
THE ISSUE TO FOCUS ON IS WHAT IS
O
SUPERIOR COURT
Phoenix, Aris&na

bO
OUR DECISION TO PICK YOU.
2
3
MAGNITUDE, I BELIEVE, UNLESS YOU HEAR FROM HIM.
WILL.
DETECTIVE SALDATE. ' HE WILL TELL YOU OF HIS RESPONSIBILITY
IN THIS CASE; THAT HE IS RESPONSIBLE.
MR. SMALLWOOD.
LITERALLY BEAR HIS SOUL TO YOU SO THAT YOU CAN MAKE A FAIR
AND ADEQUATE DECISION IN THIS CASE.
10
YOU CAN'T MAKE THAT DECISION IN A CASE OF THIS

AND YOU ' ""'
HE WILL GET UP AND HE WILL TELL YOU WHAT HE TOLD
HE WILL TELL YOU OF
MY CLIEMT WILL GET UP THERE AMD HE WILL
NOW, PROCEDURALLY WHAT'S GOING TO HAPPEN HERE IS
11
THAT THE STATE IN ANY TRIAL, IN ANY CRIMINAL TRIAL, HAS THE
12
BURDEN OF PROCEEDING FIRST.
13
EVIDENCE FIRST, OR THEY WILL CALL ALL THEIR WITNESSES AND
14
AT THAT POINT THEY WILL REST AND WE WILL PROBABLY TAKE A
15
SHORT BREAK FOR A WHILE, AND THEN WE WILL COME BACK AND
16
BEGIN AGAIN, ONLY AT THAT POINT IN TIME THE DEFENDANT GETS
17
TO PRESENT HIS CASE,. HE GETS TO PRESENT HIS EVIDENCE.
18
AT THE CONCLUSION OF THE DEFENDANT'S EVIDENCE, THE CASE IS
19
BASICALLY OVER.
I WILL GET TO COME BACK UP HERE ONCE MORE
20
TO TALK TO YOU.
MR. STALZER WILL GET TO COME UP TWICE,
21
THEY WILL PUT ON THEIR
AND
NOW, THE REASON THE STATE PROCEEDS FIRST IS
22
BECAUSE THEY HAVE THE BURDEN.
AS YOU ALL ALREADY KNOW, AS
23
WE SIT HERE RIGHT NOW, MR. GALLEGOS WHO IS SITTING OVER
24
THERE IS PRESUMED TO BE INNOCENT.
25
HAVE SWORN TO THAT,
HE IS INNOCENT,
YOU
IF WE STOPPED THIS RIGHT NOW, HE WOULD
^
SUPERIOR COURT
Phoenix, Arizona
EXHIBIT I
9iv-0389-.
?)
DEC - 9 1994
<
NOELK.DESSAINT
CLEF^^PREMECOUFrr
3:
"i"i;
33
3
4
PLAINTIFF,
NO.
VS.
DEFENDANT.
AUG " 5 1991
10
NQELK.DESSAINT
K
PHOENIX, ARIZONA
MARCH 7, 1991
11
CR 9 0 - 0 3 3 3 9
12
13
14
B E F O R E
15
16
17
MOTIONS
18
JURY TRIAL
-.tis^s?
19
BY
20
Ojir^-p^^.
21
22
23
PREPARED FOR APPEAL
24
25
(ORIGINAL)

57
A.
YES.
Q.
COULD YOU TELL US WHO LIVED IN THE RESIDENCE WITH
3
4
YOU AND JERRY?

A.
AT FIRST IT WAS ALL OF US, ALL FOUR
ALL THREE
CHILDREN.
OKLAHOMA, BUT IT WAS JULIET SMALLWOOD, GEORGE SMALLWOOD,
KENDALL, AND MYSELF AND JERRY.
8
9
Q.
BUCK WHEATON LIVES WITH MY EX-HUSBAND IM
IN THE MONTH OF MARCH, 1990, WAS JULIET LIVING OW
HER OWN?
10
A.
YES.
11
Q.
DID SHE HAVE HER OWN APARTMENT OR LIVING WITH A
12
FRIEND?
13
A.
14
15
16
COULD YOU TELL US A LITTLE BIT.

YES-
SHE WAS AN ASSISTANT MANAGER OF A STORE,
AND SHE MOVED OUT AND GOT HER OWN APARTMENT WITH A FRIEND.
Q.
SO THAT LEFT YOU AND JERRY
WAS BUCK LIVING
WITH YOU AT THE TIME?
17
A.
NO.
18
Q,
WAS HE LIVING WITH HIS FATHER?
19
A.
YES,
20
Q,
WAS THERE A TIME WHEN GEORGE MOVED OUT OF THE
21
HE WAS THERE DURING THE SUMMERS.
HOUSE?
22
A.
YES.
23
Q.
WOULD YOU TELL US ABOUT THAT.
24
A,
IN NOVEMBER
25
O.
WOULD THAT BE NOVEMBER OF 1989?
SUPERIOR COURT

58
A.
YES.
Q,
WHAT OCCURRED AROUND THAT TIME?
A,
HE MOVED TO FLAGSTAFF TO TRY AND FINISH SCHOOL UP
THERE.
Q.
WHO DID HE LIVE WITH UP IM FLAGSTAFF?
A,
NAN AND JERRY GALLEGOS.
Q.
IS THAT A RELATIONSHIP TO YOUR HUSBAND JERRY?
A.
YES.
Q,
IN WHAT WAY?
10
A.
HIS PARENTS. ,
11
O.
DID JERRY HAVE ANY BROTHERS OR SISTERS?
12
A.
YES.
13
Q,
WAS ONE OF THEM MICHAEL GALLEGOS?
14
A.
YES.
15
Q,
IS MICHAEL HERE IN THE COURTROOM?
15
A.
YES.
17
Q.
IS HE THE PERSON SEATED NEXT TO MR. CLARK?
18
A.
YES.
19
Q,
WHAT HIGH SCHOOL DID GEORGE ATTEND IN FLAGSTAFF?
20
A.
C0C0NIN9 HIGH SCHOOL.
21
Q.
WAS GEORGE FRIENDS WITH MICHAEL GALLEGOS?
22
A.
YES.
23
Q,
DID MICHAEL ATTEND SCHOOL?
24
A.
YES.
25
Q.
WAS THAT ALSO THE SAME COCONINO HIGH SCHOOL?
#
SUPERIOR COURT

59
A.
YES,
O, IN MARCH OF 1990, WOULD IT BE CORRECT PEOPLE
LIVING OM FULL-TIME BASIS WOULD BE YOU, JERRY, AND KENDALL?"'
A.
YES.
Q.
LET ME SHOW YOU WHAT HAS BEEN PREVIOUSLY MARKED
STATE'S EXHIBIT 1 FOR IDENTIFICATION PURPOSES.
DIAGRAM.
IT'S THIS
CAN YOU SEE IT OKAY FROM WHERE YOU ARE SEATED?

A,
YES,
10
Q.
DO YOU RECOGNIZE IT?
11
A.
YES .
12
Q.
WOULD YOU TELL THE JURY HOW YOU RECOGNIZE THE
13
DIAGRAM?
14
A.
15
AVENUE.
16
Q.
HOW MANY BEDROOMS DID YOU HAVE IN THE HOME?
17
A.
THREE. ,
18
Q.
DID YOU HAVE ANY SPECIAL SLEEPING ARRANGEMENT
19
20
21
22
23
IT'S THE LAYOUT OF THE HOME WE LIVED ON, ON 71ST
BETWEEN THE THREE OF YOU IN THE HOUSE?

A.
WELL; JERRY AND I WERE IN THE MASTER BEDROOM; AND
KENDALL HAD HER OWN ROOM, AND THEN THERE WAS A SPARE ROOM.
Q.
WHICH BEDROOM ON THE DIAGRAM WOULD INDICATE THE
BEDROOM KENDALL WOULD OCCUPY?
24
A.
THE UPPER LEFT.
25
Q.
AND I'M PUTTING A PEN IN THIS ONE ROOM HERE AS I
SUPERIOR COURT
EXHIBIT J
9iv-0389-.
?)
DEC - 9 1994
<
NOELK.DESSAINT
CLEF^^PREMECOUFrr
3:
"i"i;
33
3
4
PLAINTIFF,
NO.
VS.
DEFENDANT.
AUG " 5 1991
10
NQELK.DESSAINT
K
PHOENIX, ARIZONA
MARCH 7, 1991
11
CR 9 0 - 0 3 3 3 9
12
13
14
B E F O R E
15
16
17
MOTIONS
18
JURY TRIAL
-.tis^s?
19
BY
20
Ojir^-p^^.
21
22
23
PREPARED FOR APPEAL
24
25
(ORIGINAL)

130
1
2
Q.
YOUR BROTHER MICHAEL OR GEORGE SMALLWOOD?
3
4
IM THE AFTERNOON, ON THURSDAY, DID YOU EVER SEE
A.
IN THE AFTERNOON, LATE AFTERNOON, AFTER, SAY,
QUITTING TIME?
YES, I DID.
0.
WHERE WOULD THAT HAVE BEEN?
A,
THEY CAME DOWN TO MY frfORK.
Q.
DO YOU KNOW HOW THEY GOT DOWN TO YOUR EMPLOYER'S
LOCATION?
A,
YES.
10
GEORGE'S TRUCK.
11
THE BACK,
12
13
O,
GEORGE DROVE
BOTH OF THEM DROVE IN
GEORGE DROVE,. AND THEY WERE SITTING OUT IN
WERE THEY WAITING FOR ALL THE WORKERS TO LEAVE
AND BASICALLY THE WORK PLACE TO SHUT DOWN FOR THE EVSMING?
14
A.
YES, SO WE COULD WORK ON THE VEHICLES,
15
Q.
COULD YOU TELL US WHAT WAS GOING ON AS THE
16
WORKERS LEAVE AMD YOU START HAVING THEM COME INTO THE
17
ESTABLISHMENT TO .HELP THEM WORK ON VEHICLES?
18
A.
AS FAR AS?
19
Q.
WHAT WERE THEY DOING?
20
A,
OKAY.
WHAT WERE YOU DOING?
I WAS HELPING MICHAEL WITH HIS
21
TRANSMISSION, WHICH WAS OUT OF THE CAR AND ON A BENCH,
22
I WAS HELPING GEORGE WITH THE FRONT END, TIE RODS, OF HIS
23
JSEP,
24
25
Q,
AND
DID YOU NOTICE ANYTHING UNUSUAL ABOUT EITHER
YOUNG MAN WORKING ON THE RESPECTIVE AUTO PARTS, OTHER THAN
SUpKRiOR COURT
O
\-. J^ r?^ -t^ A
T-.J'
"A "j-' ~
FT 1-1 --^ -

131
&
1
MAYBE NOT KNOWING ALL THE TECHNICAL STUFF YOU MIGHT KNOW?
A.
NO. THEY WERE
^'
Q-
DIB THEY BOTH APPEAR TO BE MORMAL AS YOU NORMALLY"
WOULD OBSERVE THEM ON ANY GIVEN DAY?
A.
YEAH.
Q,
HOW LONG DID YOU,- GEORGE, AND MICHAEL STAY AT
A.
WELL, WE GOT OFF AT ABOUT
LATE AFTERNOON?
I GOT OFF ABOUT
4:30. IT WAS DARK BY THE TIME WE GOT HOME.
IT'S HARD TO-
10
SAY. IT WAS PROBABLY ABOUT 7;00, 7:30, 8:00.
11
KNOW.
12
13
Q.
I DON'T
WHEN YOU WERE IN THE SHOP, IT'S MID-MARCH, IS IT
HOT, COLD, OR COMFORTABLE WORKING ON THE VEHICLES?
14
A.
WHEN THE SUN WENT DOWN, IT WAS COMFORTABLE.
15
O.
DID YOU, YOUR BROTHER, OR GEORGE HAVE ANYTHING TO
16
DRINK THAT EVENING?
17
A.
YES, WE DID.
18
Q.
COULD YOU TELL US WHAT YOU WERE DRINKING?
19
A.
BEER,
20
Q,
ALL OF YOU?
21
A.
I GAVE THEM SOME BEER, YES, I DID.
22.
Q,
HOW MANY BEERS DID YOU GIVE TO GEORGE SMALLWOOD,.
23
24
THEY SEEMED OKAY TO ME.
YOUR EMPLOYER'S THAT EVENING OR EARLY
THEY WERE BOTH LEARNING,
25
THE BEST YOU CAN REMEMBER?

A.
WELL, IT'S HARD TO SAY,
I WAS
LIKE I SAID, I
WAS WORKING ON BOTH, HELPING BOTH, AND BOUNCING AROUND,
SUPERIOR COURT
Phoenix, Ai'isona

132
IT'S HARD TO SAY.
A COUPLE, THREE.
REALLY WASN'T KEEPING TRACK.
IBON'T KNOW,
Q,
WERE YOU DRINKING AMY BEER THAT EVENING?
A.
YES, SIR.
Q.
KIND OF RELAXING WITH THE BOYS, O'UST NOT WORKIHG
REAL HARD LIKE YOU NORMALLY DO?
A,
YES, SIR.
Q.
DO YOU REMEMBER HOW MANY BEERS YOU MAY HAVE BEEN
DRINKING AT THE SHOP?
10
A.
ME?
11
Q.
YES, SIR,,
12
A,
I GUESS PROBABLY RIGHT AROUND FIVE OR SIX,
13
Q.
AT THE TIME YOU AND THE YOUNG MEN WERE LEAVING,
14
DID YOU NOTICE ANYTHING UNUSUAL AS FAR AS THEIR SOBRIETY?
15
A.
NO.
16
Q.
DID YOU NOTICE ANY SLURRED SPEECH BY EITHER
17
I REALLY WASN'T PAYING ATTENTION.
GEORGE OR MICHAEL?
18
A.
NO.
19
Q.
WOULD YOU SAY THEY APPEARED TO BE NORMAL AS THEY
20
NORMALLY ARE AMY DAY OF THE YEAR?
21
A.
I GUESS FROM WHAT I REMEMBER
22
Q,
WHEN YOU LEFT THE SHOP, DID YOU LEAVE WITH GEORGE
23
24
25
AND MICHAEL IN THfi SCOUT?

A,
NO,
GEORGE HAD
WENT HOME AMD HE FOLLOWED US
DOWN THE ROAD, AND WE STOPPED AT A
SUPgRIOR COURT
Phoenij?, Arizona
I GUESS LT WAS A

133
m
1
2
Q.
HOW MUCH BEER DID YOU BUY?
A.
I WOULD SAY ABOUT A CASE,
4 -
Q.
DO YOU REMEMBER WHAT KIND?
A,
KEYSTONE,
Q.
AND AFTER PURCHASING THE BEER, DID YOU PROCEED
A.
I WENT HOME.
Q.
WOULD THIS BE THE TIME OF NIGHT SOMEWHERE BETWEEN
7:30 AND 8:00 O'CLOCK?
11
A.
APPROXIMATELY.
12
Q.
DO YOU REMEMBER WHAT HAPPENED ONCE YOU AND
13
MICHAEL ARRIVED AT HOME?
WAS GEORGE THERE?
14
A.
YES.
15
O.
WHAT DID THE THREE OF YOU DO WHILE AT THE HOUSE?
16
A.
WELL, WE ALL SAT OUT IN THE CARPORT, AMD I TOLD
17
GEORGE W E L L , HE JUST TURMED 18.
18
THE TIME.
19
GAVE THEM SOME MORE BEER.
I THINK HE WAS 18 AT
AMD I SAID YOU GUYS CAN HAVE SOME BEER, AND SO I
20
O.
HOW MUCH BEER DID YOU GIVE HIM AT THE CARPORT?
21
A.
WELL, I GUESS THEY HAD ABOUT MAYBE TWO OR THREE
22
DIRECTLY HOME OR DID YOU GO TO ANOTHER LOCATION?
10
WALGREEKS AND I'GOT SOME MORE BEER,
EACH.
I'M NOT SURE,
23
O.
DID YOU HAVE A COUPLE MORE BEERS THAT EVENING?
24
A.
YES, I DID,
25
Q,
WERE YOU OR MICHAEL OR GEORGE DOING ANY TYPE OF
SUPERIOR COURT
Phoenix, Arizona

134
1
2
WORK OUTSIDE IN THE CARPORT?

A.
I WAS JUST
I WAS JUST TINKERING WITH MY TRUCK
AND JUST CHECKING THE OIL AND SHINING IT.
STUFF.
5
6
Q.
JUST BASIC
VfflEN YOU WERE DOING THOSE ACTIVITIES, WERE GEORGE
AMD MICHAEL IN THE IMMEDIATE AREA WITHIN THE CARPORT?
A,
YES=
8 .
Q.
WERE THEY DOING ANY WORK OF ANY SORT ON THE
VEHICLES OR HELPING YOU?
10
A.
WELL, EVERYBODY WAS DOING THEIR OWN THING,
11
REALLY.
12
WORKING ON HIS SCOUT.
13
OF THE HOUSE AND GETTING SOMETHING TO EAT, WHATEVER,
MIKE WAS WORKING ON HIS TRUCK, AND GEORGE WAS

JUST EVERYBODY" WAS JUST IN AND OUT
14
Q.
WHO MADE DINNER THAT EVENING?
15
A>
I DON'T REMEMBER.
16
Q.
DID YOU MAKE DINNER?
17
A.
NO.
18
Q.
WAS KENDALL HOME THAT EVENING?
19
A,
YES.
20
0.
WAS SHE INSIDE OR OUTSIDE?
21
A.
SHE WAS INSIDE.
22
Q,
WAS THERE A TIME WHEN YOU EVENTUALLY WENT INSIDE
23
TO THE HOUSE?
24
A.
OH, YEAH.
25
Q,
DID MICHAEL AND GEORGE ALSO COME IN AT SOME POINT
SUPERIOR COURT
'P H -^ i:2L -n -1 "v"
^ -v" T ? r-,f, ta

13 5
m
1
IN TIME?
A.
YEAH, THEY DIB.
Q.
I KNOW IT'S A TOUGH QUESTION, WHAT WOULD BE ABOUT
THE EARLIEST THAT YOU CAM REMEMBER AS FAR AS THE ACTUAL
TIME BETWEEN WHEN YOU CAME INSIDE AND THE OTHER TWO MEN
WERE THERE ALSO?
A.
ALL DONE TINKERING, TALKING, WHATEVER, I GUESS IT WAS
10:00, 10:30.
10
11
THE APPROXIMATE TIME, I GUESS BY THE TIME WE GOT
0.
I'M NOT SURE.
DID YOU SEE KENDALL WHEN SHE WAS IM THE HOUSE
THAT EVENING, AROUI^jD 10:00?
12
A.
IT WAS PROBABLY A LITTLE EARLIER THAN THAT, I
14
Q,
DID SHE TALK TO YOU?
15
A.
WELL, SHE HAD
16
SHOWER,
17
AND PUT HER PAJAMAS ON.
13
DID,
SHE HAD JUST GOTTEN OUT OF THE
T WAS O'OKING AROUND WITH HER.
AND THEN SHE WENT
18
0.
DID SHE GIVE YOU A KISS AND GO TO BED?
19
A,
NO,
20
Q,
WHEN YOU WERE INSIDE, DID YOU DO ANYTHING SPECIALu
THAT WAS PROBABLY THE ONLY NIGHT SHE HADN'T,
21
INSIDE THE HOUSE WITH ANY OF THE OTHER TWO MEN, GEORGE AND
22
MICHAEL?
23
A.
WELL, I EVENTUALLY WENT IM AND TOOK A SHOWER BY
24
THE TIME EVERYBODY WAS IN, AND THEY WERE PLAYING A NINTENDO
25
GAME.
SUPERIOR COURT
Phoenix, Arizona
EXHIBIT K
9iv-0389-.
?)
DEC - 9 1994
<
NOELK.DESSAINT
CLEF^^PREMECOUFrr
3:
"i"i;
33
3
4
PLAINTIFF,
NO.
VS.
DEFENDANT.
AUG " 5 1991
10
NQELK.DESSAINT
K
PHOENIX, ARIZONA
MARCH 7, 1991
11
CR 9 0 - 0 3 3 3 9
12
13
14
B E F O R E
15
16
17
MOTIONS
18
JURY TRIAL
-.tis^s?
19
BY
20
Ojir^-p^^.
21
22
23
PREPARED FOR APPEAL
24
25
(ORIGINAL)

122
1
2
REDIRECT EXAMINATION
BY MR. STALSER^
Q.
CINDY, WHO ENROLLED GEORGE INTO COCOMINO HIGH
SCHOOL?
A.
MRS, GALLEGOS.
Q.
MR, CLARK ASKED YOU SOMETIME AGO SOME QUESTIONS
ABOUT YOUR MEMORY OF WHAT HAPPENED ON THAT FRIDAY, THE
15TH.
WHAT WAS YOUR EMOTIONAL STATE IN THE AFTERNOON?
A,
10
Q.
YES.
^1
^'
I WAS REALLY HYSTERICAL.
12
IN THE AFTERNOON?
I WAS WAITING IN THE
CARPORT FOR MY FATHER TO GET THERE FROM BULLHEAD CITY.
12
Q-
YOU WERE ASKED ABOUT JULIET AND GEORGE GOING INTO
14
KENDALL'S ROOM.
15
THAT ROOM?
1^
A.
DO YOU KNOW IF ANYONE DIRECTED THEM TO
I TOLD THEM TO GO LOOK TO SEE IF HER CLOTHES WERE
17
GONE.
18
OUTSIDE, GOT UP BEFORE THE BOYS, AND WENT OUT TO PLAY.
19
WORE HER L.A. GEARS AND SPANDEX SHORTS, AND I KNEW IF SHE
20
GOT DRESSED, I SAID GO LOOK IN HER ROOM AND SEE IF YOU CAN
21
FIND THOSE L.A. GEARS.
22
SHOES AND SEE IF THEY'RE IN HER ROOM.
23
DRESSED, SHE WOULD HAVE PUT THEM ON.
2^
25
BECAUSE THE DETECTIVE WAS SAYING MAYBE SHE WENT
Q.
SHE
SHE ALSO HAD AN OLD PAIR OF RAGGEDY

BECAUSE IF SHE GOT
DO YOU REMEMBER THE NIGHTGOWN THAT I SHOWED YOU
EARLIER?
SUPERIOR COURT

123
m
1
A.
YES.
Q,
WAS THAT ONE OF THE ITEMS RETRIEVED FROM HER
A.
YES.
Q.
WAS ANY OTHER CLOTHING OR ITEM RETRIEVED?
A.
SOME UNDERWEAR.
Q.
A PAIR OF PANTIES?
A.
YES.
Q.
WHERE WERE THOSE ITEMS PLACED?
10
A.
ON THE KITCHEN TABLE.
11
Q.
DID ANYOiÊ TAKE THOSE ITEMS?
12
A.
IT WOULD HAVE HAD TO HAVE BEEN THE POLICE.
13
14
15
16
ROOM?
DIDN'T SEE ANYONE TAKE THEM.

Q.
WAS AiSfYTHING MISSING FROM YOUR HOUSE BROUGHT TO
YOUR ATTENTION THAT DAY?

A.
YES.
WHEN THE DETECTIVE WAS TAKING ME THROUGH
17
AND HE WAS LETTING ME KNOW THAT HE FELT IT WAS AN INSIDE
18
JOB, WHEN WE WERE IN HER ROOM, THERE WAS LIKE OIL ALL OVER
19
HER BEDDING, AND WHEN HE TOLD ME THAT, IT JUST CLICKED AND
20
I REMEMBERED
21
I HAD PUT A BOTTLE OF BABY OIL THERE BECAUSE WE HAD SOME
22
FRIENDS DOWN, COMPANY DOWN FROM FLAGSTAFF THE WEEKEND
23
BEFORE, AND SHE HAD LEFT HER BOTTLE OF BABY OIL THERE, SO I
24
PUT IT IN THERE SO THAT NEXT TIME I SAW HER I COULD RETURN
25
IT TO HER.
BETWEEN MY MIRROR AND MY BLUE WICKER STAND
AND I WENT INTO THE BATHROOM AND IT WAS GONE,
SUPERIOR COURT
Phoenix, Arizona
3
4
VS.
)
)
)
)
)
PLAINTIFF,
DEFENDANT.
NO. CR 90-03339
9
10
11
PHOENIX, ARIZONA
MjyiCH 11, ltSl
^f^
12
13
14
B E F O R E :
THE HONORABLE JEFFREY A.
HOTHAM, JUDGE.
15
16
17
JURY TRIAL
18
19
20
21
22
23
PREPARED FORI
24
PUBLIC DEFENDER
APPEALS DIVISION
(COPY)
25
CYNTHIA i. ZAMENSKI,
13
UNDERNEATH?
K.
NO,
I WASN'T LOOKING,
Q.
OKAY,
WHEN YOU WALKED INTO THAT ROOM WITH GEORGE
AND JULIET, WERE PEOPLE ACTUALLY DOWN ON THE GROUND LOOKING
FOR ITEMS, OR DO YOU KNOW?
A,
EVERYBODY WAS JUST LOOKING, LOOKING FOR CLUES,
7
8
DON'T KNOW,
Q.
OKAY,
THAT GEORGE FOUND UNDERNEATH THE DRESSER WERE NOT READILY
10
11
APPARENT?
MR. STALZERS
12
TO ITEMS.
13
THE COURT;
ARE YOU TELLING US, THEN, THAT THl ITEMS
OBJECTION TO THl FORM OF THE QUESTIOH AS
SUSTAINED,
14
15
BY MR. CLARK',
Q.
ARE YOU TELLING US THAT THl UNDERWEAR THAT GEORGE
16
FOUND WAS NOT READILY APPARENT WHEN YOU WALKED INTO THE
17
Ig
ROOM?
19
20
LOOKINO FOR THAT.

- a.
OKAY. WHEN HE FOUND THIS ITEM, THIS PAIR OF
21
UHDIEWEAE. WHAT DID HI DO?
22
STAND UP AND SAY, "LOOK WHAT I FOUND"?
23
24
OCCURRED.
A,
WELL, HE SAID, "HERE'S HER UNDERWEAR."
25
^,
Q.
I DON'T KNOW.
I WASN'T LOOKING.
I WASN'T
YOU WERl IN THERE.
DID HE GIVE THEM TO YOU?
b
SUPERIOR COURT
DID HE
DESCRIBE HOW THAT
14
A.
I DON'T REMEMBER.
Q,
OKAY.
A.
SHE FOUND HER
Q.
OKAY.
1^,
TOOK THEM IN AND PUT THEM ON THE KITCHEN TABLE.
Q.
DID SOMEBODY LATER RETRIEVE THOSE OR TAKE CUSTODY
10
A.
WHAT DID SHE DO WITH THAT SHIRT?
I GUESS SOMEBODY PICKED THEM UP, DETECTIVES OR
WHATEVER, BUT THEY

SOMEBODY.
^^
12
SHE FOUND HER SHIRT.
OF THEM?
8
9
WHAT DID JULIET DO?
Q.
YEAH, THAT'S WHAT HAPPENED.
I DON'T KNOW WHAT HAPPENED TO THEM.

OKAY.
AFTER YOU SEARCHED THE ROOM, THEN WHAT
HAPPENED?
13
A.
I JUST LEFT THE ROOM.
^^
Q.
OKAY.
AT THIS POINT IN TIME IT'S APPROXIMATELY
15
1130 OR A LITTLE BIT AFTER.
16
YOUR HOUSE NOW?
17
YOU KNOW?
18
19
A.
NO,
IS THERE STILL ONI POLICE OFFICER OR DO
THE CARS STARTED COMING.
Q.
OiaY.
22
A.
WHAT DO YOU MEAN?
23
Q.
WHAT DID YOU DO?
24
25
A LOT OF OFFICERS
STARTED SHOWING Uf.
20
21
ARE THERE A LOT OF POLICE IN
AND WHAT DO YOU DO WHEN THE OFFICERS SHOW
UFT
DID YOU SPEAK TO THEM?
DID YOU
CONTINUE YOUR SEARCH?

A.
NO.
I SPOKE TO THEM,
SUPERIOR COURT
HANDED OUT HER PICTURES,
miQR
COURT OF THE
FOE THE COUNTY OF
2
3
6
7
8
9
10
11
12
13
14
J I F F E I Y A<
F O
15
16
17
18
19
20
. 21
22
23
24
25
Qiitlilh
COUET ElfORTll

29
11
IT
ITEMS FOR EVIDI
OR sen
TILL US ABOUT THOSE IT!
12
(^
13
14
OR LEOTARD TYPE 1
AMD IT
16
Wl FOUMD'SOME RED STAINS

3S
A.
' T KHOW OF
YOU IDEWTIFI m SOME IXHIBITi
fl
13
15
17
FAMILYo
HAD BUM DISTURBIB BY ANY Of
K.
25
1 CMI'
AT THl TIME Of
36
rAMlLY MIGHT HAVE DOMl
THAT'S NOT MHAT I ASraO
YOU INDICATED TO MR.

11
TH&t
BIO YOU UOOK IN

HS DID LOOK, ASB HB BIB
OiaY.
BID VOU LOOK OUT IH .
;
,, IB. MmBLOOBM.
,H. C.0 WHBK. B .OUHB 0 S H m KSVS,YM OM THE GROUND.
^ ^
^^m. TM THAT SAMB B.RBA'
AND IN THAT
CM.BOM.. BOX. .KB - ^

A
.. O. ^ .BS. HIOH . . .S .... O.

Q^
WHAT TYPE OF
k. B '
EXHIBIT L
IH THE SUPERIOR COURT OF THE
STATE OF AllÔMA'
I AND FOR THE COUNTY

2
JUL 1 6 1991
3
4
5
6
7
STATE OF ARIÔHA.
plaintiffs
V8 ,
MICHAEL STEVIM GALLI
11
^
15
IS
If
IS
25
At first, it was my understanding after I got
2
there, that it was being handled as a missing person.
Ultimately they found the person dead,
a homicide, and they called our office.
that went out to that address and waited there.
Ultimately supervisors arrived and began to give
assignments, and, therefore, I ended up with the job as
case agent, or the person responsible for the actual
^^
12
3^3
murder case.
Q.
could you tell us a little bit more abut
what precisely is the case agent?

A.
well, the case agent is nothing
I mean, to
14
be the case agent, you are just, of course, one of the
15
detectives.
j^g
However, an assignment has to be made to
17
someone that has to look over the case.
18
that doesB't aean that he does everything in the case.
19
That just aans that other detectives that are working the
20
ca8 al report to you, and you're just a gathering point
21
of the reports.
22
W^
I was part of that team
10
A team was summoned.
Thusly, it became
He doesn't
You're also the person that's responsible for
23
going to all the hearings.
You're responsible for
24
basically the investigation of the case, if further
25
investigation needs to be done.
59
1
generally what he had told me to Detective MiKe Chamber,,

and I asked George If we could tape-record the interview,
and he said no, that he just didn't feel very comfortable

3
with going over it all over again, and that he felt very
4
5
comfortable with the fact that he had told .e everything.

O
7
8
9
10
11
L , ;
with Detective chambers present?

A.
There was more of a reinterview, but more of
li.e a highlight interview.
I told Mi.e to tell Detective
Chamber, generally what he had told ,e, and he went into

the fact about his admissions, what happened, that George
,,
was responsible with hi, and Just highlighted general
13
areas, admitting his guilt, adiuitting George's guilt,
,4
admitting the fact that they had disposed of the body, and
15
the fact th.t they also intended later -
1,
looking .or the body later on. and t h a f s when we asKed
1,
him about the tape-recorder and him not wanting to go
18
t.ir.u,h the whole story again, and I don-t blame him.
^,
IS it correct there was like a reinterview
Q.
both attended
in the course of some follow-up work by you.
20
did you at any time in the days following attend the
21
autopmy of Kendall Wishon7
22
A.
0 course.
^3
Q.
At the time of the autopsy, did you secure
24
any articles that would be used for any scientific
25
analysis at a later date?
EXHIBIT M
IK THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN mD
FOR THE COUNTY OF MARICOPA
^C ^
MICHAEL STEVEH GALLEGOS,
)
)
)
)
)
)
)
Defendants
STATE OF ARIZONA^
Plaintiff*
5
6
7
8
VS 9
CR 90-03339
9
Phoenix, Arizona
March 13. 1991
10
11
12
<^)
13
14
= ll%ToTT^^'sZllfr IIZT-
15
16
17
18
19
20
DONALD E MOLL
Court Reporter
21
22
23
w!)
24
25
: COPY
PREPARED FOR I
ON APPEAL
^^^^^^^
17
1
the witBess, and have on the record what he would respond
to those questions that he heard in my offer.
THE COURTi
All right,
Mr, Smallwood. what is your
intention, if you were asked the questions that Mr. Clark
is saying that he is going to ask you during the trial.
what is your intention about answering those questions?
THE WITNESS I
THE COURTi
Take the 5th
Are you telling me, sir, that you would
invoke the 5th Amendment privilege aa to each and every
10
one of those questions that Mr. Clark says that he may be
11
asking you?
12
THE WITNESSi
3^3
THE C O U R T I
Yes, sir
Mr. Clark, do you want to coranent on
14
the appropriateness of that invocation of his rights as to
15
all of the questions?
Ig
MR. CLAEKs
well. Judge, from my standpoint, I
17
don't believe that it would be an appropriate response to
18
all o the qmi^tions, but I do understand that he is
19
acting uadiir th advice of a lawyer, and 1 have no qualms
20
with that.
21
every question, but 1 understand what he is doing and why.
22
1 d^n't think it is proper to invoke it as to
THE C O U R T I
Mr. Stalzer, do you have anything that
23
you wish to say aa to the defendant being able to call Mr.
24
Smallwood as a witness and proceed now that we have heard
25
that he wishes, to invoke his 5th Amendment privilege?
18
fc\
MR STALZERi
is quite clear.
hearing right now
THE COURTS
No, Your Honor.
I think the case law
I don't have anything to add to this
Other than giving his name^ some
identifying features and biographical data^ I think that
this witness could legitimately refuse to answer
essentially all of the other questions^ the relevant
questions that would be propounded by the defense, and 1
have weighed the importance to Mr, Gallegos of calling
10
this witness versus the importance of Mr Smallwood'B
11
invocation of his right not to incriminate himself, and 1
^ ^ ^ 12
am, therefore/ going to rule that the witness, Mr.
^-^ 13
Smallwood, can properly invoke his 5th Amendment privilege
14
at this timep and he will be totally excused from
15
testifying^
^g
^ y
I understand that it somewhat impinges on Mr,
17
Gallegos' 6th Amendment rights, but I believe in this
18
situatioa that Mx. Smallwood's 5th Amendment rights are
19
equal^. important, and on that basis. I will not allow
20
the deen* to call Mr. Smallwood as a witness, because it
21
is obvious to me that he would be called, and would
22
properly invoke the 5th Amendment privilege, and, in my
23
view, even though 1 accept what you're telling me, Mr.
24
Clark, about some of the corroboration points, I think
25
that the main gist of what the jury, would get would be the
19
1
inference that Mr. Smallwood is equally guilty, if not the
only perpetrator here, and I don't think that that
inference is appropriate by being brought out by having
called Mr. Smallwood and having him take the chance.
Was there some other comment that you wanted
to make?
MH CLARK I No, Judge^
THE COURTi
step down
Thank you. sir.
You may
Youre excused from your subpoena.
j_Q
^ )
All right.
All right.
And. Mr, Stalzer. if you will,
11
over the lunch break, review with with the clerk what
12
eKhibits you still want to move in.
^^
^^^ Clark, does it make any difference to you
14
when we have argument on the remaining inflammatory
15
pictures that you -- the ones that you have described as
16
inflammatory?
^^
m.
CLAKKi
Judge, it really doesn't matter.
18
k B O w ' ^ poBttloa. already as to the majority of those
19
exhibl-^. w
20
don't hT any reason not to.
21
You
whether you want to do it later today, I
THE COURTI
Because of our time constraints, I will
22
keep under advisement the issue about the inflammatory
23
photos.
24
we'll resume the trial at li30
25
I appreciate your consideration on that, and
MR. CLARK!
Okay.
Judge. I assume that we're going
EXHIBIT N
IK THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN mD
FOR THE COUNTY OF MARICOPA
^C ^
MICHAEL STEVEH GALLEGOS,
)
)
)
)
)
)
)
Defendants
STATE OF ARIZONA^
Plaintiff*
5
6
7
8
VS 9
CR 90-03339
9
Phoenix, Arizona
March 13. 1991
10
11
12
<^)
13
14
= ll%ToTT^^'sZllfr IIZT-
15
16
17
18
19
20
DONALD E MOLL
Court Reporter
21
22
23
w!)
24
25
: COPY
PREPARED FOR I
ON APPEAL
^^^^^^^
s ,J:
U)
NO ie. was detected on vaginal or oral swabs.
Further, the stipulation being that items

2
ere submitted to CellmarK Diagnostic In Oernantown,
3
Maryland, and they were the following lte.s=
Three rectal
4
swabs, carpet, underwear, panty crotch, front and back;
5
filter paper labeled introitus l-n-t-r-o-l-t-u-s, left
6
buttocks and inner left thigh, along with blood samples
7
..o. Kendall Wishon. blood sa.ple of .eorge Sâllwood and
8
9
a blood sample from Michael Gallegos.

The results of their testing is as follows,
Hu,nan DNA was extracted fro. the itens listed above, and
T J
11
^2
insufficient .uanity of DHA was obtained fron, the carpet
13
,, continue any testing.
14
Obtained fron> the combined filter papers labeled
15
introitus. left buttocKs and upper left thigh due to an
16
insufficient quanity of human DNA.

DNA banding patterns were obtained from the
17
18
19
20
21
22
No DKA banding pattern was
three ebin.d r.ctal swabs, the material labeled

u n d e r . th. material labeled panty crotch, front and
baclc. th. blood ..mples of Kendall wishon. the blood
sample of George S.allwood and the blood sample of Michael
Gallegos
in a report of laboratory examination dated
^ 0
23
24
August 9. 1990. it was concluded that the D.A banding
,5
pattern obtained fro. the stained material labeled panty
1
>
crotch, front/ back, matches the DNA banding pattern

Obtained from the blood sample labeled Michael Gallegos.
The frequency in the Caucasian population for
3
4
another person being a contributor of the DNA banding
pattern obtained from the panty crotch and Michael
Gallegos is approximately 1 in 10 million.

The frequency in the Hispanic population for
7
8
another person being a contributor of the DNA banding
pattern obtained from the panty crotch and Michael
10
11
12
13
14
15
16
17
Gallegos is approximately 1 in 67 million.

That is the extent of the stipulations. Your
Honora
THE COURTi
20
21
22
Mr. Clark, do you agree
with the reading and so s t i p u l a t e ?

MR, CLARK I
Yes. I do. Judge
THE COURTI
Thank you. sir.
All right.
Thank you.
Mr. Stalzer.
tod. does the State rest at this time?
18
19
All r i g h t .
MR. STALZBRi
Your Honor, the State does reit at
this ti^
THE COURT I
Thank you^
Members the jury, the State having rested its
23
case, there are some legal issues that I am going to be
24
discussing with the lawyers, and rather than having you
25
wait around, what we're going to do is send you to lunch
-.L i'
EXHIBIT O
c\
.M
D E C - 9 1994
NOELK.DESSAINT
CLERK SUPREME COURT
'%te>
IN THE SUPERIOR COURT OB^r^â^DiAJ.ih \Js
IN AMD FOR THE COUNTY OF MARICOPA
2
3
4
PLAINTIFF,
VS.
MICHAEL^ STEVEN GALLEGOS,
)
)
)
)
)
)
)
)
)
)
DEFENDANT.
?-94-0389-AP
WT91~01#7^r
NO. CR 90-03339.
AUG - 5 1991
N0EL1C.DESSAINT
10
ay
^PHOEisilX, ARIZONA
MARCH 1 4 / ^ 1 9 9 1
11
12
-fe.^''
-g?
i-^
13
14
B E F O R E ;
THE HONOR^^LE JEFFREY A. HOTHAM, JUDGE,
15
16
REPORTER'S TRANSCRIF^^ OF PROCESSINGS
17
JURY TRIAL
ffLED
RECEIVED
. NOV:^ 8 ZO01
18
19
CLERK U S [ J U T B I C T G O U B T
BY
20
DfS-miCr QF A R i ^ N A
11 DEPUTY
21
22
23
PREPARED FOR APPEAL
24
25
(ORIGINAL)
CYNTaXA-#rÂMENSKI,
DISCOVERY AND CONFIDENTIAL yATERlAL
45
'" *
A V E R Y EMOTIONAL A N D TRYING T I M E FOR E V E R Y O N E , A N D Y O U A L L
A C T E D V E R Y WELL W I T H YOUR D E C O R U M , A M D T H A T , A L S O , IS V E R Y
H E L P F U L IN MAKING SURE T H A T A FAIR TRIAL W A S C O N D U C T E D .
I A L S O W A N T E D T O TELL Y O U T H A T I A P P R E C I A T E D YOUR A C T I O N S
A N D YOUR BEHAVIOR.
IF COUNSEL WILL PLEASE LEAVE YOUR PHONE N U M B E R S
W I T H M Y J U D I C I A L A S S I S T A N T , W E ' L L L E T Y O U KNOW IF W E H A V E A
Q U E S T I O N OR A V E R D I C T ,
> ^
So"
AND W E ' L L B E A D J O U R N E D N O W A T T H I S T I M E .
10
(A R E C E S S . )
11
(THE F O L L O W I N G P R O C E E D I N G S TOOK PLACE IN O P E N
12
COURT:)
13
THE COURT:
THANK YOU,
'
14
MEMBERS OF THE JURY, HAVE YOU REACHED A VERDICT?
15
JUROR CHRISTENSEN:
16
THE COURT:
17
YES, WE HAVE.
MR. CHRISTENSEN, WILL YOU PLEASE HAND ALL
THE VERDICT FORMS TO MY BAILIFF.
18
THE BAILIFF:
19
THE COURT:
THANK YOU.
THANK YOU.
20
MR. GALLEGOS/ WOULD YOU PLEASE STAND.
21
THE CLERK WILL PLEASE READ AND RECORD THE
22
23
VERDICT.
THE CLERK:
"WE, THE JURY, DULY EMPANELED AND SWORN IN
24
THE ABOVE ENTITLED ACTION, UPON OUR OATHS, DO FIND
25
DEFENDANT, MICHAEL S. GALLEGOS, GUILTY OF FIRST DEGREE
SUPERIOR COURT
Phoenix, Arizona
46
MURDER; UNANIMOUS
WHETHER IT WAS PREMEDITATED MURDER OR FELONY MURDER, SIGNED
SCOTT CHRISTENSEN, FOREMAN,"
^
5
6
7
AS TO FIRST DEGREE MURDER BUT SPLIT AS TO
"^^' '^^^ "ÛRY, DULY EMPANELED AND SWORN IN THE
ABOVE ENTITLED ACTION, UPON OUR OATHS, DO FIND DEFENDANT,

MICHAEL S. GALLEGOS, GUILTY OF COUNT II, SEXUAL CONDUCT '
WITH A MINOR, SIGNED SCOTT CHRISTENSEN, FOREMAN."
8
ARE THESE YOUR TRUE VERDICTS, SO SAY YOU ONE AND
9
ALL?
10
THE JURY:
11
THE COURT:
12
'^''''
13
YES.
THANK YOU.
MR. CLARK, DO YOU WISH TO HAVE THE MEMBERS

POLLED?
1^
MR. CLARK:
YES..
15
16
THE COURT:
MEMBERS OF THE JURY, MY CLERK WILL BE
17
18
19
ASKING YOU IF THIS IS YOUR INDIVIDUAL VERDICT.

HER KNOW, ONE BY ONE.
THE CLERK:
WILLIAM FULLER, ARE THESE YOUR TRUE
VERDICTS?
20
JUROR FULLER:
21
THE CLERK:
22
PLEASE LET
YES.
ROBERT CROWE, ARE THESE YOUR TRUE
VERDICTS?
23
JUROR CROWE:
24
THE CLERK:
25
JUROR ALDEN:
YES.
JULIE ALDEN, ARE THESE YOUR TRUE VERDICTS?

YES.
SUPERIOR COURT
Phoenix, Arizona
EXHIBIT P
MAR - 1 1 9 9 5
ClRK SUPREME COURT

1
FILED
3
4
MAR - 1 1 9 9 5
NOELK.DESSAINT
PLAINTIFF,
5
5
VS,
NO.
CR 9 0 - 0 3 3 3 9
CR-94-03 89-flP
DEFENDANT.
8
9
10
11
PHOENIX, ARIZONA
OCTOBER 24, 1994
12
13
14
15
B E F O R E
THE HONORABLE JEFFREY A. HOTHAM, JUDGE
16
17
18
19
20
RESENTENCING
21
22
23
PREPARED FOR APPEAL
24
25
(ORIGINAL!
SUPERIOR COURT
Phoenix, Arizona
180
EVIDENCE IN SUPPORT OF THE AGGRAVATING CIRCUMSTANCE AS SET
FORTH IN A.R.S. 13-703(F) 1, 2, 3, 4, 5, 7, 8, AND 10.
THEREFORE, THE COURT FINDS THAT NONE OF THESE AGGRAVATING
CIRCUMSTANCES ARE PRESENT IN THIS CASE.
AS TO STATUTORY AGGRAVATING CIRCUMSTANCE (F) 6,
THE COURT FINDS BEYOND A REASONABLE DOUBT THAT THE
DEFENDANT COMMITTED THE OFFENSE IN AN ESPECIALLY HEINOUS,
CRUEL OR DEPRAVED MANNER.
THE TERMS IN QUESTION ARE DEFINED IN
10
STATI_VS,_MAPP-
11
SUFFERED BY THE VICTIM, WHEREAS HEINOUS AND DEPRAVED GO TO
12
THE MENTAL STATE'AND ATTITUDE OF THE DEFENDANT AS REFLECTED
13
IN HIS WORDS AND ACTIONS.
^^
CRUELTY INVOLVES THE PAIN AND STRESS
THE DEFENDANT COMMITTED MURDER HERE IN AN
15
ESPECIALLY CRUEL MANNER BECAUSE KENDALL SUFFERED PAIN AND
16
MENTAL DISTRESS.
17
THAT SHE WAS CONSCIOUS AS SHE WAS BEING SUFFOCATED.
18
MEDICAL EXAMINER'S TESTIMONY INDICATED THAT THERE WERE
19
SEVERAL PREMORTEM INJURIES TO HER BODY, AND THAT IT WOULD
20
TAKE AT LEAST A MINUTE BEFORE GOING UNCONSCIOUS IF BOTH AIR
21
PASSAGES WERE COMPLETELY SHUT OFF.
22
THAT KENDALL AWOKE, MOVED AND TURNED HER BODY ON THE BED
23
AND LOOKED AT^HIM WHILE TRYING TO BREATHE AS SHE WAS BEING
24
SUFFOCATED, GRUNTED LIKE A PIG AS SHE WAS BEING SUFFOCATED,
25
STRUGGLED AS SHE AWOKE FURTHER, FLAILED HER ARMS, AND TRIED
THE COURT FINDS BEYOND A REASONABLE DOUBT
m
SUPERIOR COURT
Phoenix, Arizona
THE
THE DEFENDANT ADMITTED
181
TO PUSH HERSELF UP OFF THE BED AS HE HELD HIS HAND OVER HER
NOSE.
WAS FIGHTING FOR HER LIFE.
HE FURTHER ADMITTED THAT AS HE HELD HER DOWN, SHE
THE DEFENDANT COMMITTED THE MURDER IN AN
ESPECIALLY HEINOUS AND DEPRAVED MANNER BECAUSE OF THE
HELPLESSNESS OF THE VICTIM, BECAUSE IT WAS A SENSELESS
CRIME, AND BECAUSE OF THE GRATUITOUS VIOLENCE INFLICTED ON
THE VICTIM.
YEARS OLD, WEIGHED ONLY 57 POUNDS, WAS ONLY 4" 5" TALL, AND
THE VICTIM WAS HELPLESS IN THAT SHE WAS ONLY 8
10
WAS ASLEEP IN HER BED AT THE TIME OF THE ATTACK.
11
EASY PREY.
12
SENSELESS BECAUSE KENDALL LOVED AND TRUSTED THE DEFENDANT,
13
WHO ESSENTIALLY WAS HER UNCLE AND HAD KNOWN HER FOR SIX
14
YEARS.
15
COULD HAVE ACHIEVED HIS SEXUAL GOALS WITHOUT TAKING
16
KENDALL'S LIFE.
17
VIOLENCE ON THE VICTIM.
18
INTERCOURSE WITH THE VICTIM, THINKING THAT SINCE SHE WAS
19
ALREADY DEAD, HE MIGHT AS WELL FINISH UP WHAT HE STARTED.
20
THAT'S THE STANDARD DEFINITIONS FOR NECROPHELIA.
21
SHE NEVER HAD A CHANCE.
SHE WAS
THE CRIME WAS
THE CRIME WAS ALSO SENSELESS IN THAT THE DEFENDANT
THE DEFENDANT INFLICTED GRATUITOUS

HE ADMITTED THAT HE HAD HAD
THE
. MEDICAL EXAMINER TESTIFIED THAT THE INJURIES TO KENDALL'S
22
RECTUM WERE INFLICTED EITHER PREMORTEM OR CONTEMPORANEOUSLY
23
WITH HER DEATH AND AFTER THE INTERCOURSE HER -
24
VICTIM'S NUDE BODY WAS DUMPED ON THE GROUND AND ABANDONED.
25
THE
ADDITIONALLY, AS AN ELEMENT OF ANY HEINOUS AND
SUPERIOR COURT
Phoenix, Arizona
EXHIBIT Q
^v

STATE OF ARIZONA,
Plaintiff,
NO. CR 90-03339
vs.
Defendant
Phoenix, Arizona
December 1, 2000
9:10 a.m.
BEFORE:
The Honorable JEFFREY A. HOTHAM, Judge
^
APPEARANCES:
FOR THE PLAINTIFF:
Mr. Jon G. Anderson
FOR THE DEFENDANT:
Mr. Richard D. Gierloff
PREPARED BY:
Pamela D. Remus, RPR
PREPARED FOR:
MR. RICHARD D. GIERLOFF
Attorney at Law
k^
SUPERIOR COURT
1
2
outside.
I can't listen and hear everything with the
children making noises, please.

Go ahead, Mr. Gierloff.
3
Q.
the case?
7.
8
9
Thank you.
Do you recall making an opening argument in
5
6
BY MR. GIERLOFF:
A.
Absolutely.
Q.
Was your opening argument based on any
strategy or tactic?
10
A.
Yes.
11
Q.
What?
12
A.
Well, this was a case based upon my
13
recollection, and I haven't seen the file in a number of
14
years, but we had litigated pretrial in front of Judge
15
Hotham a number of issues. We had litigated specifically
16
whether or not to my recollection, Michael's confessions,
17
his statements were going to come in.
18
us.
19
look at the case, it was not a very good case for the
20
defense.
21
basically it was decided, and I discussed this with
22
Michael of my recollection of the opening statement is
23
that I mentioned in my opening that Michael would be
24
taking the stand.
25
clearly, that this was a case where he was basically
They were going to come in.
It was DNA.
Those went against
And factually when you
There was Michael's statements, and
I also mentioned, you know, quite
SUPERIOR COURT
guilty.
discussed this with Michael, and I subsequently wrote him
a letter about it. We were attempting to somewhat
mitigate through the evidence that we expected to come in
his ultimate responsibility.
He was charged with first degree murder.
opinion, his actions and the evidence was not suggestive
of a first degree.
his involvement as something less than that.
10
11
And what we were attempting to do, and I
Q.
I mean, it was a death case.

But, in my
We were attempting to at least portray
You mentiohed on not seeing the file in a
number of years.
I made several requests of you --
12
A.
You have.
13
Q.
-- over during my period of representation;
14
is that correct?
15
A.
Yes.
16
Q.
Did you ever provide me anything?
17
A.
I have never given you a file.
My
18
recollection, I believe, I indicated to you sometime ago
19
when you requested it was that I had pulled all of
20
Michael's files for, I believe it was John Antieau.
21
sat in my conference room for approximately three weeks
22
until -- and this was years ago -- until John actually
23
came and picked them up.
24
boxes, you know, there were these big large banker's
25
boxes, and some of them came apart and we actually taped
They
And I remember it because the
SUPERIOR COURT
49
1
r - ^ ,
^M
2
3
4
5
that.
I certainly asked him
I wanted to know that up front, you know, just to
know where we were going to go to a certain extent. But,

you know, it was a decision that was made in discussing it
with him.
Q.
And that was part of your defense strategy?
A.
Well, I don't know if it is necessarily a
was vehemently opposed to that.
part of it, but it was an event that I needed to know, and
.9
I would have liked to have known it pretrial or at least
10
pre-opening statement which we did, you know, and I don't
11
know if he could always characterize it as being strategy.
12
In this case it turned out to be, yes, it was.
13
14
Q.
It is a defense decision whether to testify
or not; isn't that correct?
15
A.
Yes.
16
Q.
Why not just rely on the defendant's
17
confessions to Saldate to tell the defendant's story?
18
19
20
21
22
23
24
25
A.
Well, you know, coming from a police officer
that's somewhat cold-hearted and dispassionate, and it is

a little bit worse than, you know, coming from a
defendant.
man.
I think in Michael's situation he was a young
He was 18 years old, you know.
sophisticated.
He was not
He was not somebody that was cold-blooded
and uncaring, and I thought that the jury needed to see

that, to see that he literally was a child.
SUPERIOR COURT
That he was
50
not, you know, the man that the State was trying to
portray him as.
Q.
3
4
12
13
15
18
22
23
24
25
A.
You know, I don't think he did.
No.
Q.
The defendant was able to provide some of
A.
It was my undertanding that he did, yes.
Q.
Saldate didn't testify about the defendant's
A.
I don't believe so, no.
Q.
You wanted to get jury sympathy for the
A.
Well, we attempted to.
Q.
Because basically you felt he was an honest
and polite young person?

A.
20
21
Saldate didn't testify to Mr. George
defendant, didn't you?
17
19
Q.
history of drinking?
14
16
Sure, yes.
that information?
11
A.
Smallwood's, past, did he?
10
And didn't the defendant testify on the
stand that he was sorry?
I mean, he was not that type of person.
You know, absolutely.
I mean, you know,
Michael, it was evident -- I mean, he came from a good

family.
I mean, I had met the family.
It was obvious
that, you know, he was not some, you know, poor, abused
mistreated child off the streets, a run-away type
situation.
I mean, he had a good, strong family.
SUPERIOR COURT
He had
EXHIBIT R
.'
-~
..
01/04/2001
CLERK OF THE COURT

FORM ROOOA
HON. JEFFREY A. BOTHAM
L. Chapman
Deputy
CR 90-03339
FILED:
STATE OF ARIZONA
ATTORNEY GENERAL
BY: JON G. ANDERSON
v.
MICHAEL STEVEN GALLEGOS (A)
RICHARD D. GIERLOFF
AZ DOC MAIL CODE 481
VICTIM WITNESS DIV-AG-CCC
MICHAEL STEVEN GALLEGOS

#85586
PO BOX 4000
FLORENCE AZ 85232
MINUTE ENTRY
On December 1, 2000, the Court conducted an evidentiary

hearing on Petitioner's claims of ineffective assistance of
counsel, and the matter was taken under advisement.
The Court
reguested supplemental briefing from the parties, and received
those memoranda.
The Court has considered all of the evidence,
the arguments of counsel, and the relevant case law.
IT IS ORDERED denying Petitioner's Petition for PostConviction Relief. A formal written Order is signed January 3,
2001 and filed (entered) January 4, 2001.
Docket Code 019
Page(~~
TJPERIOR COURT OF ARI ZONl)'
MARICOPA COUNTY
01/04/2001
HON. JEFFREY A. HOTHAM
CLERK OF THE COURT

FORM ROOOA
L. Chapman
Deputy
CR 90-03339
As to Petitioner's claims regarding ineffective assistance

of counsel, preliminarily, the Court has determined to apply the
standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), and not the standard from United
States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657
(1984).
Under)tbe facts of the present case the Court will not
presume prejudice because trial counsel's performance did not
constitute abandonment. The Cronic,. ~upra, exception is
reserved for these rare instances where defense counsel's
conduct is so egregious "that it is the functional equivalent of
actual absence of counsel."
Under the Strickland, supra, standard, Petitioner has the
burden of proving that: (1) counsel's performance was so poor
that it fell below an objective standard of reasonableness; and
(2) there is a reasonable probability that, but for counsel's
deficient performance, the result would have been different.
As to the first prong, the Court finds that Petitioner has
not sufficiently shown that trial counsel's performance was
deficient.
Because of the overwhelming evidence of Defendant's
guilt, it was reasonable for trial counsel to adopt a strategy
that could result in a conviction for a lesser-included offense
such as second degree murder or manslaughter, thereby avoiding
the death penalty.
This strategy was endorsed as acceptable
performance in State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260
(1997).
To make a request for manslaughter, as trial counsel
did in his closing argument here, it was important for him to
maintain credibility with the jurors, which might explaih his
tactics and his choice of wording used during his opening
statement.
His words about the "despicable conduct" of the
Defendant were harsh, but probably added to counsel's
credibility with the jury when pleading for manslaughter; there
simply is no way to sugar-coat the sodomization and murder of an
eight year old female child.
Docket Code 019
Page 2
rPERIOR COURT OF ARIZONA
MARICOPA COUNTY
01/04/2001
HON. JEFFREY A. BOTHAM
CLERK OF THE COURT

FORM ROOOA
L. Chapman
Deputy
CR 90-03339
Calling the Defendant as a witness was also reasonabl~
strategy because that was the only wayto emphasize the
Defendant's extreme intoxication that night, which was very
impo~tant to defeat the State's claim of premeditation and
specific intent.
The Defendant's testimony also ,raised the
issue of George Smallwood's complicity and the fact that it was
George who put his harid over Kendall's mouth, causing her death
by asphyxiation.
Even if the prong of deficient performance was proven,
Petitioner still would not be entitled to relief because he has
not proven the prejudice prong.
As mentioned previously, the
State's evidence was completely overwhelming: The Defendant
confessed twice to two different poiice detectives, and the DNA
evidence in Kendall's rectum linked to the Defendant was
devastating to the defense; all the other evidence corroborated
the Defendant's guilt. There is no reasonable probability that,
but for any errors made by trial counsel, the result of the
trial would have been any different.
Petitioner's other claims regarding ineffective assistance
of counsel have no merit.
Docket Code 019
Page 3
EXHIBIT S
C h i c a g o Neuropsychology Group
. 333 North Michigan Avenue, Suite 1801
C h i c a g o , Illinois 60601
Phone: 312-345-0933'
Facsimile; 312-345-0934
r-heilbronner@northwestem.edu
Director
Robert L. Heilbronner, Ph.D., ABPP-GN
Karen Wilkinson
'
Office of the Federal Defender Program
For the District of Arizona
Capital Habeas Unit
850 West. Adams Street, .Suite 201
Phoenix, A Z 85007
Re:
State, of Arizona v. Michael Gallegos
Dear Ms. Wilkinson,

I have completed a review of records and my evaluation of Mr. Gallegos and wanted to provide you
with, a summary of my opinions to date. A s you know, he has been tried and convicted of first degree
murder and sexual conduct with a minor. He was sentenced to death. His. case is currently in the Federal
habeas corpus phase. Mr, Gallegos was a senior i n high school at the time of the offense and was three
months short of graduating. He was in special education classes throughout Ms academic career,
including placement in classes for Emotionally Handicapped/Learning Disabled students. His history
includes three incidents with associated head trauma and the use/abuse of alcohol and other drugs. The
present evaluation was for the purpose of documenting his current neuropsychological ftmctioning.
Records Reviewed: School documents, Reports of Dr. Conordin and Dr. DiBacco, letter from Dr.
Shaw, Declarations from family members and friends, Presentencing Report, 'Sentencing transcript
(5/24/91), Resentencing transcript (10/24/94),. Arizona Department of Corrections medical re cords.
Results of Previous Examinations: M r . Gallegos underwent a Psychological Evaluation with Dr. John
D i Bacco in May, 1991: this was requested hy the Court tb answer specific questions pursuant to his
pending sentence, surrounding the first degree murder and sexual misconduct conviction. The issues to
be addressed at that time included: 1). A determination of whether, as of the time the defendant
committed the crime, his capacity to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a
defense to prosecution; 2). The defendant's ability to be rehabilitated; 3), If the defendant is
rehabilitatable, a recommendation for place, form and terms of rehabilitation treatment; and 4). Whether
the defendant is a danger to self, others and /or community and the best method for controlling that
danger.
Michael Gallegos
December 12, 2011
In his report, Dr. DiBacco writes that Mr. Gallegos informed him that he "...has had chronic learning
problems and, in fact, has participated in special education as a learning disabled student since
approximately the fourth grade." He also admitted that he has had ".. .chronic drug and alcohol problems
since approximately 14 or 15 years of age." Mr. Noah Stalvey, a juvenile probation officer indicated to
the Court (9/5/89) that Mr. Gallegos at the time "...had not developed the ability to think before he
acted." He said further that Mr. Gallegos tended to behave impulsively, without considering the
consequences of his behavior.
Mr. Gallegos admitted to Dr. DiBacco excessive drinking and marijuana use, as well as
methamphetamine use. He acknowledged a history of prior juvenile offenses that began in 1984, at
which time he was charged with a weapon offense and possession of a BB gun: he also had offenses for
marijuana possession and theft. He had been on probation but never did any jail time prior to this
incarceration. He participated in counseling in the past following his last juvenile offense, but he has
never received any treatment for drug and/or alcohol abuse. Mr. Gallegos reported to Dr. DiBacco that
he had suffered an injury in an ATC accident, but denied any subsequent physical problems. He was
suicidal when he was first arrested for the current offense.
Results of the cognitive assessment indicated that Mr. Gallegos showed below average scores on tests
measuring verbal comprehension and processing. It was felt that he may have difficulty with complex
material which may have to be reinforced and repeated to him. He did better on the performance
subtests, with scores suggesting at least average fluid intellectual abilities. This verbal-performance split
on the WAIS-R was felt to be not uncommon with learning disabled people. Dr. DiBacco wrote that Mr.
Gallegos was "not mentally deficient" although he may have some initial difficulty with more complex
verbal interaction. His judgment in socially problematic situations was suspect, but he did appear to
have the ability to understand the consequences of his behavior once he has committed himself.
Personality assessment indicated that Mr. Gallegos may have very poor social judgment and also may
not be able to benefit much from past experience. This was alluded to by his previous probation officer
(Mr. Stalvey). It was also felt that he probably had chronic problems with interpersonal relationships and
self-esteem which could impair his sexual functioning and also precipitate acting-out behavior. Further,
he may have significant repressed anger as a result of being misunderstood and oftentimes criticized. He
has little insight into what motivates and drives him and probably "...has never felt quite normal and
oftentimes may be confused by his own behavior." Dr. DiBacco also felt that Mr. Gallegos has "some
semblance of conscience" and has expressed some regret concerning what he had done to the victim. His
learning problems were felt to play a role in reducing his self-esteem and ability to interact normally
with others. His chronic drug use, more likely than not, was a means of establishing some status, as well
as self-medicating against what appeared to be rather chronic identity problems and depression. Dr.
DiBacco diagnosed Mr. Gallegos with: Axis I Adjustment Disorder with mixed emotional features;
Alcohol dependence; R/O alcohol abuse; cannabis dependence; R/O cannabis abuse; R/O psychoactive
substance abuse, NOS. On Axis II, Personality disorder, NOS, not anti-social, schizoid, and borderline
features.
Mr. Gallegos underwent an Individual Assessment Report with Dr. Nancy Cowardin in May, 2002 as
part of a federal habeas corpus proceeding. In her report, Dr. Cowardin does a comprehensive job of
describing Mr. Gallagos' educational background, including having been placed in self-contained
special education classes beginning in the 4th Grade, and having been diagnosed with one or more
cognitive disorders that impede academic learning. In her report, Dr. Cowardin identifies the impact of
Page 2 of 7
Michael Gallegos
December 12, 2011
learning and attentional disorders in childhood. She writes "...when a child like Michael has additional
difficulties involving emotional, attention, and language processing issues, LD (learning disability) can
present an insurmountable hurdle with lifelong effects." Dr. Cowardin goes on to write "LD is not
confined to school-age children as some people think, and this is because one's inborn processing style
affects the learning of social as well as academic information. Related deficits and the host of behavioral
ramifications that accompany them go well beyond the classroom, affecting learning and processing in
the world of work, domestic life, community use, and social interactions. To understand this, one must
remember that LD is a lifelong processing disorder. " Dr. Cowardin writes that "...the picture Michael
Gallegos presented as an 18 year old youth was not a promising one. His attentional deficits remained
untreated through medical sources; his language processing deficits continued to impede age-appropriate
communication; and only marginal, erratic academic progress had been made..." in spelling and math,
since the elementary grades. Furthermore, it is "...therefore reasonable to conclude that at the time this
crime was committed, Michael operated cognitively in much the same manner as a far younger child."
In her report summary, Dr. Cowardin concludes that Michael's "...low average composite profile
represents a normal intellect, yet significant attention, language, and information processing deficits that
compromise adult functioning." Learning style differences and attentional deficits involving slowed
reaction time, cycling peak performances, and extreme response variability were noted. His academic
skills, language fundamentals, and overall information processing were below expected levels based
upon years of educational attainment. It was Dr. Cowardin's opinion that Michael functioned at "...an
even lower levels at the time (of) his arrest in this matter,' further reducing his ability to self-advocate."
Executive decision-making skills were not fully developed as these typically develop in the late teens or
early twenties. She also felt that this had implications for Michael's limited capacity for personal control
and decision-making. Finally, Dr. Cowardin opined that the previous psychological examination (cited
above) that was done prior to his sentencing omitted important information, particularly with reference
to diagnose and explain educational deficits. She indicated that individuals with the types of deficits
Michael had "...are often at a loss in making appropriate adaptive decisions on confrontation, and can
be easily manipulated due to their outerdirectedness in social settings." She wrote, "It was therefore not
a surprise to learn that Michael neither preplanned nor initiated the crime on his own, but followed the
direction of another who he perceived as more competent.
Current Neuropsychological
Examination
Interview Information: Mr. Gallegos was interviewed in advance of the testing. At the outset, he
seemed to have a reasonable understanding of the purpose for the present evaluation, knowing that an
interview and testing would take place. He came across as an honest and reliable informant for personal
and current information.
Mr. Gallegos knows he has been convicted of 1st degree murder and sexual conduct with a minor,
arising from a March 16th, 1990 crime. He indicated that there were recently oral arguments in the 9th
Circuit Court citing ineffective assistance of counsel as a defense. He added that the attorney in the trial
phase of his case had not investigated nor asked the court to consider his history of learning disability as
a mitigating factor in his sentencing; the role of possible brain damage from three head traumas was also
not considered. There was very little emphasis directed towards relevant events preceding, during, and
subsequent to the crime. The focus on the interview was largely directed toward Mr. Gallegos's
background, including his history of education, alleged head trauma, substance abuse, and previous legal
infractions.
Page 3 of 7
Michael Gallegos
December 12, 2011
jMr. Gallegos finished the 11 Grade. He did not graduate from high school; the murder took place three
months before he was to graduate. He reports a history of learning disability and said that "math was the
toughest" subject. "Even when things were explained to me" he said, "I didn't follow." He reports that
he was in classes for children with learning disabilities from the 4th Grade up through his last year of
highschool. His use of substances is limited primarily to alcohol, marijuana, and methamphetamine but
he also said tried "acid and cocaine a few times" and also psilocybin mushrooms. He said that he would
mostly use substances on the weekends. On the day ofthe murder, he said that he had drank "Cutty Sark
and a whole bunch of beers. I was about as drunk as I've ever been" he said. "It would've been better if I
would've passed out." He said that he usually stayed away from hard alcohol because he would get sick
from it or "get into trouble."
Mr. Gallegos reports a history of head trauma when he was about 16 or 17 years old. He said that he and
a friend had been drinking at the time and he tried to jump over a flower bed, but fell backwards and hit
his head on a concrete block. He has no memory of what happened the rest of the night. On another
occasion, he was riding a 3-wheeler which apparently crashed; he recalls waking up on the living room
floor the next day and the back of his shirt was bloody. He did not go to the hospital. He said that he
"still has the bump on my head" and experienced headaches for awhile afterwards, but no other
symptoms. He described another event on a 3 wheeler when he hit the back of a tree and "was out for
awhile." He said that the helmet he was wearing came apart in six pieces. He does not recall
experiencing any symptoms after that event. Importantly, all three of these events include a period of
altered mental status and memory loss surrounding the incident (termed post-traumatic amnesia). This
indicates the occurrence of at least three concussions, if not more moderate to severe trauma to the brain.
Mr. Gallegos does not have a history of previous incarcerations. He said that his only previous legal
incidents were for: 1). shooting a BB gun; and 2). he once stole a scale to give to a dealer in order to
obtain marijuana. He was charged with theft and possession of stolen property and was placed on
probation until he was 18 years old.
Tests Administered: Wechsler Test of Adult Reading (WTAR), Wechsler Adult Intelligence Scale-4th
Edition (WAIS-4), Wechsler Memory Scale-4th Edition (WMS-4: select subtests), Wide Range
Achievement Test-4th Edition (WRAT-4), Repeatable Battery for the Assessment of Neuropsychological
Status (RBANS), California Verbal Learning Test-2 (CVLT-2), Brief Visual Memory Test-Revised
(BVMT-R), Trailmaking A & B, Delis-Kaplan Executive Function Scales (DK-EFS: select subtests),
Wisconsin Card Sorting Test (WCST), The Short Category Test, Boston Naming Test (BNT), tests of
verbal fluency, Visual Form Discrimination (VFD), Judgment of Line Orientation (JLO), Beck
Depression (BDI-2) Inventory, The Fifteen Item Test (recall & recognition), Test of Memory
Malingering (TOMM), Wender-Utah Rating Scale (WURS).
Test
Results
Validity & Test Interpretation Considerations: In order to assess effort, motivation, and potential
response bias on cognitive testing, performances on measures sensitive to malingering, erratic
performance, and invalid response patterns were assessed. Mr. Gallegos's scores on the 15 Item Test,
TOMM, Reliable Digit Span, and other embedded neuropsychological measures reflected no signs of
suboptimal performance. Taken together with his observed test-taking behavior, these test results
suggest that he put forth adequate effort and did not attempt to feign or exaggerate impairment
cognitive impairment. Thus, the current cognitive results are considered reliable and valid.
Page 4 of 7
Michael Gallegos
December 12, 2011
Intellectual/Academic Functions: Mr. Gallegos is presently functioning in the Borderline to Low

Average range of intelligence with a WAIS-4 FSIQ of 79 (8*%ile). This means that he scored lower
than 92% of those his age in the general population. The Verbal Comprehension Index (VIQ=102, 55th
%ile) is in the Average range; Perceptual Reasoning skills (PRI=82, 12th %ile) are in the Low Average
range. The 20 point discrepancy between the VCI and PRI is considered statistically significant and
reflects a significant weakness in the nonverbal realm compared to the verbal realm. This is contrary to
the pattern observed in 1991 in the examination with Dr. DiBacco. The Processing Speed Index
(PSI=76, 5th%ile) was Borderline and Working Memory (WMI=63, lst%ile) was Extremely Low,
representing a significant weakness relative to the other cognitive domains. Overall, Mr. Gallegos's
current IQ and Index scores are below the level expected for same age and education peers based on an
estimate derived from demographic factors (WTAR Demographic FSIQ=93) and based on word
reading skills (WTAR Reading FSIQ=103). However, his current verbal comprehension abilities are
generally at the level expected based on the word reading score.
Mr. Gallegos was given a number of measures to assess academic skills. A look at the profile reveals
scores that are below the expected level for someone who has completed 11 years of formal education.
A mild weakness was demonstrated on a task measuring Spelling (6.3 Grade). Written math skills (2.9
Grade) were the lowest and reflect a significant weakness in this domain. Like the IQ assessment, this
is a pattern of performance which has been evident throughout Mr. Gallegos's life and does not reflect
an acquired impairment as a result of a recent event or condition that might affect cognitive functions.
WRAT-4 Reading (12.9 Grade) was good, as reflected by his ability to simply spell words; he also did
well on the Sentence Completion (11.5 Grade) component.
Impaired Cosnitive Functions: Mr. Gallegos' scores on The Immediate (7th%ile) and Delayed (9th%ile)
Memory Index scores of the RBANS, a neuropsychological screening instrument, were mildly
impaired. His scores on other tasks requiring attention, concentration, and working memory skills were
also below expectation, even in the context ofthe present examination environment (e.g., one on one
with an examiner and relatively-free of external distractions). He demonstrated problems on tasks
measuring digit recall, mental arithmetic, and the RBANS Attention Index (SS: 53; 0.1%ile) was
severely impaired, largely accounted for by his low score on a task requiring processing speed, and it
represents a prominent weakness for him. His score on a complex sequencing task (Trails B) that
requires mental flexibility and set shifting abilities, was moderate to severely impaired. He also
performed poorly on tasks (DK-EFS Interference) requiring rapid visual processing, and response
inhibition; his score on the most difficult version was the lowest, suggesting problems screening out
the effects of interference. Mr. Gallegos had some mild problems on a task requiring the learning and
recall of visual information for simple (BVMT-R) material, although he showed improved learning
across trials and retained almost all of the information after a delay. His score on a phonemic fluency
task was moderately impaired. He had significant difficulty on the JLO, a task requiring him to
perceive and accurately judge the angles of lines, with the score falling in the severely defective range.
Intact Cosnitive Functions: Mr. Gallegos generally did well on most of the memory tasks, including
those requiring the learning and recall of auditory (e.g., a word list, short stories) and visuallypresented (e.g., figures) material, object naming, semantic fluency, proverb interpretation, and visualform discrimination skills. Mental and perceptual-motor processing speed and simple sequencing skills
were within normal limits. His scores on tests measuring verbal and nonverbal abstract reasoning skills
were average and below average, respectively. Tasks requiring nonverbal abstract reasoning and
cognitive flexibility were also performed without error.
Page 5 of 7
Michael Gallegos
December 12, 2011
Emotional Functions: Mr. Gallegos was administered the BDI-II to assess symptoms of possible
depression. He obtained a score of 19 which falls in the mild range. He endorsed a number of items,
most of them were emotional (e.g., pessimism, thoughts of past failures, feelings of guilt, selfcriticism) in nature, but also physical (sleep disturbance) ones. The score (32) on the WURS, a selfreport inventory inquiring about symptoms of possible Attention Deficit Hyperactivity Disorder
(ADHD) as a child, is not at a level to suggest this diagnosis.
Summary and Opinions: The current neuropsychological evaluation was warranted in order to
examine Mr. Gallegos' neuropsychological abilities with particular emphasis directed towards any
events or conditions which may have caused brain damage that was not previously evaluated in the
prior assessments. By his report, Mr. Gallegos sustained what appear to be at least three significant
head traumas when he was a youth: this was not explored during the trial or sentencing phases of his
case; it was also not investigated during the appeals process. He has history that includes objective
evidence of learning disabilities requiring special education in grammar school and high school. This
not only includes academic deficits (e.g., problems with verbal skills, attention, etc.), but psychosocial
deficits including gullibility, an external locus of control, tendency toward impulsivity, and being
easily led by others. This has implications for the events surrounding the murder back in 1989. Given
his age, educational deficits and inadequately developed higher level brain functions (previously
described by Dr. Cowardin), this limited his capacity to exercise good adequate judgment and to
defend against the direction of another who he perceived as more competent than he. Furthermore, his
slowed information processing speed also negatively affects his capacity to reason and think things
through, particularly in situations where rapid problem solving is required.
Results of the current assessment reflect neuropsychological impairment that is above and beyond that
which can be explained by the effects of limited educational background and a history of learning
disability. Mr. Gallegos' current intellectual abilities are in the borderline to low average range. Verbal
and nonverbal intellectual skills are significantly different from each other with nonverbal skills
representing a relative weakness. His verbal abilities are higher than they were in 1991 when he was
examined by Dr. DiBacco but they more closely approximate the verbal IQ score from the evaluation
with Dr. Cowardin. What brought down his current overall FSIQ score was the low scores on tests
measuring working memory and processing speed. These indexes were not available and thus not
utilized in generating the overall FSIQ score back in 1991, when Dr. DiBacco examined Mr. Gallegos.
Thus, this left an impression of a higher level of intellectual functioning. To the degree that other
neuropsychological abilities were not assessed by Dr. DiBacco it also had the potential to leave the
trier of fact to believe that Mr. Gallegos did not have any cognitive impairments, e.g., that".. .he is not
mentally deficient" and "...he does appear to have the ability to understand the consequences of his
behavior once he has committed himself (Page 4).
In my opinion, the improvement in verbal intellectual abilities in someone who has previously been
diagnosed as having a verbal learning disability is a product of having been incarcerated for over 20
years, indeed, such a lengthy incarceration has provided Mr. Gallegos with a structured environment
that has helped to improve his reading and other verbal comprehension abilities. Nonverbal intellectual
abilities remain largely the same (and may have even declined since Dr. Cowardin's assessment).
Beyond the intellectual and academic domains, Mr. Gallegos shows deficits in a number of cognitive
domains that were not assessed in either of the previous two examinations. He demonstrates a rather
concrete approach to solving problems and limited cognitive flexibility, thereby reducing the potential
to come up with alternative solutions to problems. This is particularly relevant in situations where
Page 6 of 7
Michael Gallegos
December 12, 2011
coming up with an alternative solution very rapidly is required. It is conceivable that these abilities
would have been even poorer back in 1989 when the crime was committed as Mr. Gallegos' brain was
even less developed back then, given his age and the associated lack of neural maturation that is
evident in the brains of adolescents, especially those with learning disabilities and in those who have
sustained brain damage as a result of multiple head injuries.
Overall, considering the history, interview information, and neuropsychological profile elucidated
above, it is my opinion that there is objective evidence of cognitive dysfunction reflecting brain-based
disturbances in functioning. In other words, the cognitive deficits cannot be explained by other factors
such as normal aging, psychological/emotional issues (e.g., depression, anxiety), or any other type of
current environmental stressors. It is my opinion, based upon all of the available information (e.g.,
records, interview, and test results), that Mr. Gallegos' brain damage was present at the time he
committed the crimes and is a significant factor to consider in the current habeas corpus case. The
brain damage played a role in the commission of the offense through a lack of planning and
organization (e.g., premeditation) and an impaired ability to consider the consequences of his actions.
In combination with the cognitive and psychosocial effects of a learning disability, this compromised
his capacity to inhibit and/or control his behavior at the time of the offense and also made him
susceptible to the influence of others.
The current neuropsychological profile satisfies criteria for a DSM-IV diagnosis of: Cognitive
Disorder, NOS (294.9). This is reserved for disorders that are characterized by cognitive dysfunction
presumed to be due to the direct physiological effect of a general medical condition that do not meet
criteria for any of the specific deliriums, dementias, or amnestic disorders listed in the DSM-IV. By
his report, at the time ofthe crime Mr. Gallegos was suffering from the effects of Alcohol Intoxication,
which also significantly limited his capacity to inhibit his impulses and to consider the consequences
of his actions. On top of a brain that was not fully developed, it appears to have had a synergistic and
negative effect.
I declare, under the penalty of perjury, that the information in this report represents an accurate and
true account of my opinions to date.
ff~2^
64iA^^ÂL.t^cCC
Robert L. Heilbronner, PhD, ABPP-CN

Director / Clinical Neuropsychologist
Page 7 of 7
EXHIBIT U
EXHIBIT V
Office of the
FEDERAL PUBLIC DEFENDER
for the District of Arizona
Capital Habeas Unit
Jon M. Sands
d i r e c t line.
Federal Public Defender
602-382-2744
,
^-^<M
email: laura_berg@td.org
March 25, 2013
Bill MontgomeryMaricopa County Attorney
301 W. Jefferson, Suite 800
Phoenix, AZ 85003-2143
RE: Request for Public Records
Dear Mr. Montgomery:
Pursuant to Arizona Revised Statutes 39-121, et seq., I am requesting an
opportunity to review and copy all files, records and other documents in your
possession pertaining to the investigation, arrest, incarceration, pre-trial
preparation, trial and any post-trial matters or proceedings in the matters of State of
Arizona v. Michael Steven Gallegos, Case No. 90-03339(A), and State of Arizona
v. George Anthony Smallwood, Case No. 90-03339(B), which were conducted in
Maricopa County, Arizona, including any and all files, records and other
documents relating to the investigation into the death of Kendall Wishon, which
occurred in March, 1990.
In addition, I am requesting an opportunity to review and copy all files,
records and other documents in your possession pertaining to former Phoenix
Police Department Detective Armando Saldate. The requested records pertaining
to Mr. Saldate are not limited to Mr. Saldate's participation in the Michael
Gallegos and George Smallwood matters, but also include any files, records and
other documents that relate to any complaints, investigations, or disciplinary
recommendations or actions concerning the performance and conduct of Mr.
Saldate in any criminal investigation or legal case.
In accordance with the procedures outlined in 39-121.01 (E), which
requires a "prompt" response, I am requesting a response from your office within
850 West Adams Street, Suite 201, Phoenix, Arizona 85007

(602) 382-2816 / (800) 758-7053 / facsimile (602) 889-3960
Request for Public Records

March 22, 2013
JL d & L w J**
five (5) business days, confirming that you received the letter and explaining your
position regarding this request. In the event that any records are deemed
unavailable for inspection, I am also requesting that your office furnish "an index
of records or categories of records that have been withheld" as provided by 39121.01(D)(2).
For the purposes of this request, the terms records and documents include,
without limitation, any and all written, typed, printed, recorded, graphic,
electronically or digitally stored, computer-generated, or other any other medium
for creation, storage or transmission of information, or from which information can
be derived, whether produced, reproduced, or stored on paper, cards, tapes, files,
electronic facsimiles, or computer storage devices. They include, without
limitation, letters, e-mail, text messages, memoranda (including internal
memoranda), calendars, schedules, books, notices, minutes, summaries or
abstracts, reports, files, recordings (including both video recording and audio
recordings), as well as any reproductions thereof that differ in any way from any
other reproductions, such as copies containing marginal notations.
Thank you for your assistance. If you have any questions or need additional
information, please contact me at your earliest convenience.
Sincerely,
.aura M. Berg
Asst. Federal Public Defender
Capital Habeas Unit
LMB/rs
EXHIBIT W
BILL MONTGOMERY
W E S T JEFFERSON STREET,
8 0 0
85003
PH. ( 6 0 2 )
TDD (602)
506-4352
FAX (602)
OFFICE OF THE MARICOPA COUNTY ATTORNEY

CUSTODIAN OF R E C O R D S
Administration Building, 301 West Jefferson Street, Suite 800
Phoenix, Arizona 85003
INVOICE
DATE:
2013
2013-0405-1
Number of Copies:
N/A
Other fees:
Two CD-Roms @ $0.60 each or two blank CD-Roms in trade
TOTAL PAYMENT:
or two blank CD-Roms in trade
Laura Berg, Federal

Name
850 W. Adams, Suite 201
Phoenix, AZ 85007
City, State, Zip
Signature (Requestor)
Custodian of Records
EXHIBIT X
^v

STATE OF ARIZONA,
Plaintiff,
NO. CR 90-03339
vs.
Defendant
Phoenix, Arizona
December 1, 2000
9:10 a.m.
BEFORE:
The Honorable JEFFREY A. HOTHAM, Judge
^
APPEARANCES:
FOR THE PLAINTIFF:
Mr. Jon G. Anderson
FOR THE DEFENDANT:
Mr. Richard D. Gierloff
PREPARED BY:
Pamela D. Remus, RPR
PREPARED FOR:
MR. RICHARD D. GIERLOFF
Attorney at Law
k^
SUPERIOR COURT
2
INDEX
-'-
Page
WITNESS:
CLARK, Greg
Direct Examination by Mr. Gierloff
Cross Examination by Mr. Anderson
Redirect Examination by Mr. Gierloff
33
54
CONTRERAS, Joe W.
Direct Examination by Mr. Anderson ,
Cross Examination by Mr. Gierloff
59
62
STERLING, George M.
Direct Examination by Mr. Anderson
Redirect Examination by Mr. Anderson
Recross Examination by Mr. Gierloff
63
67
68
69
STALZER, Louis
Direct Examination by Mr. Anderson
Redirect Examination by Mr. Anderson
70
74
80
GALLEGOS, Michael Steven

Direct Examination by Mr. Gierloff
Cross Examination by Mr. Anderson
Redirect Examination by Mr. Gierloff
82
88
90
EXHIBITS MARKED
Number
1
Description
Death Certificate
SUPERIOR COURT
Page
109
35
1
2
A.
No.
Q,
There were confessions in this case, weren't
A.
Yes,
Q.
There were two confessions; isn't that
A.
Yes.
Q.
There was also DNA evidence found in the
10
there?
correct?
victim's rectum that tied Michael to the crime?
11
A.
Yes, there was.
12
Q.
Did Hortencio Gallegos testify at trial
13
about Michael's fingernails?
14
A.
Yes.
15
Q.
Was that testimony better than the
16
17
18
photographs?
MR. GIERLOFF:
THE COURT:
20
Q.
22
Objection.
That seems awfully
argumentative or speculative.
19
21
^^
defendant, had participated in the death in this case?
Yes.
Rephrase the question, counsel.
BY MR. ANDERSON:
In your professional
opinion, was that better evidence than the photographs?

A.
Seeing as I had made the decision not to put
23
in those photographs for the reasons that I stated, I
24
mean, it was evidence that was descriptive, you know, from
25
somebody who would know that would corroborate what
SUPERIOR COURT
EXHIBIT Y
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
12/19/2013 8:00 AM
SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY
CR 1989-012631
12/18/2013
CLERK OF THE COURT

J. Matlack
Deputy
HON. ROSA MROZ
STATE OF ARIZONA
VINCE H IMBORDINO
v.
DEBRA JEAN MILKE (A)
MICHAEL D KIMERER
LORI L VOEPEL
LARRY L DEBUS
CAPITAL CASE MANAGER
UNDER ADVISEMENT RULING
The Court has considered the following: (1) States Memorandum Regarding Witness
Invocation of Fifth Amendment Privilege and Request for Hearing; (2) Defendants Preliminary
Response to States Memo to Correct Record re: Saldates Expressed Intent to Invoke 5th
Amendment Privilege and Consult with Counsel; (3) States Reply to the Defendants
Preliminary Response; (4) Defendants Responsive Memo re: Witness Invocation of 5th
Amendment Privilege and Request for Hearing; (5) Saldates Response to States Motion re:
Saldates Right to Invoke His 5th Amendment Privilege; (6) States (Second) Memorandum re:
Witness Invocation of 5th Amendment; (7) Defendants Response to States (Second)
Memorandum regarding Witness Invocation of Fifth Amendment Privilege; (8) Saldates
Supplemental Response to States Motion re: Saldates Right to Invoke his 5th Amendment
Privilege; (9) Supplement to Defendants Response to States (Second) Memorandum regarding
Witness Invocation of Fifth Amendment Privilege; (10) the Ninth Circuit opinion in Milke v.
Ryan1; (10) States Notice of United States Department of Justice Decision; (11) Notice of Letter
from United States Attorneys Office, and (12) oral arguments made.
1
711 F.3d 998 (9th Cir. 2013)
Docket Code 926
Form R000A
Page 1

MARICOPA COUNTY
CR 1989-012631
12/18/2013
Preliminary Matters
First, the Court wants to address the States contention that this Court should not have
asked whether Detective Saldate (Saldate) needed a lawyer before he testifies in this case. The
Court agrees with the State that courts do not generally inquire if witnesses need lawyers to
protect their rights when a conviction is overturned and a new trial is ordered. However, this is
not a normal case. The Ninth Circuit specifically referred Saldate to the United States Attorney
for the District of Arizona and to the Assistant United States Attorney General of the Civil
Rights Division, for possible investigation into whether Saldates conduct, , amounts to a
pattern of violating the federally protected rights of Arizona residents.2 This Court would be
remiss in its duties were it to ignore such an obvious issue.
Second, the parties have asked this Court to address whether the Ninth Circuits
interpretation of the eight cases cited in the Opinion can be challenged, or are subject to law of
the case or collateral estoppel determinations. This issue is the subject of a separate motion
filed by the defense and will be decided at a later date. The Court reviewed the information
about these eight cases at this time only for the purposes of determining the legitimacy of
Saldates invocation of his Fifth Amendment rights. While this Court does not fully agree with
the conclusions reached by the Ninth Circuit in every case, the Court finds that Saldate does have
a legitimate reason to fear prosecution arising out of his conduct in these cases.
Invocation of Fifth Amendment Privilege
At the December 13, 2013 hearing, Saldate confirmed that he is asserting his privilege
against self-incrimination. He further stated that if ordered to testify, he will testify consistent
with his previous testimony.
The court must assess the legitimacy of any claim of privilege.3 In assessing the claim of
privilege, the court considers whether the witness has provided a factual predicate sufficient for
the court to evaluate the claim of privilege,4 and whether the witness has demonstrated a
reasonable apprehension of danger.5
Id. at 1019-20.
See State v. McDaniel, 136 Ariz. 188, 193-195, 665 P.2d 70 (1983); State v. Cornejo, 139 Ariz. 204, 677 P. 2d
1312 (App. 1983); State v. Maldonado, 181 Ariz. 208, 211, 889 P.2d 1, 4 (App. 1 1994).
4 State v. Rosas-Hernandez, 202 Ariz. 212, 17, 42 P.3d 1177 (App. Div.1 2002)).
5 Flagler v. Derickson, 134 Ariz. 229, 231, 655 P. 2d 349, 352 (1982)(witness must apprehend a real and
appreciable danger of prosecution); United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir. 1998)(privilege
justified on showing of substantial and real, and not merely trifling or imaginary, hazards of incrimination).
Form R000A
Docket Code 926
Page 2
3

MARICOPA COUNTY
CR 1989-012631
12/18/2013
Factual Predicate:
Saldate was the main witness at the Defendants 1990 trial, at the Rule 32 hearing, and at
the federal habeas proceeding in 2010. The Court has reviewed the trial, the Rule 32/postconviction and the habeas proceedings and is familiar with the questions asked of Saldate. The
State confirmed that the relevant questions to be asked of Saldate by the State in any future court
hearings would be substantially similar to those previously asked. Additionally, the Court
anticipates questions from the Defendant related to the impeachment materials described in the
Ninth Circuit opinion.
THE COURT FINDS that Saldate has provided a factual predicate sufficient for the
court to evaluate the claim of privilege.
Reasonable Apprehension of Danger:
The Ninth Circuit opinion makes it clear that the court believed that Saldate lied under
oath or disregarded suspects constitutional rights and the court referred Saldate to the United
States Attorney for the District of Arizona and to the Assistant United States Attorney General of
the Civil Rights Division, for possible investigation into whether Saldates conduct, , amounts
to a pattern of violating the federally protected rights of Arizona residents. 6 As stated supra,
while this Court does not fully agree with the conclusions reached by the Ninth Circuit in every
case, the Court does find that Saldate has a legitimate reason to fear prosecution arising out of his
conduct in the cases cited by the Ninth Circuit. Furthermore, the Ninth Circuit concluded, in
advance, that if Saldate testifies consistently with his previous testimonies, he would expose
himself to a perjury prosecution.7
The State argues that Saldate does not have a reasonable apprehension of danger because
federal authorities declined to prosecute Saldate and the Maricopa County Attorneys Office
does not intend to prosecute Saldate for any past testimony.
A. U.S. Attorneys Letter
On August 30, 2013, the U.S. Attorney for the District of Arizona wrote a letter
indicating that it received an Order from the Ninth Circuit for a possible investigation of whether
6
Milke, 711 F.3d at 1019-20.

The Court is aware that a witness may not invoke the Fifth Amendment privilege in connection with the potential
for perjury charges related to future truthful testimony. United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir.
1998) (fear of perjury prosecution as result of future truthful testimony insufficient to support claim of privilege;
shield against self-incriminationis to testify truthfully, not to refuse to testify on basis witness may face
prosecution for lie not yet told.).
Form R000A
Docket Code 926
Page 3

MARICOPA COUNTY
CR 1989-012631
12/18/2013
Saldates conduct as identified in the Milke opinion constituted viable civil rights violations. It
concluded that any criminal prosecution would be barred by the applicable federal statute of
limitations period. As a result, this office declines to pursue charges for the referred conduct.8
Although the U.S. Attorney appears to have declined criminal charges, the declination is
very limited:
1. The U.S. Attorney only addressed viable civil rights violations and did not address
any possible federal perjury charges arising from any of Saldates testimony.
2. The U.S. Attorney declined prosecution on the basis of applicable federal statute of
limitations period. The applicable federal statute of limitations period is 5 years.9
While the statute of limitations may have run in reference to Saldates 1990
testimony, the statute of limitations has not expired for Saldates 2010 testimony.
3. If Saldate testifies consistently with his prior testimonies in future court proceedings,
he may be subject to prosecution under a theory of continuing conspiracy to violation
of civil rights because some of the defendants in the eight cases mentioned in the
Milke opinion are still serving sentences, and some are still in the process of
appealing their conviction.10 The statute of limitations does not begin to run until the
last overt act leading to accomplishment of the conspiracy was committed.11
Furthermore, as to the Defendant specifically, each time Saldate testifies against her
could be deemed a re-violation of her civil rights which would allow the statute of
limitations to begin anew.
4. This U.S. Attorney did not grant immunity for past acts or future testimony to
Saldate.
5. The U.S. Attorney specified that he cannot speak for any other prosecution agency
that may have, or have had, jurisdiction over Mr. Saldates conduct.
August 30, 2013 letter from Monica Klapper, Assistant United States Attorney, to Vince Imbordino, Deputy
County Attorney, attached to the Notice of Letter from United States Attorneys Office.
9 18 U.S.C., Chapter 213.
10 Exhibit A of the Supplement to Defendants Response to States (Second) Memorandum Regarding Witness
Invocation of Fifth Amendment Privilege.
11 Culp v. United States, 131 F.2d 93, 100 (8th Cir. 1942).
Form R000A
Docket Code 926
Page 4

MARICOPA COUNTY
CR 1989-012631
12/18/2013
B. DOJ Letter
On December 6, 2013, the Civil Rights Division of the U.S. Department of Justice wrote
a letter stating:
The Criminal Section of the Civil Rights Divisionspecifically reviewed whether the
facts and circumstances surrounding Saldates conduct in the State v. Milke prosecution
and subsequent habeas proceedings supported a prosecutable violation of the federal
criminal civil rights statutes. we have reviewed the available evidence in this
matterand concluded that the evidence does not support a prosecutable violation of the
applicable federal criminal civil rights statutes. Accordingly, the Criminal Section
declines prosecution in this matter.12
Similar to the U.S. Attorneys letter, DOJs letter declining to prosecute Saldate is
limited:
1. The Ninth Circuit specifically asked DOJ to investigate whether Saldates conduct,
and that of his supervisors and other state and local officials, amounts to a pattern of
violating the federally protected rights of Arizona residents. (Emphasis added).
Instead, the DOJ only declined prosecution related to the facts and circumstances
surrounding Saldates conduct in the State v. Milke prosecution and subsequent
habeas proceedings. (Emphasis added). The DOJs letter did not make any
references to Saldates conduct in the eight other cases that the Ninth Circuit found
problematic nor did it make any references to the 2009 allegations involving Belinda
Reynolds. It is important to note that Saldate was not cross-examined about these
cases at the previous trial. The defense has already indicated that Saldate will be
cross-examined about them in any future proceedings in this case. Depending on how
Saldate answers those questions, his testimony could be used against him to support
any potential federal criminal civil rights charges from these eight cases and the
Reynolds case.
2. DOJ did not decline to prosecute any perjury charges arising from any of Saldates
testimony.
3. DOJ did not grant immunity for past acts or future testimony to Saldate.
12
December 6, 2013 letter from Robert Moossy, Jr., Chief of the Criminal Section of the Civil Rights Division, to
Bill Montgomery, Maricopa County Attorney, attached to the Notice of United States Department of Justice
Decision.
Form R000A
Docket Code 926
Page 5

MARICOPA COUNTY
CR 1989-012631
12/18/2013
C. Perjury Charge
Mr. Imbordino, the representative of the current Maricopa County Attorney, Bill
Montgomery, orally confirmed that his office does not intend to prosecute Saldate for any past
testimony. The Court notes, however, that MCAO did not provide Saldate with a written letter
guaranteeing him that he is free from prosecution now and in the future.13 The Court simply
notes that under Arizona law, perjury is a class 4 felony.14 The statute of limitations on a class 4
felony is seven years.15
Furthermore, MCAO has no jurisdiction over any federal perjury charges arising from
Saldates 2010 testimony, and cannot assure Saldate that he will not be prosecuted in federal
court.
Based on the foregoing,
THE COURT FINDS that Saldate has demonstrated a reasonable apprehension of
danger that, if compelled to answer, he would face criminal charges based on his past testimony
and/or present disclosures, and that the Fifth Amendment affords protection.
Blanket Assertion of Privilege:
Generally, a blanket privilege cannot be asserted. The claim of privilege may be raised
as to specific relevant questions; each question must clearly seek testimony incriminating to the
witness.16 However, if a judge determines that a witness could legitimately refuse to answer
essentially all relevant questions, then that witness may be totally excused without violating the
witnesss Sixth Amendment right to compulsory process.17 [T]his exception is a narrow one.
It is only applicable when the trial judge has extensive knowledge of the case and rules that the
Fifth Amendment would be properly invoked in response to all relevant questions that the party
calling the witness plans on asking. 18
The Court has extensive knowledge about this case because it has reviewed most of the
transcripts from the trial, transcripts and exhibits from the 2010 federal court hearing, the Ninth
13
The Court does not know if an oral confirmation would suffice to bind future Maricopa County attorneys from
prosecuting Saldate.
14 A.R.S. 13-2702(B).
15 A.R.S. 13-107(B)(1).
16 State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983), abrogated on other grounds by State v. Walton, 159 Ariz.
571, 769 P.2d 1017 (1989); see State v. Maldonado, 181 Ariz. 208, 211, 889 P.2d 1, 4 (App. 1 1994).
17McDaniel, 136 Ariz. at 194, 665 P.2d at 76.
18 Id.
Form R000A
Docket Code 926
Page 6

MARICOPA COUNTY
CR 1989-012631
12/18/2013
Circuit Opinion and records from the eight cases cited in the Ninth Circuit Opinion, as well as a
number of exhibits submitted by the State and the defense. The State has confirmed that the
relevant questions to be asked to Saldate in future proceedings will be substantially similar to
those asked of Saldate previously. The defense has confirmed that it will impeach Saldate with
the information from the cases mentioned in the Ninth Circuit opinion.
THE COURT FINDS that Saldate may make a blanket assertion of privilege.
Conclusion
A judge may deny the claim of privilege only where it is perfectly clear from a careful
consideration of all the circumstances in the case, that the witness is mistaken and that the
answer cannot possibly have such tendency to incriminate. 19 This places a heavy burden on the
judge who decides to compel testimony over a Fifth Amendment claim.
After careful consideration of the totality of the circumstances, the Court finds that it is
not perfectly clear that Saldate is mistaken and that his testimony could not possibly have the
tendency to incriminate him. Accordingly,
IT IS ORDERED denying the States request to compel Saldate to testify over Saldates
Fifth Amendment claim.
IT IS FURTHER ORDERED setting a Status Conference on January 17, 2014 at 2:00
p.m. to discuss what issues remain given the Courts decision.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp.
Attorneys are encouraged to review Supreme Court Administrative Order 2011-140 to determine
their mandatory participation in eFiling through AZTurboCourt.
19
Malloy v. Hogan, 378 U.S. 1, 12 (1964), citing Hoffman v. United States, 341 U.S. 479, 488 (1951).
Form R000A
Docket Code 926
Page 7
EXHIBIT Z
NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS

DIVISION ONE
STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa

County Attorney, Petitioner,
v.
THE HONORABLE ROSA MROZ, Judge of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,
ARMANDO SALDATE, DEBRA JEAN MILKE,
Real Parties in Interest.
No. 1 CA-SA14-0028
FILED 4-17-2014
Petition for Special Action from the Superior Court in Maricopa County
No. CR1989-012631 A
The Honorable Rosa Mroz, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Maricopa County Attorneys Office, Phoenix
By Diane Meloche
Counsel for Petitioner
Law Office of Treasure VanDreumel, PLC, Phoenix

By Treasure VanDreumel
Counsel for Real Party in Interest Saldate
Kimerer & Derrick, P.C., Phoenix
By Michael Kimerer
And
Jones, Skelton & Hochuli, Phoenix
Lori L. Voepel
Counsel for Real Party in Interest Milke
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.
T H O M P S O N, Judge:
1
This special action came on regularly for conference on the
th
9 day of April, 2014, before Presiding Judge Peter B. Swann, and Judges
Jon W. Thompson and Patricia K. Norris.
2
Special action jurisdiction is available when there is no other
equally plain, speedy or adequate remedy by appeal. Ariz. R. Spec. Act.
1(a). Special action jurisdiction is appropriately invoked when there is an
issue of state-wide importance. See State v. Bernini, 230 Ariz. 223, 225, 5,
282 P.3d 424, 426 (App. 2012), citing State ex rel. Romley v. Martin, 203 Ariz.
46, 4, 49 P.3d 1142, 1143 (App. 2002). Special action jurisdiction is
appropriate in cases involving confidential and privileged matters.
Cervantes v. Cates, 206 Ariz. 179, 181, 8, 76 P.3d 449, 452 (App. 2003);
Blazek v. Superior Court, 177 Ariz. 535, 536, 869 P.2d 509, 510 (App. 1994).
For these reasons, we accept special action jurisdiction.
3
Real party in interest Armando Saldate was noticed as a
witness in an upcoming criminal re-trial in which Debra Jean Milke is the
defendant.
Saldate seeks to invoke a Fifth Amendment privilege,
refusing to answer questions in this case. After considering factual
submissions, record material, and briefing submitted by Petitioner State of
Arizona, Saldate, and Milke, the superior court ruled that Saldate could
make a blanket invocation of the privilege. The State challenges that
2
State v. Hon. Mroz/Saldate/Milke
Decision of the Court
ruling in this special action and, further, argues that on the existing
record, Saldate has not shown he is entitled to invoke the privilege.
4
A legitimate claim of Fifth Amendment privilege must
establish that the witness has a real and appreciable risk of prosecution
under the ordinary operation of law in the ordinary course of things
and not an imaginary or extraordinary barely possible contingency.
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 190 (2004); United States v.
Apfelbaum, 445 U.S. 115, 128 (1980) (the witness justifiably claims the
privilege if he is confronted by substantial and real, and not merely
trifling or imaginary, hazards of incrimination) (citation omitted); State v.
Rosas-Hernandez, 202 Ariz. 212, 216, 11, 42 P.3d 1177, 1181 (App. 2002).
(to invoke privilege, witness must demonstrate a reasonable ground to
apprehend danger from being compelled to testify). The privilege
extends beyond obvious admissions of guilt and encompasses statements
that may tend to incriminate by furnishing one link in a chain of evidence
required to convict. Flagler v. Derickson, 134 Ariz. 229, 231, 655 P.2d 349,
351 (1982). To assess a claim of privilege, the trial court must consider all
of the attendant circumstances. Id. at 232, 655 P.2d at 352.
5
Relying on an August 30, 2013, letter from the United States
Attorney for the District of Arizona and a December 6, 2013, letter from
the U.S. Department of Justice the State argues that Saldate had no real
and appreciable risk of prosecution for committing civil rights violations.
The superior court closely reviewed these letters, outlined various
ambiguities and uncertainties in them, and essentially concluded they did
not negate a real and appreciable risk of prosecution. We agree the letters
do not conclusively negate a real and appreciable risk of prosecution,
though they lend weight to the States position. Although the State argues
the letters demonstrate the applicable statute of limitations had run with
respect to the cases and incidents discussed by the Ninth Circuit in its
decision, see Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013), possible conspiracy
claims under federal law may not be time barred. For example, see Culp v.
United States, 130 F.2d 93 (8th Cir. 1942); 18 U.S.C. 371; 18 U.S.C. 242.
6
Nevertheless, based on a review of the record before us,
Saldate has not shown a real and appreciable risk of prosecution for such
claims. Saldate has argued his Fifth Amendment privilege claim centers
around accusations he engaged in a pattern of Miranda and other
constitutional violations while interrogating criminal suspects. Although
a conspiracy to violate civil rights, like any conspiracy, does not require an
explicit agreement and can be inferred from facts and circumstances, the
record before us fails to show the existence of a conspiratorial agreement
3
State v. Hon. Mroz/Saldate/Milke
Decision of the Court
that would warrant Saldates invocation of the privilege, either on a
blanket or on a more specific basis. The essence of a conspiracy is the
agreement to engage in concerted unlawful activity. To connect the
defendant to a conspiracy, the prosecution must demonstrate that the
defendant agreed with others to join the conspiracy and participate in the
achievement of the illegal objective. United States v. Grassi, 616 F.2d 1295,
1301 (5th Cir. 1980) (citations omitted). The record before us contains no
such evidence. Saldate must do more than show the possible lack of a
limitations defense on a possible charge that does not appear to be
supported by the record he has defined at most a speculative and
academic risk, not a real and appreciable risk.
7
Further, a witness may not invoke the Fifth Amendment out
of a fear he will be prosecuted for perjury for what he is about to say.
United States v. Whittington, 780 F.2d 1210, 1218 (5th Cir. 1986). The shield
against self-incrimination in such a situation is to testify truthfully, not to
refuse to testify on the basis that the witness may be prosecuted for a lie
not yet told. Id.; see also, Earp v. Cullen, 623 F.3d 1065, 1070 (9th Cir.
2010).
8
Upon his appearance being appropriately secured for
testimony and on this record, Saldate may be compelled to testify
truthfully in the upcoming trial. As citizens, each of us has a duty to
testify in criminal proceedings in our courts when called upon to provide
relevant information. See State of New York v. ONeill, 359 U.S. 1, 11 (1959).
9
For the foregoing reasons and based on this record, we grant
special action relief, vacate the superior courts ruling and hold Saldate
has failed to show a real and appreciable risk of prosecution for invocation
of the Fifth Amendment privilege against self-incrimination.
MJT
EXHIBIT AA
Page 1 of 1
Re: Armando Saldate

LippyT
' to:
Karen_Wilkinson
12:14 PM
Hide
From: LippyT@aol.com
To: Karen_Wilkinson@fd.org,
Hello Karen, thank you for your email.

As you may likely suspect, we are in the process of preparing a Petition for Review to
the Arizona Supreme Court regarding Mr.
ability to invoke the Fifth
Amendment. We thus must respectfully decline your request for interview with Mr.
Saldate.
Regards, Treasure
In a message dated
3:01:41 P.M. US Mountain Standard Time,
Karen_Wilkinson@fd.org writes:
Treasure,
understand from the court's decision yesterday that you represent Armando
represent Michael Gallegos in a federal 2254 petition.
Saldate.
Armando Saldate interrogated Mr. Gallegos, and then testified against him
at a voluntariness hearing and trial. Mr. Gallegos was subsequently
convicted and sentenced to death. We would like to speak with Mr. Saldate
about Mr. Gallegos's case, and were wondering if you could please convey
our request to him and get back to us with his answer.
look forward to your response. Please feel free to contact me if you
have any questions.
Thank you, Karen.
Karen M. Wilkinson
Assistant Federal Public Defender
850 W. Adams St., Suite 201
Phoenix, Arizona 85007-2730
602-382-2750 (office)
602-382-2800 (fax)
karen_wilkinson@fd.org
CONFIDENTIALITY NOTICE: The information contained in this e-mail,

including any attachments, is confidential and may be legally privileged.
If you are not its intended recipient, you are hereby notified that any
review, dissemination, distribution, copying, retention, or storage of any
of this information is strictly prohibited. If you have reason to believe
that you may have received this e-mail in error, please notify the sender
immediately, permanently delete the original and all electronic copies, and
destroy all paper copies. Thank you.

Gallegos' "Brady" Claim

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Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 1 of 165

Michael Gallegos v. Charles L. Ryan

Supplemental Police Report (excerpt) by Michael Chambers,

Supplemental Police Report by Michael Chambers Regarding

Phoenix Police Department Evidence Reports and Results of

Supplemental Police Report by Armando Saldate, 03/21/90

Transcript (excerpt) of Hearing on Motion to Dismiss George

States Motion to Dismiss George Smallwood and Order

Transcript (excerpts) of Voluntariness Hearing, 08/03/90

Transcript (excerpts) of Opening Statements, 03/07/91

Trial Testimony (excerpt) of Cindy Wishon, 03/07/91

Trial Testimony (excerpt) of Jerry Gallegos, 03/07/91

Trial Testimony Regarding Panties (excerpts) -- of Cindy

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 2 of 165

Trial Testimony (excerpts) of Armando Saldate, 03/12/91 p.m.

Testimony (excerpt) of George Smallwood Asserting Fifth

Trial Testimony Regarding Stipulation of DNA Evidence,

Jury Verdict on First Degree Murder, 03/14/91

Transcript (excerpt) of Resentencing, 10/24/94

Transcript (excerpts) of State Post-Conviction Relief Evidentiary

State Court Order Denying Petition for Post-Conviction Relief,

Report by Dr. Robert L. Heilbronner, 12/12/11

Declaration of John Castro, 04/04/14

Letter to Bill Montgomery Requesting Records, 03/25/13

Invoice from Maricopa County Attorneys Office Regarding

Transcript (excerpt) of State Post-Conviction Relief Evidentiary

Minute Entry Regarding Asserting Fifth Amendment Right

Arizona ex rel. Montgomery v. Mroz Court Opinion, 04/14/14

Email from Treasure VanDreumel Regarding Armando Saldate,

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 3 of 165

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 4 of 165

The States Suppression of Material Exculpatory and Impeachment

After Mr. Gallegos allegedly

confessed, Det. Saldate purportedly conducted a re-interview in the presence of his

Later testing by Dr. Heilbronner, a neuropsychologist, revealed that at the time

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 5 of 165

Mr. Gallegos purportedly gave a

statement that implicated both codefendants. (Ex. D at 3-4.) Mr. Smallwood

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 6 of 165

Mr. Gallegos also testified at the voluntariness hearing,

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 7 of 165

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 8 of 165

shot only once. Id. at 1013-14 (discussing State v. Rodriquez, No.

[T]he information most damaging to Petitioners defense was

contained in Detective Saldates testimony. (ECF No. 111 at 34.) 3

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 9 of 165

Clark believed the testimony of Mr. Gallegos, a young unsophisticated defendant,

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 10 of 165

Recent attempts to secure the previously suppressed documents from the

The States Continuing Failure to Disclose Exculpatory and

In 1963, the Supreme Court held that a prosecutors suppression of evidence

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 11 of 165

Once established, a Brady violation requires

Milke. 711 F.3d at 1018.

Prejudice is shown when the

governments evidentiary suppression undermines confidence in the outcome of

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 12 of 165

The suppressed evidence is favorable to Mr. Gallegos.

The prosecution, either willfully or inadvertently, failed to

The State never disclosed the exculpatory impeachment evidence regarding

Brady protects against both willful and inadvertent failures to

Case: 08-99029, 04/25/2014, ID: 9072923, DktEntry: 63-2, Page 13 of 165

particular prosecutor in this case knew about Det. Saldates impeachment