April 30, 2020 To: Chief of Police, Michael Gel ‘APD case # 14-0035101 Albuquerque Police Department DA case # 2014-02371-1 400 Roma Ave. NW Albuquerque, NM 87102 RE: Prosecutorial review of the April 21, 2014 shooting of Mary Hawkes by Albuquerque Police Department Officer Jeremy Dear. Dear Chief Geier: ‘We have been appointed as Special Prosecutors by Raul Torrez, the Second Judicial District Attorney, to review the shooting incident that occurred on April 21, 2014 for potential prosecution. Our role is to determine whether APD Officer Jeremy Dear should be prosecuted for his actions during this incident. We have reviewed all of the available evidence, including: police reports and supplemental reports written by the Albuquerque Police Department, the New Mexico State Police, and the Bernalillo County Sheriff's Department, car wash videos and still photos, all lay witness interviews, all officer and detective interviews and depositions, and their related transcripts, affidavit by Reynaldo Chavez, phone and face book records of Mary Hawkes and related search warrants, criminal history of Mary Hawkes, warrants, civil case documents, including motions and rulings, videos, criminalistics reports to include; the shooting scene, DNA, Firearm and Tool mark, and fingerprint analysis, viewed crime scene photos, CAD printouts, all lapel videos, cell phone and face book printouts, canvass reports, DNA report by Julie Heinig, deposition of Dr. Zumwalt, OMI autopsy and investigative reports and related photos, Rebuttal letter and accompanying documents from Plaintiff's Attorney in the civil case, expert reports written by Chiles, Reisman, Fredericks, and Fries, to include Fries 6/8/17 declaration, and his 3/8/17 deposition, and several trips to view the scene. We have carefully considered the assertions and demurrals made by Ms. Shannon Kennedy, the attorney representing the Mary Hawkes estate in the civil case. Some of them may deserve attention and investigation by others, however many of them are outside the scope of our concern, which is a narrow one: Are we confident that there is sufficient admissible evidence to prove, beyond a reasonable doubt, to a unanimous jury, that Officer Dear committed a crime? The remaining objections Ms. Kennedy makes are either speculative, not relevant, unlikely to be admissible at trial, or insufficient to undermine our conclusion. We address most, but not all, of the points she raises. We conclude that it is not possible to prove, beyond a reasonable doubt, 1that Officer Dear was not acting under the reasonable belief that the actions of Mary Hawkes posed a threat of death or great bodily harm to him, and to others. Therefore, no charges will be filed and the case will be closed. Our decision does not limit nor address administrative or s, oF civil actions by other parties. criminal action by other agen STATEMENT OF FACTS Stolen Truck/Search For Mary Hawke: On April 21, 2014, just after 3:00 a.m., Albuquerque Police Officer Sonny Molina was on duty driving his marked police unit, wearing his uniform and badge of office, when he observed a young woman later identified as Mary Hawkes driving a black Ford F-150 truck. The truck would later be identified as belonging to Vincent Ortega, and it had been reported stolen from Ortega’s residence on April 10, 2014. Officer Molina was traveling eastbound on Chico Rd. NE, and Hawkes was traveling northbound on Pennsylvania NE. The two vehicles came to a stop at that intersection at about the same time. The driver's side windows on both vehicles were down, and as Hawkes turned westbound on Chico, she said “hi” to Molina as she passed his unit, and he responded in kind. Molina had a good look at her face and observed that Hawkes, had brown hair combed either in a bun or a ponytail and was wearing either a black hoodie or a black sweater. Molina believed that Hawkes was initially hesitant in her direction of travel, and as she passed his unit he turned and obtained the license plate number on the truck, identified as 362PWK. He quickly ran it through the NCIC database system and learned that the plate number was not in the system Molina then made a U-turn and attempted to locate and stop the truck. He traveled westbound on Chico, and observed some vehicle lights north of Chico on Charleston NE. He could see that the vehicle appeared to have “jumped a curb.” The vehicle then came to a stop at 313 Charleston NE, on the west side of the street. While approaching the vehicle he could see that it was a truck, and saw the lights flashing as if they were being controlled by remote, to. either lock or to unlock the doors. The truck was vacant, and Molina verified that it was the same truck he had just observed with license plate number 362PWK. Molina ran the truck’s VIN number and discovered it had been stolen on April 10, 2014. The woman who had abandoned the truck and fled, who would later be identified as Mary Hawkes, never returned to the scene and, at 3:05 a.m., Molina called out over the radio that the driver had fled the scene.The owner of the truck, Vincent Ortega was contacted, came to the scene, and took Possession of his truck with his extra set of keys. When questioned at a later date, Ortega indicated that he had rented a room at his residence to a person named Mario Romero. He stated that a woman named Mary stayed at his residence with Mario during the time that the keys to his truck had gone missing, and prior to the truck being stolen. Ortega was also shown a picture of Mary Hawkes at the scene, and he identified her as the same person that stayed at his house with Mario when the keys had gone missing. Mario Romero was also located at a later time, and he also stated that he had rented a room from Ortega in March of 2014. He identified Mary Hawkes as the female who had stayed with him for two weeks during the time when the keys to Ortega’s truck had gone missing, and just prior to the truck being stolen from Ortega’s driveway. At the scene a black cricket cellular phone had been located by Officer Molina inside the console of the truck and, still at the scene, Ortega told Molina that the phone did not belong to him. Molina observed that the phone was logged into a Facebook account under the screen name “Mary DaBoss.” When later contacted, the parents of Mary Hawkes told the police that Mary possessed a Facebook account under the name of “Mary DaBoss.” Officer Molina had also located an email address for “mhawkes” from within the same Facebook account which included several photographs of Hawkes. The photographs matched the description of the woman he had earlier seen driving Ortega’s truck. He then completed a search of the police database system and located a picture of Mary Hawkes. Officer Molina then positively identified Mary Hawkes as the person that he had earlier seen driving the stolen truck and, at 4:45 a.m., he identified Mary Hawkes by name over the air. A warrant was later obtained for the Facebook account of Mary DaBoss. One of the entries within that Facebook account was on April 20, 2014 at 11:54:20 from Mario to Hawkes that stated, “I'm way beyond hurt with you.” When later questioned about this statement, Mario indicated that his message was sent to Hawkes as his response to her, because he believed that she had stolen Vincent's truck. On the same day that Vincent Ortega’s truck was stolen, April 10, 2014, there were entries in Hawkes’s phone records indicating that she had tried to sell a stolen truck to seven different individuals. Several of the entries were: “I have a nice G-ride nice ass truck need to sell it,” “I got a truck where u at” “need to sell it asap,” “Hmu 554-7801 ask fa me ill meet u to see truck. 500 $” “I got a g ride hmu need to sell these shardies too they kill and got some dro.” According to investigating officers the term “g-ride” is slang for a stolen vehicle, and the term “shardies” refers to methamphetamine. There were multiple entries after April 10, 2014, on 3Mary Hawkes’s Facebook account that also referred to the truck. All of this strongly suggests that Mary Hawkes was in possession of Ortega’s truck, had tried to sell it, was the driver who had abandoned it, and then fled from Officer Molina. Fingerprints were collected from within the truck and were later compared to known prints belonging to Hawkes. The police were unable to obtain prints from her phone, but latent prints collected from inside of the truck were identified as belonging to Mary Hawkes. Mary Hawkes Located/Perimeter Set Up: APD Officers Jeremy Dear and Tanner Tixier were dispatched to assist Molina. Once Hawkes’s identity was known it was broadcast over the radio by Molina. Dear tried to locate her by investigating her last known addresses discovered in the police database system, but was unsuccessful, and Tixier helped with scene security. Just prior to 5:00 a.m., while still trying to locate Hawkes in the area of Virginia and Zuni SE, Molina observed a silver and grey Honda Accord driving in what he called, “an indecisive manner.” He saw it swerve across the centerline of the roadway, and was able to obtain the license number, 881SHT. He then saw a subject wearing dark clothing with a hooded sweater walking eastbound on Zuni toward Wyoming, and believed that the subject could not have been at that location from his prior observations, unless the subject had just been dropped off by the driver of the Honda. It would later be discovered that the owner of the Honda Accord was identified as Callie Pruitt. When later interviewed Pruitt admitted to having dropped off Hawkes near Virginia and Zuni SE in the early morning hours of 4/21/2014, and when she did so, she saw a police car behind her. Prior to being dropped off, Hawkes had informed Callie that she had just run from the police. Molina turned his spotlight in the direction of the subject, and recognized that it was Mary Hawkes, the same female he had earlier observed driving the stolen truck. He shouted at Hawkes to “come here.” Hawkes said “no,” and ran eastbound into a trailer park located at 201 ‘Wyoming SE, on the southwest corner of Zuni and Wyoming SE. Molina observed that as she ran into the trailer park, Hawkes was continually reaching into her right pocket. At 5:00 a.m., Molina called out over the radio that Mary Hawkes was running from him. At 5:05 a.m., Molina announced over the radio that officers should use caution because of the way Hawkes was reaching into her right front pocket. During his police interview, Molina indicated that he felt that he needed to back off from Hawkes for his safety, because at that time he was concerned that she had a weapon.immediately after Hawkes fled into the trailer park, Molina set up a perimeter, along with other officers, to box in Hawkes within their boundaries. The officers involved in securing the perimeter were APD Officers Sonny Molina, Jeremy Dear, Tanner Tixier, 'saac Romero, Jon Friedfertig, Adam Portillos, Sargent Brian Maurer, and also Officers Mike Hernandez and Dan Brokaw, who were assigned to assist as K-9 officers. The plan was to utilize the K-9 officers and their dogs to force Hawkes to come out of the trailer park, and for her to surrender without incident. Officer Hernandez went around the entire perimeter of the trailer park and made at east sixteen announcements over a loudspeaker, warning Hawkes that she was surrounded, and that the dogs would be deployed if she did not surrender. At about 5:33 a.m. the announcements were completed at all perimeter positions. At 5:48 a.m., Hernandez advised dispatch that the K-9 search was going to begin. One minute later at 5:49:15 a.m., Maurer advised dispatch that the subject was exiting the trailer park, and was running eastbound, across Wyoming SE, and into the carwash. Maurer saw a subject, later identified as Hawkes, climb over the east side wall of the trailer park. He then saw her run directly east across Wyoming towards the Brillon Brothers carwash. Less than one minute later, at 5:50:12 a.m., Maurer advised, over the radio, that shots had been fired, It was later learned that Mary Hawkes had been shot and killed by Officer Jeremy Dear. There were photos taken at the scene that showed a handgun located on the ground close to her body. That handgun was later identified as a Davis Industries Model P-32 pistol, serial number VN520180. History Of Hondqun Collected At Scen Prior to focusing on the 57 seconds that elapsed between Hawkes fleeing from the trailer park, to when she was shot and killed, it is important to establish the history of the firearm located at the scene. APD conducted an investigation into the history of the Davis, Industries Model P-32 handgun, serial number VNS20180, that was located at the scene. It is. not clear why the initial part of this investigation was conducted by a detective from outside of the homicide unit, however, the investigation appears to have been conducted in a professional, expedient and successful manner, and without any undue influence. It was determined that the gun discovered and recovered from scene, immediately adjacent to Hawkes’s body, was sold to David McClelland on November 11, 1998. McClelland was interviewed by APD Detective Jessie Carter, and McClelland told Carter that he had sold the gun back in 2002 to an unknown individual whose name he could not recall. However, at the time of the sale he had seen that person’s identification and had recorded the name in the affidavit he was legally required to fill out that accompanied the sale of the gun. McClelland indicated that his ex-wife, Lisa Farina, had retained the affidavit. Carter met with Lisa Farina but she was sunable to locate the affidavit, and the name of the individual to whom the firearm was sold was not located. That same firearm was then documented by APD, less than three months prior to the shooting of Hawkes, on January 29, 2014, in APD case number 14-0008466. In that case a search warrant had been issued for the residence of Michael Gaddy, located at 10820 Crandell Rd. SW. In the course of the search, a handgun was located in Gaddy’s bedroom closet. At that time the police examined and documented the handgun, to include running and recording the serial number identified as VNS20180. Because the gun was not reported stolen, and was not relevant to that investigation, it was released back to Gaddy. Detective Jessie Carter interviewed Michael Gaddy, and recorded the interview on May 22, 2014. In the interview Gaddy stated that he had initially purchased the gun from an individual on the street for forty dollars. He also confirmed that the gun had been returned to him by APD on the same day they had examined it during the search warrant execution. Gaddy’s Uncle, William Flook, was also present when the police located the gun at Gaddy's residence on Crandell. He also recalled that the gun had been returned to Gaddy on the same day that it was examined by the police. Between January 29, 2014, and April 21, 2014 Gaddy had moved from his address on Crandell to 63 and Bluewater NW, and when he moved he brought the gun with him. Gaddy told Carter that he had kept the gun, along with some drugs, in a black cash box in his bedroom, He had the gun in his possession up until one day when he was visited by two young women. While these women were still in his residence, he had stepped out of his bedroom for a moment, leaving them alone. Right after they left Gaddy noticed that his gun and the drugs had gone missing, and he believed that one of the two women had stolen them, Gaddy identified ‘one of the women as Theresa LNU, and the other as Mary. He identified Mary as being the same woman who had been shot and killed by the police in an officer involved shooting, which he learned about from watching the news. He positively identified Hawkes, from a booking photo shown to him by Carter, as one of the two women who was at his residence when his gun was stolen. He said that he also saw a picture of his gun on the news and identified it as his 32 auto Davis Industries handgun. There was a posting on Hawkes’s Facebook page on April 21, 2014, at 9:24:16 p.m., from an individual named “Dopey Loco”. Dopey Loco was later be identified as Erik Hawke (no 6relation to Mary Hawkes). This entry on April 21" was from Erik to Mary, and reads, “I cant believe u did that shit... taking from my house wtf is wrong with you mary thought | could trust you and some more shit... u take my piece and think imma forget about it... thatx fucked up i juzt see where true color lie...” When interviewed by Detective Carter, Erik indicated that he was present when Mary was at Gaddy’s house the day that the gun was stolen. Erik stated he has known Mary since he was eight years old. Erik initially told Carter that he never saw the gun, but then corrected himself, saying that the gun had been shown to him on a couple of ‘occasions about two weeks prior to it being stolen, but that he had never really paid attention to it. Erik indicated that when he was at Gaddy’s residence, Mary and Theresa were also there and, at one point, they were alone in Gaddy’s bedroom, while Erik was present in another room. Erik remembered that Mary left suddenty. Erik was upset and told Carter that, “she stole my homies 32 small, 7 shot, it was under his bed.” Eric said that he was so upset that he wrote to Mary on Facebook about stealing from him and accused her of stealing the gun. The information that Erik provided directly tracks the information provided by Gaddy, to include that the gun being stolen from under the bed. Both Erik and Gaddy were reluctant, and declined to name one another, but Gaddy made it clear that, the gun was his. Erik was also clear that the gun did not belong to him, but to an unnamed friend. They both said that they were present on the day the gun was stolen, and it was stolen at the time when Hawkes and another female were present and briefly alone in Gaddy’s bedroom, where the gun was kept. (see photos of gun, serial number VN520180, collected at scene) There was also evidence from Hawkes's Facebook account that indicated she wanted a firearm and had obtained one prior to April 21, 2014. On April 11, 2014, two of Hawkes's ?entries referred to her wanting to obtain a “strap.” The term strap is another slang term known to law enforcement, meaning a firearm. In the first entry, written on April 11, 2014, at 4:04:22 p.m., Hawkes wrote, “I need a strap they took my phone.” Five minutes later at 4:09:26 p.m., in a separate entry she wrote, “I need a strap these ffuckers took my keys annnd trukk I’m on Wyoming and Zuni at trailer park.” Then on April 20, 2014 at 8:06:09 p.m., only nine hours before she was killed, she wrote “plz hurry im in a bad spot to have a flat this wher they tried to kill me for the truk an I don’t wanna shoot nobody but | will.” The words, “I don’t wanna shoot nobody but | will,” shows Hawkes had obtained a firearm sometime after April 11, 2014, but before April 21, 2014. 21, 2014, at 5:49:15 a.m., Hawkes climbed over the east wall of the trailer park located just south of Zuni. She ran eastbound across Wyoming Bivd., and Sargent Maurer notified the perimeter team on air that a subject was exiting the trailer park and heading towards the carwash. After crossing Wyoming, as Hawkes ran eastbound through one of the carwash bays at the Brillon Brothers Carwash, she was recorded by three video cameras within the bay as she ran through it. The image quality is not ideal, but an object can be seen in her right hand as she flees through one of the bays. The City of Albuquerque hired a Certified Forensic Video Analyst, Mr. Grant Fredericks, to examine the car wash videos frame by frame, to determine whether he could identify the object that Hawkes was carrying that was 1g from her right hand. protru Fredericks has extensive experience in the recovery of audio and video recordings with scientific examinations and evaluations of such recordings, and had been doing so continuously since 1984, From 1999 to 2012 he was the principal instructor for Forensic Video Analysis courses, and has trained over 2,800 law enforcement video analysts. He has been qualified as a court expert in over one hundred and fifty cases all over the world. Based upon his training and experience Mr, Fredericks conducted a verification process to determine whether the videos were authentic, or if they had been tampered with. He concluded that the car wash videos were authentic and had not been changed or tampered with. Fredericks was also able to synchronize the views of Hawkes captured on all three cameras as she ran through the carwash bay. In the videos Hawkes is seen carrying an object that extended beyond her right hand and protruded over the area of her index finger. Fredericks explained that the object was reflective in the light, and that the videos 8demonstrated that Hawkes was carrying the object in a method similar to how one would hold ‘a handgun. He stated that the image quality was not ideal to gain any specific edge patterns, or to improve the visualization of the abject. He was, however, able to conclude that Hawkes was carrying an object in her right hand, and that the object was consistent with the size, shape and reflective characteristics of the gun that was later recovered from the sidewalk next to Hawkes at the time of the shooting, (see photos below). Ms. Kennedy asserts that this video also shows Hawkes pulling her hood over her head as she runs through the stall less than one second after the photograph below, and therefore Hawkes could not have a gun in her hand because she would not be able to pull up the hood if she did. While it is not clear on the video that Hawkes was pulling the hood over her head, even if she were it would not countervail the preceding image showing an object resembling a gun in her hand, nor that it is very feasible to pull a hood over one’s head with one hand. None of the carwash video footage shows Hawkes dropping the ‘object from her right hand. After running through the stall Hawkes reached a fence on the west side of another trailer park, adjacent to the carwash. She immediately turned around, ran westbound back to Wyoming, then northbound on Wyoming to Zuni, then eastbound on Zuni until she was shot and killed. The total distance Hawkes ran from the fence where she turned around to where she was killed is 487 feet. This entire path taken by Hawkes was searched by officers who investigated the scene. They found no object along this path, or inside of Hawkes’s clothing, that even remotely resembled a gun. What they did find was the handgun on the ground immediately beside Hawkes’s body. itis highly implausible that the object seen in Hawkes's right hand as she runs through the carwash is anything other than the handgun recovered beside her body.Ms. Kennedy emphasizes that three officers “did not see Ms. Hawkes with a gun prior to the shooting.” She concludes that this is “evidence that Ms. Hawkes was not carrying a gun when Dear killed her.” That premise, however, does not compel her conclusion. None of these officers stated that he could see Hawkes’s hands and that he was certain that she did not have @.gun. What they did say, under oath, was: 1. Sgt. Maurer testified he “never saw a gun in her hands”. He did not testify that he could see her hands and that they were empty. Additionally, Sgt. Maurer was around the corner when the shooting occurred and could not have seen a gun because he did not even have a line of sight to Hawkes’s entire person when she was shot. 2. Officer Romero testified he “did not see Mary Hawkes point a gun alt] Jeremy Dear”, and he “did not see a gun in Hawkes’s hands.” He also did not say that he could see both of her hands and that they were empty. However, he also testified that when Hawkes was shot he could not see her right arm or her right hand. He also did not have a line of sight to Hawkes’s right arm and hand when she was shot. 3. Officer Hernandez testified that he never saw Hawkes point a gun at Dear. However, he testified that this was “because | never saw Mary....! could not see Mary Hawkes.” He also did not say that he could see both of her hands and that they were empty. He also did not have a line of sight on Hawkes's entire body when she was shot. None of these officers could offer evidence that he could see that Hawkes did not have @ gun when she was shot. None of them could say she was unarmed. This is because none of them was in a position to see her right hand. The absence of evidence is not the evidence of absence See, Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, 142, 147 N.M. 543 (“It is axiomatic in both science and law that an absence of evidence is not evidence of absence.”). Officers Respond To Trailer Park: Officers were all stationed in their positions around the trailer park to ensure that the perimeter was not broken. The northern perimeter of the trailer park ran in an east-west direction along Zuni. The eastern perimeter ran north-south along Wyoming, and the western perimeter ran north-south along Virginia. Wisconsin Blvd. also intersected with Zuni, and ran in @ north-south direction between Wyoming and Virginia. There were nine APD officers located around the perimeter of the trailer park. Officer Tixier was located on Wyoming on the southeast side of the trailer park which was also south of Zuni. He had a clear northern line of sight up Wyoming and was able to see Dear at the intersection of Zuni and Wyoming. Sargent Brian Maurer was positioned on Wyoming south of Zuni. Molina was positioned on the 10southwestern perimeter of the trailer park on Virginia and Jon Friedfertig was positioned at the northwestern comer of the trailer park, on the south side of the intersection of Zuni and Virginia, The other four officers were Adam Portillo, Isaac Romero, and K-9 Officers Mike Hernandez and Dan Barkow. They were positioned at the Wisconsin/Zuni intersection, which was also the entrance/exit to the trailer park. Officer Hernandez had completed the K-9 announcements from multiple locations all around the perimeter. These announcements were made by using a loudspeaker, and were made to encourage Mary Hawkes to surrender, warning her that the dogs were going to be released. Hernandez then returned to the entrance/exit of the trailer park at 5:48:10 a.m., and announced on air that he was about to begin the K-9 search. One minute later, at 5:49:15, Hawkes scaled the east wall from within the trailer park and ran eastbound across Wyoming. Officers Tixier, Maurer and Dear were in the area when Hawkes exited and fled from the trailer park View of east wall of Trailer Park along View of strip mall across from wall, ‘Wyoming with carwash on far right side, and Zuni on the far left side. Initial Contact Over East Wall Of Trailer Park When Maurer saw Hawkes jump over the east wall of the trailer park, he yelled for her to “stop.” He then notified the perimeter team on air that the subject was running eastbound across Wyoming toward the carwash. At that time Maurer was mobile and traveling southbound on Wyoming approaching Zuni. He was not able to identify her at that point but did notice that the description provided earlier by Molina had matched what she was wearing. There was a strip mall located at the southeast corner of Wyoming and Zuni, which was directly north of the car wash. Maurer was familiar with the area, and knew of the alley that ran east of, and behind the car wash/strip mall. He decided to drive to the alley to cut off her escape options. Maurer then made a left turn onto eastbound Zuni, and then southbound into the aalleyway along the backside of the strip mall. Maurer proceeded southbound through the alley and parked his car in the rear of the southeast corner of the strip mall, near the alley located between the strip mall and the carwash. While doing so, he saw Hawkes as she ran through the carwash towards the wire fence in her attempt to get away from the police. Upon seeing Maurer, Hawkes then turned and fled westbound back towards Wyoming. Maurer shouted verbal commands as he ordered her to “come back here,” and to “stop.” He lost sight of her when she rounded the corner of the strip mall and fled northbound towards Zuni. He then reported on air that she was headed in the direction of Wyoming. ie ie Alley behind strip mall from Down alley, see Maurer’s unit See alley between carwash eastbound Zuni. in distance. and strip mall; front of Maurer’s unit. Tixier saw Hawkes on top of the east wall of the trailer park and watched as she lowered herself down to the ground using both hands. She then fled eastbound across Wyoming toward the carwash, He was not able to determine whether she was in possession of a weapon when she crossed Wyoming because of the distance. He saw Maurer in his vehicle as he turned eastbound from Wyoming onto Zuni, and then lost sight of his vehicle after Maurer had passed the Chinese Food Express which was the last business at the northern end of the strip mall Soon thereafter, Tixier saw Hawkes exit from the carwash area, and run northbound along the strip mall towards Zuni. At that time Tixier was in his unit traveling northbound on Wyoming Tixier momentarily lost sight of her after she fled eastbound at the Chinese Food Express. He also saw Dear exit his vehicle on Zuni and give chase on foot. 2North to south view of strip mall View of north side of strip mall, Chinese Food Express. Chase on Zuni/Shots Fired ‘Once on Zuni, Tixier regained sight of Hawkes as she ran eastbound on the sidewalk. He thought he was about thirty yards away from Hawkes upon first reaching Zuni, and his plan was to drive past her and cut her off. He estimated that he was about twenty yards behind Hawkes and Dear, and still in his unit, when he saw them suddenly stop. Up to that point Dear had been running in the street, almost parallel with Hawkes, who was on the sidewalk, Tixier had no ‘opportunity to give any verbal command, and he did not hear any given by Dear. Dear indicated that he had been outside of his car at the intersection of Zuni and Wyoming when he saw Maurer traveling north of Wyoming onto Zuni. He saw a female wearing a black shirt and hoodie, run eastbound across Wyoming toward the carwash. He lost sight of her when she entered the carwash area. He then got into his car with his emergency lights stil activated, and waited and watched as Maurer drove eastbound on Zuni, and then southbound into the alley way east of the strip mall. He soon heard Maurer state on air that “she’s coming back towards Wyoming.” Dear was still in his car parked on Zuni, on the northeast side of the intersection of Zuni and Wyoming. Dear then saw Hawkes exit the carwash area and run northbound on the sidewalk of the businesses along the strip mail. Dear was directly parallel with her when she rounded the northwest corner of the strip mall, and then ran eastbound on Zuni. Dear was in a marked unit wearing his badge of office, and the emergency lights on his vehicle were on. His window was down and he ordered Hawkes to stop. She made eye contact, but did not comply, and instead ran faster. He recognized her as Mary Hawkes from the photo earlier obtained by Molina, Dear followed her for a very short while, then slammed on his brakes, exited his vehicle, and pursued her on foot as he shouted commands for her to stop. BTixier first saw Hawkes with a gun in her hand as he approached her traveling eastbound in his unit. His headlights illuminated her, his spotlight swept across her, and she then stopped running. He saw the gun in Hawkes’s hand as she raised it, and he then immediately stopped his car. He was focused completely on the gun, and described himself as experiencing “tunnel vision” on the gun. He saw that she held the gun with one hand, but wasn’t sure with which, and watched as she pointed the gun in both his and Dear’s direction. Her head was turned toward Dear, but he was not sure whether she was standing in a straight or angled stance in relation to Dear. Tixier remained in his vehicle as Dear drew his handgun and pointed it at her. Tixler had his lapel camera activated as he approached Dear and Hawkes, but the video did not capture the entire incident. The video shows that Tixier had not yet exited his vehicle by the time the shooting had ended, He heard four to five shots, but only saw three to four muzzle flashes fired in quick succession through his peripheral vision. Tixier saw that Dear was in a traditional shooting stance with a two handed grip on his firearm. Hawkes was on the sidewalk and Dear was in the street perpendicular to her and facing south when he fired. Tixier believed that Dear was standing still the entire time that he fired his weapon however he was not looking directly at him. He believed that Dear may have advanced a step or two from where he fired upon Hawkes after the shooting, but stated that except for the one or two steps, Dear pretty much had remained where he stood with his gun drawn until Hawkes was cuffed. Tixier’s lapel video recording shows that Tixier was inside his unit, about ten to fifteen yards away from Hawkes, when she was shot. It also shows that Dear was perhaps as close as five yards away from Hawkes at that time. Tixier’s lapel video captures the first 2 seconds after Hawkes fell, showing her on the sidewalk, prone, Dear standing stationary and erect in the street about 8 feet from Hawkes, and a shiny object immediately beside Hawkes's body. During the next 10 seconds Hawkes and Dear are not captured on Tixier’s lapel video. What is seen are the ground, sidewalk, and cinder block wall as Tixier runs up to Hawkes. The gun on the sidewalk then comes into view, which is now approximately 12 seconds after Hawkes fell. Tixier saw Hawkes fall to the ground on her left knee, and then roll onto her right shoulder. He saw a gun immediately beside her on the sidewalk, to her left, and he ran up to her, and stepped on top of the gun with his foot to secure it while pointing his gun at Hawkes. This gun is visible on Tixier’s lapel video immediately after Hawkes fell. He then slid the gun 14with his foot towards the brick wall to secure it and had no further contact with the gun. He observed that Hawkes was bleeding out of her neck and head, that she had stopped breathing. After Hawkes was cuffed, he assisted in removing Dear from the scene, and having him remain with Molina. He then made sure that the scene remained secure so criminalistics could take accurate photos, and that Dear’s shell casings were located. He also had a conversation with Dear in which Dear informed him that the cord to his lapel camera became unplugged from the battery pack, and he therefore had not deployed his lapel. Dear stated that he was in a full sprint as he and Hawkes ran eastbound on Zuni. He twice shouted commands for her to stop but got no response. He never passed her, but remained parallel with her as they both ran for a short while, he on the street, and Hawkes on the sidewalk. While in pursuit he recalled that Molina had mentioned that earlier in the evening Hawkes had reached in her jacket for something on her right side when she ran from him. When Dear was about ten feet away from her he began to cut towards her at an angle, closing the distance between them, and was intending to tackle her. He was not yet able to see her right hand, and as he angled towards her, she began to slow down, “like a jog.” As he got closer to the sidewalk, somewhere between five and ten feet from her, she then turned her left shoulder, pivoted on her left foot and, in so doing, turned the upper half of her body towards Dear in what he described in his interview, as a “bladed” stance. He then saw that she had a handgun in her right hand, and was pointing it at him. At that point Dear stated that his entire focus was like “tunnel vision,” focused entirely on the gun in her right hand, He then lost all focus on Hawkes because he froze, and was in fear of dying. Dear then “disengaged” and took one to two steps back, and simultaneously drew his. gun from his holster. Hawkes still had her gun pointed at him. He believed that he was initially about five to ten feet away from Hawkes when she lifted the gun and pointed it at him. He ordered her twice to drop the gun, but she continued to point it at him. He remained fixated on the gun. As she tured, and quickly pointed her gun at his face, he heard Hawkes say “don’t, don’t.” Dear feared he was “going to die.” He said that he was so close to the gun that he was “looking down [its] barrel.” He described it as a black metal gun, with a chrome tip. The light attached to his gun was on at the time, and there was enough light from it that he could see Hawkes’s index finger on the trigger. There was additional lighting from the headlights and spotlight on Tixier’s vehicle which were directly illuminating the wall approximately 15 feet southwest from where Hawkes was standing, which provided ambient lighting on Hawkes. Sunrise was at 6:26 a.m. that morning, and there was also some ambient solar lighting. Dear, in 15fear for his life, then began to fire at Hawkes. He fired a total of five rounds whereupon Hawkes feil immediately where she stood, and Dear lost sight of her gun. Craig Fries, an expert hired by Ms. Kennedy, believed Dear fired each round in about & of second, thus Dear fired his five rounds in one second. Hawkes, whose gun was loaded, did not fire any rounds. Dear did not know how many rounds he had fired, and was not sure how Hawkes landed on the ground, but he did observe that she was bleeding a lot. The gun she was carrying landed on the ground immediately to her left. He later saw it closer to the wall in the dirt with Tixler’s foot on it. Dear stated that at no time did he have contact with the gun. After Maurer had announced on radio that the subject had broken the perimeter, Isaac Romero relocated to the parking lot at the northeast side of the strip mall, at the rear, or east side of the Chinese Food Express. He was the only police car in that area. His back was to the north as he was parking his unit, and he saw a figure later identified as Hawkes as she ran in the middle of the street eastbound on Zuni. He saw her from behind, Rear view Chinese Food Express running at a fast pace as she ran past his location. northeast side of strip mall. He looked out his driver's side window, and saw Dear running in fast pursuit. Romero did not see a weapon in Dear’s hand as he ran, but he indicated that he was not paying attention to his hands. In his police report Romero wrote that during the entire time Hawkes was running east on Zuni he was in his car, and he had lost sight of her when he was parking. During his deposition he was confronted with a photo from Tixier’s lapel that contradicted his report. The photo shows Romero standing at the corner of the wall on the northeast side of the alley with his gun in hand, and his arm extended and pointed east in the direction of Hawkes. Dear was standing in the street with his feet spread, arm extended, and two hands on his weapon pointed south in the direction of Hawkes. Romero was looking in Dear’s direction, and it appeared that a muzzle flash was seen coming from Dear’s weapon. When confronted with this photograph, which could not be reconciled with his report, Romero conceded that his report was inaccurate as to where he was when Hawkes was shot. Romero then provided the following information; He stated that his intent was to run after Hawkes, but before he could do so, he heard shots being fired. He stated that he was actually out of his car and was mobile on the passenger side of his car, heading east, when he heard the first shots being fired. He 16heard no more than five shots,” one after the other, no stopping.” Once at the wall, he did not hear or see shots being fired, and did not see Hawkes get shot, but saw the smoke coming from the barrel of Dear’s gun. He then saw Dear with his weapon drawn, with both hands extended and pointed at Hawkes, Dear and Hawkes were then facing one another, and he saw that Hawkes was “wobbly,” and then fell to the ground and collapsed. Romero believed that Hawkes was positioned in the street at that time, and not on the sidewalk, but Tixier’s car video shows that she was on the sidewalk when she was shot. Romero made it clear that from his point of view he could not state whether Hawkes had a gun in her right hand. He was not able to determine that her right hand was empty because when he looked at her he saw Hawkes from her left side, and could not tell if she had anything in her right hand. Romero indicated that he had not activated his lapel camera due to his concerns for his own safety until Hawkes was on the ground, and stated that he believed that he was not required to do so if officer safety was involved. He also did not activate it because he had not interacted with Hawkes. Romero did not initially approach Hawkes's body, and did not see the gun on the ground until he had returned from blocking traffic. At that time, he saw the gun in the dirt next to the wall Maurer had chased Hawkes from the carwash area up to the southeast corner of the strip mall. He observed as officers ran eastbound on Zuni after Hawkes. He then ran back into the alley towards his own car. Once back in the alley, he was not able to see any further action ‘on Zuni because the wall at the northeast end of the alley blocked any eastern view. He continued running north in the alley towards Zuni. When he was about 75 feet away from Zuni he heard four shots and reported to dispatch “shots fired." It was 5:50:12 a.m., 57 seconds after Hawkes had scaled the wall at the trailer park and begun to run across Wyoming. When he rounded the corner he saw Tixier’s vehicle next to Dear and Hawkes, as she lay on the sidewalk. When Maurer arrived at their location, Tixier and Dear had their guns drawn on Hawkes, and he then saw Hernandez put his gun away and handcuff Hawkes. Hawkes was lying on her back on the sidewalk, with her legs over the curb and gutter pointing north, so. Hernandez rolled her over onto her right side, handcuffed her, and rolled her back over onto her back. He also picked her legs up and placed them on the sidewalk, thus rotating her body almost 90°, her legs now pointing west. Tixier had already moved the gun closer to the wall. Maurer reported that while still at the scene, Dear told him that he had shot Hawkes because she had pointed a gun at him. Maurer and Tixier eventually covered Hawkes with a yellow thermal blanket. Maurer had not turned his lapel camera on at any time during this 7investigation because he had learned that his battery pack was off when he earlier attempted to turn it on at the carwash. Zachariah Jacob, a civilian, was in the area and driving southbound on Wyoming at Central, when he saw a person run from east to west across Wyoming towards a carwash. He then saw that person running east on Zuni, and saw three police cars with what looked like male drivers trying to stop the person. He also saw that an officer was on foot running eastbound, and chasing that person. When the lights at Central changed to green, Zachariah then drove southbound towards Zuni. As Zachariah approached the intersection of Wyoming and Zuni, he saw two police officers on Zuni to the east of Wyoming with their guns drawn. One of the officers was facing south, and the other facing east. This is consistent with the video evidence that showed Dear with his gun drawn standing near the curb facing south, and Romero facing east. A canvasing of the area was conducted with no additional eye-witnesses identified. Criminalisties: The Criminalistics Unit collected Dear’s Smith and Wesson, Mx P9, Imm Lugar caliber, semi-automatic pistol. The weapon was compared to the five casings located on the street in the far south eastbound lane of Zuni. The examination concluded that all five casings had been fired from Dear’s weapon. There were also three impact points located on the wall south of where Hawkes was shot. The three impact points were believed to be created by three separate bullets hitting, and then ricocheting off the wall. Two projectiles were located north of the body and were collected at the scene, and the third was not located. The two collected projectiles were identified as having been fired from Dear’s weapon, and still had stucco embedded in them consistent with striking the wall. One of the projectiles was located in the westbound lane near the middle of the road, and the other was located across the street at the entrance to a parking lot. A handgun was collected from on the ground, and on top of the dirt that bordered the brick wall south of where Hawkes lay. The handgun was originally observed on lapel video closer to Hawkes on the sidewalk, prior to Tixier moving it away with his foot when he had first arrived at that location. The handgun was identified as a Davis Industries, Model P32, semi-automatic pistol. It functioned properly, and had one unfired Winchester, 32 auto caliber cartridge, loaded with a full metal jacket bullet in the chamber. It had no other bullets in the magazine. The conclusions were that Dear had fired his weapon five times, and that the weapon located on the ground near Hawkes had not been fired. (see scene photos below). 18.Impact defects in wall, i-1, i-2 &i-3, Five cones indicate location in street of from R to Lin photo respectively; 5 shell casings collected at scene See cone where gun located in dirt. Hawkes body in relation to shell casings; Overall view of scene, see cones where See Tixier’s unit in street. projectiles were located, in the middle and across street from where Hawkes located. There were 14 videos collected from the responding officer's lapel cameras. Forensic Video Analyst, Grant Fredericks, examined all lapel videos that were collected by APD. This 19included lapel videos from Brokaw, Portillos, Tixier, Molina, Romero, Dear, and Friedfertig. Hernandez and Maurer did not have any lapel videos. Dear had lapel videos that were recorded earlier in the night, but no video at the time of the shooting. According to Fredericks, any editing of the videos would have been easily detected by him. He found that none of the videos had been tampered with or edited prior to them being uploaded by APD, or while in the Evidence.com cloud where the videos were being securely held after being uploaded. The original videos and audit logs were also examined by Dr. Andrew Reisman, who is the CEO of an independent corporation called Elijah. Reisman is a digital forensics and cyber security expert, and his corporation provides comprehensive solutions to computer forensics. The examination was done in response to an affidavit filed by Reynaldo Chavez. Chavez was an x- APD employee who had alleged that APD personnel had tampered with or altered videos in the Hawkes case and other officer involved shooting cases. By examining the audit logs provided by Taser International Reisman concluded that all of the videos in the Hawkes and other cases were originals that were uploaded directly, and without an opportunity to be edited or altered beforehand. He concluded that none of the videos had been erased or blurred, nor were any videos uploaded in the offline mode. He found that the original videos could not be altered in Evidence.com. If any of the videos or portions of the videos had been deleted or altered, it would have been easily tracked within the audit logs. He confirmed that no original videos or portions thereof were deleted or tampered with or altered, and any allegation to the contrary was untrue. He found that two of the videos that he had examined were unclear or blurry due to a camera malfunction or potential lens obstruction, but the evidence itself was original and unaltered. He found that the original videos uploaded into Evidence.com remained there in an unaltered form along with the associated audit logs for anyone to examine in all videos. The allegations of Mr. Chavez were therefore refuted by direct evidence to the contrary, with Judge Browning characterizing Chaver's affidavit and testimony thus: “[t]here is just nothing that we've heard or seen that connects some isolated incidents, and maybe not even nefarious incidents, with anything going on in this case.” Taser International, the manufacture of the lapel cameras, was asked to examine Dear’s lapel camera and its connecting cord. They were asked to do so because between the minutes leading up to the shooting of Hawkes and immediately after the shooting, his lapel camera had not recorded any events. The camera and its connecting cords were examined by analyst Brian Chiles, from Taser International. Dear’s lapel camera had been working earlier in the night, and multiple events had been recorded. Soon after the shooting of Hawkes, Dear was observed for 20three seconds manipulating his lapel camera which was still located on his utility belt. When in use the camera is connected to a controller via a cable connector. It was later discovered that the camera cable had physical damage to the connector baots at both ends of the controller, and at the camera connector sites of the cable. (see photos below). The camera had a power switch slide, and when turned on first enters into a “buffering mode” for up to 30 seconds of video with no audio. To begin recording one taps on the controller event button twice, and the system enters the “event mode,” where it begins to record video and audio, and gives an audio double-beep tone when properly functioning. The tone repeats every two minutes while in the event mode. Once on, the event mode can only be stopped in one of four ways; 1. by holding the event button down for at least three seconds, 2. by turning the power off with the power slide switch, 3. by disconnecting the cable between the camera and the controller, or 4. by having a depleted battery. Dear stated that he had attempted to power the lapel camera to the on position, but when he attempted to do so, it did not turn on. There were concerns that Dear had not bothered to turn his camera on prior to the shooting, based upon an extensive history of violations in that regard during his employment at APD. The log file indicated that the lapel camera was shut down multiple times on April 21, 2014, and did not record any events from 5:45 a.m. to 5:55 a.m. The lapel camera had been powered on twice at 5:54 a.m., but had not recorded anything. After examining the camera and cables, Mr. Chiles found that the right 2angle end of the cable that connected to the controller had the most damage, but the cable coming out of the boot otherwise functioned properly. The more relevant issue that Mr. Chiles found was that the holster to the camera did not have a retention clip, thereby making removal of the cable from the controller easy, and it could occur with minimal force. However, Mr. Chiles was still not able to determine whether the system was shut down by the controller’s power switch, or by a cable disconnect. He found that the camera could have been shut down either way, and there was no way to determine which. Dear had indicated that he had double tapped his lapel to start it up prior to the chase when he had first exited from his vehicle, He should have heard a sound coming from the lapet 1g, but he did not hear any sound. He indicated that at that time to alert him that it was reco he did not follow up at that time because he was more concerned with Hawkes than with his lapel, as the chase had started immediately after he had exited from his vehicle. He recalled that after the shooting his lapel was unplugged, but he had not noticed it prior to that time. There is no way to refute his statement based upon all of the evidence, and it would be speculation to conclude that Dear was attempting to disable his body camera, rather than attempting to determine the status of his body camera immediately after the shooting. The evidence provided by Mr. Fredericks and Mr. Reisman is clear that the video footage provided by Dear had not been erased or tampered with, and that if anyone had done so it would have been easily detected through their examinations. The lapel cameras assigned to Dear, Molina, Tixier, Hernandez, Romero, Maurer and Brokaw were returned to the manufacturer, and were preserved by the manufacturer with new and updated lapel cameras having been assigned to the officers in the regular course of business. The original cameras were held by the Axon Manufacturer undergoing an analysis, and the plaintiffs in the civil case had that report. The cameras were offered upon request to the plaintiffs, and there is no evidence that they ever sought to obtain/retrieve the cameras from the manufacturer. There is also no evidence that the cameras contained any additional relevant evidence, and the City did not hold onto them for that reason. They did however alert the Plaintiff's Attorney that they were preserved and not destroyed. There is no evidence within the material obtained that Plaintiff's Attorney chose to not obtain them from the manufacturer, and then later complained that they were not preserved. 22Autopsy Dr. Ross Zumwalt, Pathologist, performed an autopsy on the body of Hawkes. He concluded she was struck by three separate bullets. Two of the wounds had an initial entry wound followed by an exit wound, and then a reentered wound, with both bullets being recovered from within her body. The third wound had an entry wound and an exit wound, but the bullet was not recovered. The trajectory paths in all three wounds were at a downward angle, from the left side of her body to the right side of her body. There were no gunshot wounds to her back. More specifically, paragraphs one, two and three below indicate the separate paths taken by the three bullets as described by Dr. Zumwalt. 1) Wound 1: This wound was the most severe, and more likely than not, was the fatal wound. The bullet first entered the left ear, travelled downward and laterally through the base of the skull, and severed the carotid artery. it then travelled to the right, downward and laterally through the neck, and exited the right side of the neck. The bullet then reentered the right lower side of the neck at the shoulder, and travelled into the right axilla where it was recovered. This bullet would have caused her to immediately lose consciousness, and more likely than not, would have caused her to fall down. The abrasions or scrapes located on the right side of her face were consistent with striking a hard surface, due to her inability to catch herself when she fell after being shot. The downward angle of this bullet, from its entry wound into the skull to its re- entry wound into the shoulder, was approximately 41°. To account for this angle Dear would have had to have been firing from above Hawkes, downward; or Hawkes would have had to have been bent over or angled toward Dear’s gun; or some combination of the two. Dr. Zumwalt, however, indicated that Hawkes’s exact position was impossible to tell because of all the possibilities. 2) Wound 2: This entry wound was from a separate bullet that entered the left upper arm, and then exited the same arm on the left side inner arm, and then reentered the left side chest. The trajectory angle was from left to right and downward. It travelled slightly from the front to back where it broke a rib, and bruised the left lung. The bullet may have deviated to the back after it struck a rib, and it was recovered from the left side of the back. Given that an arm is very mobile with a wide range of possibilities, the angle of the wound going into the body was unknown. 233) Wound 3: This bullet traveled from the left side of her body and entered through the top of the right shoulder, and exited the upper part of the right arm, and was not recovered. The bullet trajectory was from left to right and downward. Dr. Zumwalt felt, that there were many ways to create the angle observed in this wound which would deviate greatly depending on how far up or down one moves the arm. Dr. Zumwalt indicated that Hawkes would more likely than not have survived a combination of all wounds except for the head shot observed in wound 1, because the other two bullets had not caused major damage to any of her internal organs. He was not able to tell the order of the three bullets as they entered her body, and indicated that there was no medical way to do so, and that “any attempt to do so would be speculation only.” Craig Fries, from Precision Simulations, was hired by Ms. Kennedy to visually recreate the scene that had been previously measured and documented by the APD Criminalistics Unit. He used a 30 laser scanner with software that converted the scene into a 3D studio. With this tool, there was no need for interpretation of the data used by the laser scanner because the procedure maintained fidelity to the data that was previously measured and documented by the criminalistics unit. He utilized the information provided during the autopsy regarding the path the bullets took when entering and exiting the body of Hawkes. His goal was to establish the position and posture of Hawkes at the time the bullets entered her body, and to determine the relative position of Dear in relation to Hawkes at those times. He also conducted a synchronized video analysis, frame by frame, using the videos from Romero, Tixier and Friedfertig. This recreation and frame by frame analysis helped to establish the locations of individuals within the scene at the time of the shooting, which included the approximate locations of Hawkes and Dear at the time of the shooting. Tixier’s lapel camera was the only lapel that captured a part of the shooting. In a frame by frame analysis conducted by Fries, the video from Tixier’s camera that captured the scene as he drove up was examined. The video captured what appeared to be the final two shot flashes from Dear’s gun. While it appeared much more likely that the two muzzles flashes had emanated from Dear’s gun, Fries admitted that the two flashes could also have been from the flash light attached to Dear’s gun that had turned on automatically when Dear squeezed the handle/trigger on his gun. When the flashes are seen Dear appears to be stationary, and standing in the street, just north of the curb with both arms extended and pointed in the direction of Hawkes. Hawkes also appears to be stationary, and about eight feet south of Dear 24on the sidewalk, and closer to the wall. There is no way to tell what Hawkes was doing because of the quality that the video frame does not provide sufficient clarity to make that determination. Dear had indicated that he had taken one or two steps back prior to firing his weapon, but had stopped and was stationary when he fired at Hawkes. That was not captured by the lapel because it occurred prior to Tixier and his lapel camera being in position to do so. An ejection pattern analysis was not conducted by APD. Fries did not feel that an ejection pattern analysis would be of any assistance, because he felt there were too many unknown variables that would make the location of the five casings collected at the scene unreliable. He was not able to tell whether Dear had been moving eastward when he initially fired at Hawkes. However, he believed that it was more probable that Hawkes was still moving eastward during the initial two to three shots. Dear said that he was standing still when all the shots were fired at Hawkes. If Dear’s position had remained static, then Dear would have been about eight feet away from Hawkes when he fired at her, according to Fries measurements There was a ten foot distance between impact defect i-1 in the wall, and impact defect i-3. If Hawkes had been standing stil in front of Dear, and only eight feet away from him at that time, Fries wondered why had Dear missed her by such a wide margin? Fries assumed that Dear was 2 good shot, which is a fair assumption because as an officer Dear had to regularly qualify with his weapon. He also believed based upon the evidence that all five shots were fired in succession, with an approximate difference of .25 seconds between each shot. Dr. Zumwalt was not able to determine if Hawkes had been moving eastward while being shot at, based upon the autopsy evidenced alone. However, he also felt confident that if the above facts were true, that Hawkes would have been moving at a good pace eastward when she was initially fired upon. The Forensic Crime Scene Reconstructionist, Matthew Nodel, and the Pathologist, Dr. Judy Melinek, also believed that the evidence as stated above supported the theory that Hawkes was moving when she was initially fired upon, and that the ten foot spread between impact i-1 through i-3 was evidence of her movement while being fired upon. Dear maintained that “she was slowing down, almost like a slow walk, and then stopped.” This however does not help determine at which point was the exact moment when. he had started to shoot, relative to when she had stopped. While the location of Dear and Hawkes during the fourth and fifth shots were believed to be identified from Tixier’s lapel video, there is not any video of their location during shots one, two and three. 25‘Two of the three projectiles that had ricocheted off of the wall were located almost directly across the street from where Hawkes lay. However according to Fries, a cinder block wall is too “crumbly,” making any measure inaccurate, and he believed that it did not provide a reliable measure in attempting to determine the angles at which the bullets struck the wall There was evidence of a bullet strike to the lower right side of the sweatshirt Hawkes was wearing at the time she was shot. According to Nodel, one of the projectiles collected from the street at the scene, had tufts of black material in it that was consistent with a hole in the bottom right hand side of the sweatshirt Hawkes was wearing. Fries indicated that if you factor in Dear’s approximate gun height, then the hole in her sweatshirt lined up with impact defect i- 2, which was about eight feet from her point of rest. This also supported his belief that Hawkes was moving when fired upon. This match up suggested that her torso was facing and moving east or due east when the bullet that missed her body struck her sweatshirt and created impact, defect i-2. The shooting incident reconstruction conducted by Fries included the trajectory path of the three bullets that struck Hawkes as described by Dr. Zumwalt. It also included the height of Dear and the approximate locations of Dear and objects within the environment at the scene. It included all measurements and information provided, and compared that information with the location of Hawkes. Fries concluded that Hawkes was moving dynamically throughout, with the possible exception of the shot through the shoulder and the shot through the head. Both may have occurred at generally the same location, meaning where she went down. Fries believed that Hawkes had stopped her eastward movement for the last two shots based upon the shoulder to wall shot that he believed lined up with the impact defect i-3. In order for the bullet to have traveled through her body as described by Dr. Zumwalt, Dear’s gun would have had to have been higher than the head of Hawkes for the trajectory angle to be accurate, assuming Hawkes was standing erect when that shot was fired. However, Fries stated under oath that there are “literally hundreds of [ ] positions” Hawkes could have been in, relative to Dear, that would account for the trajectories of the bullets that struck her. Fries also testified that it “if we're suggesting [Hawkes] was turned towards [Dear] at the first shot, that is possible.” Fries compared the trajectory angles of all shots fired from Dear’s location on the street, and assumed that the i-1 and i-2 impact defects represented shots one and two respectively. His analysis revealed that the trajectory of the last three bullets into her body became more progressively downward, which indicated that she was therefore moving downwards, or ducking as she was being shot. While he believed that the first two shots missed her, shots 26three, four, and five all had progressively increasing downward trajectory paths from one another. This would be consistent with Hawkes ducking as soon as Dear began firing. Fries believed that the downward paths indicated a change in her stature that was indicative of her falling while being shot. in his statement, Dear indicated that he had stopped shooting when Hawkes went down. Fries and Dr. Zumwalt believed that the observed paths of the bullets into the body, and the trajectories of the bullets were not inconsistent with Dear’s recollection of events. Fries indicated that the trajectory information supported his belief that her torso was facing east as the shots were fired, with the final shot being the one that entered through her left ear when she was at her lowest point during the shot sequence, and occurred as she was falling down. While the evidence more strongly suggests that Hawkes was moving when Dear initially fired at her, that evidence does not preclude the possibility that, after seeing the gun pointed at him, and in the chaos of the moment while initially attempting to acquire his target, Dear hurriedly fired his weapon prior to acquiring his stationary target. This would account for the ten foot spread in the wall between impact defects i-1 and i-3. Fries also acknowledged that the evidence allows for the possibility that Hawkes could have stopped, turned towards Dear, and then Dear could have fired Ms. Kenney asserted that “[t]here is considerable evidence that Ms. Hawkes was not carrying a gun when Dear killed her” and that “the gun appeared out of nowhere.” Fries, suggested that there was a possibility that Hawkes was unarmed at the time she was shot, because he did not see the gun on any video until after she was shot. He also was not able to. see the gun in the car wash video, yet he admitted that he did not review the frame by frame work done on the car wash video by Grant Fredericks. Fries could not determine whether Hawkes did or did not have a gun in her hand based upon his analysis. Nonetheless, without any supporting evidence, Fries then surmised that Dear could have placed or thrown the gun on the sidewalk next to Hawkes. There is no evidence to support his theory, and no reasonable jury would think so, In order for Dear to have planted the gun beside Hawkes’s body, he would have had to do so within the 10 second window of opportunity immediately after he fired his final round and Hawkes fell. This 10 second window of opportunity began 2 seconds after Hawkes fell and ended 10 seconds later. That is the only period of time, after the shooting, in which Dear is not captured on one, or more, of other officers’ lapel videos. On all of them he is standing erect, 27holding his gun in a shooting position, and never gets any closer to Hawkes’s body than 5 feet. On none of them is he seen throwing an object, or even displaying a throwing-like motion. Grant Fredericks noted that a shiny object, consistent with the gun that was recovered, is seen on Tixier’s lapel video beside Hawkes’s body, only 1.9 seconds after she fell. Left unexplained and unaccounted for by Fries, or anyone else, is what this object is if itis not Hawkes’s gun. Additionally, all of the following must have occurred, and be plausibly explained, for Fries’s theory that the gun was planted to be true: 1. Dear would have had to come into possession of Gaddy’s gun. However, Gaddy said he had no idea who Dear was and had never seen him. Given that the evidence is compelling that Gaddy’s gun was stolen by Hawkes in the preceding 10 weeks, this means that Dear had to have somehow come into possession of, Hawkes's gun, after she stole it from Gaddy. No suggestion has been made as to how this might have happened. 2. In order to plant Hawkes's gun beside her body Dear would have had to have it immediately accessible to him in order to place it during his very limited window of opportunity. Photographs taken of Dear, shortly after the shooting, show him to be wearing his standard field services uniform, with a standard-sized holster on his hip for his handgun. Officers’ lapel videos of Dear show the same thing. Dear is not wearing a jacket, and he is wearing no other holster, or anything else, that would enable him to securely carry Hawkes’s gun, and have it stay secured, while he was running. Therefor Hawkes’s gun would have to have already been in Dear’s hand immediately before, and at the time of the shooting. That means Dear would have to have been chasing Hawkes, with his own gun holstered, yet carrying Hawkes's gun in his hand. However, officers’ lapel videos clearly show that both of Dear’s hands are on his gun, in a shooting posture, during the shooting, and he does not have another gun (Hawkes’s) in his hands. 3. Dear was aware of the presence of several other officers, some of whom he did not know personally, in his immediate vicinity when the shooting occurred, He knew they all had lapel video cameras, that they were required to use them, and therefor that he was being filmed. He would have to have known that he would only have 10 seconds, during which time no other officers’ lapel videos were capturing him, in order to plant Hawkes's gun, and he would have to have known, exactly when those 10 seconds were going to occur. There is no evidence that any of these other officers had any idea whose lapel was turned on, or even if their own lapel was turned on and, if so, what it was capturing, It is impossible to 28impute to Dear a level of knowledge about other officers’ lapel videos that they themselves did not have. 4, Dear was aware that other officers who were in the immediate proximity of the shooting were also eye-witnesses to the shooting. He would know that they would have also seen him plant Hawkes’s gun. He would have to have known. with confidence, ahead of time, that all of them would fail to tell investigators what they had seen, when interviewed, and would do so at great risk to their careers to protect him. 5. The decision to plant Hawkes's gun beside her body could not have been made spontaneously by Dear immediately after he shot her because he would have already had her gun in his hand when he fired. He did not have time to retrieve her gun from his car. Rather, the shooting would have had to be anticipated and intended by Dear, meaning his decision to shoot Hawkes would have been made before he got out of his car and began to chase her. No motive whatsoever has been suggested, by anyone, as to why Dear would decide to shoot and kill an unarmed diminutive car thief who posed no threat to anyone but was simply running away from him, and do it in front of several other officers whose lapel videos were running. Fries admitted that Hawkes could have had a gun in her right hand, point it across her body at Dear, while not facing him directly. Fries allowed that Hawkes could have been facing up to 90° away from Dear and still have been able to point a gun at him. Under oath Fries testified that “there is no physical evidence to tell us where Ms. Hawkes’s lower right arm was at any given point in time...” ‘After Hawkes was shot she fell to the ground, and upon hitting the ground did not move for two seconds as observed on video. Fries frame by frame analysis of the lapel videos briefly showed the location where Hawkes had landed adjacent to the major blood stain that was on the pavement. For those two seconds her head and feet were laying in an east west direction. Her body was then out of view and was not captured on video for the next ten seconds due to Officer Tixier’s movements. When she was next captured on video after that ten second period, her body was no longer adjacent to the major blood stain located on the pavement. Her feet and head had also changed position, and were then in a north south direction with her feet hanging off of the curb, and her body perpendicular to the adjacent wall. There was no video evidence that showed how her body had moved during that ten second period. Fries agreed 29with the conclusions of Chiles and Reisman that he did not see any altering of the video in terms of frames missing, frames being stretched or compressed, and that there were no changes to any clippings of the video. Fries, however, concluded that because Hawkes’s body had not initially moved when she hit the ground for the initial two seconds, it was more likely than not Dear had moved her body during the subsequent ten second period. He believed that when Hawkes was moved by Dear, Tixier and Romero would have seen Dear move her because they had a clear line of sight. He made that conclusion because the only person close enough to Hawkes to have moved her body was Dear, and therefore it was plausible that Dear moved her in order to plant the gun on the sidewalk. This is conjecture and there is no evidence to support it. Fries indicated that Dr. Zumwalt reported that Hawkes would not have had the ability to voluntarily move in that manner after the head shot. This, however, is not an accurate statement of what Dr. Zumwalt said Dr Zumwalt was uncertain how long Hawkes would have lived after she had sustained the fatal wound to her head (wound 1), and would have needed someone present at the time of her wounds taking her vital signs in order to be certain. He indicated that with the interruption of the carotid artery and the impact of the head, Hawkes would have lost consciousness immediately, and irreversible brain damage would have occurred “perhaps within minutes.” He also believed that after sustaining the wound described as wound 1, that it was possible, but not likely, that Hawkes would have been able to make voluntary or involuntary movements, such as moving her arms and torso, or rolling over after falling. He indicated that “involuntary twitching could have occurred to her arms after she was shot, but more likely than not, would not twitch.” He said “sometimes you can get some twitching, and it depends on just how the injury affects the central nervous system and the peripheral nervous system, and it’s certainly not always the same.” He stated that it was also possible, but very unlikely that Hawkes could have crawled after sustaining the head shot. There were five APD Officers who were present at the time of the shooting, during the shooting, or immediately after the shooting, who observed Hawkes immediately after she fell. These five officers all independently described movements made by Hawkes from their positions at different angles after she had been shot, and while she was on the sidewalk. Officers Hernandez, Tixier and Brokaw provided their statements at the scene immediately after the shooting. Officer Dear provided his statement two days later on April 23, 2014, and 30Officer Romero on May 16, 2014 when he was interviewed. There is no evidence that any of the officers colluded prior to making their statements. None of these officers had ever met or seen Hawkes prior to April 21, 2014. There was no indication that any of these officers thought that the movements they observed Hawkes’s body make were unusual or extraordinary. The recorded statements they made to the investigating officers concerning Hawkes movement on the ground after being shot are as follows: 1 Officer Dear stated that he had continued to point his gun at Hawkes even after she hit the ground because he observed that she was still moving after being shot. He stated that he, “sees her moves up alittle then falls back down, after she fell she moved around a little bit.” Hernandez then moved up and cuffed her. Dear continued to hold his weapon on Hawkes until she was cuffed. He was then escorted to his unit where he waited Officer Tixier stated that after he exited his vehicle, he pulled his weapon out of the holster, and saw a female on the ground still moving. There was a gun within an arm's reach of her. She was oriented on her back, and her feet were in a northwesterly direction, and her head was facing in a southeasterly direction. He stated that he was “not sure if she was having involuntary actions of her body reacting to being shot, or if she looking to acquire the gun, but she moving, the gun less than arm’s length away from her.” He saw that she was moving her left arm. He further described Hawkes as being on her back, but up and leaning slightly on her left side. He saw her roll from prone position to her back several times, and then she stopped moving. He also stated that “there was significant movement when she was on the ground,” and on her back. For that reason, he also continued to hold his weapon on Hawkes until she was cuffed by Hernandez. Tixier also indicated that no ‘one had moved Hawkes until she was moved by Hernandez, when he handcuffed her. Officer Hernandez saw a subject, all in black, running in an eastbound direction as he drove eastbound from Wisconsin. He heard a “pop” sound and saw the subject fall to the ground. After exiting his vehicle he saw Dear to his left, two other officers to his right, and a small caliber gun about one foot south from the left arm of Hawkes as she laid on the sidewalk. He noticed a pool of blood, and saw that Hawkes appeared to shift positions, and still “moving a bit.” Her movement was not enough 31for her to get up, but enough of a concern for him to tell officers to hold on her while he assessed whether her hands were clear. Her head was pointing to the east, and her feet pointed to the west. Hernandez saw that no officer had reached her by this point. Hernandez holstered his weapon, and while cuffing her, had to turn her body over in order to place the handcuffs on her right hand. Hernandez activated his, lapel just prior to cuffing her. He saw that she was not breathing at that point and was bleeding heavily. 4. Officer Brokaw had just arrived at Wisconsin and Zuni as the K-9 search was about to begin, and when Hawkes had just then broken the perimeter. He followed Hernandez to the scene just east of Zuni and Wyoming, and heard the initial pop sound of a firearm, and saw Hawkes fall while he was exiting his car. He saw Hawkes lying prone and initially not moving, and then, within a short time, he saw her “moving a bit.” He observed that Hernandez was the first to approach Hawkes when he cuffed her, and saw that she did not appear to be breathing. 5. Officer Romero recalled that Hawkes had moved with very small jerks, and had repositioned herself, because when she initially collapsed, her head was toward the wall. He also recalled that she was spewing blood from her mouth. He stated that Dear did not reposition Hawkes’s body. The remgining four perimeter officers did not witness any of the action during, or immediately after Hawkes was shot. Friedfertig had held his post at Zuni and Virginia when the shots were fired. Maurer and Molina had separately arrived at the scene at the point when Hernandez was placing handcuffs on Hawkes. Molina then identified her as the same person he had seen earlier in the truck. When Portillo arrived at the scene Hawkes had already been cuffed. The gun collected at the scene was swabbed for DNA analysis. The gun grip and trigger each contained at least one male contribution in each sample. The earlier DNA findings yielded no conclusions because of the complexity of the DNA profiles which also contained at least four individuals, if not more, and therefore further testing was not recommended or done. A test called the Y-STR Analysis tests for the Y male chromosome and can tell the minimum number of male contributors present in the DNA sample. If Y-STR DNA profiles are obtained and are suitable for comparison, then it can be compared with any known male sample. Ms. Kennedy 32asks that we “request samples of Jeremy Dear’s DNA to conduct a Y-STR analysis on the gun.” Dear previously refused to give a sample in the civil case and the court denied Plaintiff's request that he be compelled to do so. A buccal swab for DNA is a search protected by the fourth amendment. Maryland v. King, 569 U.S. 435, 444-446 (2013); State v. Blea, 2018-NMCA-052, 1119. In order to compel a suspect to submit to this procedure there must be probable cause. King, at 465; Blea, at 130. There is no reasonable possibility that the DNA test would reveal a match. Because we lack the probable cause to request that one be compelled we are not recommending that this test be done. There is no evidence that Dear ever came in contact with the gun collected at the scene. All the evidence leads to one conclusion: that Hawkes possessed the gun found next to her and had been in possession of it since she stole it from Gaddy. Dr.William Anderson, Phd., Forensic Toxicologist conducted a toxicology examination on Hawkes as part of the autopsy examination. In his report he indicated that Hawkes had methamphetamine in her system, an amount of 850ng/mi. In her April 10, 2014 text message wherein Hawkes was attempting to sell the stolen truck, she also wrote, “need to sell these shardies too they kill and got some dro.” Police indicated that the word “shardies” was a slang reference to methamphetamine. Dr. Anderson indicated in his report that blood levels of 200- 600 ng/ml have been reported in meth abusers who exhibited violent and irrational behaviors. He also indicated that high doses of methamphetamine can elicit restlessness, confusion, hallucinations, circulatory collapse and convulsions. He also determined she had 33 ng/ml of amphetamine in her blood. He described that amount as a small level, but indicated that methamphetamine breaks down in the body into amphetamine, which is a metabolite of methamphetamine. He indicated that the level of amphetamine in her body would typically be seen in someone who had taken a large amount of methamphetamine. Dr. Zumwalt also indicated that the 850ng/mi was a high concentration of methamphetamine in her system. He further stated that he saw no evidence of chronic methamphetamine abuse, and that the level of methamphetamine found in her blood did not contribute to her death. It might, however, partially explain her behavior that night. LEGAL ANALYSIS New Mexico Statute §30-2-6 is entitled, “justifiable homicide by public officer or public employee,” and establishes that a peace officer may justifiably use deadly physical force when the officer reasonably believes that the officer, or another, is threatened with serious harm or 33,deadly force, The reasonableness of this belief is viewed from the “perspective of the officer on the scene, with the understanding that officers must often make split-second decisions in difficult situations about what force is necessary.” State v. Mantelli, 2002-NMCA-033, 4129, 131 N.M, 692. The officer need not prove the suspect posed a threat of death or great bodily harm to himself or another; the officer need only offer evidence that he had probable cause that the suspect posed a risk of “serious harm or deadly force to him|self] or (others), and that the use of deadly force was necessary to avert the threat.” Mantelli, at 131. Under Section 30-2-6, the crucial consideration is the conduct and dangerousness of the suspect, not the classification of the crime that she has committed or is alleged to have committed. Mantelli, at 125. Under the New Mexico Uniform Jury instruction, 14-5173, Officer Dear would be able to raise the defense of justifiable homicide by a public officer if: 1. Atthe time of the killing, Jeremy Dear was a public officer; and 2. The killing was committed while Jeremy Dear was performing his duties as a public officer; 3. The killing was committed while arresting Mary Hawkes, who committed receiving or transferring a stolen motor vehicle, and was fleeing from justice; and 4. A reasonable person in the same circumstances as Jeremy Dear would have reasonably believed that Mary Hawkes posed a threat of death or great bodily harm to Jeremy Dear or another person. The burden is on the state to prove beyond a reasonable doubt that the killing was not justifiable. If you have a reasonable doubt as to whether the killing was justifiable, you must find the defendant not guilty. CONCLUSION At trial the following evidence would likely be admissible and adduced: © Mary Hawkes stole Michael Gaddy’s gun during the ten week period preceding April 21, 2014, Mary Hawkes stole Vincent Ortega’s pickup truck on April 10, 2014. Mary Hawkes indicated she was trying to sell a stolen pickup truck on her Facebook page. ‘* Mary Hawkes indicated she would be willing to shoot someone in order to retain possession of the stolen pickup truck on her Facebook page. She made this statement only 9 hours before she encountered Officer Jeremy Dear. 34Officer Sonny Molina observed a female driving Ortega’s pickup truck at approximately 3:00 a.m. on April 21, 2014. He attempted to apprehend her but she abandoned the truck and fled on foot. Officer Molina broadcast a description of this suspect over the air. Soon thereafter he identified the suspect as Mary Hawkes. Officer Molina was able to obtain a photograph of Hawkes and showed it to other officers, including Officer Dear. At approximately 5:00 a.m., on April 21, 2014, Officer Molina observed Hawkes exiting a vehicle on Zuni SE, near Virginia SE. This was approximately .7 miles from where she had abandoned the truck. Officer Molina ordered Hawkes to stop, but she again fled, and entered the mobile home park on Zuni SE, between Virginia and Wyoming. Officer Molina saw that Hawkes kept moving her right hand toward her waistband while she ran. He believed this might indicate that she was armed. Officer Molina broadcast his observations over the air, and admonished other officers to use caution regarding Hawkes. Several officers set up a perimeter around the mobile home park. K-9 officers circled the park and announced that they were about to release their dogs into the park, in order to apprehend her, and encouraged Hawkes to surrender. At 5:49:15 a.m., Hawkes scaled the cinder block wall on the east side of the park, ran across Wyoming, and through one of the bays at a carwash. A video camera inside this bay shows Hawkes with an object in her right hand. This object is consistent with a handgun based upon its length, shape, reflective property (consistent with metal), and manner in which Hawkes is carrying it. Seconds later Hawkes ran from the carwash. Officer Dear exited his patrol unit and began to chase her. ‘As Officer Dear was closing the distance on Hawkes she slowed and, as she began to turn towards him, pointed a gun directly at him at a distance of approximately 8 feet. There is no physical evidence, or eye-witness testimony, that would contravene, or render implausible, Officer Dear’s assertion that Hawkes pointed a gun directly at him at close range. Officer Tanner Tixier would testify that he saw Hawkes point a gun at himself, and then Officer Dear at a very close range before Officer Dear unholstered his weapon and fired upon Hawkes. No officer would testify that he is certain that Hawkes did not have a gun in her hand. 35© No officer would testify that he is certain that Hawkes did not point a gun at Officer Dear. Fearing for his life, Officer Dear then drew his service weapon and fired at Hawkes, killing her. * Hawkes was observed by five officers to have continued moving, to some extent, for a few seconds after she fell ‘© The gun Hawkes pointed at Officer Dear was the one she stole from Gaddy. It landed a few inches from her body when she fell. The evidence strongly suggests that Officer Dear was justified in his concern for himself, and reasonably believed that Hawkes posed an imminent threat of deadly or serious harm to himself, and he responded to that threat by firing his weapon based upon that threat. Officer Dear would therefore be entitled to raise the defense of justifiable homicide by public officer. In order to convict Jeremy Dear all twelve jurors would have to believe, beyond a reasonable doubt, that Jeremy Dear did not have probable cause to believe that Mary Hawkes posed a threat of death or great bodily harm to himself, or others. We believe the evidence is. compelling that he did, and that a jury would agree. Therefore, we believe it is not possible to obtain a conviction on Jeremy Dear, and prosecution is unwarranted. Based upon these facts, there is no reasonable likelihood of successful prosecution: therefor no charges will be filed against Officer Dear, and the case will be closed. Sincerely yours, Sincerely yours, Chris Schultz onal Montano Special Prosecutor Special Prosecutor Ce: Raul Torrez, District Attorney, Second Judicial District; Matthew Caplin, APD Detective; Fred Mowrer, Attorney for Officer Jeremy Dear; Jeremy Dear, APD Officer at time of shootin, Shannon L. Kennedy, Attorney for Mary Alice Hawkes and Danny Hawkes, parents of Mary Hawkes; 36