Murder suspect freed

By Bill Donovan
Staff Writer

GALLUP — District Court Judge Grant Foutz Friday agreed to release Kenneth Durante on his own recognizance, ending what had been almost 16 months of incarceration.

Durante, 49, is charged with murder and tampering with evidence in the death in September, 2005 of Felizia Hope Penaloza. The teen's body was found under a bridge northwest of Gallup. Codefendant Joseph Evans, 30, also faces murder, kidnapping and tampering with evidence charges in the teens death.

Foutz's decision came after Michael Calligan, deputy chief prosecutor for the District Attorney's Office, reported that the latest testing of trace evidence showed no connection to Durante.

This means that the only evidence the prosecutors have in this case against Durante are statements made by Evans, who has confessed to his involvement in Penaloza's death. But state law requires that the prosecutor acquire evidence separate from the confession linking Durante to the crime and so far, despite testing of blood and hair found at the crime scene, they have not been able to do this.

They had hoped that some hair evidence, which preliminary testing indicated came from a Caucasian, could link Durante to the crime but Calligan said Friday that that never happened.

There was some talk that the prosecutor's office would dismiss the case against Durante this week, but Calligan said he preferred to keep the case going a trial is scheduled to begin on Feb. 6 but if no more evidence is found, he may have to dismiss before the trial or have the trial postponed.

Durante smiled for the first time in court since he has been arrested during the brief hearing and then made arrangements to be released.

R. David Pederson, his defense attorney, spoke briefly of the need for the courts in New Mexico to come up with a solution so suspects won't have to spend months and sometimes more than a year in jail waiting for the state to get evidence tested.

He reported seeing an article in the papers this week about a case in Silver City where the suspect had been in custody on murder charges but then was released when it was revealed that it would be take at least a year to get the evidence tested.

Gov. Bill Richardson has taken note of the problem and has agreed to support efforts to expand the area where the state labs are located and hired a couple of more personnel.

But that's not going to be anywhere near enough to solve the problem, said Pederson. To get to the point where evidence is tested in a timely manner will require the state to double or even triple the amount it provides to the state lab.

After the trial, Pederson talked about the public's perception of Durante after 16 months of local newspaper headlines saying he was a danger to the community.

"That's absolutely not the case," he said.

Instead, what has occurred is that Durante has been labeled dangerous because of his past and not anything he may have done recently, he said. Durante served several years in state prison for the attack on a local Gallup businessman, stabbing him more than a dozen times.