Murder suspect out of jail

By Bill Donovan
Staff Writer

GALLUP — Joseph Evans, who has been in county jail for 20 months on charges of kidnapping and murdering a 16-year-old Gallup girl, was released Friday.

The release came after State District Court Judge Robert Aragon agreed to a defense motion to suppress evidence collected at Evan's home by police in September, 2005, shortly after police discovered the body of Felicia Penaloza in a wash near Rock Springs.

McKinley County District Attorney Karl Gillson said his office has filed an appeal to that decision with the state Court of Appeals, but because that is expected to take six months to a year before a ruling is issued, Evans will be allowed to be free under house arrest.

He was released from the jail about 1 p.m. Friday, three days after Aragon approved the motion. Gillson said the delay was made in order to give his office time to inform relatives of Penaloza that he was being released.

Evans was one of two men charged with the murder. The second, Kenneth Durante, was released from jail four months ago, after more than a year in jail, because the district attorney's office was not able to link any of the evidence in the case to Penaloza's death.

After he had been arrested, Evans confessed to the murder, implicating Durante. In fact, Evans confessed several times over the following several months, according to Durante's attorney, R. David Pederson, with each confession downplaying his role in the murder and claiming that Durante and others were the ones who actually did it.

Evans' attorney, Michael Rosenfield, a public defender from Albuquerque, had also filed a motion to get the confessions suppressed as well but Aragon denied that motion.

In his motion to suppress the evidence collected at Evans' house, Rosenfield argued that the search warrant signed by Gallup Magistrate Judge John Carey was invalid because the state police did not have probable cause to ask for the warrant.

In the warrant, the state police officer Henrietta Soland stated that Evans was the last person "who was in the company" of Penaloza, basing that statement on an interview with Seferino Griego III, who said that he last saw Penaloza with Evans at 4:30 a.m. on September 4, 2005.

Another witness, Sheree Thornton Evans' mother told police that her son had told her and Griego after that date that Penaloza and another man had showed up at Evan's house and had left together. Penaloza's body was discovered a week later.

Rosenfield argued that the request by state police to search Evan's house then was "nothing more than a fishing expedition" since Evans was not charged with the murder at that time.

Aragon agreed with Rosenfield and suppressed the evidence collected at the house.

In a press conference Friday, Gillson said he could not release any details of what police acquired during that search warrant, but he did say that the evidence did link Evans to Penaloza's death.

The case has been going on now for 20 months, and Evans was supposed to go on trial next week. When asked why it has taken so long to get to the trial, Gillson pointed to several aspects of the case that have been given a lot of play in the media in the last 20 months.

First, the decision to send the evidence to the state lab delayed the trial more than a year as the state lab was bogged down with other cases. Gillson's office finally had to pay to send the evidence to a private lab for testing.

There were also questions brought up during the various hearings about Evan's competence to stand trial, and he was finally evaluated a process that took several months before Aragon ruled he was competent enough to help in his defense.

Gillson said he still feels that Evans is a danger to the community, not only because of the Penaloza case but because of other, unspecified issues.

He added that while it is rare for a judge to suppress a search warrant, it does happen, although Gillson said he was surprised when Aragon agreed to do it in this case.

The DA's office can still bring Evans to trial if the Court of Appeals overturns Aragon. But no matter which way the appeals court rules, Gillson said he expects the losing side to take it to the state supreme court, which will also cause a delay of several months so the earliest that a trial can be expected - if there is one - is late 2008 or early 2009.

As for Durante, Gillson said he remains a "person of interest" in this case and his staff is continuing to investigate his possible role in Penaloza's death. Gillson said there are also other persons who have also been implicated by Evans in this case.