Depraved mind murder?
Judge: Action was not depraved, but reckless

Investigators removed this Event Data Recorder from Anthony Yazzie's Cavalier. The EDR, which is installed all modern American cars, uses sensors to help crash reconstructionists piece together a driver's actions during the seconds leading up to an air--bag deployment. — © 2008 Gallup Independent / Cable Hoover

Copyright © 2008
Gallup Independent
By Philip Stake
Staff writer

GALLUP — Anthony Yazzie, 25, of Prewitt, who is accused of killing two passengers and injuring another in a Sept. 2, 2007, car crash, will not be facing murder charges when he goes to trial in district court.

A two-day preliminary hearing to bind over charges against Yazzie began Aug. 6.

Preliminary hearings are held to show probable cause on felony-level charges. Yazzie faced two charges of depraved-mind murder in the first degree, which, if convicted, would mean a mandatory life sentence, or 30 years in a state prison, according to Senior Prosecutor for the District Attorney’s Office Jim Bierly.

In New Mexico, unlike most other states, depraved-mind murder is a first-degree murder charge — a felony usually reserved for killers with willful intent.

Bierly argued that Yazzie acted with extreme recklessness and wanton disregard for human life by driving 80 mph over a blind hill and in a 25 mph-zone, near a crossing heavy with foot traffic on Aztec Avenue near the intersection of Will Street in Gallup.

Dr. Leo Romero, dean of the University of New Mexico Law School, likens the actions of a depraved-mind murderer to playing a game of Russian roulette.

In the course of making his case against Yazzie, Bierly introduced witnesses including police officers, a fireman, a medical investigator, friends of Yazzie and the other survivor of the crash, Jackson Nez. Police and fire officials and Richard Malone, the state medical investigator who responded to the crash, recalled in grisly detail the gruesome scene when they arrived that night on Aztec Avenue near El Captain motel.

The passenger side of Yazzie’s red 2000 Chevy Cavalier had been ripped away from the frame. Both passengers on the right side of the car, Dwayne “Pork Chop” Lee and 17-year-old Travis Coulston were ejected from the car, their bodies mutilated. Both died at the scene. Jackson Nez suffered permanent injury to his right arm. The retelling of the of the investigation wrought sobs from the stands, at times forcing members of the audience to leave the courtroom.

Essential to the prosecution’s depraved-mind murder charges was the use of an Event Data Recorder, a device installed in virtually all modern American cars that renders speed, throttle and brake data during the seconds prior to air-bag deployment. Bierly put Richard Ruth on the stand, an EDR expert from the Ford Motor Company. Ruth explained to Judge Robert Aragon the results collected from Yazzie’s EDR.

Ruth testified brakes were not applied at all during the eight seconds recorded prior to impact with a telephone pole. The throttle was open 100 percent at 5 seconds prior, while speed climbed steadily from 72 mph to 80 mph at 3 seconds prior. At 2 seconds prior to impact, the throttle closed down to 95 percent and the speedometer needle fell to 78 mph, but one second later the throttle was back at 100 percent and the speed upon impact was 80 mph. The car slowed instantly to 7 mph and came to rest 153 feet away from the telephone pole.

After impassioned closing arguments from both the defense and prosecution, Aragon stated that, because of the “monumental consequences” of his decision, he would take another day to review the case. The hearing went into recess Aug. 7, at 2:42 p.m.

Four days later, Tuesday morning at 10:39 a.m., Aragon announced his decision: He found insufficient evidence to support probable cause on the charges of depraved-mind murder.

However, when Yazzie goes to trial, which may not happen until next year, he will be tried for one count of child abuse resulting in death for the death of Travis Coulston, a first-degree felony carrying a maximum sentence of 18 years; one count of reckless vehicular homicide for the death of Dwayne “Pork Chop” Lee; and one count of great bodily harm by vehicle for the injury of Jackson Nez.

Evidential photographs collected at the scene on Sept. 2, 2007, revealed open beer cans inside the car and around the point of impact. Malone testified that there was an open bottle of whiskey in the glove box. Nez testified that the four people inside the car had just left a party where alcohol consumption had occurred. However authorities did not draw blood from Yazzie until four hours after the crash, enough time for intoxicants to dissipate. Aragon said he did not find sufficient evidence for drug or alcohol causation.

In other words, all charges are based on recklessness.