United States District Court, D. New Mexico
P. Martinez, United States Attorney Linda Mott, Niki
Tapia-Brito, Nicholas James Marshall, Assistant United States
Attorneys Albuquerque, New Mexico Attorneys for the
(Molly) E. Schmidt-Nowara Garcia Ives Nowara Albuquerque, New
Mexico - and - Theresa M. Duncan Albuquerque, New Mexico
Attorneys for Defendant Maynard Shirley.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the United States Motion
In Limine to Permit Testimony of Unavailable Witness
As a Statement Against Interest, filed October 12, 2016 (Doc.
135)(“Motion”). The primary issue is whether the
Court should admit Defendant Elijah Shirley's statement,
allegedly made to Cornelia Jim, the mother of E.
Shirley's ex-girlfriend Valerie Jim, in the early morning
hours of March 21, 2015, that he was “going to go kick
his ass” in reference to Brandon BlueEyes, V. Jim's
new boyfriend and the deceased victim in this case. Plaintiff
United States of America seeks to admit E. Shirley's
statement against Defendant Maynard Shirley, the sole
Defendant who has decided to go to trial. The Court will
exclude the statement as inadmissible hearsay, because E.
Shirley's statement does not qualify as a statement
against interest under rule 804(b)(3) of the Federal Rules of
Evidence, and because it does not rise to the level of an
excited utterance under rule 803(2) of the Federal Rules of
Court takes its facts primarily from: (i) the Amended
Criminal Complaint, filed March 25, 2015 (Doc.
4)(“Amended Complaint”); (ii) the Transcript of
Preliminary/Detention Hearing held on March 30, 2015, filed
May 6, 2015 (Doc. 36)(“Preliminary Hearing Tr.”);
and (iii) the United States' Motion In Limine to
Admit Evidence [sic] Res Gestae Evidence Not Charged
in the Indictment Pursuant to Federal Rules of Evidence 401,
403, 404(B), filed August 29, 2016 (Doc. 77)(“Res
Gestae Motion”). The Court relies on these factual
accounts for background purposes only, as Maynard Shirley is
presumed innocent until proven guilty at trial. This
presumption of innocence, which is always important, is
especially important here, as Maynard Shirley has asserted an
alibi defense. See Defendant Maynard Shirley's
Notice of Alibi, filed June 14, 2016 (Doc. 72).
Court divides its discussion of the facts into four parts.
First, the Court will review the events leading up to killing
that occurred in the early morning of March 21, 2015. Second,
the Court will discuss the circumstances and witness accounts
of that killing. Third, the Court will discuss the search for
Maynard Shirley and his two brothers in the aftermath of the
killing. Fourth, the Court will discuss the circumstances of
Maynard Shirley's arrest on March 25, 2015.
the offense date of March 21, 2015, Maynard Shirley's
brother, E. Shirley, and E. Shirley's girlfriend, V. Jim,
had been in a ten-year relationship. See Amended
Complaint ¶ 8, at 3-4. Because of relationship problems,
however, V. Jim left E. Shirley a week before the incident
and began an intimate relationship with B. BlueEyes, with
whom E. Shirley had been close friends for years.
See Amended Complaint ¶¶ 7-8, at 3-4. V.
Jim did not tell E. Shirley that she intended to move in with
B. BlueEyes. See Amended Complaint ¶ 11, at 5.
According to V. Jim's mother, C. Jim, V. Jim left E.
Shirley “because he hit and choked her and  she did
not want to go back to him, as she was afraid of him.”
Amended Complaint ¶ 11, at 5-6.
in the morning of March 21, 2015, E. Shirley sent multiple
text messages to C. Jim inquiring about V. Jim's
location. See Amended Complaint ¶ 11, at 5. C.
Jim initially ignored these messages, but, at 1:43 a.m., she
responded that V. Jim was living with B. BlueEyes in
Fruitland, New Mexico, within the exterior boundaries of the
Navajo Nation Indian Reservation, and that E. Shirley
“needed to leave Valerie alone and let her move on with
her life . . . .” Amended Complaint ¶ 11, at 5. E.
Shirley told C. Jim that B. BlueEyes was his friend and that
he was going to “kick his ass.” Amended Complaint
¶ 11, at 5.
The Homicide on March 21, 2015.
an hour of speaking with C. Jim, E. Shirley and his brothers
Maynard Shirley and Michael Shirley -- all enrolled members
of the Navajo Nation, see Amended Complaint ¶
18, at 11-12 -- drove to the BlueEyes' trailer home in
Fruitland. See Amended Complaint ¶ 2, at 1.
Upon arriving, the brothers forcibly entered the home while
the BlueEyes family and V. Jim slept. See Amended
Complaint ¶ 8, at 3. The brothers proceeded directly to
B. BlueEyes' bedroom down the hall. See Amended
Complaint ¶ 8, at 3. Upon hearing the noise and
intrusion, B. BlueEyes stepped out of his bedroom and into
the hallway, where the Shirley brothers immediately began
stabbing him. See Amended Complaint ¶ 8, at 3.
V. Jim followed and observed E. Shirley holding an unknown
object in his hand, which he appeared to use to stab B.
BlueEyes. See Amended Complaint ¶ 8, at 3.
hearing the commotion, B. BlueEyes' father, Perry
BlueEyes, woke up and stepped into the hallway, where he saw
E. Shirley and B. BlueEyes fighting in the living room.
See Amended Complaint ¶ 10, at 4. As P.
BlueEyes proceeded down the hallway to assist his son, one of
the Shirley brothers emerged and stabbed P. BlueEyes with a
banana-shaped knife. See Amended Complaint ¶
10, at 4; Preliminary Hearing Tr. at 14:23-24 (Cahoon).
See also Preliminary Hearing Tr. at 13:7-14
(Cahoon)(stating that P. BlueEyes was “almost
immediately . . . attacked and stabbed multiple
times”). The stabbing persisted until V. Jim interceded
and told the attacker to leave. See Amended
Complaint ¶ 10, at 4. By that point, P. BlueEyes was
seriously injured and could not assist B. BlueEyes.
See Amended Complaint ¶ 9, at 4.
BlueEyes and Lakisha BlueEyes -- B. BlueEyes' mother and
sister, respectively -- were sleeping in a bedroom on the
opposite side of the residence when the Shirley brothers
broke into the house on March 21, 2015. See Amended
Complaint ¶ 12, at 6. When J. BlueEyes heard the
commotion, she exited the bedroom and saw Maynard Shirley
stabbing B. BlueEyes in the living room with a banana-shaped
knife. See Amended Complaint ¶ 12, at 6;
Preliminary Hearing Tr. at 15:24-25, 16:1 (Cahoon). As she
approached, Maynard Shirley disengaged from stabbing B.
BlueEyes and began threatening J. BlueEyes with the knife.
See Amended Complaint ¶ 12, at 6. L. BlueEyes
followed J. BlueEyes and observed Maynard Shirley threatening
her mother with a banana-shaped knife. See Amended
Complaint ¶ 13, at 7. When J. BlueEyes saw L. BlueEyes,
she directed her to call 911. See Amended Complaint
¶ 13, at 7.
the commotion, one of the Shirley brothers exited the trailer
to retrieve a flare gun, returned, and shot at P. BlueEyes
between his legs as P. BlueEyes lay on the floor.
See Amended Complaint ¶ 12, at 6. The three
Shirley brothers then left the scene. See Amended
Complaint ¶ 12, at 6. J. BlueEyes recalls that, in the
subsequent confusion, V. Jim was on the ground, holding B.
BlueEyes in her arms and crying, and repeatedly saying that
“Maynard was the one who stabbed and killed [B.
BlueEyes].” Amended Complaint ¶ 12, at 7.
a.m., 911 dispatchers received a call from L. BlueEyes
advising that her brother, B. BlueEyes, and father, P.
BlueEyes, had been stabbed in their trailer home.
See Amended Complaint ¶ 2, at 1. L. BlueEyes
advised that there was a lot of blood and that the Shirley
brothers had departed the scene. See Amended
Complaint ¶ 2, at 1. Navajo Nation Police Officers
Kurtis Halkani and Jo Donna Salt were promptly dispatched to
the scene at 2:50 a.m. See Amended Complaint ¶
3, at 1-2. Shortly thereafter, at 3:06 a.m., a relative of B.
BlueEyes and P. BlueEyes contacted the Shiprock New Mexico
Police Department and “reported that someone had broken
into said residence, beat up [B. BlueEyes], and that [B.
BlueEyes] was not breathing.” Amended Complaint ¶
4, at 2.
arrived on scene at approximately 3:09 a.m., followed shortly
thereafter by Salt, who took position outside the residence
to provide security. See Amended Complaint ¶ 5,
at 2. Upon observing a blood-like substance on the deck area
leading into the home and on the front door, Halkani entered
the residence and found B. BlueEyes lying on the ground,
soaked in blood. See Amended Complaint ¶ 5, at
2; Preliminary Hearing Tr. at 8:17-21 (Cahoon). V. Jim was on
the ground embracing B. BlueEyes, crying and distraught.
See Amended Complaint ¶ 5, at 2. According to
Halkani, B. BlueEyes had no pulse and had a large stab wound
on his left upper chest area. See Amended Complaint
¶ 5, at 2; Preliminary Hearing Tr. at 9:1-4 (Cahoon).
Halkani also observed P. BlueEyes nearby, bent over on the
couch in the living room, with multiple stab wounds and
covered in blood. See Amended Complaint ¶ 5, at
2; Preliminary Hearing Tr. at 9:8-10 (Cahoon). Blood appeared
to be on the floor and walls of the hallway leading back to
two bedrooms. See Amended Complaint ¶ 5, at 2.
told Halkani that she used to be in a relationship with E.
Shirley, that all three brothers live in Kirtland, New
Mexico, and that they drive a white BMW. See Amended
Complaint ¶ 7, at 3. See also Preliminary
Hearing Tr. at 26:14-15 (Cahoon)(stating that Maynard Shirley
owns the BMW). V. Jim added that she had been in a
relationship with B. BlueEyes for one month, see
Amended Complaint ¶ 7, at 3, that she had recently lived
with the Shirleys, and that E. Shirley was
“tough” and a “bully, ” Amended
Complaint ¶ 8, at 4. She also relayed that Maynard
Shirley had been in prison for a long time and that
“she is scared of him.” Amended Complaint ¶
8, at 4.
a.m., P. BlueEyes was rushed to San Juan Regional Medical
Center for injuries he sustained while trying to protect B.
BlueEyes. See Amended Complaint ¶ 9, at 3. As
of March 25, 2015, P. BlueEyes was still being treated for a
collapsed lung and multiple stab wounds. See Amended
Complaint ¶ 9, at 4. In an interview at the hospital a
couple days after the incident, P. BlueEyes, who is about
five feet, eight inches tall, described his attacker as being
as “just a tad bit smaller than him” and said
that he was stabbed with a banana-shaped knife. Preliminary
Hearing Tr. at 14:18-24 (Cahoon).
The Search for the Shirley Brothers.
in the day on March 21, 2015, Special Agent Cary S. Cahoon of
the United States Department of Justice, Federal Bureau of
Investigation, and Criminal Investigator Jefferson Joe of the
Navajo Department of Criminal Investigations, commenced an
effort to locate Maynard, Elijah, and Michael Shirley.
See Amended Complaint ¶ 14, at 8. Cahoon and
Joe met with the Shirley brothers' mother, Althea
Shirley, who said that the Shirley brothers were at their
home in Kirtland and that she had just come from there.
See Amended Complaint ¶ 14, at 8; Preliminary
Hearing Tr. at 27:4-10 (Cahoon). Cahoon and Joe instructed A.
Shirley to go to the brothers' home, and relay that
Cahoon and Joe needed to speak with them about the incident
that occurred early that morning. See Amended
Complaint ¶ 14, at 8. When A. Shirley arrived, however,
she discovered that Maynard Shirley and his fiancée,
Arnelia Williams, had “completely cleaned out their
room of their belongings and had left the house.”
Amended Complaint ¶ 14, at 8. E. Shirley also was not
there; only Michael Shirley remained. See Amended
Complaint ¶ 14, at 8.
Shirley and Maynard Shirley had relocated to their
grandmother's home and “sheep camp” thirty
minutes outside of Farmington, New Mexico, on the Navajo
Indian Reservation. Res Gestae Motion at 8; Amended Complaint
¶ 15, at 9; Preliminary Hearing Tr. at 85:19 (Cahoon).
In their absence, A. Shirley urged Michael Shirley to call
and set up a time to meet with Cahoon and to discuss the
incident. See Amended Complaint ¶ 14, at 8.
Michael Shirley consented, and a meeting was set for 3:00
p.m. that day at the Criminal Investigations office in
Shiprock, New Mexico. See Amended Complaint ¶
14, at 8. On the telephone, Michael Shirley indicated that he
would call ahead of the appointment to confirm that he could
make it; however, Cahoon never received such confirmation,
despite numerous attempts to contact Michael Shirley by
telephone. See Amended Complaint ¶ 14, at 8.
Cahoon was likewise unable to reach Michael Shirley the
following day, March 22, 2015. See Amended Complaint
¶ 14, at 9.
March 23, 2015, Michael Shirley, A. Shirley, and other
relatives traveled to the grandmother's house to urge E.
Shirley and Maynard Shirley to surrender to law enforcement.
See Res Gestae Motion at 8; Amended Complaint ¶
14, at 9. E. Shirley agreed to surrender, but Maynard Shirley
and Michael Shirley elected to remain at the house,
see Res Gestae Motion at 8, stating that “they
refused to meet with law enforcement, ” Amended
Complaint ¶ 15, at 9. See Preliminary Hearing
Tr. at 32:3 (Cahoon)(stating that E. Shirley surrendered).
According to the relatives who were present, the Shirley
brothers stated that “law enforcement could come and
try to get them if they wanted.” Amended Complaint
¶ 15, at 9. Maynard Shirley and Michael Shirley then
began yelling at and getting angry with the relatives,
causing them to leave the property out of “fear for
their safety and the potential something bad could happen if
law enforcement came and tried to arrest Michael and
Maynard.” Amended Complaint ¶ 15, at 9.
Shirley was subsequently taken to the station at 4:00 p.m. on
March 23, 2015, where he “acted as if it was the first
time he heard about the incident involving [B.
BlueEyes].” Amended Complaint ¶ 15, at 9. After
some questioning, E. Shirley invoked his rights under
Miranda v. Arizona, 384 ...