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United States v. Shirley

United States District Court, D. New Mexico

December 21, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ELIJAH SHIRLEY; MAYNARD SHIRLEY and MICHAEL SHIRLEY, Defendant.

          Damon P. Martinez, United States Attorney Linda Mott, Niki Tapia-Brito, Nicholas James Marshall, Assistant United States Attorneys Albuquerque, New Mexico Attorneys for the Plaintiff.

          Mary (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

         THIS 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 Evidence.

         FACTUAL BACKGROUND

         The 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).

         The 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.

         1. Background.

         Before 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.

         Early 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.

         2. The Homicide on March 21, 2015.

         Within 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.

         Upon 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.

         Janet 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.

         During 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.

         At 2:44 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.

         Halkani 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.

         V. Jim 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.

         At 3:38 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).

         3. The Search for the Shirley Brothers.

         Later 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.

         E. 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.

         On 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.

         E. 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 ...


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