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United States v. DeLeon

United States District Court, D. New Mexico

May 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANGEL DELEON; JOE LAWRENCE GALLEGOS; EDWARD TROUP, a.k.a. “Huero Troup;” LEONARD LUJAN; BILLY GARCIA, a.k.a. “Wild Bill;” EUGENE MARTINEZ, a.k.a. “Little Guero;” ALLEN PATTERSON; CHRISTOPHER CHAVEZ, a.k.a. “Critter;” JAVIER ALONSO, a.k.a. “Wineo;” ARTURO ARNULFO GARCIA, a.k.a. “Shotgun;” BENJAMIN CLARK, a.k.a. “Cyclone;” RUBEN HERNANDEZ; JERRY ARMENTA, a.k.a. “Creeper;” JERRY MONTOYA, a.k.a. “Boxer;” MARIO RODRIGUEZ, a.k.a. “Blue;” TIMOTHY MARTINEZ, a.k.a. “Red;” MAURICIO VARELA, a.k.a. “Archie, ” a.k.a. “Hog Nuts;” DANIEL SANCHEZ, a.k.a. “Dan Dan;” GERALD ARCHULETA, a.k.a. “Styx, ” a.k.a. “Grandma;” CONRAD VILLEGAS, a.k.a. “Chitmon;” ANTHONY RAY BACA, a.k.a. “Pup;” ROBERT MARTINEZ, a.k.a. “Baby Rob;” ROY PAUL MARTINEZ, a.k.a. “Shadow;” CHRISTOPHER GARCIA; CARLOS HERRERA, a.k.a. “Lazy;” RUDY PEREZ, a.k.a. “Ru Dog;” ANDREW GALLEGOS, a.k.a. “Smiley;” SANTOS GONZALEZ; PAUL RIVERA and SHAUNA GUTIERREZ, Defendants.

          Damon P. Martinez United States Attorney Maria Ysabel Armijo Randy M. Castellano Matthew Beck Assistant United States Attorneys United States Attorney's Office Las Cruces, New Mexico Attorneys for the Plaintiff.

          Richard Sindel Sindel, Sindel & Noble, P.C. Clayton, Missouri and Brock Benjamin Benjamin Law Firm El Paso, Texas Attorneys for Defendant Joe Lawrence Gallegos.

          Patrick J. Burke Patrick J. Burke, P.C. Denver, Colorado and Cori Ann Harbour-Valdez The Harbour Law Firm, P.C. El Paso, Texas Attorneys for Defendant Edward Troup.

          Russell Dean Clark Russell Dean Clark, LLC Las Cruces, New Mexico Attorney for Defendant Leonard Lujan.

          James A. Castle Castle & Castle, P.C. Denver, Colorado and Robert R. Cooper Robert R. Cooper Law Firm, P.C. Albuquerque, New Mexico Attorneys for Defendant Billy Garcia.

          Douglas E. Couleur Douglas E. Couleur, P.A. Santa Fe, New Mexico Attorney for Defendant Eugene Martinez.

          Phillip A. Linder The Linder Firm Dallas, Texas and Jeffrey C. Lahann The Lahann Law Firm Las Cruces, New Mexico Attorneys for Defendant Allen Patterson.

          Orlando Mondragon Law Office of Orlando Mondragon El Paso, Texas Attorney for Defendant Christopher Chavez.

          Nathan D. Chambers Nathan D. Chambers LLC Denver, Colorado and Noel P. Orquiz Noel P. Orquiz Attorney at Law Deming, New Mexico Attorneys for Defendant Javier Alonso.

          Billy R. Blackburn Billy R. Blackburn Law Office Albuquerque, New Mexico Attorney for Defendant Arturo Arnulfo Garcia.

          Stephen E. Hosford Stephen E. Hosford, P.C. Arrey, New Mexico and Jerry Daniel Herrera Law Offices of J.D. Herrera Albuquerque, New Mexico Attorneys for Defendant Benjamin Clark.

          Pedro Pineda Pedro Pineda, Attorney at Law Las Cruces, New Mexico Attorney for Defendant Ruben Hernandez.

          Gary Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for Defendant Jerry Armenta.

          Larry A. Hammond Osborn Maledon, P.A. Phoenix, Arizona and Margaret Strickland McGraw & Strickland Las Cruces, New Mexico Attorneys for Defendant Jerry Montoya.

          Steven M. Potolsky Steven M. Potolsky, P.A. Miami, Florida and Santiago David Hernandez Law Office of Santiago D. Hernandez El Paso, Texas Attorneys for Defendant Mario Rodriguez.

          Steven Lorenzo Almanza Steven Almanza Law Firm Las Cruces, New Mexico Attorney for Defendant Timothy Martinez.

          Joe A. Spencer Joe A. Spencer Attorney & Counselor at Law El Paso, Texas and Mary Stillinger The Law Office of Mary Stillinger El Paso, Texas Attorneys for Defendant Mauricio Varela.

          Amy E. Jacks Law Office of Amy E. Jacks Los Angeles, California and Richard Jewkes Richard Jewkes, Attorney at Law El Paso, Texas Attorneys for Defendant Daniel Sanchez.

          George A. Harrison George A. Harrison, Attorney at Law Las Cruces, New Mexico Attorney for Defendant Gerald Archuleta.

          B.J. Crow Crow Law Firm Roswell, New Mexico Attorney for Defendant Conrad Villegas.

          Theresa M. Duncan Theresa M. Duncan, Esq. Albuquerque, New Mexico and Marc M. Lowry Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP Albuquerque, New Mexico Attorneys for Defendant Anthony Ray Baca.

          Charles J. McElhinney McElhinney Law Firm LLC Las Cruces, New Mexico Attorney for Defendant Robert Martinez.

          Marcia J. Milner Marcia J. Milner, Attorney at Law Las Cruces, New Mexico Attorney for Defendant Roy Paul Martinez.

          Christopher W. Adams Charleston, South Carolina and Amy Sirignano Law Office of Amy Sirignano, P.C. Albuquerque, New Mexico Attorneys for Defendant Christopher Garcia.

          Carey Corlew Bhalla Law Office of Carey C. Bhalla, LLC Albuquerque, New Mexico Michael V. Davis Michael V. Davis, Attorney & Counselor at Law, P.C Corrales, New Mexico Attorneys for Defendant Carlos Herrera.

          Donald R. West Don West Law Orlando, Florida and Ryan J. Villa The Law Office of Ryan J. Villa Albuquerque, New Mexico Attorneys for Defendant Rudy Perez.

          Donavon A. Roberts Donavon A. Roberts, Attorney at Law Albuquerque, New Mexico Attorney for Defendant Andrew Gallegos.

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC Albuquerque, New Mexico Attorney for Defendant Santos Gonzalez.

          Keith R. Romero The Law Office of Keith R. Romero Albuquerque, New Mexico Attorney for Defendant Paul Rivera.

          Angela Arellanes Albuquerque, New Mexico Attorney for Defendant Shauna Gutierrez.

          MEMORANDUM OPINION AND ORDER [1]

         THIS MATTER comes before the Court on a Competency Hearing held on March 20, 2017, and March 21, 2017. See Transcript of Hearing, taken March 20, 2017 (“Tr.”); Transcript of Hearing, taken March 21, 2017 (“2 Tr.”).[2] The primary issue is whether Defendant Eugene Martinez is mentally competent to stand trial. The Court finds that E. Martinez has not established, by a preponderance of the evidence, that he is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings or to assist in his defense. The Court, accordingly, concludes that the preponderance of the evidence does not suggest E. Martinez is mentally incompetent to stand trial.

         FACTUAL BACKGROUND

         The Court makes the following findings of fact. The Court first makes findings that pertain to E. Martinez' childhood and development, as well as his educational, medical, and legal history that preceded E. Martinez' present criminal charges. The Court's findings of fact, where possible, will proceed chronologically. The Court provides a more comprehensive factual and procedural background regarding E. Martinez' current charges after it has made its findings pertaining to E. Martinez' early life. The Court makes its findings based upon its review of the report that Bureau of Prisons Forensic Psychologist Dr. Lesli Johnson, Ph.D., completed, see Forensic Evaluation (signed June 14, 2016), filed June 20, 2016 (Doc. 596)(“Johnson Report”), a more specific neuropsychological evaluation that Dr. Eric Westfried, Ph.D., completed, see Forensic Neuropsychological Competence to Stand Trial Evaluation at 1 (signed February 27, 2017), filed March 3, 2017 (Doc. 938)(“Westfried Report”), and the testimony at the Competency Hearing that the Court held on March 20-21, 2017.

         1. Findings of Fact Regarding E. Martinez' Pre-Indictment Life.

         1. E. Martinez was born on June 23, 1978, in Albuquerque, New Mexico. See, e.g., Johnson Report at 4; Westfried Report at 1.

         2. He was the youngest born, having one older brother. See Johnson Report at 4; Westfried Report at 4.

         3. E. Martinez had no known prenatal deficiencies, but was potentially born premature. See Johnson Report at 5.

         4. He took a long time to be able to use the bathroom, to talk, and to walk. See Johnson Report at 5.

         5. As a child, E. Martinez was hit in the head several times. See Johnson Report at 5.

         6. He would get sick. See Westfried Report at 5.

         7. He is blind in one eye. See Westfried Report at 5.

         8. He bounced between homes until his parents divorced when he was seven or eight years old. See Johnson Report at 5; Westfried Report at 4.

         9. E. Martinez always had clothes and food as a child, and he also lived in a clean house. See Johnson Report at 5.

         10. He had poor relationships with his family, would get into trouble, and do “little dumb stuff.” Johnson Report at 5.

         11. He was on a lot of drugs. See Johnson Report at 5.

         12. He was always on drugs, sniffed paint, and sniffed rubber cement. See Johnson Report at 5.

         13. He had car wrecks, and one time he hit a dumpster truck and flew from the back seat. See Westfried Report at 5.

         14. E. Martinez' father was abusive to both him and his brother, as well as to his mother. See Johnson Report at 4, 6; Westfried Report at 4.

         15. E. Martinez would hide at different family members' homes to escape the violence, as E. Martinez' father would “hit [the three of them] with whatever he had in his hand.” Johnson Report at 6. See Westfried Report at 4.

         16. Often, E. Martinez' father would stand at their back door in the back, and yell for him and his brother, and then tell them to “get out, ” and he would kick or hit them with his steel toed boots, boards, and even a wrench. Johnson Report at 6. See Westfried Report at 4.

         17. E. Martinez' father “never missed.” Johnson Report at 6.

         18. E. Martinez' father acted normal around other people, but, when he was drunk, he would get mean and abusive. See Johnson Report at 6.

         19. E. Martinez' father one time beat his mother, causing E. Martinez to preemptively protect himself by dressing in five layers of clothes, only to have his father tell him to take off his clothes for a beating. See Johnson Report at 6.

         20. When his parents were together, and his father would start being abusive, his mother would call family to take them away. See Johnson Report at 4-5.

         21. E. Martinez' mother would “come over in the middle of the night or crying and scared to death saying he threatened to kill [her], he threatened to shoot [her], threatened to kill the kids if [she] ever went to the police then he would definitely carry out his threats, and she would never want to cooperate had it ever gone beyond that she reported it to the police.” Tr. at 13:8-14 (Frank Ortiz).

         22. E. Martinez' mother would often hide with her kids at the house of Frank Ortiz, a family member, and even E. Martinez -- alone -- was a frequent visitor, and Ortiz “did everything [h]e could to be foster parents . . . to show him what normal life would be like.” Tr. at 15:23-16:19 (Ortiz).

         23. “[W]hen [Ortiz] would go over and visit, there was usually argument going on in the yard, screaming and yelling, a very violent family.” Tr. at 12:1-10 (Ortiz).

         24. “On occasions when [Ortiz] would run across [E. Martinez' father] in the immediate area, he always had a scowl on his face, an angry individual, had that persona.” Tr. at 12:1-10 (Ortiz).

         25. E. Martinez would often be “over at [Ortiz'] house with visible injuries from brutally [being beaten], and crying, huddling, scared from death threats, and that sort of thing.” Tr. at 12:15-18 (Ortiz).

         26. E. Martinez' father would also throw E. Martinez out of the car, and then drive away -- only to stop the car, let E. Martinez catch the car and think that he could get back in the car, and then speed away again. See Westfried Report at 8.

         27. During E. Martinez' childhood, he witnessed various dark events. See Johnson Report at 6; Westfried Report at 4; Tr. at 13:23-14:25 (Ortiz).

         28. At one time, someone in the neighborhood killed E. Martinez' uncle and then put his body in E. Martinez' backyard on top of the train tracks. See Johnson Report at 6; Westfried Report at 4.

         29. E. Martinez' father told him to go and recover the body. See Johnson Report at 6.

         30. E. Martinez saw “crows eating [his] uncle's body.” Westfried Report at 4.

         31. His father and mother then got guns, and with E. Martinez in the vehicle's back seat, went to the home of the person whom E. Martinez' father suspected had killed the uncle. See Johnson Report at 6; Westfried Report at 4.

         32. E. Martinez' father exited the vehicle, knocked on the door, and shot “the man, the girl, and maybe the mom.” Johnson Report at 6.

         33. Following his parents' divorce, E. Martinez lived with his mother. See Johnson Report at 5.

         34. E. Martinez was frequently left in the family home alone, or with his brother, and his mother only occasionally checked on him to fill the refrigerator with food. See Johnson Report at 4-5; Westfried Report at 4.

         35. E. Martinez' brother would stay with his girlfriend across the street, however, and attend to E. Martinez if he needed something. See Johnson Report at 5; Westfried Report at 4.

         36. E. Martinez' brother would do the same things as his father, however, with respect to beating him. See Johnson Report at 6.

         37. As he aged, E. Martinez' brother became violent and angry like his father. See Tr. at 13:23-14:25 (Ortiz).

         38. E. Martinez' mother remarried a few years after the divorce, and E. Martinez then lived with his mother and stepfather. See Johnson Report at 4-5; Westfried Report at 4; Tr. at 17:6-18:23 (Ortiz).

         39. E. Martinez did not have a good relationship with the stepfather. See Johnson Report at 5; Tr. at 17:6-18:23 (Ortiz).

         40. When E. Martinez' mother remarried, although the stepfather was cordial with E. Martinez, E. Martinez would often be kicked out of the stepfather's home, because he would frequently get in trouble. See Tr. at 17:6-18:23 (Ortiz).

         41. When E. Martinez was a young child he would play and interact with Ortiz' three daughters. See Tr. at 8:9-18 (Ortiz).

         42. The children also all attended the same schools, although E. Martinez was in the Special Education programs. See Tr. at 9:11-10:5 (Ortiz).

         43. He “repeated kindergarten and went to special ed. . . . They said I had a something speech difficult. That's why in special ed. I was in there for a lot of things: They said I didn't behave or understand . . . I had to ride a little bus, kids with helmets and chin guards.” Johnson Report at 5.

         44. E. Martinez started drinking alcohol in the third grade, when he was “probably seven, six, even maybe younger;” during the happy times when his father was not abusing the family, he would “give [E. Martinez] beer . . . [and E. Martinez] would take beers during a party and sometimes [E. Martinez' father] would give it to [E. Martinez].” Westfried Report at 8. See Johnson Report at 8.

         45. He has been smoking weed and sniffing glue since he was in the third grade. See Johnson Report at 5.

         46. Although E. Martinez did not enjoy drinking beer, he would drink it, “because [he] didn't want [his] father to get mad.” Westfried Report at 8.

         47. E. Martinez began drinking on a regular basis when he was “[e]ight, nine, ten.” Westfried Report at 8.

         48. “Martinez would drink whiskey till [he] blacked out.” Westfried Report at 8.

         49. “One time [E. Martinez went to] the hospital to pump [the whiskey] out . . . [and E. Martinez s]aid [he] had poison.” Westfried Report at 8.

         50. E. Martinez went to school drunk many times. See Johnson Report at 8.

         51. Around the same time, in third grade, E. Martinez began “huffing rubber cement and paint, ” and he would huff “all day” for most of the time between third and sixth grade. Johnson Report at 8. See Westfried Report at 9.

         52. He would put the glue in a sandwich bag, so it would last all day. See Johnson Report at 8.

         53. E. Martinez started smoking marijuana around sometime between his fifth birthday and third grade, and once he had begun he would smoke “every day after school.” Westfried Report at 8. See Johnson Report at 8.

         54. Marijuana usage was a mainstay for E. Martinez' childhood and adolescence. See Westfried Report at 8; Johnson Report at 8.

         55. E. Martinez began using cocaine around his eighth birthday, and heroin around his fourteenth birthday. See Westfried Report at 8; Johnson Report at 9.

         56. E. Martinez would spend money daily to buy heroin, and has gone through withdrawals eight or nine times -- but he would always use again, because “it would make [him] forget about everything [and b]e happy.” Westfried Report at 8. See Johnson Report at 9.

         57. E. Martinez also tried meth, LSD, and mushrooms. See Westfried Report at 9; Johnson Report at 9.

         58. E. Martinez was admitted to Kaseman Presbyterian Hospital in Albuquerque after having reported “hallucinating or seeing things, ” and he stayed there for “maybe three and a half months because [he] kept hearing stuff while [he] was in the hospital.” Johnson Report at 9.

         59. E. Martinez “entered there at approximately age 7.” Tr. at 46:15-22 (Westfried).

         60. “Essentially children's psychiatric hospital is the last stop in the state of New Mexico for children as opposed to adoles[cents].” Tr. at 46:15-22 (Westfried).

         61. Further, “[i]f you have gone there, that is a brand of being severely disturbed as a child.” Tr. at 47:3-5 (Westfried).

         62. The highest level of education E. Martinez completed was the sixth grade, however, he attended a year at Del Norte High School in Albuquerque. See Johnson Report at 7; Westfried Report at 5; Tr. at 9:25 (Ortiz).

         63. Nonetheless, E. Martinez' educational experience was marred with bad “grades and attendance, ” suspensions, and expulsions. Johnson Report at 7; Westfried Report at 5.

         64. E. Martinez would “fight[] with kids and talk[] back to the teacher.” Johnson Report at 7.

         65. From the time he was young E. Martinez was playing with Ortiz' kids in elementary school, he was very childlike, which is normal, but as he progressed into the time when he was more of a teenager and became an adult he sort of stayed at that same level. See Tr. at 19:15-20:17 (Ortiz).

         66. He seemed like he could not comprehend everything, so every time Ortiz would visit him in jail or would be around him, he was constantly asking what is happening to him, could Ortiz explain it to him, and displaying an inability to comprehend his actions and what was happening in the court system. See Tr. at 19:15-20:17 (Ortiz).

         67. E. Martinez “seemed to be very confused so [Ortiz] was constantly explaining to him all the things that were going on in his life.” Tr. at 19:15-20:17 (Ortiz).

         68. As E. Martinez aged, he became isolated in family gatherings and would “kind of just sit by himself and if [Ortiz] did . . . have occasion to chat with [E. Martinez] it was very simple talking, ” and was not “about his plans for the future or anything it was just basically how are you doing, fine, just very basic conversation, nothing that was beyond planning or some other, someone who had any sort of intellectual life who had been reading or thinking about other things beyond just simple actions.” Tr. at 19:15-20:17 (Ortiz).

         69. Throughout E. Martinez' childhood, he spent time in juvenile detention, adolescent treatment centers, adult jail, and prison. See Westfried Report at 9.

         70. E. Martinez was placed into foster care, around age nine or ten, after a neighbor apparently reported that he had been living alone, see Johnson Report at 5, and his teacher had taken him home to live with her and her husband, see Westfried Report 4.

         71. E. Martinez lived, approximately, in four to seven foster homes, and frequently ran away when he witnessed activity that he found unsettling, such as fighting and sexual assault by the other foster kids. See Johnson Report at 5; Westfried Report at 4.

         72. [REDACTED] while he was in foster care. See Westfried Report at 4; Johnson Report at 7.

         73. [REDACTED] E. Martinez before he began living in foster care. See Johnson Report at 7; Westfried Report at 4.

         74. [REDACTED] abuse “occurred almost every day.” Johnson Report at 5.

         75. One Cousin “got [E. Martinez] stoned on weed, ” and the abuse [REDACTED]. Johnson Report at 5.

         76. [REDACTED] as a result, the abuse occurred only once a week or every couple of weeks. Johnson Report at 5.

         77. [REDACTED] abusive behavior [REDACTED] stopped when E. Martinez ceased going [REDACTED] following his parents' divorce. See Johnson Report at 5.

         78. E. Martinez had problems in foster care, so he began living at La Nueva Vida Group Home in Santa Fe. See Westfried Report at 4. Cf. Johnson Report at 10 (stating this was E. Martinez' last psychiatric hospitalization). E. Martinez then ran away from, La Nueva Vida Group Home. See Westfried Report at 4.

         79. Regardless of the chronology, E. Martinez reported being prescribed medications as a result of his hallucinations and fear. See Johnson Report at 10.

         80. E. Martinez' father and brother were both murdered as a result of the same incident. See Johnson Report at 6.

         81. E. Martinez -- who had run away from La Nueva Vida Group Home, see Westfried Report at 4 -- was at a bar or liquor store with his father and brother, where they bought beer. See Johnson Report at 6; Tr. at 13:23-14:25 (Ortiz).

         82. When they walked out of the establishment to the car, another van pulled up, and the occupants engaged E. Martinez' brother in an argument. See Johnson Report at 6.

         83. One of the van's occupants ultimately got out of the vehicle and began fighting E. Martinez' brother, with E. Martinez' brother getting the better of the fight, only to have the van's driver exit the vehicle and shoot E. Martinez' brother “six times in the back of the head.” Johnson Report at 6.

         84. Upon the shooting, E. Martinez' father exited the vehicle with a knife and joined the fray, only to be shot “six times in the face.” Johnson Report at 6.

         85. The assailants saw E. Martinez, but left him alone. See Johnson Report at 6.

         86. After his father's and brother's murders, E. Martinez “was numb, ” and he was then placed at the Sequoyah Adolescent Treatment Center for one and a half years. See Westfried Report at 4; Johnson Report at 9-10.

         87. It was upon witnessing the murders he reported that he was placed at Sequoyah. See Westfried Report at 4.

         88. The Sequoyah Center was the destination for “severely mentally ill” juveniles going through the criminal system in New Mexico. Tr. at 47:6-47:21 (Westfried).

         89. Accordingly, E. Martinez “had been during his childhood and adolescence in the facilities of New Mexico that are pretty much designated for the most severely emotional[ly] disturbed minors.” Tr. at 47:18-21 (Westfried).

         90. While at the Sequoyah Center, the doctors did memory and communicative testing, and a “communicative evaluation . . . at Sequoia when he was 17 years old [done] by a speech pathologist . . . [led to a] diagnose[s of] a severe language disorder.” Tr. at 55:10-20 (Westfried).

         91. E. Martinez was prescribed Prozac and other medication, participated in individual and group therapy, and was further diagnosed with “paranoid and schizophrenic, anxiety, PTSD, and, um, depression.” Johnson Report at 10.

         92. E. Martinez reported a criminal history of robbery, stabbing a guy in the arm, and heroin distribution. See Westfried Report at 9.

         93. E. Martinez reported being arrested “maybe four times, ” the first being when his father and brother were murdered, after which he was placed in juvenile detention for six months and then transferred to the Sequoyah Center. Johnson Report at 12.

         94. E. Martinez was arrested again at about age fourteen for “stealing or robbery.” Johnson Report at 12. See Westfried Report at 9.

         95. He was placed in juvenile detention for “about a year.” Johnson Report at 12.

         96. While at the juvenile detention center, he received incident reports for approximately three assaults and was transferred to “adult jail” for “about a year, ” where he received incident reports for two fights. Johnson Report at 12.

         97. E. Martinez was then transferred to a New Mexico state prison where he remained until age 26. See Johnson Report at 12.

         98. Upon release, in 2011 or 2012, E. Martinez was arrested for drug trafficking heroin. See Johnson Report at 12.

         99. He spent “a couple months in jail, ” and “saw doctors for evaluations.” Johnson Report at 12.

         100. E. Martinez “was found not competent and not dangerous and that case, as well as other cases that were joined, were dismissed without prejudice.” Johnson Report at 12. See Westfried Report at 9.

         101. Dr. James Harrington, Ph.D.'s, February 4, 2014, report resulted in a diagnosis of intellectual disability of moderate severity and a conclusion that E. Martinez' cognitive deficits “impairs his ability to comprehend” the legal proceedings. Westfried Report at 9. These conclusions predicated the finding of incompetency. Westfried Report at 9.

         102. E. Martinez tested at the fifth percentile in reading (Standard Score = 76), and at the first percentile in spelling (Standard Score = 65), and arithmetic (Standard Score = 63). See Johnson Report at 13.

         103. E. Martinez was referred for a communication evaluation, in which E. Martinez' Full Scale IQ was 80 (Low Average), and he earned a Standard Score of 56 on a problem-solving test. See Johnson Report at 13.

         104. The diagnostic impression of the communication evaluation was “specific learning disabled in oral language, ” and he advised E. Martinez be seen by a speech/language pathologist. Johnson Report at 13.

         105. Dr. Harrington conducted a clinical and forensic interview, and administered the Montreal Cognitive Assessment (MOCA), the Trail Making Test Parts A and B, and the Wechsler Adult Intelligence Scale-Ill (WAIS-Ill). See Johnson Report at 13.

         106. Dr. Harrington's diagnostic impression included moderate intellectual disability, and Dr. Harrington opined that E. Martinez was not competent to proceed to adjudication, plead guilty, or stand trial. See Johnson Report at 13.

         107. Dr. Harrington indicated that E. Martinez' “mental disorder, intellectual disability, directly impacts and impairs his ability to comprehend the adversarial process in which he is involved, to have the capacity to follow proceedings, and knowingly and intelligently assist his attorney in his own defense.” Johnson Report at 13.

         108. Dr. Harrington further indicated it was unlikely E. Martinez could be restored to competency. See Johnson Report at 13.

         109. E. Martinez' formal criminal history is as follows:

Prior arrests included: auto burglary and conspiracy to commit auto burglary (02/13/1994; disposition unknown); failure to comply with conditions of probation; aggravated burglary with a deadly weapon, probation violation (10/02/1996; disposition unknown); probation violation (06/13/1997; parole): aggravated assault with a deadly weapon, prisoner in custody of deadly weapon (07/21/1997; disposition unknown); two counts of bringing contraband into jail (10/02/1997; disposition unknown); two counts of possession of a deadly weapon-shank-by a prisoner (05/06/1998; seven years); parole violation, armed robbery, possession of a deadly weapon (07/24/2002; seven years, unable to associate disposition with charge); stolen property offenses, burglary/breaking and entering (06/15/2010; disposition unknown); robbery, aggravated assault, aggravated battery, conspiracy (02/17/2011; disposition unknown); two counts of K90Z other offenses (09/28/2011; disposition unknown); drug/narcotic violation (03/07/2012; disposition unknown): K90Z other offenses (05/08/2012; disposition unknown); two counts of drug/narcotic violation (06/23/2012; disposition unknown); two counts of K90Z other offenses (07/16/2012; disposition unknown); two counts of burglary/breaking and entering, possession of burglary tools (09/27/2012; disposition unknown); K90Z other offenses (12/12/2012; disposition unknown); two counts of K90Z other offenses (01/03/2013; disposition unknown); and two counts of K90Z other offenses (02/19/2013; disposition unknown).

         Johnson Report at 13.

         110. For the last thirteen years E. Martinez has lived in a home, with his wife, on the northeast side of the Sandia Mountains. See Westfried Report at 2.

         111. He attends to his chickens, cat, and dog, and works on his drawings and artwork. See Westfried Report at 2-3.

         2. The Procedural and Factual Background ...


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