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TUCSON — Jurors heard closing arguments and began deliberations in federal court Thursday afternoon in the case of a U.S. Border Patrol agent who killed an illegal immigrant from Mexico near Naco last year.
Nicholas Corbett is charged with second-degree murder, manslaughter and negligent homicide in the Jan. 12, 2007, death of Francisco Dominguez-Rivera. Jurors can only convict him on one count.
If convicted, he faces 10 to 22 years in prison for second-degree murder, seven to 21 years for manslaughter, or four to eight years for negligent homicide. Manslaughter and negligent homicide are either probation eligible or prison mandatory, depending on whether the jurors determine the offense was dangerous.
The trial, which is taking place in U.S. District Court in Tucson, started Oct. 21. Attorneys gave closing arguments on Thursday, and then Judge David Bury read jurors a series of instructions they must follow. The 12-person jury, consisting of seven men and five women, deliberated for nearly 2 1/2 hours and then went home. The jurors will return to court this morning to continue deliberations.
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Lead special prosecutor Grant Woods said Dominguez-Rivera was killed while in the act of surrender. Lead defense attorney Sean Chapman, however, said Corbett acted in self-defense.
Corbett did not testify during this trial. During his first trial earlier this year, he testified he was involved in hand-to-hand combat with Dominguez-Rivera.
He said the victim tried to smash his skull with a rock, so he fired his gun and killed him.
Woods pointed out the defense promised in its opening statement that it would read a transcript of Corbett’s testimony from the first trial, but it did not do so. He suggested the defense made that decision because Corbett’s story was not consistent with the evidence.
Corbett told Border Patrol officials at the scene that the victim shadowed him from across his vehicle and then made a motion to throw a rock, Woods said. Chapman maintained that those officials misunderstood Corbett’s statements and they do not recall him ever saying the word “throw.”
Woods said the bullet hole in the victim’s clothing shows Corbett’s story is not correct.
Dominguez-Rivera was shot in his left underarm, but a sweater and shirt he was wearing contain a hole that is on his front side, left of center.
He said this evidence shows Corbett grabbed Dominguez-Rivera on his left side and held the clothing as he shot him.
He said the evidence is not consistent with a defense diagram of the face-to-face encounter showing Corbett holding his gun in his right hand and using his left hand to push on Dominguez-Rivera’s right shoulder.
In the drawing, he added, Corbett is moving the shirts in the opposite direction.
However, Chapman said, the positioning of Dominguez-Rivera’s clothing could have been shifted by the straps of a 30-pound backpack he was carrying.
He also said the shirts could have been moved when one of the eyewitnesses pulled on the victim’s sleeve prior to the shooting.
On the other hand, Woods said the three eyewitnesses told a version of the story that is consistent with the autopsy, forensics, ballistics and other evidence. Chapman argued the eyewitnesses lied, and that they were influenced by the Mexican government.
Chapman criticized the Cochise County Sheriff’s Office for conducting a poor investigation by not separating the witnesses and not collecting potentially exculpatory evidence from the scene, including the wool gloves worn by Dominguez-Rivera and some rocks in the area that the victim may have been holding.
“Somebody tell me why that rock couldn’t have been picked up,” he said to the jurors, referring to a crime scene photo of Dominguez-Rivera’s dead body that shows a rock on the ground near his right knee.
Chapman said that if the rock had been taken into evidence, tests could have been performed to determine if the surface contained any wool fibers. The presence of fibers would indicate that Dominguez-Rivera had been holding the rock in his gloved hand.
Woods acknowledged that leaving the gloves at the scene was an oversight.
He also said some rocks could have been collected as evidence.
Also, Woods argued Dominguez-Rivera was not the type of person who would try to fight Corbett.
He pointed out his family members and a former employer testified he was peaceful.
Chapman disagreed, claiming Dominguez-Rivera was aggressive because he had a tattoo on his left hand that is associated with a criminal street gang.
Chapman urged the jurors to review the evidence carefully during their deliberations. He stressed the prosecution has the burden of proving Corbett committed the crime beyond a reasonable doubt. He said Corbett is innocent and told them to acquit him.
According to the jury instructions, second-degree murder requires proof beyond a reasonable doubt of one of the following: the defendant intentionally caused the death, the defendant caused the death by conduct he knew would cause death or serious injury, and the defendant recklessly engaged in conduct that created a grave risk of death and thereby caused the death under circumstances manifesting extreme indifference to human life.
Manslaughter requires proof beyond a reasonable doubt that the defendant caused the death and was aware of and showed a conscious disregard of a substantial and unjustifiable risk of death.
Negligent homicide requires proof beyond a reasonable doubt that the defendant caused the death and failed to recognize a substantial and unjustifiable risk of causing the death.
If the jurors find Corbett guilty of manslaughter or negligent homicide, they must determine whether he committed a dangerous offense. An offense is dangerous if it involved the intentional or knowing infliction of a serious physical injury, or the use, discharge or threatening exhibition of a deadly weapon or dangerous instrument.
Herald/Review reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.
I Vote wrote on Nov 1, 2008 10:45 PM: