BISBEE — Attorneys prosecuting a U.S. Border Patrol agent charged with murdering an illegal immigrant near Naco say detectives inadvertently failed to collect a pair of gloves that may have been worn by the victim, but the case should not be dismissed.

Corbett is charged with second-degree murder, manslaughter and negligent homicide against Francisco Dominguez-Rivera of Mexico. He claims he shot the man out of self defense because the victim was going to throw a rock at him.

A trial is scheduled to start Feb. 26.

Defense attorneys Sean Chapman and Jim Calle filed a motion Jan. 27 in U.S. District Court in Tucson asking Judge David Bury to dismiss the case because of the state’s “intentional destruction of exculpatory evidence.”

They say Cochise County Sheriff’s Office detectives failed to preserve gloves that were worn by the victim at the time of the shooting. The detectives testified during a preliminary hearing that they collected gloves from the scene but then released them to Dominguez-Rivera’s family.

Prosecutors Grant Woods and Tyrone Mitchell filed a response to that motion on Monday stating that detectives did in fact recover a pair of gloves, but those gloves were not worn by the victim. Rather, the gloves belonged to one of the victim’s brothers who was traveling with him and as a result they were returned to the family.

About three weeks ago, the defense team traveled to the scene to view the area and take photos. A pair of gloves was found there and the defendant’s investigator collected it as evidence.

Chapman and Calle say the gloves worn by the victim could have been tested for DNA to determine if he had been wearing them. The gloves also could have been checked for debris to see if he had been holding a rock. But the gloves are now too weathered to do any testing.

Prosecutors say any DNA evidence that could have been analyzed at the time of the shooting to show the victim wore the gloves is “immaterial” because they do not dispute that he was wearing them.

“The state will show that this evidence is not in actuality exculpatory, as any dirt which could have been found would be circumstantial at best,” they state in their motion.

The dirt could have resulted from rocks that he came in contact with throughout the course of his journey to the United States. The gloves could have gotten dirty when his hands fell down after he was shot. Also, they say, Border Patrol agents threw the gloves to the ground while trying to save the victim’s life.

Woods and Mitchell point out that Corbett can claim he acted in self-defense because he feared injury or death when confronted with a rock, but his statement is contradicted by the autopsy and ballistic analysis.

Corbett told a Border Patrol supervisor that he shot the victim from a distance of at least four or five feet, while standing near his vehicle. However, the autopsy report shows the bullet entered just above the victim’s left breast, and the forensic investigation indicates the gun was fired from within 3 to 12 inches of the body.

“Ultimately, defendant has suffered no due process violation because the state did not act in bad faith in failing to collect these gloves, and defendant Nicholas Corbett has not been prejudiced in presenting his defense” the motion says.

Also on Monday, prosecutors filed two motions requesting that Judge Bury rule that certain evidence may not be introduced during trial because it will confuse or prejudice the jury.

Several witnesses who are employed as Border Patrol agents are expected to testify regarding their involvement in the case. Prosecutors say the agents should be allowed to testify to facts they know, but the defendant should not be allowed to solicit expert opinions from them.

Also, prosecutors say the defense may try to introduce that the victim had a tribal tattoo around his arm. The defense also may try to infer that the tattoo was gang related. Prosecutors say the judge should exclude the tattoo evidence because the victim was wearing long-sleeved clothing and Corbett could not have seen the tattoo prior to the shooting.

As of Tuesday evening, Chapman and Calle had not responded to those two motions.

HERALD/REVIEW reporter Jonathon Shacat can be reached at 515-4693 or by e-mail at jonathon.shacat@bisbeereview.net.