Prosecution calls its final witnesses in agent’s trial

TUCSON — Two Border Patrol officials testified in federal court Friday as to what Agent Nicholas Corbett told them moments after he fatally shot an illegal immigrant near the U.S.-Mexico border near Naco last year.

The officials were two of five people that the prosecution called to the witness stand to testify. Francisco Dominguez-Rivera was killed shortly after 3 p.m. on Jan. 12, 2007. The prosecution rested Friday, and the defense will begin calling witnesses Monday.

Murray Adams, field operations supervisor for the Border Patrol, said he arrived at the scene soon after the shooting occurred. Corbett told him he was holding his gun in both hands, came around his vehicle, saw a person making an aggressive motion to throw a rock at him and so he shot him.

During cross-examination by the defense, Adams said Corbett never made a statement about the distance between himself and the victim at the time of the shooting. In response to a question by Sean Chapman, the lead defense attorney, Adams said he had no idea if the distance was 6 inches or 30 feet.

Rick Carranza, a Border Patrol field operations supervisor, said he arrived at the scene at about 3:45 p.m. He said Corbett told him that he chased Dominguez-Rivera around his vehicle. As Corbett came around the rear corner, he saw the victim had a rock and so he shot him.

But Carranza also testified that Corbett never mentioned the specific distance between himself and Dominguez-Rivera.

Corbett is charged with second-degree murder, manslaughter and negligent homicide. He claims he acted out of self-defense during a face-to-face encounter, but prosecutors say it was a killing from a very close range.

The prosecution also called three other witnesses, including a detective with the Cochise County Sheriff’s Office, the girlfriend of one of the victim’s brothers and an expert on firearms training.

A total of six individuals witnessed the incident. Three people were inside a Border Patrol vehicle and three eyewitnesses were on the ground near the victim when he was shot. After the shooting, the witnesses were taken to the Border Patrol station in Naco.

During cross-examination, Chapman criticized Wendy Adney, a detective with the Cochise County Sheriff’s Office who led the investigation of the shooting, because she did not immediately inquire if the witnesses were being held in the same room. He suggested the witnesses had enough time together to talk to each other and agree to a version of events before she began to interview them individually at about 7:30 p.m.

Adney said the Border Patrol brought the witnesses to the Naco station, but she admitted she did not make a call to agents to make sure the witnesses separated.

The three eyewitnesses are Dominguez-Rivera’s brothers, Jorge and Rene, and Jorge’s girlfriend, Sandra Guzman. All three of them testified at the trial that they were surrendering when Corbett hit the victim in the head or neck area and then shot him. During cross-examination by the defense, each of them denied that Mexican government officials influenced their testimony.

The final witness the prosecution called was Bud Clark, supervisor of the firearms training unit for the Arizona Department of Public Safety. He said it would be unreasonable and negligent for a person to walk up behind and shoot someone who was facing the opposite direction and surrendering.

Also Friday, Chapman asked the court to dismiss the case due to the Supremacy Clause, which says a federal officer is immune from state criminal charges if a crime takes place during the performance of federal duties. To be eligible for immunity, the defendant must show the act was within the scope of official authority and the act was necessary under the circumstances.

Chapman said the eyewitnesses made inconsistent statements about what happened during the incident. Also, he said, the Mexican government corrupted the witnesses. And, he added, the Border Patrol officials testified that the confrontation between the defendant and the victim could have been “face-to-face” and no specific distance between them was stated by Corbett.

But Grant Woods, the lead special prosecutor, argued the eyewitness testimony was “remarkably consistent.” He said the eyewitnesses were not separated while in custody, but they were still able to tell “pretty much the same story.” He said Corbett’s version is a “lie.” He said there is no evidence of improper influence from the Mexican government, and the medical examiner testified the shooting could not have been face-to-face and was from behind.

Chapman said Corbett’s actions were reasonable.

Judge Bury disagreed with Chapman and he denied the motion to dismiss under the Supremacy Clause immunity. He said the eyewitness and forensic evidence could show the defendant did more than was necessary and proper.

Chapman also asked the court to grant a motion for a directed verdict. He basically requested the judge decide that there is insufficient evidence for the jury to find a verdict of guilt.

However, Bury said there is sufficient evidence for even the most serious charge of second-degree murder.