Victims, police expert among those who can testify in 2023 Oñate shooting trial, judge rules

Trial judge resolves evidence and testimony disputes one week before trial is scheduled to begin

​By: Austin Fisher
​Source NM

Judge Jason Lidyard questions New Mexico State Police Agent Brandon Gregory during a hearing in 2023 about evidence found in Ryan Martinez's bedroom in Cedar Crest. The evidence is no longer relevant and will not be admissible at trial, Lidyard ruled on Monday. (Photo by Austin Fisher / Source NM)

A judge on Monday afternoon set guardrails around certain evidence and witness testimony in the upcoming attempted murder trial of a man who shot a climate activist at a protest over a controversial monument in northern New Mexico.

First Judicial District Court Judge Jason Lidyard ruled on five disputes between state prosecutors and defense attorneys for Ryan Martinez. Video shows Martinez repeatedly trying to rush into an area outside the County Commission chambers in Española in September 2023 where around 50 people were peacefully celebrating officials’ decision to postpone resurrecting a statue of genocidal Spanish conquistador Juan de Oñate.

Martinez shot Jacob Johns, a Hopi, Akimel O’odham activist from Washington, once in the chest, according to the footage. Martinez is accused of then turning the gun on Malaya Peixinho. The gun jammed, the video shows, and Martinez fled the scene.

Attorneys on both sides told Lidyard they’ve been working around the clock to prepare for the trial, which begins on Monday and is expected to conclude two weeks later.

Martinez, 24, has been held in the Rio Arriba County jail in Tierra Amarilla for nearly a year awaiting trial. On Monday and at prior hearings, he could be seen attending via video link, waving to his mother Lita Martinez, holding his hand over his heart and carrying a miniature U.S. Constitution in the breast pocket of his jail uniform.

Victims can testify about their injuries. Martinez’s lawyers asked the judge to prohibit Johns and Peixinho from testifying about their injuries from the shooting.

Lidyard ruled Johns and Peixinho can testify about their injuries and medical treatment.
When the sides argued the issue at a hearing on Sept. 26, Marshall Ray, one of Martinez’s two defense attorneys, said the evidence of Johns’ “pain and suffering” after the shooting cannot be tied to his client’s intentions as it was happening.

To prove the attempted first-degree murder charge, prosecutors will have to convince the jury that Martinez intended to kill Johns when he shot him. Ray argued “those after-effects can’t possibly be relevant to intent.”

Lidyard said at the time that many people probably have common knowledge that getting shot at close range in the chest has the potential for serious harm, and Johns could testify as a matter of fact that “the injuries that he sustained could have killed him, but for the treatment he received, and his recovery.”

Then on Monday, Lidyard said without being in the trial, he can’t specifically say what is or isn’t admissible from the victims’ testimony, but he believes Johns’ “pain and suffering” would not be relevant.

“He may discuss the injuries he sustained, the prognosis of him recovering from those injuries, and the treatment he received and the amount of time it took him to recover, but as to pain and suffering, the court cannot see what the relevance would be,” Lidyard said.

If the defense believes prosecutors cross a line in their questioning the victims, Lidyard said he expects them to object.

Police use-of-force expert can testify.  Prosecutors wanted to limit or entirely exclude former Albuquerque police officer Damon Fay from the trial, arguing that his testimony would confuse the jury because use of force by private citizens like Martinez is different from use of force by police.

Lidyard ruled Fay can give his expert opinion about the requirements to obtain a concealed carry license, which are relevant because Martinez had a concealed carry license and a concealed firearm when the shooting happened.

Lidyard also said he believes Fay can testify about things relevant to self-defense, and specifically whether “a danger of death or great bodily harm was presented to Mr. Martinez.”
However, Lidyard said he will not allow Fay “to invade the province of the jury,” meaning it’s the jury’s job — not his — to determine the facts of the case. Lidyard said he “has great concerns that may happen.”

For example, a question like, “Would a reasonable person in the same circumstances of Mr. Ryan Martinez have done the same thing?” would invade the province of the jury, Lidyard said.
“The court will rely on the state to make objections as they see fit to ensure that that does not occur,” Lidyard said.
An independent expert previously told Source New Mexico the rules governing self-defense deal with how a reasonable person on the street would perceive and react to the situation, and not what a trained police professional would do.

Late-arriving witnesses can testify

Martinez’s defense attorneys asked the judge to prohibit the jury from hearing from anyone who was not already made available for pre-trial interviews, which allow a defendant to investigate their case before going to trial.

Lidyard ruled that even though prosecutors did not make some of their witnesses available for pre-trial interviews, there are three who can still testify.

They include James Mayer, an Española police detective who handled the crime scene evidence, and Richard Miskimmins and David Wachter, two doctors who helped treat Johns’ wounds.

Prosecutors had good reason not to name the two doctors previously, because the primary treating physicians when the shooting happened are unable to testify, Lidyard said.

One moved to another country and the other no longer works at the University of New Mexico Hospital, Chief Deputy District Attorney Anthony Long previously said.

Lidyard ordered Long to make the doctors available for pre-trial interviews before the trial begins.

Attorney in civil cases must also testify. Mariel Nanasi is an attorney representing Johns and Peixinho in possible civil rights and tort claims. Martinez’s lawyers issued a subpoena to Nanasi, calling on her to testify. Nanasi asked the court to quash the subpoena.

On Monday, Nanasi argued the subpoena would only harm her clients by having the effect of making her a witness, and therefore prohibiting her from speaking to them while the case is pending.

She said she attended the protest but did not see the moment Martinez fired his gun. She said Martinez’s lawyers could have gotten the same facts from a number of other witnesses.

However, Lidyard ruled she must honor the subpoena. The exact reason remains unclear, because criminal defendants are not required to “show their hand” before a trial begins.

For a little less than 10 minutes, Lidyard met privately with Martinez’s lawyers so they could freely tell him why they are calling Nanasi to testify.

When they returned to the public hearing, Lidyard said the defense’s reasons for calling Nanasi “are material to their case,” and she has “exclusive” testimony that’s enough to deny her motion.

Some evidence, testimony irrelevant. Prosecutors wanted to call Jimmy Creed, Martinez’s parents’ neighbor in Cedar Crest, New Mexico, to tell the jury about an incident involving Martinez in the months leading up to the shooting.

They also wanted to show the jury items found in Martinez’s bedroom by State Police investigators after the shooting.

Lidyard ruled that Creed cannot testify, and items investigators found in Martinez’s bedroom are irrelevant, because Martinez didn’t take any of the items to Española.

“All of these items remained at his residence and were not utilized in any fashion during the course of the events for which this case is associated,” Lidyard said.
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The evidence would only be admissible if Martinez’s defense somehow “opens the door” to it, Lidyard said.