Office of the District Attorney
Officer Involved Shooting Review on DA File Number 2012-06293-1
Decedent:
Officers Involved:
Date of Incident:
Location of Incident:
BCSD Report:
Samuel Jason Marquez, age 44
Deputy Matthew Wolke and Deputy Lawrence Tonna,
Bernalillo County Sheriff’s Department
September 20, 2012
3150 Granada Ct., SW, Albuquerque, NM
#12-660662
The Second Judicial District Attorney’s Office has completed its review of the
investigation by the multi-agency task force headed by the Bernalillo County Sheriff’s
Department in the above fatal officer involved shooting that occurred on September 20,
2012 at 3150 Granada Ct., SW. The District Attorney’s Office finds that there is no
probable cause to criminally charge either Deputy Matthew Wolke or Deputy Larry
Tonna with any crime under the laws of the State of New Mexico, and will not present
the case to a grand jury or preliminary hearing.
The investigation of this officer involved shooting was conducted in accordance
with the Memorandum of Agreement between the Albuquerque Police Department, the
Bernalillo County Sheriff’s Department, the New Mexico State Police, and the Second
Judicial District Attorney’s Office. All three police agencies participated in the
investigation, and then-Chief Deputy District Attorney Gary Cade was called out to the
scene and was present for briefings and a walk-through at the scene.
The following materials were used in our review of this case: the complete police
report, crime scene report, OMI report, photographs taken at the scene, audio recordings,
and transcripts of witness interviews. On September 5, 2014, the District Attorney’s
Office sent a letter to the decedent’s mother, Nora Marquez, inviting her to submit
information for our consideration in this matter. (See Attachment 1.) Ms. Marquez has
not responded to date.
PLEASE NOTE: COMMENTS AND OPINIONS IN THIS REPORT ARE NOT
GIVEN, NOR SHOULD THEY BE USED, IN THE CONTEXT OF ANY CIVIL
CASE OR CIVIL LITIGATION.
BRIEF SUMMARY
On September 20, 2012, at about noon, several deputies from the Bernalillo
County Sheriff’s Department (“BCSD”) were called to the home of Nora Marquez at
3150 Granada Ct. SW., in Albuquerque, New Mexico. They were dispatched to the
home based upon a 911 call made by Juanita Marquez, Nora Marquez’s adult daughter.
Juanita is also the sister of the decedent, Samuel Jason Marquez (hereafter referred to as
Jason Marquez). Juanita Marquez flagged down arriving deputies and told them that her
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brother, Jason, was in the kitchen of the house, holding a knife to their mother’s throat
and threatening to kill her. She also provided them with information about the layout of
the house, and told them that her physically disabled brother, Julian Marquez, was also
inside the house in a back bedroom.
As first-responding Deputies Matthew Wolke, Lawrence Tonna, and Vince Chapa
awaited the arrival of the BCSD SWAT team, Jason Marquez came out of the house
holding his mother in front of him, as though she were a human shield. He had a knife in
his hand, and he was holding it to her throat. His 65-year-old mother, Nora Marquez,
was crying and appeared very frightened. She also had visible superficial cuts on her
neck. Deputies repeatedly ordered Jason to drop the knife, but he refused, and continued
to threaten to kill his mother. He also repeatedly told the deputies to shoot him. After a
short period, Jason raised the knife to Nora Marquez’s throat, and started to pull his
mother backward, as if he planned to re-enter the house with her. He continued to hold
his mother at knifepoint, with her body shielding his body as he moved. Deputies Tonna
and Wolke each aimed and fired one shot toward Jason Marquez at that time.
Each deputy later stated that he believed he could safely shoot toward Jason’s
head, which was only partially shielded by his mother’s body. They also stated they
believed it was essential to take this action to prevent Mr. Marquez from killing his
mother. They expressed grave concern about the danger of allowing Mr. Marquez to
retreat into the house with his mother held as a live hostage, and concern regarding a
disabled person also present in the home, who was at risk of becoming second hostage.
The Criminalistics Report indicates that Deputy Wolke’s shot from a .223 caliber
rifle killed Mr. Marquez. The report also concluded that Deputy Tonna’s .45 caliber
pistol round did not hit Marquez. Ms. Nora Marquez was uninjured by either gunshot. In
the statement she gave to investigators, she said that she was in great fear for her life
throughout the incident, and that she had been in the process of seeking a restraining
order against Jason because of prior events that caused her to fear him. She further stated
that “this” (her son being killed) was the outcome that her son wanted.
The District Attorney’s role in reviewing this homicide is to determine whether
the shooting of Jason Marquez was lawful or unlawful, and to provide a detailed
explanation to the public about the facts and the law in that regard. As stated in Graham
v. Connor, 490 U.S. 386 (1989), this process “requires careful attention to both the facts
and the circumstances.” Hence, this analysis will give careful attention to both the facts
and the circumstances of the fatal shooting of Jason Marquez. The findings in this Report
are supplemented by a copy of the detective’s supplemental police report (“Supp Out”),
the criminalistics report, and various other documents, as well as photographs and
recordings, to assist the public in understanding the events in this case and the
determinations made by the District Attorney.
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PART I INVESTIGATIVE FINDINGS
INTERVIEWS OF CIVILIAN WINTESSES
MS. JUANITA MARQUEZ (JASON MARQUEZ’S SISTER)
Juanita Marquez was interviewed on the day of the shooting. She told
investigators she went to her mother’s home, located at 3150 Granada Ct. SW., to pick up
some paperwork for her vehicle registration. Juanita explained to investigators that when
she arrived at the home, her son, Alex, was also there. Alex told Juanita that Jason was
also at the home. Juanita told investigators that whenever Jason is involved there is
always a “domestic.” However, she said that she did not realize the intensity of what
was going on until she went into the kitchen, where she found her mother sitting down,
and Jason standing next to her. At this point, Juanita saw her son, Alex, motioning to her,
as if he were telling her, “No mom, no mom.”
Juanita asked what was going on, and Jason pulled out a knife. He put the knife
to Nora’s throat, and said he was going to stab and kill Nora. Juanita said that her mother
was in tears, and pleaded with Juanita to leave the house. Hoping that Jason would calm
down, Juanita complied with her mother’s plea. As she was walking out, she saw John
Serna, a family friend, approaching. She warned John that Jason had a knife. She then
proceeded to call 911. Juanita described the knife as a “box blade,” which she said was
ridged like it had been broken. She said that Jason’s demeanor was calm, direct, and
stiff; but she could tell that he was angry.
Juanita told investigators that she had a restraining order against Jason, and that
her mother was in the process of getting a restraining order as well. She said that Jason
had mental health issues, and said that she “knew this was coming.” She explained that
Jason was upset with his mother, blamed her for everything that was wrong with his life,
and said that he was going to make her pay. Juanita also said that about two weeks prior
to this incident, Jason threatened that if they were to try to get him help for his mental
health problems, he would trick everyone into thinking he was well so he would be
released. He said he would then “take out” Nora.
Juanita gave arriving deputies information about the situation inside of the house,
and also provided them with a layout of the interior. Juanita told the deputies about her
disabled brother, who was in a back room of the house. Shortly after deputies arrived,
Juanita was positioned about two houses away from the scene when she saw Jason come
out of the house. He was holding her mother against him and yelling, “Shoot me, just
shoot me! Kill me! I’m going to kill her!” Juanita said she then heard a single gunshot,
followed by her mother screaming that Jason was dead. She then saw deputies pulling
Nora away.
Juanita told interviewers that she believed Jason would have followed through
with his threats to kill Nora, and she was thankful for the deputies who got her mother to
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safety. She said the world was a better place because Jason was not there, and that her
brother would finally be at peace not “battling with his head” anymore. (See Attachment
7.)
MS. NORA MARQUEZ (JASON MARQUEZ’S MOTHER)
Ms. Nora Marquez was interviewed by investigators on September 20, 2012. She
said she was asleep when Jason arrived at the house. She awoke to the sound of Jason
talking to her grandson, Alex. When she first saw Jason, she noticed he had a knife in his
hand. She said that Jason was angry because he had not received a disability check that
he was expecting, and he was being evicted as a result. Jason blamed Nora for this
situation, was angry with her, and demanded $800.00 from her. Nora said that Jason sat
her down in her son’s wheelchair and threatened to cut her throat. He also made threats to
kill her, and stabbed his knife into the wall. She said he subsequently took her into the
kitchen where he made her sit down again, and continued to hold a knife against her
throat.
Ms. Marquez explained that she tried calling her sister to get the money Jason was
demanding, but her sister stated she didn’t have the money. She next called John Serna, a
family friend. John answered, but was unable to understand Nora because she was in
tears. Jason then grabbed the phone from Nora, and gave it to Alex (Nora’s grandson), so
he could speak with John and explain the situation. Jason wanted to roll a cigarette, but
was unable to since he was holding the knife to Nora’s throat. He had Alex roll the
cigarette for him.
Ms. Marquez said John Serna arrived at the home, and tried to convince Jason to
let her go, but she said Jason continued to hold the knife to her throat. She said that she
tried to explain to Jason that his financial problems were not her fault, and that she would
take him to get money the next day. She also offered to take Jason to get his medications.
Ms. Marquez told investigators that Jason told her that he was not coming out of the
situation alive, and that they were both going to die. He further talked about how he had
been raped in prison, and that he wasn’t going back.
While John was in the kitchen attempting to reason with Jason, the house phone
rang. Though the call came from Juanita’s phone number, when John answered it, a
police officer got on the line. The officer on the phone instructed John to leave the home
immediately. Mr. Serna tried to act like the call was about his work, to help keep Jason
unaware of the law enforcement presence building outside the home. At that point, John
Serna left the home, accompanied by Alex.
Nora said Jason then noticed that there were police outside, and instructed Nora to
lock the back door. Then, while holding the knife to her throat, he walked Nora outside
the front door of the home. She confirmed that Jason kept telling the deputies, “Kill me!
Shoot me! Shoot me! Shoot me!” Nora stated the deputies stood a few feet away, and
were ordering Jason to drop the knife. She said that she pulled at Jason’s arm in an
attempt to keep him from cutting her throat. Ms. Marquez said she could see the deputy
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who was carrying the rifle, and that she could tell by the look on his face that it hurt him
“to do what he had to do.” She then heard gunfire, and when she turned, she saw Jason
was dead.
Ms. Marquez became particularly emotional at one point in the interview, and
stated this (Jason’s death) was the outcome that Jason wanted. She said that she did not
think that her son would have killed her, but the deputies did not have any choice in their
actions. She also went on to state that she believed if deputies had only wounded Jason,
he would have really cut her, or done something worse.
When asked about the injuries she received in this incident, Ms. Marquez said she
sustained a laceration on her shoulder, which she explained happened when Jason moved
the knife away from her throat. She added that a cut on her right hand was from when
she grabbed the knife and tried to pull it away from her throat. She went on to explain
more about Jason’s medical and mental health history, stating that he was borderline
mentally retarded, schizophrenic, paranoid, and he had epilepsy. She shared her view of
what happened when Jason murdered a neighbor, and spent time in prison. She stated
that Jason was worse after he served his prison sentence. Ms. Marquez also described
two or three prior instances in which Jason had become violent toward her, or the two of
them got into physical fights. Additionally, she stated that she had taken steps to obtain a
restraining order, but those steps were never completed to the point that the order would
have become effective. (See Attachment 8.)
Ms. Nora Marquez did an on-camera interview with a Channel 4 reporter the day
after the incident. In this interview, she reiterated the same points made in her interview
with detectives. She also voiced her regret that “there aren’t places for” people like her
son to get the kind of mental health treatment they need. She mentioned that Jason was
repeatedly given medication for his psychiatric illness, and then released. (See
Attachment 9.)
MR. ALEX MARQUEZ (JASON MARQUEZ’S NEPHEW, AND JUANITA
MARQUEZ’S SON)
Nineteen-year-old Alex Marquez was also interviewed on the day of this incident.
He explained that he was staying with his grandmother, Nora Marquez, and was awoken
by his uncle, Jason Marquez, who had come to the house. He said that Jason ordered him
to stay on the couch in the living room. Alex said he heard Jason yelling at Nora,
demanding she pay him the money “she owed him,” or he would cut her throat. Jason
gave Alex the house phone, and his grandmother told him to call his Aunt Bernice to ask
for $800.00. When he spoke on the phone with his aunt, she told him that she did not
have the money to give him. He then talked over the phone to John Serna, a family
friend. Alex asked John for the $800.00, and John could hear Nora screaming in the
background.
Alex further stated that Jason ordered him to move the living room couch in front
of the entryway to the kitchen, in order to slow Nora down, or stop her from running
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away. Jason also instructed Alex to answer any incoming phone calls, and tell anyone
asking for Nora that she was not at home. He heard Jason tell Nora that he hoped she
liked the taste of blood, as he smeared blood on her face. Alex’s mother, Juanita, then
arrived at the house. But Jason told Juanita to leave or he would kill her. As Juanita was
leaving, John Serna arrived. He attempted to convince Jason to take his knife away from
Nora’s throat.
Alex estimated that the knife in Jason’s hand was about eight inches long, and
that his grandmother cut her hand as she attempted to push the knife blade away from her
throat. Alex told investigators he had overheard Jason mention that “Diablo” would be
proud of him for killing his mother. Alex also said that two weeks prior to the incident,
Jason said that he had told a police officer that he was going to kill Nora and then
himself. He stated that Jason had been diagnosed with schizophrenia and bipolar
disorder, and that he was supposed to be taking medication. He said Jason had been off
his medication for a month, a medication lapse Jason blamed on Nora. Alex also stated
that Jason blamed his mother for his late social security money. He said that the family
had tried to get help for Jason’s mental health problems by taking him to a doctor, but
Jason had “acted normal” for the doctor, and was subsequently released. Alex said that
Jason was known to carry edged weapons, including sharpened hand shovels and box
cutters, because he believed that everyone wanted to harm him.
Alex said that while he was still inside the house with Jason and his grandmother,
they heard their dog barking outside. Jason told Alex to go outside to see why the dog
was barking. When Alex went out, he saw the uniformed deputies, and continued to walk
through the gate and away from the house. He said that he then saw his Uncle Jason exit
the house, holding a knife to his grandmother’s throat. He heard his uncle yelling, “Shoot
me!” Alex also heard deputies yelling for Jason to put down the knife. He then heard two
rapid gunshots. (See Attachment 10.)
MR. JOHN SERNA (FAMILY FRIEND)
John Serna was interviewed by investigators on the date of this incident. Mr.
Serna told investigators that he was a friend of the family, and lived in the West Gate
area. He said that he received a telephone call from Juanita Marquez’s mother, Nora, at
11:41 a.m., asking to borrow $800.00. He said he received another call at 12:07 p.m.
from Nora’s grandson, Alex, asking if he could bring the requested money to Nora’s
house. John said he could overhear a female voice in the background saying something
like, “Jason, don’t do that,” or words to that effect. He couldn’t tell who was speaking.
Since he was aware of past problems with Jason, he asked Alex if Jason was involved in
the situation. John told investigators, “…yeah, and he said, but please don’t call the
police.”
Mr. Serna further explained to detectives that he was going to stop and get the
money and then go to the house. But, when he got the second call, he decided to go
straight to the house first. He told Alex that he was only a couple of minutes away, but
that he hadn’t gotten the money yet. Mr. Serna stated that, as he was approaching the
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house, Juanita Marquez was leaving. As soon as he entered the home, he saw Alex
sitting down near the china cabinet, and he then turned the corner into the kitchen and
saw Jason. Jason told him not to come close to him. He tried to reason with Jason to
calm the situation down, but Jason was very agitated. Mr. Serna said that Jason was
holding a short-bladed knife with a brown wooden handle in his left hand, close to Nora’s
neck. He said that at one point, Jason took the knife away from Nora’s neck and held it
at his side, but still did not release Nora.
While he was in the kitchen attempting to reason with Jason, Mr. Serna said that
the house phone rang and he answered it. The call was from Juanita’s phone number.
Once he answered, Juanita passed her phone over to a police officer. Mr. Serna said that
he tried to act like the call was about his work, to help keep Jason unaware that police
were involved. (He later explained that Jason seemed to suspect that the call was from the
police, and that he became more agitated again at that point.) The officer on the phone
instructed Mr. Serna to leave the house as soon as he could. When he got off the phone,
John told Jason that he had to go because of his job, and again told him, “I know you
won’t hurt your mom, so why don’t you just let her go…. you and I go get the money.”
He then left the house through the front door, and joined a detective about two houses
down the block. As he spoke with that detective, John said he heard a single “boom”
sound.
Mr. Serna said that for Nora Marquez to ask to borrow $800.00 shocked him,
since she had never before asked to borrow even a small amount of money. He regretted
that he hadn’t stopped to get even a lesser sum of money, and thought that if he had,
perhaps he could have persuaded Jason to take the money and let his mother go, thus
avoiding the shooting. Mr. Serna was aware of Jason’s long history of conflict with his
family, his mental illness, and time in prison. He did not, however, know the specifics of
Jason’s diagnosis or what medications he was supposed to take for treatment. (See
Attachment 11.)
INTERVIEWS OF VARIOUS OTHER CIVILIAN WITNESSES
A neighborhood canvass was conducted, and some neighbors saw or heard
portions of what happened, or knew some background information about Jason Marquez.
None heard anything inconsistent with what is contained in statements by the deputies
who responded to this call or other civilian witnesses. (See Attachment 2.)
INTERVIEWS OF THE INVOLVED DEPUTIES
DEPUTY MATTHEW (“MATT”) WOLKE (BCSD)
Deputy Matthew Wolke gave a formal, recorded statement to Detective
A. Gaitan (BCSD) and Detective Jason Morales (APD) on September 24, 2012. He was
read his Miranda rights, and his union lawyer, John D’Amato was present. (This is
typical in the investigation of an officer-involved shooting case.)
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Wolke, a Deputy First Class, stated he was employed by BCSD for seven and a
half years prior to the incident. He told investigators that he had three years of SWAT
experience, and was previously employed by the Washington D.C. Metropolitan Police
Department. Wolke was presently assigned to the BCSD Bike Unit in the Field Services
Division. While on the BCSD SWAT team, he had received sniper training. In the Bike
Unit, he was assigned both a regular, marked patrol car and a bicycle. His uniform
consisted of green shorts and polo shirt with patches, as well as a badge identifying him
as a deputy sheriff. He was wearing that uniform on the day of the incident. Deputy
Wolke said he was armed with a Springfield Operator 1911 .45 caliber pistol, and also a
department issued AR15 .223 caliber rifle. Additionally, he had less than lethal weapons,
which included a Taser on his duty belt and a bean bag shotgun in the trunk of his
vehicle.
When asked what he remembered from this shooting, he told investigators he had
just finished lunch, and was on bike patrol. He heard a call for service on the radio
involving an individual holding a knife to his mother’s throat. He also heard that the
suspect was threatening to kill family members that were still inside the home. Deputy
Wolke rode to his vehicle, and then drove to 3150 Granada Ct., SW. He parked about
three houses away from the residence. Other deputies were already present at the scene,
but he recognized that they needed to set up a quick response team while they awaited the
arrival of the BCSD SWAT team. He said that he talked to a family member of the
suspect, and had her draw a floor plan of the home. She also showed them where the
hostage, Nora Marquez, was being held in the kitchen area. Additionally, he learned
there was another individual inside the residence. That individual was quadriplegic, and
unable to move without assistance.
Deputy Wolke said he set up the quick response team in the driveway of the
residence, just north of the front door and behind a vehicle, where they could not be seen
from the house. Their plan was to wait for the SWAT team to arrive, and only to take
action if the situation called for it. Deputy Wolke was positioned first in the line-up of
the quick response team. He asked Deputy Vince Chapa to use his Taser if the situation
warranted a less-than-lethal option. He also asked Deputy Larry Tonna to take care of
any dogs that might be on the property, since there was a “Beware of Dog” sign on the
fence. The deputies continued to discuss different scenarios that might play out, and how
they might need to adjust their plans. One of the things they talked about was the need to
take immediate action to save the hostage from harm. He told the other deputies, “If it
deteriorates upon where we have to go in and we have to solve the problem as fast as we
can, but using the less lethal option if possible …I also said that if… We go in and he
immediately has either killed the woman or is in the process of killing her as we come in,
we have to immediately take action and take him out, uh, lethally, before he’s able to
move past the initial hostage and make his way to the secondary hostage’s room…” He
said that he also told the other deputies, “The reaction time for us to make up the
difference between if he decides to cut her throat and the time that we can stop his action,
would, would be negligible or that he would have the opportunity to kill her before we
could stop him…”
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As they were discussing these things, an announcement came over the radio that
the suspect had moved a couch inside the home. They then discussed among themselves
how they might have to negotiate around obstacles inside the home. They were also
advised that the suspect would be able to see them through a glass hutch as they entered
the home. Based upon that information, he asked Sergeant Aragon for a distraction,
should they have to make entry. It was decided that one of the deputies would break out
a back window of the home in order to distract the suspect.
As they continued to discuss the situation, he heard yelling coming from inside
the house. He looked over the hood of the car, and saw Jason Marquez exiting the home,
holding onto an elderly female. Mr. Marquez had his arms around the woman’s neck,
with his body positioned directly behind her body. Marquez and his hostage progressed
northward, off the porch and toward the walkway that leads to the driveway. At the
same time, Deputy Wolke and the other deputies in the quick response team came out
from behind the vehicle and moved toward the front porch. Deputy Wolke stated that as
the deputies and the suspect approached each other, he got to within a couple feet of Mr.
Marquez and his hostage, Nora Marquez. He described Ms. Marquez as having “an
utterly terrified look on her face.” He said he repeatedly ordered Jason to drop the knife,
while Jason was looking him straight in the eye. Jason responded with, “No! No! No!
I’m going to fucking kill her, if you don’t fucking kill me, I swear to God I’ll fucking kill
her!” Deputy Wolke said he then saw Mr. Marquez raise the knife to Nora’s throat, and
start pulling Nora Marquez back toward the front door.
He told investigators: “Honestly, I thought that he was going to kill her right
there, probably at the doorway, uh, so that needed to be absolutely stopped, and secondly
I could not allow him to take her back into the house, into a non-controlled environment
and where the other hostage [was] as well. Uh, at that point I had made the decision that
I was going to shoot…” “My first concern was that the muzzle blast from my rifle would
actually hit Ms. Marquez’s face, so I had to create distance, so he was moving
backwards, I was moving backwards as well, but he still had her pretty much covering
most, or about half of his head, so I took a step to the right,…and at that point I had three
quarters of his head visible and I fired one round.” He added, “…at that point the sight
picture I had for Mr. Marquez was none of his body and all I had was three quarters of his
head. I fired one round….” He continued, “From my previous training on the SWAT
team, I had to hit in the medulla oblongata area so I could be able to take the brain stem
out to immediately shut him off, because if you don’t [hit] in that particular situation [sic]
where they’re already committed and they’re starting their action to kill somebody, if you
don’t immediately shut them off… the chances of them still being able to continue
through with their plans… would still be high.”
Deputy Wolke stated he fired a single round at Jason with his AR15 rifle, and
Jason immediately dropped straight to the ground. About a half second after he shot, he
heard Deputy Tonna fire his weapon as well. He said he then handcuffed Jason, and
helped clear the house of any other potential threats. Afterward, he was separated from
the scene and was processed by the C.S.I. unit. When asked if a less-than-lethal Taser
was used, he told investigators that due to the positioning of Nora Marquez in front of
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Jason, the only portion of his body available was his face. He said that due to Mr.
Marquez’s mental instability and his ability to cut and kill Nora Marquez, a non-lethal
weapon was not going to be effective in saving Ms. Marquez’s life. (See Attachment 12.)
DEPUTY LAWRENCE (“LARRY”) TONNA (BCSD)
Deputy Larry Tonna gave a formal, recorded statement to investigators on
September 24, 2012. He was Mirandized and was represented at the interview by
Fred Mowrer, his Union attorney. Detective Justin McKinney (BCSD) and Agent Steve
Montano (NMSP) conducted the interview. Deputy Tonna told investigators that he was
assigned to the BCSD Traffic Unit. He had over thirteen years of experience as a law
enforcement officer: Ten years with BCSD, and over three years with Rio Rancho. He
was on duty and wearing his uniform on the date of this incident, and had been making
traffic stops in the South Valley area command. He stated that he was working on a
traffic stop at about Old Coors and Bridge when he heard the radio call come in. He
described it as a lengthy dispatch. He remembered the dispatch saying that a subject was
holding a knife to the suspect’s mother’s throat, that the subject didn’t like law
enforcement, and that if he heard police units were on their way, he would kill his mother
and then himself. He also remembered that the radio traffic had been cleared exclusively
for that call.
After listening to the initial dispatch, Deputy Tonna planned to be available to
take other calls on a different radio channel, since other deputies would be tied up with
the call on Granada Court. He changed his mind, however, after he heard Deputy Wolke
on the radio asking for additional help. He proceeded to the scene, and upon his arrival,
talked with Deputy Wolke. Deputy Wolke asked him to be on the quick response team,
and gave him further information about the situation. Deputy Vince Chapa, a School
Resource Officer, arrived and was also designated to be part of the three-man quick
response team. Deputy Tonna told investigators that Deputy Wolke was in the first
position, and he was in the middle, and Deputy Chapa was in the third position. He was
armed with his own Springfield Arms .45 caliber duty weapon. Deputy Wolke was
armed with his rifle, and Deputy Chapa was to use a non-lethal Taser pistol if feasible.
Deputy Tonna said that as they crouched behind a vehicle in the driveway, he
heard a noise, and then a female voice after that. He peeked out from behind the vehicle,
and could see a male subject exiting the home. The man had his arm around a woman’s
neck, and Deputy Tonna said he could see the silver portion of a knife up against the
woman’s neck. Deputy Wolke began to lead the quick response team toward the porch,
and gave the subject commands to drop the knife. All three deputies had their weapons
drawn. The male subject responded, “Shoot me! Shoot me! Shoot me, motherfucker!
Shoot me! Shoot me or I’ll kill her!”
Deputy Tonna said as they advanced, Deputy Wolke took a couple of steps to the
right, and the two ended up approximately side-by-side. When he saw some separation
between the subject and his hostage, he fired a single shot toward the subject’s head.
Deputy Tonna explained that he took this action in order to keep the man from cutting the
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woman’s throat. He believed the man was trying to pull the woman back into the house,
and that he “couldn’t let that happen at all.” He described the woman as looking terrified,
and stated, “There was no doubt in my mind he was going to kill this woman, if not, you
know, hurt her really bad.” He remembered firing immediately after Deputy Wolke fired.
As the man fell backward, Deputy Tonna said he stepped forward and grabbed the
woman’s arm. He then handed her off to another deputy, while he helped clear the house
of any further threats. He also specifically remembers that as he stepped forward to help
catch the woman, he unintentionally kicked his own shell casing with his right foot. After
helping to clear the house, he went out onto the street where Sergeant Harlan asked him if
he was alright. He stated that at that point, he started to lose his composure and felt like
he couldn’t breathe. He was placed in a patrol car to calm down, and was paired with a
deputy from his traffic unit. He believed he had hit and killed the subject. (See
Attachment 13.)
DEPUTY VINCE CHAPA (BCSD)
Deputy Vince Chapa was interviewed by investigators on the day of the shooting.
He said he was working his regular assignment as a School Resource Officer at Rio
Grande High School, when he heard on the radio that something was happening on
Granada Court, SW. Granada is the street that borders the west side of the student
parking lot. Lunch was just ending at the school, so it was loud and he couldn’t hear the
radio transmission very well. The bits and pieces he could pick up were that there was a
“10-40” or “crazy guy” with a knife, holding a family member hostage. He decided to
ride his bicycle over to the location, in case he would need to take action to lock down
the school. As he approached the house, he started to run his pen video, and tried to run
audio recording as well. He was wearing gloves, however, so he seemed unsure whether
he was successful turning on the recording device.
Upon his arrival, Deputy Chapa noticed there were a number of deputies already
present, holding various perimeter positions. He was asked to help with the quick
response team. Deputy Chapa described staging behind a vehicle, which provided the
team with cover. He was designated as the member of the team to use less-than-lethal
force, i.e., his Taser pistol. His plan was to take the suspect down and handcuff him, if he
dropped the knife. He was the third man in the stack. Deputy Wolke was first, and was
armed with a rifle. Deputy Tonna was second in line, and armed with a .45 caliber
handgun. All three deputies were in full uniform. When the suspect came out of the
house with the woman in front of him, Deputy Chapa described going into a “tunnel
vision” state. All he seemed to remember was what he saw, not what he heard. He did
see the knife in the suspect’s hand. After the gunshots, he helped Deputy Wolke
handcuff the suspect. He never discharged any weapon in this incident. Deputy Chapa
estimated that the amount of the time that elapsed between his arrival and the shooting
was only about five minutes.
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Deputy Chapa didn’t know if his video pen recorded anything. He said it had
limited memory, and that it already had some previous recordings on it when he turned it
in. (See Attachment 14.)
Note: The District Attorney’s Office routinely orders copies of all reports, pictures
and recordings tagged into evidence on officer involved shooting cases. No video
recording of this incident was provided to our office.
DEPUTY MELISSA METZGER (BCSD)
Deputy Melissa Metzger was interviewed by investigators on September 20,
2012. Metzger said she had been a Sheriff’s Deputy for about 14 years, and was assigned
to Field Services as a patrol deputy. On the date of incident, Deputy Metzger said she
heard a radio dispatch to the scene on Granada Court, SW., and heard that a
schizophrenic subject was holding a knife to his mother’s throat. The dispatch also
warned that the suspect did not like law enforcement. All available deputies were asked
to respond. She turned off her siren as she got to the area of the scene, and joined other
deputies who were gathering information from Juanita Marquez, Nora Marquez’s
daughter. Juanita told deputies that her brother, Jason Marquez, was holding their
mother, Nora, hostage in the kitchen, and had a knife to Nora’s throat. Juanita also
provided deputies with the layout of the house. Deputy Metzger said she then took a
perimeter position on the northeast corner of the property, behind a truck in the driveway.
Deputy Metzger further stated that while deputies were attempting to establish
contact with Jason Marquez, a male, later identified as Alex Marquez, left the house and
told deputies, “He still has the knife at my grandma’s throat.” Shortly thereafter John
Serna also exited the residence, and left the front door propped open for deputies.
Deputy Metzger stated she learned that Jason Marquez’s disabled brother was still in the
residence, and that he was confined to a wheelchair. She also heard that Jason Marquez
still had a knife held to his mother’s throat. Deputy Metzger said that Deputies Larry
Tonna, Matthew Wolke, and Vince Chappa were on the north perimeter. She added that
Deputy Aldridge was on the phone, attempting to establish communication with Jason
Marquez.
Deputy Metzger said that while she was watching the east side of the house, she
saw Jason Marquez leave the house through the front door, while holding onto his
mother. She heard other deputies telling Jason to “drop the knife,” but he repeatedly
yelled at the deputies to shoot him. She noted that Nora Marquez was crying and
screaming while she was being held hostage by her son. While her vision of the knife
was obscured, Deputy Metzger said she noticed a red dot on Jason’s face. (Deputy
Chappa was armed with a Taser, which comes equipped with a laser sight. It can be
assumed that the red dot Deputy Metzger saw was from the laser.) Deputy Metzger told
investigators she heard two gunshots in rapid succession, and she then moved forward to
assist Nora Marquez. She told investigators that she saw blood on Ms. Marquez’s neck,
as well as a little bit of blood dripping downward. She had Ms. Marquez examined at the
scene by medical personnel, but Ms. Marquez refused transport to the hospital. Deputy
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Metzger noted that Ms. Marquez said her family no longer had to live in fear.
Attachment 15.)
(See
OTHER DEPUTIES AT THE SCENE
A number of additional deputies were present at the time of the shooting, or
arrived shortly thereafter. They were interviewed or submitted police reports. Their
interviews or reports either substantially confirm what is contained in the interviews
summarized above, or added nothing substantive to what was known about this incident.
(See Attachments 2, 16, and 17.)
OMI FINDINGS
An autopsy was performed on Jason Marquez by Dr. Ian Paul on September 21,
2012. Dr. Paul concluded that Jason Marquez died as a result of a single, distant gunshot
wound to the head, without an exit wound. The bullet entered Marquez’s left nasal area,
and severed his brainstem. The manner of death was ruled as homicide. (See Attachment
5.)
FINDINGS OF CRIMINALISTICS “CSI” INVESTIGATORS:
Detective Jamie Fassler conducted a standard criminalistics investigation at the
scene of this shooting. He documented the layout of the house, location of key evidence
through photographs, and collected the following relevant evidence:
-Deputy Wolke’s .223 rifle, recovered from Wolke’s vehicle
-A .223 casing from Deputy Wolke’s rifle, found under Mr. Marquez’s leg
-A .45 casing from Deputy Tonna’s pistol, found under a black mat on the porch
-A knife with a wooden handle, found under Mr. Marquez’s leg
-A broken blade from a knife, found inside the front door
-A knife with a purple handle, found in the kitchen (It is unknown what role this
particular knife played in this incident.)
In his narrative report, Detective Fassler states that Mr. Marquez’s body was
found face-down in the grassy area of the home, near the front door. Marquez’ head was
facing toward the southwest, and his feet were facing northwest. Marquez’ hands were
handcuffed behind him, and a broken, wood-handled knife and a .223 casing were visible
under his right leg. As Detective Fassler entered the home, he also noticed the blade
from the broken knife on the floor. He also observed a purple-handled knife on the
kitchen floor, next to a chair. A dining chair was pushed away from the kitchen table.
According to his report, nothing else in the house appeared to be out of place. He
attended the autopsy, and concluded that the .223 round killed Marquez. (That round was
from Deputy Wolke’s rifle.) (See report and photographs at Attachments 3 and 6,
respectively.)
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JASON MARQUEZ’S HISTORY AND POTENTIAL CHARGES
Jason Marquez had a significant criminal history, which is outlined in Attachment
19. His criminal history includes a conviction for Second Degree Murder of a neighbor
in 1989. He served time in prison, which may have contributed to his resistance toward
deputies. (He told his mother that he wanted to avoid a return to prison.) According to
his family, Mr. Marquez suffered from schizophrenia and bipolar disorder, and received a
Social Security disability check based upon his mental health problems. His family
reports that he had not been taking his medication recently, and that Jason also had a
significant history of acting violently towards family members. His mother said she was
in the process of seeking a restraining order against him. Additionally, his sister, Juanita,
said she had a restraining order in place to keep Jason away from her based upon past
incidents. Had Mr. Marquez survived this encounter with deputies, and committed no
further crimes against his mother or any other person, he is likely to have been charged
with at least the following crimes:
1. First Degree Kidnapping NMSA 30-4-1. This is a first degree felony, punishable
by 18 years of incarceration.
(For the action allegedly committed against his mother, Nora.)
2. Aggravated Battery (3rd Degree) NMSA 30-3-5. This is a third degree felony,
punishable by up to three years of incarceration.
(For the action allegedly committed against his mother, Nora.)
3. False Imprisonment. NMSA 30-4-3. This is a fourth degree felony, punishable by
up to 18 months imprisonment.
(For the action allegedly committed against his nephew, Alex)
If run consecutively, these charges carry a basic sentence of 22.5 years, possibly
enhanced by additional time based upon the Habitual Offender Act.
FACTUAL CONCLUSIONS BY THE DISTRICT ATTORNEY’S OFFICE
Based upon the physical evidence and statements of witnesses, we conclude that
Jason Marquez arrived at his mother’s home in the late morning on September 20, 2012.
He was angry because he had not received, or could not access, the funds from his
disability check, and apparently held his mother responsible for the problem. Jason
Marquez began yelling at his mother, and then physically restrained her, held a knife to
her throat, and threatened to kill her. During this time, Jason’s disabled brother, Julian,
remained in a back bedroom. Jason’s 19 year-old nephew, Alex, was present in the
home, and witnessed most of what happened. Alex called John Serna, a family friend,
and asked that he come to the home with money for Jason. Before Mr. Serna arrived,
Juanita Marquez happened to stop by the house. Juanita saw what was unfolding, was
fearful for her mother’s life, and went outside to call 911. Mr. Serna arrived as Juanita
was leaving the house. He attempted, unsuccessfully, to get Jason to put the knife down
and release Nora. Both John Serna and Alex Marquez were able to depart the house
before Jason forced his mother outside the house and the shooting occurred.
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Deputies Tonna and Wolke were among the deputies who responded to this call.
They were provided with a description of the interior of the home by Juanita Marquez.
Shortly after the arrival of law enforcement, Jason Marquez emerged from the house,
holding his mother at knife-point, and using her as a human shield. Deputies repeatedly
ordered Marquez to drop the knife. He refused, saying he would kill his mother, and that
they should shoot him. Mr. Marquez appeared committed to this course of action, and
had the means to carry through on his threat. Although the knife Mr. Marquez was
holding to his mother’s throat had a broken blade, there was still an ample, sharp cutting
surface to make it a deadly weapon. Mr. Marquez then started to retreat into the house
with his mother held against him as a hostage, and with the knife still at her throat.
Deputies Tonna and Wolke each fired their service weapon at Jason Marquez. While
only Marquez’s head was clearly visible over Ms. Marquez, each deputy concluded that
he could safely fire a shot to stop Mr. Marquez from carrying out his threat to kill his
mother.
PART II- LEGAL ANALYSIS AND CONCLUSION
APPLICABLE LAW
In New Mexico, criminal liability is established only if it is proved beyond a
reasonable doubt that someone has committed all the elements of an offense defined by
New Mexico Statute, and that the offense was committed without any statutorily defined
justification or excuse. While knowingly or intentionally shooting and causing injury or
death to another human being is generally prohibited as aggravated battery or murder in
New Mexico, the New Mexico Statutes specify certain circumstances in which the use of
physical force or deadly physical force is justified. As there is generally no dispute that
the officer in an Officer-Involved Shooting intended to shoot at the person who is
wounded or killed, the determination of whether the conduct was criminal is primarily a
question of whether there was legal justification for the officer’s actions.
The New Mexico statutes provide that the use of deadly force is justified by
anyone, including peace officers, in the following situations:
NMSA, Section 30-2-7 Justifiable homicide by citizen.
Homicide is justifiable when committed by any person in any of the following cases:
A. when committed in the necessary defense of his life, his family or his property,
or in necessarily defending against any unlawful action directed against
himself, his wife or family;
B. when committed in the lawful defense of himself or of another and when there
is a reasonable ground to believe a design exists to commit a felony or to do
some great personal injury against such person or another, and there is
imminent danger that the design will be accomplished; or
C. when necessarily committed in attempting, by lawful ways and means, to
apprehend any person for any felony committed in his presence, or in lawfully
15
suppressing any riot, or in necessarily and lawfully keeping and preserving
the peace.
The question presented in cases where self defense or defense of another are
raised is whether, at the instant the person fired the shot(s) that wounded or killed
another, the person reasonably believed, and actually believed that he or another person
was in imminent danger of great bodily harm or death from the actions of the person who
was shot. In order to establish criminal responsibility for knowingly or intentionally
shooting another, the state must prove beyond a reasonable doubt that the person doing
the shooting either did not really believe he or another was in imminent danger, or, if he
did hold such belief, that belief was, in light of the circumstances, unreasonable.
In addition to the above statute, New Mexico law also states that homicide by a
peace officer is legally justified under the following circumstances:
NMSA, Section 30-2-6 Justifiable homicide by public officer or public employee.
A. Homicide is justifiable when committed by a public officer or public employee or
those acting by their command and in their aid and assistance:
(1) in obedience to any judgment of a competent court;
(2) when necessarily committed in overcoming actual resistance to the execution
of some legal process or to the discharge of any other legal duty;
(3) when necessarily committed in retaking felons who have been rescued or who
have escaped or when necessarily committed in arresting felons fleeing from justice; or
(4) when necessarily committed in order to prevent the escape of a felon from
any place of lawful custody or confinement.
B. For the purposes of this section, homicide is necessarily committed when a public
officer or public employee has probable cause to believe he or another is threatened with
serious harm or deadly force while performing those lawful duties described in this
section. Whenever feasible, a public officer or employee should give warning prior to
using deadly force.
New Mexico courts have found that Section 30-2-6(B) is intended to provide a
police officer a wider scope of privilege than the general public with regard to use of
deadly force. A police officer may be legally justified in using deadly force in a variety
of situations that would not necessarily apply to self-defense and the ordinary citizen.
Police officer justifiable homicide is sufficiently different from self defense or defense of
others that is unavailable to ordinary citizens. For example, private citizens ordinarily
may not be the aggressor and then claim self-defense. A police officer, however,
sometimes may have a lawful duty to be the aggressor in the course of fulfilling his or her
responsibilities to the public. This is another reason that justifiable homicide is different
from simple self-defense by citizen. State v. Mantelli, 2002-NMCA-033, ¶22, 131 N.M.
692, 697, 42 P.3d 272,277.
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In determining whether a police officer’s use of force was reasonable is heavily
fact dependent. According to the United States Supreme Court, the standard for a police
officer is a reasonable standard that requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others and
whether he is actively resisting arrest or attempting to evade arrest by flight. Graham v.
Connor, 490 U.S. 389, 396, 109 S. Ct. 1865, L.Ed. 2d 443 (1989). The reasonableness of
a particular use of force must be judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight, Id. It also must be remembered
that the decision of the officer is often made in a split-second under difficult conditions.
Archuleta v LaCuesta, 1999-NMCA-113, ¶8, 128 N.M. 13, 988 P. 2d 883.
Justifiable homicide is necessarily committed when a public officer has probable
cause to believe he or another is threatened with serious harm or deadly force while
performing lawful duties. State v. Mantelli, Supra. For there to be probable cause, the
facts must be such as would warrant a belief by a reasonable officer based upon the
expertise and experience of the officer. State v. Mantelli, Id.
"Probable cause" means the evidence presented would cause a reasonable person
to believe that an offense has been committed and that the accused committed the offense.
Probable cause does not require proof beyond a reasonable doubt. New Mexico Uniform
Jury Instruction 14-8006.
LEGAL ANALYSIS
Under the facts of the present case, the question to be answered is whether the
actions of either Deputy Wolke or Deputy Tonna in using deadly force against Jason
Marquez was justified under either NMSA Section 30-2-7, Justifiable homicide by citizen
or Section 30-2-6, Justifiable homicide by public officer or public employee.
Note: It was Deputy Wolke’s shot that hit and killed Mr. Marquez, and not Deputy
Tonna’s shot, although Tonna also fired. It appears clear that both deputies were
performing the lawful duties of a peace officer at the time of this shooting, and that
that the deputies fired their weapons at Jason Marquez in order to save the life of
Ms. Marquez and to keep Mr. Marquez from retreating into the residence where
both Ms. Marquez and Julian Marquez (Jason’s disabled brother) would be placed
at great risk of death or grievous injury.
Upon thorough review, it is clear that Deputy Wolke and Deputy Tonna were performing
their lawful duties as peace officers at the time of this shooting. Justifiable homicide by
public officer or public employee is most applicable to these facts. The questions to be
answered therefore are: 1) Whether Deputy Wolke or Deputy Tonna’s action in shooting
Mr. Marquez was based upon their actual belief that they and/or others were in danger of
imminent death or great bodily harm as a result of what they saw Jason Marquez do; and
2) Was Deputy Wolke or Deputy Tonna’s fear of imminent death or great bodily harm to
themselves, or others, reasonable in light of all the circumstances. This is, therefore, both
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a subjective and objective analysis of the situation, and Deputy Deputy Wolke’s and
Deputy Tonna’s actions.
CONCLUSION
For the reasons discussed in detail above, the District Attorney’s Office will not
pursue criminal charges against either Deputy Matthew Wolke or Deputy Lawrence
Tonna. A thorough analysis of the shooting and available evidence indicates that the
deputies shot at Mr. Marquez based upon the actual belief that they, and/or other
individuals, were in danger of imminent death or great bodily harm as a result of Mr.
Marquez holding his mother hostage with a knife. Both deputies had to make a splitsecond decision and this decision was to use deadly force in defense of the life of Ms.
Marquez, and potentially the life of another person inside the residence. In our opinion, it
was reasonable for someone in the deputy’s situation to act as they did in order to meet
this perceived threat under the circumstances of this case. The Second Judicial District
Attorney’s Office therefore finds there is no probable cause under the criminal laws of
the State of New Mexico law (see Section 30-2-6 NMSA 1978), and will not pursue
criminal charges against either Deputy Matthew Wolke or Deputy Lawrence Tonna for
their use of deadly force against Jason Marquez on September 20, 2012.
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Report Attachments
1. Letter from the District Attorney’s Office to Ms. Nora Marquez
2. “Supp Out” report prepared by Detective Gaitan, BCSD Homicide
3. Criminalistics Report prepared by Detective Fassler
4. Firearms and Tool Mark Report prepared by Mike Haag
5. Autopsy Report
6. Photos of scene
7. Transcribed statement of Juanita Marquez
8. Transcribed statement of Nora Marquez
9. Video of interview with Ms. Nora Marquez by news reporter
10. Transcribed statement of Alex Marquez
11. Transcribed statement of John Serna
12. Transcribed statement of Deputy Matthew Wolke
13. Transcribed statement of Deputy Lawrence Tonna
14. Transcribed statement of Deputy Vincent Chapa
15. Transcribed statement of Deputy Melissa Metzger
16. Transcribed statement of Deputy Tammy Sherfy
17. Transcribed statement of Deputy Lawrence Harlan
18. Recording of radio transmissions and 911 call
19. “Rap Eval” from DA’s Office regarding Jason Marquez’s criminal history
19