Michael Marquez Shooting Review

8/11/2019 Michael Marquez Shooting Review

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Office of the District Attorney

Officer Involved Shooting Review on DA file Number 2012-00750-1

Decedent: Michael Marquez

Officer: James Perdue, APD

Date: August 30, 2011Location: 217 60TH

St, NW, Albuquerque, NMAPD Report: 11-0080924

The Second Judicial District Attorneys Office has completed its review of theinvestigation in the above fatal Officer-Involved Shooting that occurred on August 30,

2011. The District Attorneys Office finds the shooting was justified under the criminal

laws of the State of New Mexico and will not pursue criminal charges against Officer

James Perdue.The investigation of this officer-involved shooting was conducted in accordance

with the Memorandum of Understanding between the Albuquerque Police Department,

Bernalillo County Sheriffs Office, New Mexico State Police, and the Second JudicialDistrict Attorneys Office. All three police agencies participated in the investigation, and

a Chief Deputy District Attorney was present at the scene and present for briefings and

the walk-through at the scene.

The following materials were used in our review of this case: the complete policereport, crime scene report, OMI report, photographs taken at the scene, the crime lab

reports and audio recordings of all witness interviews. On February 25, 2013, the

decedents family was also invited to submit information for our consideration in thismatter, but have not done so.

BRIEF SUMMARY

On August 30, 2011, the Albuquerque Police Department was working to

apprehend Michael Marquez for several armed robberies and a warrant had been issued

for his arrest. They received a tip that Michael Marquez could be found at 217 60th

Street, SW, and set up surveillance near that location. Police observed Marquez retrieve

a large bag from an outdoor shed at the residence and run into an open field. It became

apparent that the bag contained or covered a long gun. The rifle was later confirmed to bea loaded AK47. Marquez refused repeated orders to drop his weapon. A stand-off lasting

approximately one hour ensued. During the stand-off, SWAT was dispatched to the area

for assistance. Officer Perdue, a member of that SWAT team, was aware that Marquez

had fled the residence with an AK47 and that the area around the field was a residentialarea. Michael Marquez appeared to become increasingly angry and raised his weapon

toward detectives who were standing behind an SUV in the field approximately twenty

yards away from Marquez. Officer Perdue stated that he believed that the detectives were

in immediate danger and that people living in the residential area were in danger as well.Officer Perdue, in uniform and on duty, shot Michael Marquez twice with his Colt M4LE

.223 caliber rifle, killing him.

The District Attorneys role in reviewing this homicide is to determine whetherthe shooting of Michael Marquez was lawful and to provide a detailed explanation to the


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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 thecircumstances of the fatal shooting of Michael Marquez. The findings in this report are

supplemented by a copy of the detectives supplemental police report (Supp Out),

criminalistics report and various other documents, photographs and diagrams to assist thepublic in understanding the events in this case and the determinations made by theDistrict Attorney.

INVESTIGATIVE FINDINGS:

DETECTIVE C. JUAREZ

Detective Juarez was investigating a robbery which occurred on July 15, 2011.

Through photo arrays and video surveillance, Michael Marquez was identified as a

suspect. Detective Juarez obtained an arrest warrant for Michael Marquez for armedrobbery on August 29, 2011. After the initial robbery, two more robberies were reported

in which Marquez was positively identified as the offender. (See Exhibit 12 Robbery

Investigation Supp Out)

On August 30, 2011, based on a tip, the robbery unit conducted surveillance at217 60

th NW. Detective Juarez observed Michael Marquez exit the house and go to

another door which was a storage closet or shed, retrieving a blue and white bag.

Marquez took the bag and ran west from the residence.Detective Michaud advised it appeared Michael was armed with a long gun.

Detective Juarez saw Marquez holding a rifle or a long gun, but it was concealed in a

duffel bag or a shirt. Detective Juarez heard Detective Michaud issue commands to

Marquez. Detective Juarez also issued commands for Marquez to drop his weapon.Marquez looked toward Detective Juarez, became more agitated and yelled at Detective

Juarez. Detective Juarez heard Marquez rack a round into the chamber. Because

Detective Juarezpresence appeared to be agitating Marquez, Juarez pulled back out ofMarquezline of vision. During debriefing, Detective Juarez stated he heard two shots.

DETECTIVE ANDREW MICHAUD

Detective Michaud and Detective Lowe participated in the surveillance operation

around 217 60th

NW in a white SUV. Detectives heard Detective C. Juarez advise over

the air that the suspect, Michael Marquez, was running westbound through the field.Detective Michaud observed Marquez climb through a chain link fence with

some sort of a bag in his hand. Detective Lowe drove the SUV to confront Marquez.

Detective Michaud observed Marquez grab the front of the bag with one hand, and the

other hand reached inside the bag. Marquez pointed something at Detective Michaudand Lowe. Detective Michaud recognized the object as a weapon, either a shotgun or a

rifle, and immediately notified Detective Lowe.

Detective Lowe stopped the vehicle and both detectives exited the white SUV.Detective Lowe took cover behind the SUV. Detective Michaud immediately started


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talking to Marquez. Detective Michaud told Marquez to drop the weapon but Marquez

refused to do so.

While Detective Michaud continued talking with Marquez, Alejandra Hernandezapproached the detectives. Alejandra Hernandez is Marquez girlfriend and mother of

Marquez children. Hernandez told Detective Michaud that Marquez had purchased an

AK47 the previous evening.Detective Lowe informed other officers over the radio. Detectives felt they hadinsufficient cover behind the SUV. Detective Michaud continued to speak with Marquez,

but Marquez became more agitated. Marquez said he, was ready to die but he was

going to take detectives with him.Detective Michaud stated he felt his life and the lives of Detective Lowe and

Hernandez were injeopardy because they didnt have proper cover from a weapon like an

AK47. Detective Michaud could hear SWAT units arriving over the radio. Marquez

pointed the AK47 directly at the SUV and two shots rang out.Detective Michaud and Lowe jumped into the back of the SUV because they

didnt know where the shots came from. Detective Michaud looked up and saw Marquez

lying on the ground not moving.

DETECTIVE LOWE

Detective Lowe was conducting surveillance with Detective Michaud around 21760

thNW. Detectives heard that Marquez was running westbound toward an open field.

Detective Lowe, driving an SUV, immediately headed north through the open field.

Detectives observed Marquez stop running as he pointed a blue and white duffel bag inthe direction of the SUV. Detective Lowe identified the object as a weapon and stopped

the SUV.

Detectives took cover behind the SUV. Detectives ordered Marquez to get on the

ground and drop the weapon. Detective Lowe couldnt see the gun because it wasconcealed inside a bag. Detective Lowe observed Marquez holding an object as if it was

a long gun. Detective Lowe was certain that Marquez was armed.

Detective Michaud continued talking to Marquez and asked him to lower theweapon. Alejandra Hernandez approached and stated that Marquez had purchased an

AK47 the night before. Detective Lowe relayed this information over the radio.

Detective Lowe and Michaud discussed a tactical retreat but there was no safe way toexit.

Detective Michaud continued talking with Marquez but Marquez would not put

down the weapon. Detective Lowe believed that Marquez was pointing the weapon at

the SUV. While Detective Lowe and Michaud where discussing their position they hearda pop. Detective Lowe and Detective Michaud jumped in the SUV thinking shoots

were being fired in their direction. Detective Lowe stated she heard SWAT approaching.

SERGEANT E. BROWN

Sergeant Brown is a SWAT member and was on route to the scene when SWAT

was activated. Over the radio, Sergeant Brown heard that a male subject was armed witha rifle. While at the scene, Sergeant Brown observed a male subject standing in an open


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field. The male was agitated and armed with a rifle. Sergeant Brown heard Marquez

yelling, If you think this is funny, Ill show you funny. I shoot everyone. Sergeant

Brown heard that Officer Perdue was in place. Sergeant Brown then heard a shot firedand Marquez fall down. When Sergeant Brown approached Marquez, he observed a rifle

within arms reach of the male.

OFFICER J. GARCIA

Officer Garcia was deployed with his long gun and sought high ground to observeMarquez. Marquez was in the open field at this time. Officer Garcia was able to find

cover behind Marquez. Officer Garcia could hear Marquez say, You better tell your

boys to back off. Marquez appeared to be agitated and upset. Marquez also stated, Im

ready to die, and asked the officers if they were ready to die.Officer Garcia could see Marquezarms were extended down in front, which was

consistent with a gun. Officer Garcia heard numerous commands to put the weapon

down. Marquezattention was focused on the SUV. Officer Garcia observed Marquezstart to stand again when he heard the first of two shots fired. Marquez fell to the ground.

DETECTIVE D. BACA

Detective Baca was part of the robbery unit doing surveillance around 217 60th

Street in hope of arresting Marquez. Detective Baca heard that Marquez was running.

Detective Baca helped establish a perimeter around Marquez by stationing himself northof the field. Detective Brown could see Marquez from behind and observed him holding

a bag and thought there might be a shotgun concealed in the bag. Detective Baca told

Marquez to drop the bag. Detective Baca also heard Detective Juarez call to Marquez,

which made Marquez increasingly agitated and he refused to drop the weapon.Detective Baca heard Marquez manipulate the weapon, and Detective Dosel

transmitted over the radio that she heard Marquez chamber a round. Detective Baca then

heard Marquez say, He was ready to die and he would take people with him. DetectiveBaca heard SWAT units arrive. Detective Baca was moving when he heard two shots

and Marquez fell to the ground.

OFFICER PERDUES STATEMENT (SHOOTING OFFICER):

Officer Perdue, a member of Albuquerque Police Department SWAT unit,

arrived at the scene in uniform and in an unmarked police unit. Officer Perdue heardover the radio that a suspect was armed with a long rifle and that the weapon had been

racked. (Racked means a bullet was cycled into the chamber of the gun in

preparation to fire the weapon.) Officer Perdue saw Marquez in an open field with a bag

in his hands, holding it like a rifle. Officer Perdue set up behind Marquez and behind afence that provided concealment. He was able to place the barrel of his Colt M4LE rifle

through an opening in the fence so that he could fire the weapon if that became

necessary.


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Officer Perdue could see and hear Mr. Marquez. Mr. Marquez attention was

directed toward a white SUV where two Albuquerque Police Department detectives

where taking cover and talking to Mr. Marquez. Officer Perdue first noticed that Mr.Marquez had the gun pointed in a downward direction. Officer Perdue thought that Mr.

Marquez was going to give up based on his body language. All of a sudden, Mr.

Marquez started yelling at the detectives behind the white SUV and raised his gun towardthe detectives. Officer Perdue explains in his statement that detectives had insufficientcover behind the SUV when faced with an AK47. Officer Perdue was also concerned

about people in the residential area. Officer Perdue believed Mr. Marquez was about to

fire his weapon and shot Mr. Marquez. Mr. Marquez did not go down immediately afterthe first shot. Officer Perdue, believing he missed, fired a second round that stuck Mr.

Marquez in the head.

CIVILIAN WITNESSES:

ALEJANDRA HERNANDEZ (Marquez girlfriendand mother of his children)

Alejandra Hernandez refused to give a statement to police officers. If the grand

jury investigative process was still in effect, the District Attorneys Office would have

compelled Alejandra Hernandeztestimony before a grand jury. Alejandra Hernandez is

not accused of committing a crime or involved in any crime and would not have a 5th

Amendment right not to testify before the grand jury.

DANIEL MEDINA

Daniel Medina was inside the house located on the south end of the open field in

which Marquez was stopped by police. Medina witnessed a male subject run into the

field. He watched as a white SUV stopped and detectives exited the vehicle and ran tothe rear. Medina witnessed the male subject hold a bag and point it toward detectives.

Medina stated he did not see the gun, but that the male was holding the bag like a gun.

Medina saw the male pointing the bag at the detectives the whole time.Medina could hear parts of the conversation between Marquez and the detectives.

Marquez stated, Im not afraid to die,and, You dont know what happened. Medina

saw a female approach the detectives behind the SUV. Marquez tried to talk to thefemale. Medina stated Marquez squatted down and then Medina heard two shots and

Marquez fell to the ground.

GRINDELIA ESCOBAR AND KEVIN ESCOBAR

The Escobars recorded the incident on a cell phone. Their home can be seen in

(Exhibit 8) as the home in the middle of the field. See the criminalistics report (attached)for a description of the contents of the video.

G. Escobar stated that she saw Marquez holding a bag like a gun and was facing officers.(See Exhibits 5, 6, and 7.)


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K. Escobar stated that he saw Marquez in the field holding what he thought was a gun,

covered in a bag. K. Escobar stated the weapon was pointed at the police officers. (SeeExhibits 5, 6, and 7.)

CRIMINALISTICS REPORT-CSI

Crime scene investigation showed that Mr. Marquez had an AK47 in his

possession with one round in the chamber. (See Exhibit 1 and 2.) The AK47 was

wrapped in a duffle bag. (See Exhibit 3). Projectile fragments were collected from OMI.Officer Perdue left his .223 caliber rifle behind for the crime scene unit to collect. Two

shell casings from the .223 where found next to the rifle where Officer Perdue was

positioned. (See Exhibit 4.)

One cell phone was collected from a family inside the single house in the middleof the open field. A male member of the family recorded the incident on the cell phone.

The first video shows both Detectives Michaud and Lowe taking cover behind a SUV.

(See Exhibit 7.) Both detectives have their guns out and in a low ready position.Detectives can be heard telling Marquez to put the bag down. A female family member

can be heard saying, He has a gun! and the male states, He has a gun in the bag!

A second video shows Marquez standing while holding the rifle/bag at his hip and

pointing it toward the SUV. A third video shows Marquez in a kneeling position,pointing the rifle toward the SUV. (See Exhibit 5 and 6.) Marquez voice became

agitated and he shouted to Alejandra and detectives. (Alejandra is Marquez girlfriend

and the mother of his children.) On the video, the first shot by Officer Perdue can beheard. It apparently startles the male taking the video with his cell phone and then a

second shot is fired. The next scene shows Marquez on the ground. The video also shows

SWAT and rescue personnel approaching Marquez.

A photographic overview of the scene shows Marquez location in relationship tothe white SUV, Officer Perdues position and where the civilian taking the video was

located. (See Exhibit 8)

BALLISTICS REPORT

Two shell casings collected from the scene were fired from Officer Perdues Colt

M4LE .223 rifle. The projectile fragments collected from OMI were consistent withcoming from Officer Perdues weapon. The AK47 taken from Michael Marquez

functioned normally and safely.

AUTOPSY

An autopsy was performed on Michael Marquez by Dr. Andrews of the New

Mexico Office of Medical Investigator (OMI),who identified two wound tracks. One

wound was to the right upper chest. The wound track was front to back, right to left anddownward going through both lungs and the heart. A second wound was on top of

Michaels head. Wound trajectory was back to front slightly right to left and downward

going through the brain, fracturing the skull, through the roof of the mouth and stoppingat the left neck. Projectile fragments where collected from both wound tracks. Cause of


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death was from multiple gunshot wounds. The head wound was immediately fatal. The

wound to the chest would have been fatal as well within a short amount of time. Blood

tests, taken at the time of the autopsy, were analyzed by a toxicology laboratory andrevealed a very high level of methamphetamine in Marquez blood. OMI concluded that

Marquez cause of death was multiple gunshot wounds, and his manner of death was

homicide.

FAMILY INPUT

A letter was sent on February 25, 2013, to last known address of Marquez

mother. On March 18, 2013, contact was made by phone with Teresa Marquez. She

explained that she believed Michael Marquez was shot three times. Teresa Marquez was

upset that the police would not let her talk to her son during the stand off. TeresaMarquez was also concerned about the officers using a flash bang on Michael Marquez

after he was dead.

POTENTIAL CHARGES AGAINST MARQUEZ

If Marquez had been arrested without incident for the crimes committed duringthe three armed robbery cases listed in Exhibit 12, he would likely have faced the

following charges: charges:

1. Armed Robbery (3 counts), 2 of those counts with a Firearm Enhancement

2. Kidnapping (2nd

degree) with a Firearm Enhancement

3. Aggravated Burglary

4. Aggravated Battery (Great Bodily Harm)5.

Felon in Possession of a Firearm (2 counts)

If Marquez had taken the same actions as described in the report, but survivedtheshooting, the following additional charges would have been appropriate:

1. Aggravated battery on a peace officer with Firearm Enhancements (2 counts)for pointing his AK47 towards the two detectives in a threatening manner.

2. Felon in Possession of a Firearm

Additionally, a 4 year Habitual Offender penalty could be added to any felony hemight be convicted of at trial.

FACTUAL CONCLUSIONS BY THE DISTRICT ATTORNEYSOFFICE

On August 30, 2011, the Albuquerque Police Department was working to

apprehend Michael Marquez. Marquez was wanted for several armed robberies and awarrant had been issued for his arrest. Michael Marquez was most likely aware that


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police were looking for him since this information had been widely distributed in the

media. Comments he made to other people both before and during the stand-off with

police, together with his recent purchase of the AK47, further suggest that he knew hewas wanted by police and prepared to make a stand and resist efforts to arrest him.

Marquez exited the residence at 217 60th Street and ran into an open field where he was

confronted by Albuquerque Police Department detectives. Marquez was armed with anAK47 assault rifle which he had just retrieved from an outside shed at the residence, andthen refused orders to drop his weapon. During the stand-off, SWAT was dispatched to

the area for assistance. Officer Perdue was aware of Michael Marquez fleeing with an

AK47 in a residential area. Although police repeatedly ordered Marquez to put down theweapon, he seemed to become increasingly angry and raised his weapon toward two

detectives who had inadequate cover for protection. Officer Perdue, fearing that one or

both of the two detectives and civilians in the area were in grave danger, shot Michael

Marquez twice, killing him.

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 byNew Mexico Statute, and that the offense was committed without any statutorily defined

justification or excuse. While knowingly or intentionally shooting or causing injury or

death to another human being is generally prohibited as aggravated battery or murder inNew 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, thus the determination of whether the conduct was criminal isprimarily a question of whether there was legal justification for the officers 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 directedagainst 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 isimminent 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


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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 is 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 inimminent danger of great bodily harm or death from the actions of the person who wasshot. 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 didhold 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 or assistance;

(1) in obedience to any judgment of a competent court;

(2) when necessarily committed in overcoming actual resistance to the executionof 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 fromjustice; 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 thissection. 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. Policeofficer justifiable homicide is sufficiently different from self-defense or defense of others.

For example, private citizens ordinarily cannot be the aggressor in order to claim self-

defense. However, a police officer may sometimes have a lawful duty to be the aggressor

in the course of fulfilling his or her responsibilities to the public. This is another reasonwhy justifiable homicide is different from simple self-defense by a citizen. State v.

Mantelli, 131 N.M. 692, 42 P.3d 272 (2002).


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In determining whether a police officers use of force was reasonable is heavily

fact dependant. According to the United States Supreme Court, the standard for a police

officer is a reasonable standard that requires careful attention to the facts andcircumstances 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. at 396, 109 S.Ct. 1865 (1989). The reasonableness of a particular useof force must be judged from the perspective of a reasonable officer on the scene rather

than with 20/20 vision of hindsight. Id. It also must be remembered that the perspective

of the officer is often made in a split-second decision and in difficult situations aboutwhat force is necessary. Archuleta v LaCuesta, 1999-NMCA-113, 128 N.M. 13, 988 P.2d

883 (1999).

Justifiable homicide is necessarily committed when a public officer has probablecause 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 theexpertise and experience of the officer. State v. Mantelli, Id.

Probable cause, a standard required for a case to be presented to a target grand

jury or proceed to preliminary hearing, means the evidence presented would cause areasonable 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 OfficerPerdues action in using deadly force against Marquez was justified under either NM SA

Section 30-2-7, Justifiable homicide by citizen, or Section 30-2-6, Justifiable homicide by

public officer or public employee. It appears clear that Officer Perdue was performing thelawful duties of a peace officer 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) Was Officer Perdues actionin shooting Marquez based upon his actual belief that he was in danger of imminent death

or great bodily harm or a third person(s) was in danger of imminent death or great bodily

harm (Detective Lowe and Detective Michaud); and 2) Was Officer Perdues fear of

imminent death or great bodily harm for a third person (Detective Lowe and DetectiveMichaud) reasonable in light of all the circumstances.

CONCLUSION:

It is the conclusion of this office that there is no probable cause to charge Officer

Perdue with any crime in connection with the death of Michael Marquez. Thorough

analysis of available evidence indicates that Officer Perdue shot in defense of another(Detective Lowe and Detective Michaud). According to his statement to police


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REPORTS AND EXHIBIT ATTACHMENTS

1. Photograph of AK47

2.

Photograph of round removed from chamber of AK47

3. Photograph at scene of AK47 in a white and blue bag

4. Photograph at scene of Officer Perdues guns and casings

5. Still shot from video taken by civilian witness showing Marquez

6. Still shot from video taken by civilian witness showing Marquez

7. Still shot from video taken by civilian witness of white SUV with Alejandra

Hernandez off to right

8. Photograph overhead of scene with locations of parties

9. Supplemental Report prepared by Detective Darcy McDermeit

10.Criminalistics Report prepared by Rashai Hatfield

11.Transcript of Officer Perdues statement to investigators

12.Supp out for armed robbery cases prepared by Detective Chris Juarez

13.

Portion of Autopsy Report, including toxicology report

14.Rap Eval prepared by Priors Section of the DAs Office

15.Arrest Warrant for Michael Marquez


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Documents

Michael Marquez Shooting Review