The district attorney’s office had hoped to get the maximum sentence for a man convicted in an ax attack. Instead, he got probation.
In May, a jury found Richard Bustamante guilty of aggravated battery with a deadly weapon and aggravated assault with a deadly weapon. He was found not guilty of attempted murder.
But his defense attorney, Joe Romero, requested a new trial, alleging that prosecutors hadn’t provided all of the necessary medical records in the case. Prosecutor Tom Clayton called that assertion “dead wrong.”
District Judge Abigail Aragon ordered a new trial, but the two sides entered into a plea agreement resulting in three years of supervised probation for Bustamante.
That’s a far cry from what prosecutors had hoped for. District Attorney Richard Flores announced in a press release in May that his office planned to seek the maximum sentence of four and a half years in prison for Bustamante.
The case stems from an attack that happened in the early morning hours of July 23, 2005, in Bernal. The victim, Enrique Bustos, testified that the night before, he and Bustamante were drinking beer and whiskey and having cocaine at the suspect’s house, officials said.
When they ran out of cocaine, the victim testified that Bustamante took an ax to him and hit him at least six times — in the back of the head, left shoulder, left arm, left buttocks areas, left lower leg and back, officials said.
The victim lay on the ground for a number of hours before he was found.
In his request for a new trial, Romero argued that prosecutors had released only the victim’s medical records from the the University of New Mexico Hospital in Albuquerque. He wrote that the records showed four distinct injuries, one of them to Bustos’ head.
Romero contended that the state didn’t release medical records from Alta Vista Regional Hospital and Rocky Mountain EMS, the ambulance service for San Miguel County.
Romero wrote that he learned of these records through statements made by the state during the trial. He stated that he requested these records after the trial, contending that they showed Bustos didn’t suffer a head injury.
Romero cited case law that he said shows that a defendant is denied due process when the state doesn’t provide key evidence.
“The test for materiality is whether there is a reasonable probability that disclosure of the statement to defense counsel would have resulted in a different verdict,” Romero wrote in his request for a new trial.
Prosecutor Clayton said Romero was “dead wrong” in his arguments, saying that the state provided the defense everything it had for the trial. He said Romero started representing Bustamante a month before the trial and that the state has provided all of its materials to the previous defense attorney. In any case, Clayton said, the state never had the medical records that were the subject of Romero’s request for a new trial.
Besides, Clayton said the victim suffered six significant injuries in the ax attack, so the guilty verdict was legitimate.
“He (Bustamante) left the victim on the road to die. By the grace of God, he is found and survives,” the prosecutor said.
Clayton said the victim was “OK” with Bustamante’s probation because he wanted to put the matter behind him.