Lawsuit filed in federal court alleges murder cover-up in Grant County

July 02--SILVER CITY -- A lawsuit filed in U.S. District Court on behalf of Bayard resident Michael Gutierrez alleges that the death of his brother, ruled a suicide by the Office of Medical Investigators in 2010, was actually a homicide and that investigating officers in the Bayard Police Department, New Mexico State Police and Grant County Sheriff's Department covered up the crime.

The city of Bayard, Grant County Commissioners, Grant County Sheriff's Department and the individual police officers involved in the original investigation are all named in the lawsuit. Gutierrez is the plaintiff and personal representative for the estate of Max "Joe" Gutierrez</person>, who died in Bayard in June 2010.

According to federal court documents, Max "Joe" Gutierrez, 32, died on the night of June 19, 2010 in the 700 block of Lusk Avenue in Bayard from a single shotgun blast to the head. It alleges he was arguing with his allegedly estranged wife, Jamie Fetty, just before the fatal blast. Fetty is the only witness to the incident.

The lawsuit alleges that Fetty was having an extramarital affair with former Bayard Police Officer Lt. Sam Rodriguez from January 2010 to June 2010, when the death occurred. Rodriguez and then-Bayard Police Officer Sgt. Willie Kerin, who is now a lieutenant with the Bayard police, responded to the call. Rodriguez is now a Grant County sheriff's deputy.

The Sun-News reported at the time of Max Joe's death that a woman had run from the house screaming and a man chased her down, grabbed her by the hair, and dragged her back to the house. Bayard Police approached the residence, announced their presence and tried to get someone to come to the door, according to the Sun-News report.

The Sun-News further reported at the time that officers said they could hear someone screaming, "Let me go, let me go," so they entered the house. They allegedly heard the gunshot and left the residence to take cover and call for assistance.

According to the lawsuit, Rodriguez was one of those officers, and Kerin was the other one. Rodriguez never informed anyone of his alleged relationship with Fetty, the lawsuit alleges.

It also alleges that Fetty provided conflicting statements to law enforcement and that some of her initial statements suggest an accidental death. The lawsuit alleges that Rodriguez took personal control of the scene. It claims that when Santa Clara Police Patrolman Esteban Arizaga arrived at the scene, Arizaga wrote in his report, "I did speak to Lieutenant Sam Rodriguez from the Bayard Police, which he advised me that a male subject had shot himself in the head in the residence." Arizaga is not named in the lawsuit.

The lawsuit alleges that Rodriguez allowed Fetty to change her clothes and get cleaned up. It also alleges that photographs Kerin took at the time of the initial investigation show a cloth covering Max Joe's left hand. Later photographs taken by Grant County Sheriff's Deputy Raymond Tavizon do not show the cloth.

According to Derek Garcia, the lawyer representing Michael Gutierrez and the estate of Max Joe, the plaintiffs have multiple theories as to what the cloth was, but Garcia said he wants to reserve comment on that at this time.

"It wasn't tagged as evidence," Garcia said. "At the very least, it shows a severe problem with the integrity of the crime scene. The position of the hands are almost completely different (in the initial photos allegedly taken by Kerin and in the second set of photos allegedly taken by Tavizon)."

Tavizon and Grant County Sheriff's Deputy Michael Leftault, who took over the investigation about an hour after the initial call to Central Dispatch at 9 p.m., are both named in the lawsuit.

Court documents allege that Tavizon and Leftault became the primary investigators on the scene once they arrived. Leftault arrested Michael Gutierrez, who arrived at the scene and expressed "very harsh language," according to Garcia. Leftault charged Gutierrez with disorderly conduct and, according to Garcia, police pursued the charge within the courts.

Tavizon is named in the suit for failing to preserve evidence and because, according to Garcia, he allowed Fetty to clean up.

"It was known to Tavizon that she had been allowed to clean up," Garcia alleges.

Another officer named individually as a defendant is New Mexico State Police Officer Tony Fetty, who is the brother of Jamie Fetty. Although Officer Fetty's involvement is not clear in the court document, Garcia said he has evidence that Officer Fetty knew immediately about the incident and stated that his sister could not go to jail. Garcia said he would be filing an amendment to the court soon that would make Officer Fetty's relationship to the lawsuit more clear.

Garcia also pointed out that as Jamie Fetty's brother, Officer Fetty allegedly knew of the affair between her and Rodriguez and did not reveal the relationship to authorities.

The lawsuit claims that a close friend and neighbor of Max Joe's has stated that Max Joe told him that Ms. Fetty drained their joint bank account on the day of Max Joe's death.

Fetty's cell phone was retrieved by family members at the scene on the night of Max Joe's death. According to the lawsuit, forensic analysis has been performed by a private investigator that showed Fetty made numerous Google searches about how to cover up a suicide, how to clean up a crime scene, the maximum sentence for second-degree murder, how to poison without a trace, how to disguise a suicide and life insurance.

The lawsuit also alleges that Rodriguez and Fetty returned to the scene at about 2 a.m., after the area had been cleared by police. Garcia alleges that Rodriguez and Fetty may have returned to look for Fetty's cell phone, which law enforcement failed to retrieve at the time of their investigation.

The Sun-News reported at the time of the investigation that Max Joe had a domestic violence charge brought against him previously that was subsequently dropped and a protection order that was also subsequently dismissed. Garcia said the plaintiffs have some evidence that Fetty made those charges falsely to set him up.

Garcia also said the plaintiffs have eye witness evidence that Max Joe was not in a suicidal frame of mind the night of his death.

The court document alleges that the family of Max Joe's due process was denied and that they were not allowed access to the courts due to the alleged illegal conduct of law enforcement. The document also alleges a conspiracy to commit homicide, freedom of speech violation, battery and wrongful death. The plaintiff is naming the Grant County Sheriff's Department, Grant County Commissioners and the City of Bayard in the lawsuit alleging that they did not sufficiently train or supervise law enforcement officers. It also alleges that Max Joe filed a complaint about the alleged affair between Rodriguez and Fetty with the city of Bayard in the months before his death, but that nothing was done administratively about it.

The plaintiffs are seeking punitive damages of an undisclosed amount. Garcia said the amount will be up to a jury to decide and that the family really just wants justice served.

Grant County Interim Manager Abbey Robinson declined to comment because this is a pending legal matter, as did Grant County Sheriff Raul Villaneuva and Bayard Mayor Charles Kelly. A call to New Mexico State Police was not returned.

Susan Dunlap can be reached at 575-538-5893 ext. 5803.

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