8/20/09
New evidence in a 2005 murder case shows the victim had DNA under her fingernails from a different man than the one currently serving a life sentence for killing her, according to the District Attorney’s office and a crime lab report.
Harold Ulibarri, 33, of Chama, was convicted in August 2006 of first degree murder and tampering with evidence for the Oct. 30, 2005, shooting death of his former girlfriend Rhonda Gutierrez. Gutierrez, 28, was found in her bedroom in a Chama home she co-owned with Ulibarri with three gunshot wounds to her chest and head. She died at La Clinica del Pueblo in Tierra Amarilla the same day after being driven there by Ulibarri, who was at the house when her body was discovered.
At the time of Ulibarri’s 2006 trial, the evidence recovered from her fingernails was sent to the state crime laboratory for DNA testing, but according to trial testimony from forensic scientist Dan Hellwig, all the lab could determine then was the sample contained male DNA. The sample was re-examined using new technology that can derive a DNA profile from a smaller sample of tissue after Ulibarri’s attorney Brian Pori petitioned state District Court Judge Sheri Raphaelson to allow it in March.
A state crime laboratory report made available to Ulibarri and his lawyer states that Ulibarri and any male relative of Ulibarri has now been ruled out as a possible contributor to the DNA sample.
“When someone is being attacked they would try to fend off their attacker by grabbing them, pushing at them, scratching them, things like that,” Pori said.
But State Police agent Joe Schiel, who processed the crime scene, said the finding isn’t significant because no defensive injuries, like scratch marks, were documented on Ulibarri at the time, and there was no evidence of a struggle at the scene.
“I don’t know that there’s any suggestion that (sample) had to have come from her attacker,” Assistant District Attorney Thomas Dow said. “I don’t know that the fact that she had had some kind of contact with someone other than Mr. Ulibarri would preclude Mr. Ulibarri from being the person who attacked and killed her.”
The sample hasn’t yet been compared to the DNA of anyone except Ulibarri, but the state does have a mouth swab from another person whose name came up during the Ulibarri trial. Gutierrez’s boyfriend at the time of her death, Kenny Duran, spent the night before her death with her and dropped her off at the home that morning, according to the trial transcript. No DNA was taken from another person who was questioned in connection with the death, Duran’s ex-girlfriend, Rio Arriba County elections manager Maria Elena Rodela, who admitted during the trial to making threatening phone calls to Gutierrez.
In an appeal filed with the Supreme Court Dec. 27, 2007, public defender Kathleen Baldridge argued Ulibarri was convicted on flimsy circumstantial evidence and noted that two jurors interviewed post-trial by a defense investigator said they believed Ulibarri was innocent. In a February 2009 opinion, the Supreme Court upheld the conviction, and remanded the case to state District Court.
Within the next week, Pori will request a hearing arguing the new evidence exonerates Ulibarri, he said. At that point, the court won’t have jurisdiction to demand that the new evidence is compared to any other suspects’ DNA, but could overturn the conviction. The state could then proceed with a retrial of Ulibarri and could order further DNA testing, Dow said. In a case where newly discovered evidence shows a trial wasn’t fair, it becomes similar to a mistrial, and the state is not prohibited by double jeopardy in seeking a new trial, Dow said.
Ulibarri’s wife Jessica, who married him in September 2006 and has stuck with him while he serves his sentence in Guadalupe County Correctional Facility, said she was encouraged to get the DNA test result news last week.
“I think that this could actually prove his innocence,” Jessica Ulibarri said.
Gutierrez’s family could not be reached for comment.
This story required a correction: It originally and incorrectly stated that Maria Elena Rodela admitted to sending threatening text messages to Rhonda Gutierrez. Instead, she made threatening phone calls.