Febriary 18, 2005

Albuquerque Tribune




By Joline Gutierrez Krueger


A jailhouse statement prosecutors say is critical to the case against the man accused of strangling Rio Rancho flight attendant Stephane Murphey in 1999 is not admissible, the state Court of Appeals said this week.


The appellate court's opinion, filed Tuesday, affirms a lower court's decision to toss out a 20-minute taped interview of David Bologh because he did not "voluntarily, intelligently and knowingly" waive his Miranda right to remain silent.


It's a blow for Murphey's family after three postponements of Bologh's murder trial since his arraignment July 2, 2002. There was another delay August 2003 when state District Judge Kenneth G. Brown threw out the taped interview days before trial was to begin.

The case has been on hold since the state filed the appeal.


"Our family is disappointed that we have waited almost six years for justice and spent one year and seven months of that time waiting for the appellate court to make a decision," Murphey's mother, Carol Murphey, said in a telephone interview from her home in California. "Our feeling is that this is yet another victimization of our family by the New Mexico justice system. It would appear criminals have more rights in New Mexico than the victims."


District Attorney Lemuel Martinez, whose office is overseeing the Sandoval County case, said the setback will not altogether derail the case.  "We're going to take it to trial, though it will be much tougher to assure a conviction without getting the defendant's statements into evidence," Martinez said.


The latest glitch in a long line of glitches in the case began May 23, 2002, when Rio Rancho Department of Public Safety detectives interviewed Bologh, a former neighbor of Murphey's who became a suspect after authorities say his DNA was identified on towels found in her car.  The interview was conducted at the Southern New Mexico Correctional Facility in Las Cruces, where Bologh was in custody on a probation violation for an aggravated assault charge not related to the homicide.


Although Detective Gale Johnson read Bologh his Miranda rights early in the interview, he did not have Bologh sign a waiver of those rights.  Bologh's attorneys also argued that he did not know what was going on because Johnson did not explain the purpose of the interview until after reading Bologh his rights.


A transcript of the tape indicates that Bologh told detectives: "I don't know what this is about."


Johnson is heard reading Bologh his rights, then stating, "Do you understand your rights? OK."


Johnson is then heard telling Bologh that the purpose of the interview is to go over "some background stuff on people that lived in the area at the time trying to find out if anybody saw anything that night."  Johnson later testified before Brown that Bologh had nodded affirmingly and said, "I know my rights," but a transcriptionist refused to add that statement because it could not be heard on the tape.


"The detectives in this case treated defendant's Miranda rights as perfunctory and never followed up on defendant's clearly expressed concerns regarding his need for a lawyer in the face of an interrogation the subject of which he stated he knew nothing about," the appellate opinion states.


The Appeals Court was also critical of the "deceptive nature of the conduct" of the detectives in telling Bologh that he was advised of his right to remain silent only because he was incarcerated and that they were there just to collect background information and not to obtain a DNA sample as was their true motivation.


The opinion states that during the interview Bologh denied ever being in Murphey's Rio Rancho home or her car. Prosecutors have said that statement is crucial because it can be used to impugne Bologh's truthfulness.


Bologh, 40, had lived two doors down from Murphey in the North Hills section of Rio Rancho on April 15, 1999, when authorities say he strangled the 37-year-old Continental Airlines flight attendant with a pair of her sweat pants and put her body into her car. A resident of the Warren Coronado apartments off I-40 in Albuquerque reported a noxious smell coming from the abandoned car in the parking lot four days later.


The case languished for three years despite a $25,000 reward put up by her family and friends and the family's hiring of a private investigator.  The family's persistence finally paid off in 2002 when DNA was found on a hand towel in Murphey's car and underneath her fingernails that was traced to Bologh.  Bologh was indicted in June 2002 on charges of murder, kidnapping, aggravated burglary, auto theft and tampering with evidence. He is jailed in lieu of $1 million bond.


The appellate decision comes days before a bill is to be discussed at the Legislature that would require any statement taken during a custodial interrogation of a potential suspect to be electronically recorded. House Bill 382, sponsored by Wagon Mound Democrat Rep. Hector Balderas, was expected to go before the House Judiciary Committee today.


The Court of Appeals decision exemplifies why the proposed law will not work, and Martinez said he fears more criminals will go free if it is passed.


"What this appellate decision seems to tell us is that even if a statement is recorded by police it may not be admitted by the court," he said. "The bill is not a panacea, and it will not solve the problem it seeks to solve."