By Elizabeth Piazza
Farmington Daily Times
FARMINGTON, NM — One of the two men accused of clubbing a Farmington man to death during a May 29 incident said on Thursday he was too drunk to knowingly sign away his right to remain silent during a police interview.
Donovan King, 22, faces a first-degree felony open count of murder for his alleged role in the murder of Kevin Lossiah. King’s friend, 23-year-old Justin Mark, also is charged.
The plan, allegedly conceived by the duo, was to “jack the guy,” but it resulted in the brutal death of the 40-year-old.
Police found Lossiah at about noon. He had a gaping head wound that exposed his skull and brain and was lying in a pool of his own blood inside his Apache Street apartment.
King testified during a suppression hearing Thursday that he was drunk and high on marijuana when he was interviewed by police hours after the murder.
“I don’t really know much about the law. I mean this is the first major crime I’ve been in,” King said on the stand. “How am I supposed to know I need to ask for a lawyer? It does say it in a way, but it doesn’t state it that way.”
A video of the interview shows Detective Paul Martinez advising King of his the right to remain silent and his right to an attorney. King said he understood.
The defense claims King invokes his right when he tells Martinez “not want to talk at the moment” because he is intoxicated.
Miranda rights require that police warn potential suspects they do not have to speak and have a right to an attorney, and clearly invoking those rights prohibit police from further questioning a suspect.
“Obviously I was manipulated,” said King, who admitted to drinking three one-fifth-sized bottles of vodka that day.
Senior Trial Prosecutor Robert Gentile argued that King knowingly, intelligently and voluntarily signed the waiver and that his subsequent statements also were voluntary.
He was lucid and articulate, Gentile said. Intoxication alone is not enough to throw out a confession. Additionally, King was not coerced, threatened or promised anything in return for his confession, Gentile said.
Defense Attorney Cosme Ripol argued the judge’s ruling on the issue could set a precedent for future situations involving Miranda warnings and would send a message to law enforcement.
“If it’s a razor-edge question, the court should err on the side of protecting the Constitution,” Ripol said.
The “draw from the hip” and “shoot from the hip” approach by police regarding Miranda warnings is a slippery slope that could violate defendants’ rights, he said.
Ripol added in his closing statement that even if the court ruled in favor of suppressing the confession, the “state has enough evidence to get some sort of murder conviction.”
Chief District Judge John Dean said he would take the issue under advisement and rule at a later date.
Mark also claimed his Miranda rights were violated during his police interview.
His Santa Fe-based attorney, Tom Clark, has yet to file a similar motion to suppress the confession.
Both men also face charges of second-degree felony conspiracy to commit murder, second-degree felony aggravated residential burglary, third-degree felony conspiracy to commit aggravated residential burglary, second-degree felony armed robbery, third-degree felony conspiracy to commit armed robbery and tampering with evidence.
They face life in prison if convicted of the first-degree murder.
Thursday’s hearing, the first of what could be several hearings before the trial, demonstrated how difficult the process can be on the families of the victim.
“From the very first hearing, they established he admitted it. Now the lawyer is trying to be dramatic and put on a stage to where this individual’s rights are more important than the rights of my sister’s flesh and blood,” said Lossiah’s uncle, Daniel Tso.
Lossiah’s mother, wiping tears from her face, expressed anger over her son’s murder.
“I’m upset they can think they can use any excuse to get out of this,” Nora Lossiah said. “They violated my son’s right to life.”
“Kevin was my oldest son, my baby,” she said. “I will never, never see him again till the day I die ... they violated my son’s rights and in God’s eyes there are no excuses in the world that will get them out. There are no excuses in the world. I want justice for my son, justice for my son.”
Copyright 2011 Farmington Daily Times, a MediaNews Group Newspaper