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SALT LAKE CITY (AP) -- A 3rd District Court judge has reversed another judge's ruling that Duane Sanchez Armijo must stand trial for murder.
Neither judge found the testimony of the prosecution's chief witness to be credible. But judges at preliminary hearings are not supposed to weigh the testimony of witnesses -- that is to be done at trial.
Judge William Barrett heard the testimony of Laura Hernandez and said that if he had been allowed to consider her credibility, he would not have ordered Armijo to trial.
Judge Stephen Henriod said the testimony was just too unbelievable to send the case to trial.
Judges "must make credibility determinations of the evidence" before ordering trials, or they risk becoming a rubber stamp for the prosecution, he said.
Prosecutors have not decided whether they will appeal.
Deputy Salt Lake District Attorney Robert Stott said, "If we don't appeal, the case will be dismissed. But it gives us the option to refile in the future, if more evidence appears."
Armijo, 42, is charged with first-degree felony murder in the slaying of John Jerome "JJ" Gallegos, 35, on Nov. 4 at a Salt Lake City home.
Hernandez's testimony that Armijo was the shooter was "inherently incredible," her statement about the available light was "indisputably false" and she had on different occasions named both the defendant and his brother as the killer, Henriod said in his ruling.
Prosecutors claim Armijo had a motive to kill Gallegos because the victim had refused to move from a home belonging to Armijo's mother. Gallegos was living there with Hernandez, who also is the former girlfriend of the defendant's brother.
According to court documents and preliminary hearing testimony, Armijo and his brother did their best to make the home unlivable on the day before the slaying. The men removed most of the windows and doors, disabled the refrigerator and toilet and broke light fixtures.
Sometime before 5 a.m. that night, Hernandez was awakened by someone who yelled, "Hey, JJ."
That person fired a shotgun through an open window into the victim's neck and fled, Hernandez testified. While calling 911, Hernandez named Armijo as the shooter.
Hernandez testified she was able to identify Armijo by light from "the break of dawn."
The defense presented evidence that the sun did not rise until 7:02 a.m. Henriod said that made it highly unlikely there was sufficient light for Hernandez to have observed the shooter's physical characteristics.
During subsequent interviews, Hernandez told one officer that Armijo was the shooter, but told a different officer the killer was his brother.
Gallegos' mother, Sue Gallegos, said she was shocked by Henriod's s ruling, and fears no one will be prosecuted for the slaying.
(Copyright 2005 by The Associated Press. All Rights Reserved.)