Defense attorney Gary C. Mitchell appears in the foreground; seated behind him is his client, Alexee Trevizo, during a motions hearing in Eddy County, New Mexico, on Tuesday, Aug. 22, 2023. (Law&Crime Network)
A New Mexico teenager accused of murdering her newborn in a hospital bathroom will be allowed to attend university classes in person, a judge ruled on Tuesday afternoon.
Alexee Trevizo, 19, appeared in an Eddy County court via Zoom with her attorney, Gary C. Mitchell, for a pre-trial hearing to dispense with several motions and counter-motions recently filed in her case.
She is charged with murder in the first degree, child abuse, and tampering with evidence over the Jan. 27 birth of her son, who was found in the trash by staff at Artesia General Hospital. The defense alleges the child was stillborn. Prosecutors allege the boy was murdered – citing a medical examiner’s report that classified his death as a homicide based on the presence of air in his lungs.
Defense counsel scored a victory at the end of the hearing by successfully having his client’s conditions of release altered so she can physically return to New Mexico State University at Las Cruces – without running afoul of the law.
Judge Jane Gray expressed a certain level of shock and surprise at a previous ruling in the case – by another judge – that used a domestic violence framework to maintain a complete no-contact order between Trevizo and the father of the child. The defendant and the deceased child’s father are students at the same school.
The court noted no domestic violence allegations in the case and was audibly unconvinced by the state’s arguments.
Mitchell explained that he wanted the no-contact order modified or removed in case his client and the father of the child “run into one another” accidentally. But, he added, the father is not even expected to be a witness in the case. The defense attorney said the two should be able to see each other as long as they don’t discuss the case.
Represented by Dianna Luce, the State of New Mexico said they had concerns about “a continuing personal relationship” between the defendant and the other college student because she doesn’t want Trevizo to get pregnant and possibly commit another crime.
“We’ve taken great steps to make certain that doesn’t happen,” Mitchell said – carefully referring to his client’s medical care, which her attorneys have made sure to supervise since the incident.
Both the state and the defense agreed to begin pooling for jurors by way of a mass questionnaire. Neither side nor the judge expected there was any way for anyone in the Land of Enchantment to serve on the jury who had not been exposed to media coverage.
Body-worn camera footage of the moment police and medical personnel confront Trevizo about the child’s death has been viewed millions of times across the globe. The teenager and her mother went to the hospital that day after the defendant experience back pain.
Mitchell and Luce sharply disagreed when the hearing turned to the defense’s motion to suppress various pieces of evidence.
“This entire case hinges around what happens in a bathroom in an emergency room of Artesia General Hospital on the date in question,” Mitchell said.
The defense would spend substantial time arguing that almost everything that happened outside of the bathroom where the baby was born, however, should be suppressed and not introduced in court.
Without wanting to repeat the arguments raised in the motions, the defense attorney briefly summarized the Fourth Amendment concerns with some evidence against his client. The doctor at the hospital waited until two police officers had arrived to ask Trevizo about what happened in the bathroom, he said.
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“For purposes of Miranda, she’s in custody and not free to leave,” Mitchell argued.
Luce would later counter that the state does not think Miranda rights are much of an issue, insisting the defendant was not actually in custody or even really subject to law enforcement questioning.
“She blurted out,” the prosecutor said. “Officers asked her no questions.”
The majority of the defense’s motion to suppress was based on the strong patient-physician privilege under New Mexico law.
“The privilege applies from the time she went to the hospital, and it applies to everybody there,” Mitchell said. “Everything that takes place from the time she first went to the hospital. Everything the doctor and the nurses said. They could not give that out [to police] without a waiver from my client, and we didn’t waive it.”
Judge Gray interjected at one point to ask about the hospital’s obligation to report the deceased child. Mitchell replied that the hospital had a duty and obligation to report the sad discovery, but that’s it.
“Anything that happens at Artesia hospital,” the defense attorney said – making the breadth of the motion to suppress clear and broad.
“The state’s case hinges on what happens in the bathroom, and there are no witnesses but my client to that,” Mitchell went on – adding that it will be a battle of the experts over how the boy died.
Before the baby was born, Mitchell said, “there’s no case.”
In response, the state did not argue about the strength of the privilege but, rather, that it did not apply here.
“The defendant’s mother is present in the room with her at the emergency room,” Luce said. “You can’t have a privilege if you have a third party present. So, statements that are made are not going to be privileged under this rule.”
The prosecutor also argued that police properly obtained the hospital’s medical records through a court order.
In the end, the court, after confirming that New Mexico’s patient-physician privilege can function as a strong bar to evidence, held out hope for both the state and the defense on the issue.
“I can’t lump this into one event, a long-running event,” the judge said – while telling the attorneys she would take some time to consider the issue after an additional briefing by both parties.
A video of Trevizo entering and leaving a bathroom in the hospital hallway, on the other hand, is likely not privileged, Lane said.
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