Left: Alexee Trevizo (Artesia Police Department); Right: Police body-worn camera footage of Trevizo in the hospital after giving birth (Law&Crime).
A major setback for the state’s case against a New Mexico woman accused of murdering her newborn baby boy in a hospital bathroom has resulted in the cancellation of her trial date. At least for now.
Alexee Trevizo, 20, was still a teenager when her child was found dead in a bathroom trash can by staff at Artesia General Hospital in January 2023. Law enforcement allege the young woman killed the baby. The defendant, for her part, insists the child was stillborn.
She was originally arrested on charges of intentional abuse of a child, tampering with evidence, and murder in the first degree. Later, the criminal complaint dropped the lone child abuse charge against her.
In August 2023, Trevizo’s defense attorney significantly pared down the evidence available to prosecutors. Late last month, a pretrial hearing date passed by without the hearing being held and the trial scheduled for later this month is in a prolonged state of legal limbo.
So far, the defendant herself has only appeared in court once. That was the same day her attorney, Gary C. Mitchell, successfully argued for the suppression of several key pieces of evidence.
The suppression of that evidence reaches a great deal of what prosecutors likely would have presented to jurors during trial.
First, the defense argued, the strong patient-physician privilege under New Mexico law prohibits the prosecution from using almost all of what happened at the hospital — except for the basic fact of staff reporting the dead infant that was discovered in the bathroom.
“The privilege applies from the time she went to the hospital, and it applies to everybody there,” Mitchell said last year. “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.”
Mitchell was clear that the suppression request was broad: “Anything that happens at Artesia hospital,” the defense attorney said.
In the end, Fifth Judicial District Judge Jane Shuler-Gray, sitting in Carlsbad, agreed with the defense on the medical privilege issue.
“It was just wrong,” Mitchell recently told Albuquerque-based ABC affiliate KOAT. “I mean, all of us want to protect or should want to wish to protect, our medical history. It’s not something we want broadcast to the rest of the state and hers was broadcasted not just to the rest of the state, but the rest of the world.”
Body-worn camera video of the Jan. 27, 2023 incident quickly went viral, showing police and doctors speaking with then-19-year-old Trevizo after the baby was found. Additionally, footage from the hospital’s own hallway surveillance cameras was leaked to the media.
Second, Mitchell argued, his client was effectively detained by the hospital on behalf of law enforcement; in fact, a doctor at the hospital waited until two police officers had arrived to ask Trevizo about what happened in the bathroom. This, the defense attorney claimed, was a violation of the woman’s Miranda rights under the Fourth Amendment.
The court agreed with that defense argument, too.
“I think without that evidence, they don’t have a case because they’re not entitled under the present decision of the trial court to utilize those medical records or to utilize any statements that she may have made,” Mitchell added in comments to KOAT.
In early July, District Attorney Dianna Luce, who represents three counties — Eddy, Lea, and Chaves — asked the New Mexico Supreme Court to overturn the district court’s suppression remedy.
The precise arguments advanced in the state’s brief are unknown.
A spokesperson for the district attorney’s office told Law&Crime the appeal “is sealed by the court and cannot be shared in accordance” with a state law generally limiting public records requests.
Still, the upshot is clear enough.
A pretrial hearing slated for July 22 did not occur, according to the district court docket. The day after that, the state’s highest court acknowledged it had received certain exhibits in the case.
Trial was scheduled to begin on Aug. 26. That date, however, has now vanished from the district court docket entirely.
Instead, there is a motion hearing slated for Aug. 22 at 1:30 p.m.
While largely keeping mum, the prosecutor discussed her office’s appeal of Shuler-Gray’s ruling in comments to local media last month — broadly outlining the state’s arguments in comments to Albuquerque-based CBS/Fox affiliate KRQE.
“All I can say is that obviously it was evidence that we believe was proper, evidence that we believe that we should be allowed to use, and we respectfully disagree with the court,” Luce said.
During last summer’s hearing, the state did not contest the strength of the patient-doctor privilege but, rather, said it did not apply.
“The defendant’s mother is present in the room with her at the emergency room,” Luce unsuccessfully argued before the court. “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.”
Trevizo is also suing the hospital for the child’s wrongful death. Mitchell has argued that hospital staff improperly administered a series of medications with contraindications for pregnancy — even after his client’s test results showed she was pregnant.
The baby boy was born and died on Jan. 27, 2023. On March 28, 2023, an autopsy determined his death was a homicide; the defense subsequently contested the state’s examination process as “medieval.” On May 10, 2023, Trevizo was charged, then arrested the next day. She was released five days later and is currently out on bail.
The New Mexico Supreme Court is under no time constraint to consider and rule on the appeal lodged by the state.
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