By Milan Simonich
Alamogordo Daily News
SANTA FE, N.M. — The state Supreme Court will hear the appeal of serial killer Robert Fry in a 15-year-old double murder, but even a victory will not free him from New Mexico’s death row.
Fry is challenging his convictions in the stabbing deaths of two men at the Eclectic, a store in Farmington that sold posters, pipes, knives and swords. The Supreme Court on May 10 will listen to oral arguments on whether his conviction should be set aside.
Fry is serving two life sentences for killing Matthew Trecker, 18, and Joseph Fleming, 25. Both died in the store on Thanksgiving night 1996 after their bodies were slashed and their throats cut.
Fry is on death row for another murder, that of a mother of five in San Juan County.
A cohort of Fry’s, Harold Pollock, said he was in the store during the murders of Trecker and Fleming. Pollock said Fry alone killed them.
Fry’s appeal centers on the fact that Pollock refused to testify at Fry’s murder trial in 2005, but that the judge allowed prosecutors to read into the record what Pollock had said at a preliminary hearing four years earlier.
Nancy Simmons, an Albuquerque lawyer who is handling Fry’s appeal, said his trial attorney had no opportunity to cross-examine Pollock. She said this violated Fry’s constitutional right to confront his accuser.
A second claim in the appeal is that Sandra Price, then the district attorney of San Juan County, knew of a conflict that tainted the state’s prosecution of Fry, but forged ahead anyway to obtain a conviction.
Pollock was represented in the store murders by an attorney named Randall Roberts. Roberts negotiated a plea for Pollock while also representing Fry in a different case.
Simmons said this was a clear conflict, a lawyer working for and against Fry at the same time.
Worse still, Simmons said, district attorney Price knew of the conflict but allowed the case against Fry to continue anyway. Simmons said Price was “in plain violation of the rules of professional conduct.”
Motions made to disqualify the San Juan district attorney’s staff and to suppress Pollock’s statement should have been granted by the trial judge, Simmons said in her appellate brief.
The state attorney general’s staff responded that evidence of Fry’s guilt was overwhelming, and that the overall record showed he received a fair trial.
Physical evidence tied Fry to the murders of Trecker and Fleming, the attorney general said. Specifically, footprints showed that the killer wore a size 9 to size 11 shoe. Fry wore a 10 1/2. Pollock was a size 7.
In addition, Fry bragged to numerous people that he had committed the murders, the state said.
As for alleged misconduct by former district attorney Price, the state attorney general’s staff also criticized her but said any lapse was not significant enough to overturn Fry’s convictions.
”... While district attorney Price’s conduct may have fallen short of the ideal, the defendant has not even established the clear violation of the rule” of professional conduct, the state said. “At worst, Price did not act in a diligent manner in complying with her ethical obligations.”
Price in 2004 won election as a judge in the 11th Judicial District in northwestern New Mexico and is still on the bench.
Fry, now 37, would still be a condemned man even if he wins this appeal.
He is on death row for a different murder - the 2000 bludgeoning of Betty Lee in San Juan County.
Fry struck Lee with a sledgehammer and stabbed her. She was 36 years old.
The New Mexico Supreme Court in 2005 upheld Fry’s conviction and death sentence in Lee’s murder.
Fry also was convicted in a third murder case in San Juan County.
He used a shovel to beat and kill Donald Tsosie, 40, in 1998. Prosecutors said Fry also gouged Tsosie’s eyes with a stick, then pushed his body over a cliff a few miles south of Farmington.
Fry in 2003 received a life sentence for Tsosie’s murder. He had been sentenced to death the year before for Lee’s murder.
The state Legislature in 2009 repealed the death penalty in New Mexico. But that decision did not undo the death sentences of two inmates, Fry and Timothy Allen, of Bloomfield.
As for Pollock, he is serving a life sentence as an accessory in the store murders.
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