Fred A. Alvarez, a 17-year-old gang member, was sentenced Thursday to spend the rest of his life - plus 20 years - in the Utah State Prison.
A 3rd District Court jury found him guilty of first-degree murder for stabbing Don Newingham, 39, to death during a fight. He was acquitted of killing Newingham's 18-year-old son, Shane, who was also killed during the fight.Judge Richard Moffat said he would normally be inclined to impose the death sentence under such circumstances, but because of Alvarez's age, the excessive use of alcohol and the "mob psychology" that surrounded the killings, he chose to sentence Alvarez to a life in prison.
The judge tacked on an additional 20 years because of a new state statute aimed at punishing gang members (see accompanying box).
Members of Alvarez's family sobbed and the defendant broke into tears during the sentencing. In capital-murder cases a jury usually decides the verdict, but defense attorney Robert VanSciver waived the jury's involvement and asked the judge to impose the sentence immediately.
Deputy county attorney Kent Morgan, who sought the death penalty, said Alvarez is one of the original members of the Diamond Street gang. He asked the judge to impose the sentencing enhancement because Alvarez acted with others in a fight that ultimately resulted in two deaths.
Morgan submitted several gang-related photos and drawings to the judge, including one of Alvarez with his gang moniker, "Insane Moreno." Ironically, Alvarez is holding what appears to be a knife in the drawing and is sticking it into a person wearing the letters "QVO" and lying on the ground curled up in a ball.
Police say QVO is Diamond Street's rival gang. The group apparently consists of about 25 members and is a fast-growing gang popular with young Hispanics. Diamond Street consists of 26 known members and is described as a north-end gang.
"I think that photograph speaks for itself," Morgan said. "It's anticipated the gang activity will result in future violence."
Other drawings Morgan presented ironically depicted prison life, two youths being arrested and the word "gangster." Another depicts a woman holding a bleeding person in her arms and has the words "Once upon a drive-by," apparently referring to a drive-by shooting.
Moffat, Morgan and VanSciver all said they felt the jury came to a just conclusion. But for Alvarez, the decision was a difficult one.
"The sentence was three years longer than he's lived. He's pretty distraught," said VanSciver.
But he said he will recommend that the legal defenders office take over the case and appeal it. VanSciver said the way he interprets the law, his client must be found guilty of killing both persons in order to be found guilty of first-degree murder. He said the sentencing enhancement statute may also be unconstitutional.
Despite testimony from the state medical examiner that said the same person stabbed both victims, the jury apparently found there was not enough evidence to prove Alvarez killed Shane Newingham.
Jodi Tillett, the victims' mother and ex-wife, said although she was pleased with the sentence, she believes Alvarez should have received the death penalty. But the most difficult part for her was learning that no one is being held responsible for her son's death.
"It's just like today they died again. It all came back."
Witnesses testified that a fight erupted on June 9 at the "Diamond Street house" in Rose Park after Alvarez and Richard Gabaldon refused to let Don Newingham into the house, where a party was being held. Several people became involved in the melee, which resulted in the deaths of the Newinghams.
Gabaldon was originally charged with two counts of first-degree murder, but the charges were later reduced to second-degree murder. He agreed to testify against Alvarez as part of a plea bargain and will be allowed to plead guilty to two greatly reduced counts of aggravated assault.
Prosecutors said Alvarez had been arrested and referred to juvenile court several times. Since he was 14, he's been charged with burglary, theft, carrying a loaded firearm in a vehicle, aggravated assault and terroristic threats.
The Legislature in Janurary passed a bill aimed at enhancing sentences for convicted gang members. Thursday, the first penalty enhancement was given to Fred Alvarez, a member of a Rose Park street gang.
If a judge determines the crime took place "in concert with two or more persons," the judge can add additional time to the sentence:
Class B misdemeanor - 90 days.
Class A misdemeanor - 180 days.
Third-degree felony - 3 years.
First-degree felony - 9 years.
For a capital offense in which a life sentence is imposed, the enhancement is a minimum of 20 years in prison.