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Judge refuses to drop charges

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District Judge Michael Vigil said the court will allow all three counts to go to the jury

By Carol A. Clark

SANTA FE – The jury left the room before attorney Mark Donatelli asked District Judge Michael Vigil late Thursday to dismiss all charges against his client Penny Granich.

The 35-year-old Los Alamos woman is charged with vehicular homicide, reckless driving and driving under the influence of alcohol.

Prosecutor Carlos Gutierrez spoke against Donatelli’s request after spending the entire week laying out his case that Penny drove her husband Thomas Edward Granich into a 350-foot canyon near Overlook Park in White Rock early on Dec. 4, 2005.

“The reckless (charge) is not only speeding but coming off the road, going over dirt and rocks and bushes … I’m not saying she intentionally went off the cliff but this defendant is familiar with the area – she got married there,” Gutierrez told Vigil.

After listening to Donatelli and Gutierrez argue their points without the jury present, Vigil said, “The court will allow all three counts to go to the jury.”

Since Monday, Vigil has listened to witnesses testify that Penny and Tom Granich, 32, were drinking at Canyon Bar and Grill in the hours before the crash. Penny drank three White Russians and spilled a fourth and may have consumed beer as well, according to friends and acquaintances who took the stand earlier in the week. Tom drank beer, they said.

One witness testified that Penny told her she and Tom were going to Overlook Park to “break in” his new red 2004 Dodge truck.

Several witnesses, including Penny’s sister said they saw Tom behind the wheel as he and Penny left the parking lot in the truck sometime around midnight.

Vigil also heard expert testimony from accident re-constructionists and medical investigators, including Chief Examiner Ross Zumwalt of the Office of the Medical Investigator who detailed evidence they documented and collected at the crash scene and from the couple.

Donatelli dropped a bombshell on the weary courtroom around 4:30 p.m. suggesting to primary accident re-constructionist and former Los Alamos Police Cpl. Jon Gonzales that he thought perhaps Tom hadn’t been ejected from the truck but had in fact jumped.

Gasps erupted from family members. The prosecutor yelled his objection to the judge while raising his hand ordering Gonzales not to say a word.

Following a tense sidebar between the attorneys and Vigil, Donatelli said to Gonzales sitting quietly on the stand, “You decided he hadn’t gone through the windshield because no tissue, clothing or blood was found on the windshield and no pieces of glass were found on Mr. Granich’s body – is that true?”

“That is correct,” Gonzales said.    

Former Los Alamos Police Cpl. Tom Tucker was the final witness of the day. He testified to assisting Gonzales in a “redundant measurement” exercise using his Global Positioning System.  

The state rested late Thursday but the defense still has two witnesses pending.

“We didn’t finish all the evidence so I’m not sure when you’re going to get this case,” Vigil told the jury. “We’ll figure it out tomorrow.”

Vigil dismissed the jury at 6 p.m. instructing them to return to court at

1:15 p.m. today.

Vigil explained he won’t be available in person beginning at noon Saturday and is willing to stay until 2 a.m., if necessary. Should proceedings go beyond that he will ask District Court Judge Stephen Pfeffer to take the verdict, adding that he would be available by telephone.