BISBEE - A Border Patrol agent who killed an illegal immigrant, contending he acted in self-defense, faces trial for second-degree murder.
Nicholas Corbett, 41, was ordered Monday to stand trial in Cochise County Superior Court on the lesser murder count. At a daylong preliminary hearing, a lower court judge dismissed a first-degree murder charge stemming from the Jan. 12 fatal shooting of Francisco Javier Dominguez Rivera, 22, of Puebla, Mexico.
Cochise County Justice Court Judge David Morales said the state had not established sufficient probable cause to support a count of first-degree murder, which requires proving premeditation.
"Probable cause does exist that the crimes charged occurred" on three other counts, however, Morales said - second-degree murder, manslaughter or negligent homicide.
A Cochise County Superior Court jury could convict Corbett on any of the three charges, he said, ordering the agent bound over for trial.
Deputy County Attorney Gerald Till said the court could set an arraignment date within a month.
Morales said Corbett would remain free on his own recognizance.
At the hearing, Till called nine witnesses, including three illegal immigrants who were with Dominguez when the shooting occurred - his two brothers and one's girlfriend.
Jorge Dominguez Rivera, 24, his girlfriend Sandra Vidal Guzman, 20, and youngest brother Rene Dominguez Rivera, 21, all testified that Corbett had shot Francisco Dominguez without provocation.
The three brothers and Guzman had crossed with assistance from a smuggler through a border fence near Naco, planning to go to New York, where Francisco Dominguez had worked for more than four years until returning home to Mexico briefly in December.
But the witnesses said that they had spotted Corbett's patrol vehicle coming toward them and had run back to within a few hundred yards of Mexico, hoping to evade capture and make their way north again later.
Corbett circled the foursome to cut them off from continuing south, then jumped out of the driver's side to the rear, gun in hand and ordered them to the ground, they testified.
All but Francisco Dominguez sprawled or sat on the ground, while he began kneeling when Corbett came up from behind and hit him on the side of his neck - either with his gun or his hand, they said.
They testified that at the same time, Corbett pushed him downward, his handgun in his left hand draped over Dominguez's left shoulder.
Jorge Dominguez said he had turned his head to look at Sandra when he heard the agent's gun discharge; Guzman said, "I saw him (Corbett) shoot him."
Corbett told supervisory agents he had shot after Francisco Dominguez allegedly threatened him with a rock.
Defense attorneys pointed out witness inconsistencies about the incident, but the three maintained that Dominguez had not made any threatening gestures and was shot from behind.
Corbett declined comment. One of his lawyers, Sean Chapman, said: "This is what was expected."
"We just put the evidence on and let the judge decide," Till said.
One supervisor, Murray Adams Jr., said he thought Corbett had told him at first that he'd gone around the front end of his vehicle shortly before the shooting, but that he later learned from other agents that he might have misunderstood and that Corbett could have gone around the rear end.
Cochise County forensic pathologist Dr. Guery Flores said Dominguez died of internal hemorrhage and acute bleeding from a .40-caliber bullet that followed a downward trajectory. It entered his left chest, perforated a lung, two top parts of his heart, his diaphragm, stomach and liver before lodging in his right side.
He said the manner of death "is homicide."
John Maciulla, an Arizona Department of Public Safety criminalist, said the fatal bullet was fired at a distance of 3 inches to 2 1/2 feet.