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Thursday, July 18, 2024


Court Upholds Sentence in ’17 Stabbing Death

Herbert Tozer

By Bill Barlow

RIO GRANDE – Three appeals court judges recently upheld the conviction of a man caught red-handed after a deadly 2017 stabbing. 

In the June 2 decision, Appeals Court Judges Mitchel Ostrer, Allison Accurso and Francis Vernoia rejected an argument that the courts should’ve suppressed statements Herbert E. Tozer made to detectives after his arrest in the stabbing of Robert Niemczura, in a Rio Grande motel.  

According to court documents, Tozer stabbed Niemczura twice in the neck in a dispute over a woman at about 2:30 a.m. Jan. 10, 2017. Niemczura died of his injuries two days after the stabbing. 

By that time, Tozer was in police custody. According to the judges’ decision, Niemczura identified him as the assailant to the 911 operator and an emergency room technician, and when police arrested Tozer 17 hours after the stabbing, he still wore a bloodstained shirt and had blood on his hands, the decision states. 

Tozer pleaded guilty to aggravated manslaughter and was later sentenced to 28 years in prison with no early release. 

At issue is whether the trial court should’ve suppressed what Tozer told police detectives in an interrogation room. Tozer appealed his conviction, arguing the court was wrong to find he voluntarily waived his Miranda rights, under which suspects in criminal investigations must be specifically informed they have a constitutional right to remain silent and to be represented by an attorney. 

He was told of his rights and even filled out a card indicating he waived them, according to transcripts included in the decision. The police detective, who was not named in the documents, gave Tozer the waiver. 

“I just want to make sure that you read it and you understand it. I haven’t coerced you, I haven’t tried to like, ya know, trick you or make you promises or anything like that,” the detective said, according to the court decision. 

He asks if Tozer wants to speak with him. 

“I mean, it’s not really gonna matter,” Tozer said. 

Later, he mentions the possibility of getting a lawyer. 

“Maybe I should wait for an attorney, but it ain’t gonna matter. I can’t afford an attorney anyway. Sign?” he said. 

According to the decision, if a defendant asks for an attorney, even if it is not clear or is ineloquent, police questioning must stop, but the court found this was more a matter of Tozer talking to himself. He completed the card waiving his Miranda rights, checking “without an attorney.”   

The court also noted his prior arrests – he had 22 – and other indications Tozer was familiar with the legal process. Tozer’s appeal indicated he had not understood the question. 

“He generally suggests, without citing to any competent evidence, that he suffered from some undefined cognitive deficit or mental disease, or from a lack of education, that rendered him unable to fully understand his Miranda rights and to knowingly waive them,” reads the decision. “We are not persuaded.” 

The judges rejected the argument as “untethered to any evidence,” finding no indication Tozer suffered from any cognitive deficit or was in any way intoxicated at the time of questioning. 

The Superior Court found the state proved beyond a reasonable doubt Tozer knowingly and voluntarily waived his Miranda rights. 

The decision also rejects the argument that his 28-year sentence is excessive, but did find the court erred in imposing a $5,000 restitution without first considering whether Tozer was able to pay it.  

The decision states he was unemployed for years before the stabbing. The court vacated that portion of the lower court’s decision, but upheld Tozer’s sentence. 

To contact Bill Barlow, email 

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