Editor’s note: This story contains material that might be disturbing to readers.By Shane Benjamin
Herald Staff Writer
After a jury last month could not decide on a verdict, prosecutors said Tuesday they will retry a Shiprock man accused of sexually assaulting his girlfriend nine years ago at the Spanish Trails Inn & Suites.
It will be the third trial for Harold Nakai, 43, who was convicted in 2008 of sexual assault and criminally negligent homicide, but was granted a new trail after an appeals court ruled certain statements he made to police should have been suppressed at trial.
At the second trial, jurors were unable to reach a unanimous decision on the most serious change – sexually assaulting a victim who was physically helpless – which carries a possible lifetime prison sentence. The 12-person jury convicted Nakai of criminally negligent homicide, which is punishable by up to three years in prison.
Nakai declined Tuesday to waive his right to a speedy trial, meaning prosecutors have 90 days from June 24 to retry the case.
District Judge Jeffrey Wilson set a two-week trial to begin Sept. 19.
Nakai will remain in jail pending the outcome of his third trial.
Prosecutors said Nakai, along with two other men – Derrick Nelson Begaye and Carlton Lee Yazzie – took Nicole Leigh Redhorse, 34, to Spanish Trails Inn & Suites, 3141 Main Ave., where all three engaged in sexual relations with her at different times.
Witnesses said she was heavily intoxicated and needed help walking to the room about 4:45 p.m. June 6, 2007.
At some point, one of the men used a blunt object – possibly a broken hammer handle – to sexually assault her vaginally, causing serious internal injuries. Nakai admitted to having sex with Redhorse later in the evening, which further exacerbated her injuries, and she bled to death, according to a coroner.
Prosecutors said Redhorse couldn’t possibly have consented to sex for two reasons: she was so intoxicated that she was in and out of consciousness, and her injuries were so severe that having sex would have been extremely painful.
Nakai’s defense lawyers said Nakai had no way of knowing Redhorse had been sexually assaulted earlier in the evening. Both were heavy drinkers, and they were accustomed to having drunken sex, sometimes with other people in the room, said public defender Kenneth Pace.
Redhorse showed her willingness to have sex by hugging, kissing and whispering in his ear, Pace said.
Jurors deliberated for about a day-and-a-half in the second trial before Judge Wilson declared a mistrial on the one charge.
Two jurors who spoke to The Durango Herald on the condition of anonymity said 10 jurors wanted to convict Nakai of sexual assault, but two women on the jury couldn’t be persuaded.
Both jurors said they thought criminally negligent homicide was the most serious charge, and they were shocked to learn it carries only three years in prison.
“I was blown away,” one of the jurors said. “I totally though negligent homicide would have to be more than sexual assault.”
They described an emotional moment following the mistrial, in which all 12 jurors met with Redhorse’s parents. There was not a dry eye among the jurors, they said.
“I never thought it would affect me as much as it did,” a juror said.