ALBUQUERQUE, N.M. (KRQE) – “You’ve got the wrong guy,” is a claim cops have heard before. However, in a case KRQE Investigates shows you, a man arrested for armed robbery claims the police actually have the wrong guy. He even says he has the evidence to prove it.

As customers waited in line at a northeast Albuquerque Jack in the Box last July, one man in line had a different agenda. Witnesses said the man wore a face mask and sunglasses, flashed a gun, and demanded cash out of the register.

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After the armed robber took cash from the register, police said a cashier followed him outside and watched him get into the backseat of a car. According to the criminal complaint, the Jack in the Box employee saw, what he believed to be, the driver “pull out a handgun and point it in his direction.”

The Jack in the Box employee, also armed with a gun, said he then heard a gunshot and fired a shot at the getaway car. No one was hit. The armed robber and his driver got away.

“I think that the police initially did a fairly good investigation, but they failed to follow through all the way to the end,” explained defense Attorney Griffin Hardy. Hardy is an attorney with the Law Office of the Public Defender, representing a man he said is wrongfully charged with the armed robbery.

“It’s been very, very, very hard. I just want it to be over,” said Jaime Diaz, the man charged with the armed robbery. “It’s like a nightmare.”

Diaz, a traveling nurse’s aide, told KRQE he’s been fighting to prove his innocence for nearly eight months when he started getting letters at his parents’ Albuquerque home about a felony warrant. He thought the letters from private attorneys offering to represent him were junk mail.

“I threw it away, actually,” Diaz recalled. “I got a second letter. I got a third letter, and I was like, ‘okay, what is going on?’ I finally called the number in the third letter, and I actually spoke to an attorney.”

Diaz said that’s when he learned Albuquerque police charged him with felony armed robbery for the Jack in the Box heist. “I thought it was a mistake from the get-go,” said Diaz.

“I thought, ‘okay, well, this is a mistake. Let’s go fix it,'” Diaz recalled. He said he couldn’t afford to pay the private attorney offering to represent him and quickly learned ‘fixing’ the situation was not so easy.

The 34-year-old went to the public defender’s office for help. When KRQE asked Diaz’s attorney how confident he is that Diaz is wrongfully charged, Hardy replied, “Based on all the evidence that I’ve seen, I’m very confident that Mr. Diaz had nothing to do with this [and] was not even in New Mexico when this happened.”

Diaz stated he was 200 miles away in Pagosa Springs, Colorado, when the armed robbery took place in Albuquerque. He also claimed he has evidence to prove that.

But, what led the police to him in the first place?

According to the criminal complaint, investigators traced a partial license plate from the getaway car to Diaz’s family home in southwest Albuquerque, where they found a car matching the vehicle seen at the crime. Police then pulled MVD photos from everyone with that current address and compared the photos to still surveillance images from the Walmart by I-40 and Carlisle, allegedly showing the armed robber right before he went into the nearby Jack in the Box.

The police officer’s report stated, “The photograph depicted a young Hispanic male, with short black hair, brown eyes, and a scruffy beard.”

(Still image of the alleged armed robber (left) and Jaime Diaz’s Driver’s License photo (right). Courtesy of the New Mexico Law Offices of the Public Defender.)

Comparing Diaz’s driver’s license photo with the Walmart surveillance image, the detective writes, “I believe Jaime Arias Diaz Jr is the male responsible for robbing the Jack in the Box on July 27, 2022.”

Was this a solid investigation?

“We believe that the officer did the correct thing by charging this,” explained Josh Boone, Chief Deputy District Attorney for the Second Judicial District Attorney’s Office in Bernalillo County. Boone is with the office prosecuting this case.

Boone explained, at least for now, the armed robbery charge against Diaz stands. “The state, we always have a continuing duty to disclose and to continue to investigate cases even after we get them, no matter what,” he explained.

Boone said the DA’s office is actively investigating Diaz’s alibi, claiming he was in Colorado on vacation at the time of the armed robbery. “It’s too early to say beyond a reasonable doubt as to the nature of the charges one way or the other,” Boone said, “But we believe that we do have a good faith basis to proceed on this matter.”

Diaz provided time-stamped photos and Cash-app records to back his claim that he was in Colorado when the armed robbery took place in Albuquerque. He also said someone turned in his lost wallet in Pagosa Springs and showed KRQE News 13 a police report he claims puts him inside the Pagosa Police Department on the same day as the armed robbery.

“It’s still an active and open investigation,” said Boone. “Like I said, the information that was provided to us. We have reached back out to the individuals who provided it to us stating that we need a little bit more.”

“The information, quite frankly, was just incomplete,” Boone added. “It didn’t provide everything. We have contacted people up in Pagosa Springs as well, to confirm anything that they’re claiming at this time.”

For now, the felony case against Diaz is still active. However, prosecutors recently decided to withdraw a preventative detention motion to keep Diaz in jail pending trial.

“Looking at his background investigation report, he has no felony charges ever,” said District Court Judge Joseph Montano during a recent virtual court hearing in the case. “No felony convictions ever. No misdemeanor convictions ever. I’m not gonna release him at max conditions,” the judge said.

Judge Montano decided a “book and release” is sufficient for now. “If more information comes to light, feel free to file a motion to readdress conditions of release,” he told both parties.

Next step in the case

While the District Attorney’s Office works to confirm an alibi, Diaz said he’s terrified at the thought of going to jail and having a felony on his record.

“These types of mistakes shouldn’t happen,” said Diaz. “And if they do happen, they need to be resolved quickly, and they should be taken seriously because people’s lives get ruined.”

He said he permanently lives out-of-state, but on the advice of his attorney, Diaz wasn’t able to return home for months. He’s also worried about how this will impact his employment.

Diaz said police never interviewed him before he was charged with this crime. Had he disregarded the letters from private attorneys, the thought of getting pulled over with a pending felony warrant frightens him.

“The consequence of that is if you don’t know about that warrant, and let’s say you are pulled over for speeding,” Hardy explained, “it’s not just going to be a traffic stop for speeding. It’s going to be multiple officers coming to get you out of your vehicle, guns drawn.”

When asked if he knows who committed the armed robbery, Diaz replied, “No, I don’t. I don’t know at all who committed this crime.”

Hardy is convinced this case could have been resolved months ago. “When the police and the prosecution charge the wrong person with a crime and focus all of their time and resources and attention on the wrong person, that means that the person that really did this isn’t being pursued and presumably is still out in the community,” he said.

KRQE News 13 asked Albuquerque Police Department (APD) whether there is an active investigation for the getaway driver. A spokesperson for the department said APD will defer to the comments from the DA’s Office on this case.

The District Attorney’s Office said they still need to do their own independent review of Diaz’s cell phone GPS records, something Boone said hadn’t happened at the time of our interviews.

The case will eventually go to a grand jury. Diaz recently turned himself into jail to be booked and released. His attorney said they’ll continue to fight for a dismissal.