SANTA FE – Scott Mallory filed an intent to invoke spousal privilege in the Fifth Judicial District Court Monday and asked the court to dismiss or suppress a charge of sexual exploitation of children – possession.
An affidavit filed by Mallory’s attorney Christopher C. Marlowe and signed by Mallory states that on or about Aug. 3, 2015 he called police regarding a missing persons’ report concerning his wife and stepdaughter. It states that it is his understanding that his wife told Los Alamos Police Ofc. Matt Lyon that he was “possibly viewing naked photos and/or inappropriate photos on his computer.
LAPD incident/investigation reports state that Mallory advised Lyon that he woke up on the morning in question and noticed his laptop missing. On checking for his wife and stepdaughter, he allegedly noticed they were not home. Lyon’s report says Mallory told him he had seen them the previous night before they went to bed, and that he believed they left of their own accord. He allegedly said they had been arguing the night before and that his Jeep was gone.
A report by Sgt. Det. James Rodriguez states that Mallory’s wife had in her possession a laptop, an external hard drive, and an iPhone that she said contained child pornography, all of which she turned over to police. During the next several months, investigators allegedly found more than 250 images of young female teenagers focused on the clothed breast area, as well as what they described as child erotica and child pornography.
“My wife … had knowledge of this information and the potential inappropriate photos because I had previously communicated to (her) this information,” the affidavit states Mallory saying.
It also states that at the time he “confided the information, which has since been disclosed to the police”, he considered the communication to his spouse to be private, confidential, and communicated to her in the course and scope of their marriage and that it was made at a time and place where nobody else was around and “was meant to be kept confidential and without disclosure”.
The affidavit alleges that at the time of Mallory’s arrest, officers confronted him with the confidential information, which had “previously been disclosed to them” by his spouse, and that he was “never told by the officers of the source of the confidential information that the officers had acquired”. It states that at the time of his arrest, he was never given the opportunity to claim spousal privilege.
Assistant District Attorney Kent Wahlquist said he has 15 days to respond to Mallory’s motion, which will also require testimony. Mallory was arrested Jan. 14, 2016 and his first appearance in Los Alamos Magistrate Court was Jan. 15, 2016. On March 22, 2016, he was bound over to District Court and April 11, 2016, he pleaded not guilty at his arraignment in District Court. Monday’s court appearance was supposed to be for a final pre-trial conference and jury selection had been scheduled to begin next week but has now been delayed.