FOR THE RECORD: The spelling of prosecutor Bryan McKay’s name has been corrected in this story.
Update June 3, 3:30 p.m.
Prosecutors will be allowed to present evidence and testimony about Levi Chavez’s extramarital affairs during the upcoming murder trial in which the former Albuquerque police officer is accused of killing his wife in 2007.
That was the order of state District Judge George P. Eichwald during a hearing this morning in Bernalillo, and it was a relatively significant victory for prosecutor Bryan McKay of the 13th Judicial District Attorney’s Office.
Bits and pieces of McKay’s strategy have been made clear during the past two months or so through statements he has made in court and in court filings. Among the pictures he’s trying to paint is one of a marriage that was failing, in part, because Levi Chavez had “numerous paramours.”
One of those was fellow APD officer Heather Hindi, whom Levi Chavez was sleeping with in the months before Tera Chavez’s death on Oct. 21, 2007. Less than two months after Tera’s death, Levi bought a diamond engagement ring for Hindi, who took Levi’s last name when the two were married and now goes by the name Heather Chavez.
Tera Chavez was having an affair of her own — with APD officer Nick Wheeler, who was suspended for his role in the matter. It is unclear how much that affair will factor into the trial.
Eichwald this morning ruled that jurors will be allowed to hear testimony about Levi Chavez’s purchase of the ring. He also ruled that testimony about Levi Chavez’s purchase of a Cadillac weeks after Tera’s death will be allowed.
But in a blow to the prosecution, Eichwald agreed with Levi Chavez’s attorney, David Serna, that certain statements Tera Chavez allegedly made before her death will not be allowed at trial because they would amount to testimony. It is unclear which statements will be kept out.
(Serna, by the way, will receive the New Mexico Criminal Defense Lawyers’ Association Charles Driscoll Award, which is “given annually to an outstanding member of the criminal defense bar who has shown extraordinary courage and determination in protecting the rights of people charged with crimes.”)
The biggest question of the morning was whether Eichwald would allow certain testimony related to another of McKay’s theories: that Levi Chavez killed his wife to prevent her from being a witness in a potential insurance fraud case involving the disappearance of his 2004 Ford F-250.
Tera Chavez had reported the truck stolen weeks before she died. But, according to testimony this morning from a coworker’s husband, she said in the day’s before she died that Levi and his “cop friends” had staged the theft of the truck.
At issue is whether the state can pursue that theory under the “forfeiture by wrongdoing” doctrine, which is an exception to a criminal defendant’s Sixth Amendment right to confront the witnesses against them.
Eichwald said he will make a ruling on that question tomorrow morning.
Meanwhile, the judge this afternoon is asking general questions of 230 prospective jurors for the case. Those questions include whether the potential jurors have knowledge of the case and, if so, whether they have formed opinions about Chavez’s guilt or innocence.
Copyright © 2013 Albuquerque Journal
Nearly six years have passed since Valencia County Sheriff’s deputies entered the home at 11 Ash Place in Los Lunas and found Tera Chavez in bed, dead from a single gunshot through the mouth, her Albuquerque police officer husband’s service gun resting against her body.
Today, after a series of pretrial hearings, prosecutors and a well-known defense attorney will begin culling a large pool of prospective jurors who, ultimately, will comprise the panel charged with determining whether Levi Chavez pulled the trigger.
Once the jury is seated, Levi Chavez will go on trial for murder and evidence tampering.The trial, given the circumstances and the players involved, is one of the highest-profile trials in recent New Mexico memory, with proceedings expected to last up to six weeks.
The defense, headed by David Serna, has said from the beginning that Tera Chavez committed suicide on Oct. 21, 2007, after months of depression and stress about the couple’s marriage.
Court filings indicate that Brian McKay, the lead prosecutor from the 13th Judicial District Attorney’s Office, will try to convince jurors that Chavez killed his wife in part to prevent her from testifying against him in an insurance fraud case related to the alleged staged theft of his truck.
The murder case has taken more twists and turns than the semi-rural roads that lead from Interstate 25 to the home the Chavezes were sharing in Las Maravillas subdivision at the time of Tera’s death.
Two scheduled trial dates have come and gone. One delay was due to the 10,000-plus pages of discovery in the case. The other came after John W. Pope, the original state District Court judge on the case, stepped down from the bench last year.
Pope’s eventual successor in the Chavez matter, Judge George P. Eichwald, granted a request from Serna in December to move the case from Valencia County to Sandoval County. Serna had cited intense pretrial publicity.
Long before the case made its way into a courtroom, there were questions and discrepancies.
At first, the investigation focused on an apparent suicide. That’s because Levi Chavez called 911 to report that his 26-year-old wife had killed herself.
But within weeks, sheriff’s investigators began to have doubts. They named Levi Chavez a “person of interest” and later, a suspect.
By spring 2010, the homicide investigation had stalled. However, Valencia County investigators began to receive new information in late 2011 and early last year. In April 2012, District Attorney Lemuel Martinez took the case to a grand jury, which indicted Levi Chavez.
As the investigation turned toward foul play, Albuquerque Police Chief Ray Schultz placed Levi Chavez on leave. The chief later moved Chavez to the city’s Animal Welfare Division, then fired him after he was indicted.
All told, Chavez collected more than $155,000 in city salary while he was under investigation for his wife’s death.
Meanwhile, questions about the circumstances surrounding Tera Chavez’s death were kept alive through civil litigation filed by Albuquerque attorney Brad Hall on behalf of Tera Chavez’s family.
The city of Albuquerque has paid $230,000 to settle the portion of the wrongful death lawsuit that named several APD officers, leaving Levi Chavez as the sole defendant.
The lawsuit has been stayed in state District Court until the criminal proceedings wrap up.
Civil lawsuit on hold
The civil lawsuit claimed the other APD officers – who have said they went to the Chavez home the night of Tera’s death as grief counselors – destroyed evidence that might have pointed to Levi Chavez as the killer.
An APD internal affairs investigation into their actions found no wrongdoing, and it is unclear whether the officers’ actions at the Chavez home will be part of the prosecution.
The lawsuit, citing interviews with relatives, friends and co-workers, paints a picture of a failing marriage and Tera Chavez ready to move on.
Tera Chavez allegedly told relatives weeks before her death that “if anything ever happens to me, Levi did it,” according to the lawsuit.
Levi Chavez and “his cop friends,” the lawsuit says, were allegedly involved in an insurance fraud scheme in which Tera Chavez was supposed to report her husband’s truck stolen to the insurance company after he disposed of it with other officers. The suit claims Tera Chavez spoke with state investigators and tried to report the alleged fraud three days before her death.
Prosecutor McKay has said in court that he does not believe he has to prove that Levi Chavez staged the theft of his truck. Rather, he has said, what’s important to the prosecution’s case is that Tera Chavez believed the truck wasn’t really stolen, that she told several people as much and that her husband knew she had done so.
Authorities found Levi Chavez’s truck in Mexico in February 2012. Affixed to the dashboard was a Vehicle Identification Number plate from a similar truck that had previously been owned by an APD auto theft detective.
Serna is seeking to exclude testimony and evidence related to the prosecution’s theory about the truck from the trial, saying in court filings that it is inadmissible hearsay.
At Levi Chavez’s arraignment last year, McKay said there is evidence he planned his wife’s death, including that Levi Chavez had searched on his computer – before Tera died – for information on “how to kill someone” and “how to cover up doing so.”
The court filings don’t provide a detailed look at Serna’s defense strategy, other than contending she committed suicide.
Chavez “intends to present evidence and testimony to prove his defenses,” Serna wrote in a recently unsealed court filing.