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NM Supreme Court takes up deadly pursuit cases

Copyright © 2019 Albuquerque Journal

SANTA FE – David Barber and Elexus Groves each stand accused of causing fatal crashes as they fled Albuquerque police in stolen vehicles.

David Barber

Before the state Supreme Court on Monday afternoon, attorneys argued over whether the two, along with Groves’ codefendant, can face first-degree felony murder charges. The state high court’s decision in these cases could have far-reaching repercussions for how such cases are prosecuted going forward.

Police say they were trying to arrest Barber on several felony warrants when he left his home in a stolen RV and eventually led officers on an 80-minute citywide chase in June 2017 that resulted in multiple crashes, including one that fatally injured 39-year-old Tito Pacheco.

Elexus Groves

Groves, along with her codefendant Paul Garcia, were charged with murder after reportedly stealing a van, fleeing a police traffic stop and plowing into Shaunna Arredondo-Boling’s car, killing her and her 14-year-old daughter, Shaylee Boling, in January 2017.

Garcia, Groves and Barber were initially charged with felony murder, a count used when a person is killed during the commission of certain felony crimes. At issue Monday was whether aggravated fleeing a law enforcement officer is one of the crimes the state can use as a predicate for felony murder.

APD investigates on the scene of a fatal accident involving a stolen truck on Copper near Chelwood Park in January 2017. Shaunna Arredondo-Boling and her 14-year-old daughter Shaylee Boling were killed. (Dean Hanson/Albuquerque Journal)

Prosecutors acknowledged in court filings that although the statute indicates any felony can be used as a basis for felony murder, the Supreme Court has limited the application of the charge. One of those limitations states that the predicate felony must be independent of the homicide. In 2016, the court held that the predicate felony must have “a felonious purpose that is independent from the purpose of endangering the physical health of the victim.”

The court imposed the limitations when the charge can be used to avoid elevating all homicides to first-degree murder cases.

Bernalillo County sheriff’s deputies investigate a crash involving an Albuquerque Police car at Coors and Irving in June 2017. It was part of a citywide chase with multiple crashes. Tito Pacheco, 39, was fatally injured that day. (Greg Sorber/Albuquerque Journal)

But Assistant Attorney General Victoria Wilson argued, among other issues, that aggravated fleeing falls within the limitations the Supreme Court has set forth. She noted that the purpose of aggravated fleeing a law enforcement officer is to avoid apprehension.

“That is a completely different purpose than wanting to cause harm or endangerment,” she said.

She asked the justices to reverse the District Court decisions that aggravated fleeing cannot be used as a predicate crime for felony murder and that the initial felony murder charges against the three defendants be reinstated.

The district court’s dismissal of the charges sparked the immediate appeal that placed all three cases on hold indefinitely.

Nicholas Hart, who is representing Garcia, argued that a key element of aggravated fleeing is that it has to happen in a way that endangers the public, and it is the endangerment of the public that sets the felony charge apart from its misdemeanor counterpart, resisting or evading law enforcement. He told justices that aggravated fleeing does not have a felonious purpose independent of endangering the physical health of a victim.

“I don’t agree that the statute says that the only purpose is fleeing and nothing else,” Hart said. “It’s fleeing in a manner that endangers the public.”

It is not clear when the Supreme Court may make a decision on the issue.

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