ALBUQUERQUE, N.M. — Judge denies mistrial motion in case against ex-cop in wife’s death
The Levi Chavez murder trial will continue this morning with testimony from prosecution witnesses.
Whether the case would go forward at all was, for a tense 45 minutes Tuesday afternoon, in serious doubt while state District Judge George P. Eichwald pondered requests from Chavez’s attorney to either strike one witness’s testimony, dismiss the charges outright or declare a mistrial.
Defense attorney David Serna, in a lengthy hearing outside the presence of the jury that began Monday and took up most of Tuesday, alleged that Chavez had been prejudiced by prosecutors’ failure to obtain and share key evidence in the case.
Chavez, a former Albuquerque police officer, is accused of killing his 26-year-old wife, Tera Chavez, with his department-issued gun in the couple’s home near Los Lunas in 2007 and staging the scene as a suicide.
Tera’s mother, Theresa Cordova, has been in the courtroom for every minute of testimony since the trial began June 9. She waited outside when Eichwald took the bench at 3:20 p.m. Tuesday to announce his rulings on Serna’s requests.
Delivering his rulings to a packed, electrified courtroom, Eichwald rejected Serna’s motion for a dismissal or mistrial – Serna’s second since proceedings began.
He also removed another sliver from the prosecution’s ever-shrinking case but allowed them to continue to seek a murder conviction against Chavez.
Eichwald ruled that the state’s conduct was not willful, meaning prosecutors did not intentionally withhold notes by a state investigator who interviewed one of Chavez’s mistresses in 2008.
However, the judge also ruled that Chavez had been prejudiced because prosecutors had “breached their duty” in not seeking the notes, which Eichwald ruled were material to the case. He apparently agreed with Serna’s argument that the state has a duty to ask its witnesses whether they have additional information about the case, particularly information that may be favorable to the defense.
As a result, state insurance fraud investigator Richard Farrelly will only be allowed to testify if he is called by the defense.
But Eichwald also ruled that jurors will be instructed that Farrelly began an insurance fraud investigation into the disappearance of Levi Chavez’s truck after receiving a telephone call from the Los Lunas Style America salon where Tera Chavez worked. The jury also will be told that the investigation resulted in no charges against Levi Chavez, who prosecutors have contended staged the theft of the truck to collect insurance money.
Another of Serna’s requests was that testimony given last week given by Rose Slama, one of Levi Chavez’s numerous mistresses, be stricken from the record and the jury be told to disregard her statements that contradict Levi’s story about where he was when the fatal shot was fired.
The judge denied that request but told Serna that he is welcome to call Slama back to the witness stand.
“If you bring her back, it opens the door to all of the other things she said to Richard Farrelly as well,” Eichwald told Serna. “The defendant does so at his own risk.”
Earlier Tuesday, prosecutor Ann Keener, in an emotionally charged statement, said the DA’s Office would appeal if Eichwald suppressed either Slama’s or Farrelly’s testimony. Keener said the state has the right to do that – even in the middle of a trial – under a 2012 New Mexico Supreme Court ruling.
“Do you have the right to appeal a dismissal?” Eichwald shot back at Keener, drawing snickers from Serna and members of the Chavez family in the courtroom.
“I’m not saying that I’m going to do that,” Eichwald added.