FARMINGTON — The New Mexico Attorney General’s Office has declined to appeal a district court judge’s decision made earlier this year dismissing felony murder charges against two men accused in the Hopi Street shooting case.
The Attorney General’s Office’s decision to dismiss its own appeal to the New Mexico Supreme Court means Levi Wilson and Lawrence Kellywood will not be charged with first-degree murder in the slaying of Christopher Valdez in July 2013.
However, the office asked the court to reinstate charges of second-degree murder against the co-defendants, who are expected to appear at separate trials early next year.
Attorney Arlon Stoker, who is representing Wilson, said he would not allow his client to be charged with that offense.
“There is no evidence, at all, of second-degree murder,” he said.
The Attorney General’s appeal was filed after felony murder charges were dismissed against Wilson and Kellywood, co-defendants accused of causing a shootout on July 27, 2013, near Orchard Avenue and Hopi Street.
Police allege the men walked up to the home of Michael Tafoya, knocked on his door and then began firing at Tafoya and into his apartment, according to an arrest warrant.
Tafoya returned fire and wayward bullets killed an innocent bystander, Valdez, and wounded Kathleen Keck, a woman in Tafoya’s house.
Kellywood, Wilson and Tafoya were also injured in the altercation.
Police were not able to determine who fired the bullet that killed Valdez, but the San Juan County District Attorney’s Office charged Wilson and Kellywood with first-degree murder, among other offenses, using the “felony murder” doctrine.
That doctrine allows prosecutors to pursue murder charges against individuals who inadvertently cause the death of another person while engaged in an inherently dangerous, felonious act.
The state argued that although Wilson and Kellywood likely did not fire the fatal bullet, their attempt to kill Tafoya was an inherently dangerous act that was likely to cause the death of an innocent bystander.
However, District Judge John Dean dismissed felony murder charges against the men at a hearing in February.
Dean said a 2003 Court of Appeals decision precluded the state from pursuing felony murder charges unless it could prove that one of the two co-defendants fired the fatal bullet.
Prosecutors argued the 2003 decision, made in State v. O’Kelly, created bad public policy and appealed.
Chief Deputy District Attorney Dustin O’Brien said Dean’s decision meant no one could be held responsible for Valdez’s death.
“To me, that seems against public policy,” he said.
The Attorney General maintained in its motion for dismissal that the 2003 decision was a bad ruling that was made by a court that lacked jurisdiction.
However, the state feared losing its criminal cases against the men entirely if it continued in its appeal because of procedural issues.
O’Brien said that, in light of the dismissal, his office would like the state Legislature to clarify the definition of felony murder to allow for prosecution in cases like the Hopi Street shooting.
The Supreme Court should decide on the issue, O’Brien said, but waiting for a new case to be appealed means another person’s death may go unpunished.
Lawrence Kellywood is currently charged with attempted murder, conspiracy to commit murder, shooting at a dwelling or occupied building, possession of a firearm by a felon and two counts of aggravated assault with a deadly weapon.
Wilson is currently charged with attempted murder, conspiracy to commit murder, shooting at a dwelling or occupied building and two counts of aggravated assault.
Stoker said that he will be requesting that Judge Dean dismiss the attempted murder and conspiracy to commit murder offenses.
Kellywood is set to appear at trial on Jan. 27. Wilson is expected at trial on Feb. 24.
Steve Garrison covers crime and courts for The Daily Times. He can be reached at 505-564-4644 and email@example.com. Follow him on Twitter @SteveGarrisonDT on Twitter.
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