FARMINGTON — A 10-year-old Court of Appeals ruling that narrowed the cases when felony murder could be charged may affect the prosecution of two men charged with murder in connection to a shootout earlier this year on Orchard Avenue and Hopi Street that left one man dead, prosecutors said.
That court ruling could mean that no one will be held accountable in the shooting death of a man police have described as an innocent bystander.
Lawrence Kellywood, 26, and Levi Wilson, 31, are charged with murder, attempted murder, shooting at a dwelling, two counts of aggravated assault and conspiracy to commit murder.
Police said Kellywood and Wilson shot at Michael Tafoya, 27, who was at his home at 101 E. Hopi on July 27, according to documents.
Tafoya, who had his gun collection at hand, returned fire.
In the ensuing gun fight, Christopher Valdez, a 40-year-old neighbor, was shot in the chest and killed when he was running toward the shots in an attempt to scare the shooters away, his family members previously said.
Kellywood and Wilson were both shot and fled the scene. Both men survived.
Tafoya was shot in the armpit and arm and survived and Kathleen Keck, 27, was shot in the chest and arm and survived.
Investigators said they are not sure who fired the shot that killed Valdez. Wilson and Kellywood were charged under the theory that their attempted murder of Tafoya prompted the circumstances that lead to Valdez's death, according to court documents.
But attorneys for Kellywood and Wilson said a similar case in Las Cruces, which ended with the Court of Appeals overturning a felony murder conviction, should effect the prosecution of their clients if forensic evidence reveals Tafoya -- instead of Kellywood or Wilson -- fired the shot that killed Valdez.
"The state has to prove (Kellywood and Wilson's) actions were criminal and they were the triggering event that lead to one of their bullets ending up in Valdez," Eric Morrow, Kellywood's attorney, said. "If they are uncertain about who shot who, how can a jury be certain?"
In Las Cruces in 2000, Jimmy Ray O'Kelly was charged with felony murder for the death of Gerald Pettes.
In that case, there was a rowdy party at a Las Cruces apartment complex. Two people entered Herman Tellez's residence and robbed him. Tellez then grabbed two loaded guns and went outside where O'Kelly was holding a gun to another man's head while other people were beating the victim.
Tellez pointed the guns at O'Kelly and pleaded with him to stop the assault, according to court documents.
A gun battle ensued between O'Kelly and Tellez, with Tellez firing more than 20 shots.
Tellez shot O'Kelly and several other people who were part of the attack. He also shot and killed Pettes, who was an innocent bystander, according to court documents.
O'Kelly was charged and convicted of felony murder for Pettes' death. The Court of Appeals of New Mexico reversed the district's court's decision to let the felony murder charge against O'Kelly stand.
"... Tellez was not (O'Kelly's) accomplice and ... they were not engaged in any common enterprise," Judge Lynn Pickard said in an appeals court opinion published Nov. 25, 2003. "Without an accomplice relationship between Defendant and the person who committed the lethal act, there is not enough to support a charge of felony murder."
O'Kelly was later convicted of kidnapping and aggravated assault in connection to that shooting, according to a state court website.
Chief Deputy District Attorney Brent Capshaw said prosecutors and police are still gathering evidence and forensic reports in connection to the East Hopi shooting to finalize the state's theory on who shot who during the incident.
"If (Tafoya) shot (Valdez) that's probably not going to fit a felony murder charge," Capshaw said Monday. "If Tafoya was acting in self defense and a shot goes past (Kellywood and Wilson) and hits an innocent bystander, under (the O'Kelly ruling), a felony murder charge wouldn't apply."
But if the forensic reports show either Kellywood or Wilson fired the shot that killed Valdez, it's felony murder, Capshaw said.
A felony murder conviction in New Mexico carries a life sentence.
Kellywood and Wilson each waived their right to a preliminary hearing in magistrate court. They will be arraigned on their felony murder and other charges in district court.
Arlon Stoker, Wilson's attorney, said he is still waiting to receive evidence from police about who shot who during the incident.
"I can tell you my client is not the shooter and the record will show that," he said. "My client didn't fire the shot that killed that guy. ... We've done our own investigation and have our own opinion as far as (the shooting) is concerned."