AZTEC — A judge on Friday dismissed murder charges filed after a bystander was killed by a stray bullet during a gunfight.
Chief District Judge John Dean dismissed felony murder charges against Lawrence Kellywood, 26, and Levi Wilson, 31, during a district court hearing.
Dean said in his ruling the men couldn't be prosecuted for the murder charges because the bullet that killed Christopher Valdez was never found.
Kellywood and Wilson were charged with felony murder for the death of Valdez. Valdez was shot and killed during a shootout on July 27 near Orchard Avenue and Hopi Street.
"The State is precluded from pursuing felony murder against the Defendant as a matter of law," Dean said in the motion. There is "no evidence that the Defendant or his co-Defendant fired this fatal shot and without that evidence the Defendant cannot be held criminally liable for the bystander's death."
Dean also ruled against allowing an interlocutory appeal on the issue. That appeal would have stopped proceedings until the New Mexico Supreme Court issued an opinion.
In a press release, San Juan County District Attorney Rick Tedrow said the remaining felony charges against Wilson and Kellywood are still pending. He said his office plans to appeal Dean's decision to the state's highest court.
"This dramatically reduces my client's exposure," Arlon Stoker, Wilson's attorney, said of the ruling. "Dean made the correct ruling. The District Attorney's Office didn't like the law, and they were seeking to have it changed."
Chief Deputy District Attorney Dustin O'Brien said the office, in its appeal, will attempt to get the state Supreme Court to reverse a 2003 Court of Appeals opinion. That opinion ruled felony murder can only be applied to a group if there's evidence that a member of the group committing a violent felony killed someone.
"This is an example of how someone can commit an inherently dangerous felony: use a firearm in a crime and shoot at a home. A person retaliates, an innocent bystander is killed and too bad. No one is held accountable," O'Brien said. "That doesn't seem to be an appropriate way for the law to be applied."
In July, Valdez, 40, was fatally shot outside of his home on Orchard Avenue while he was hanging out with his dog and a 14-year-old relative.
Deputy District Attorney Ron Brambl said in a court document that Kellywood and Wilson, armed with handguns, walked up to Michael Tafoya's home at the corner of Orchard Avenue and Hopi Street and began firing at Tafoya and into his apartment. Tafoya, who had a gun collection at hand, returned fire.
More than 20 shots were fired among the men, according to police.
Kellywood, Wilson, Tafoya and Kathleen Keck, a woman in Tafoya's home, were all shot in the altercation. Bullets also struck neighbors' homes.
Brambl said Valdez, who lived three houses up the street, was walking toward Tafoya's home to see what was going on when he was shot and killed.
Police never found the bullet that hit Valdez, and it's not clear who killed him.
Kellywood and Wilson were charged with felony murder because their attempted murder of Tafoya put in motion the events that lead to Valdez's death, O'Brien said.
"It's an unusual circumstance," he said. "It's not often an innocent bystander is killed by someone who's not committing a crime."
Attorneys for Kellywood and Wilson said the judge's ruling significantly changes the cases against their clients. A felony murder conviction in New Mexico means the person automatically receives a life sentence.
The two men are now each charged with three second-degree felonies for attempted murder, conspiracy to commit murder and shooting at an occupied dwelling, and each charge can carry a nine-year prison sentence. They are also each charged with two counts of aggravated assault, which are each punishable by up to 18 months in prison. Kellywood is charged with another fourth-degree felony for being felon in possession of a firearm.
Stoker and Eric Morrow, Kellywood's attorney, said they will challenge prosecutors' version of the events of the shooting, such as who fired the first shot. Morrow also said police never found weapons connected to Wilson or Kellywood.
Both men fled the scene in a car before police arrived, according to court documents.
"They weren't after my son, but they caused his death because they made the decision to go to that neighborhood, and, as a result of that decision, someone died," said Elsie Carpenter, Valdez's mother, on Friday. "Charging those two guys for his death is not going to bring him back, and it's not going to make me feel any better."
Still, she said, it's a matter of justice.
"They went into the neighborhood and caused problems and bullets flew everywhere," she said. "You can't do something like that and walk away from it."
Kellywood's and Wilson's relatives attended Friday's hearing and appeared relieved when Dean issued his ruling.
Wilson's family declined to comment.
Josephine Kellywood, Lawrence Kellywood's mother, said she was glad the murder charge against her son was dismissed. But, she said, she felt bad seeing Valdez's family.
"I'm really sorry to hear what happened to the other man," she said.