AZTEC — The two men charged with murder in connection to a deadly shootout on Hopi Street in July pleaded not guilty in district court on Monday.
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. The two men were arraigned in district court Monday morning.
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. Police described Valdez as a bystander and said he was running toward the sound of gunfire when he was shot and killed. Kellywood, Wilson, Tafoya and Kathleen Keck, 27, were shot and survived.
Police have said they are not certain who fired the shots that killed Valdez. The bullet that struck him was never recovered from the scene, police and prosecutors said.
"It's frustrating," said Elsie Carpenter, Valdez' mother. "I don't know how they are going to prove who shot him."
Attorneys for Wilson and Kellywood said questions about who shot Valdez should be enough to raise reasonable doubt on the murder charge.
"The evidence is mounting that it was Tafoya that shot Valdez," said Eric Morrow, Kellywood's attorney.
Morrow said a bullet from Tafoya's gun ended up in a parked car near where Valdez was shot. Police and prosecutors confirmed a bullet from Tafoya ended up in a car outside of Tafoya's home.
Kellywood and Wilson were charged under the theory that their attempted murder of Tafoya lead to circumstances that resulted in Valdez's death, making them criminally responsible even if Tafoya was the shooter.
But Chief Deputy District Attorney Dustin O'Brien said that in New Mexico, only if the person is part of a group committing a violent felony and a person within that group kills someone can all of the group members be charged with felony murder.
Under New Mexico law, if Tafoya fired the shots that killed Valdez, Kellywood and Wilson couldn't be convicted of his murder, he said.
But O'Brien said evidence still needs to be analyzed and witnesses need to be re-interviewed.
The state is moving ahead with the murder charges, he said, but it will need to have evidence that Kellywood or Wilson shot Valdez in order for them to remain.
"We can't go forward and say we don't know what happened," O'Brien said. "If there just flat-out isn't any evidence (Kellywood or Wilson shot Valdez) then it would probably result in a directed verdict and we don't want that. We'll have to have some evidence that one of the two parties charged is responsible for the death."
A directed verdict is when a judge dismisses a charge after the state presented its case at trial.
Arlon Stoker, Wilson's attorney, last week filed a motion to compel the state to turn over additional evidence and witness statements. The judge set a Nov. 14 date for that motion hearing.
Stoker said the information he is requesting are transcripts and recorded interviews with Valdez's relative who was there at the time of the shooting and other shooting witnesses. He said the evidence will raise more questions about who shot Valdez.
Stoker and Morrow also said a blood sample taken from the road near where Valdez died could be a crucial part of the case. Morrow said his analysis of the evidence shows it's Tafoya's blood in the street, which would create more evidence that he fired the fatal shots and not the two men charged with murder.
"Unless a bullet that killed Valdez falls from heaven ... you have reasonable doubt," Morrow said.
Ryan Boetel covers crime for The Daily Times. He can be reached at 505-564-4644 and firstname.lastname@example.org. Follow him on Twitter @rboetel on Twitter.