FARMINGTON — Local prosecutors want to change New Mexico's felony murder law to hold two men accountable for the fatal shooting of a man they say was an innocent bystander.

The San Juan County District Attorney's Office stated in motions filed Nov. 27 and Dec. 2 that the felony murder charges filed in connection to Christopher Valdez's death don't apply to the cases against Lawrence Kellywood and Levi Wilson. The motions refer to a 2003 Court of Appeals ruling that narrowed the scope of when the charge could be applied in New Mexico.

Kellywood, of Farmington, and Wilson, of Kirtland, are charged with felony murder for the death of Valdez, 40. Valdez was shot and killed during a shootout on Orchard Avenue and Hopi Street on July 27.

Levi Wilson
Levi Wilson (Courtesy San Juan County Adult Detention Center)

In the motions, the District Attorney's Office asks Chief District Judge John Dean to either allow the office to file a pretrial appeal with the New Mexico Supreme Court or for Dean to dismiss the murder charges, which would allow prosecutors to appeal the judge's ruling to the state's highest court before the cases against Kellywood and Wilson go to trial.

"Under current law, an innocent person could be killed because of criminal conduct, and no one could be held accountable," San Juan County Chief Deputy District Attorney Dustin O'Brien said. "And we don't believe that should be the law in New Mexico."

Arlon Stoker, Wilson's attorney, said he will file his response to the state's motion Wednesday. Eric Morrow, Kellywood's attorney, is also preparing his response.

"(Prosecutors) are admitting that they don't know what happened," Morrow said of the state's motion. "They are admitting they don't have the who, what, where, why and how."

The evening of July 27, police said Wilson and Kellywood, armed with hand guns, approached the home of Michael Tafoya, who lived on Hopi Street, and shot at Tafoya.

Tafoya, who had his gun collection nearby, returned fire.

In the ensuing gunfight, Wilson, Kellywood, Tafoya and Kathleen Keck, who was just outside of Tafoya's home, were shot and injured, according to court documents.

Valdez was across the street with his nephew, according to the documents. He ran toward Tafoya's home when shots rang out, and he was fatally wounded by a bullet that was never recovered from the scene, according to prosecutors' motion.

"Consequently, it is unclear who actually shot and killed Valdez," San Juan County Deputy District Attorney Ron Brambl said in the motion.

In addition to the felony murder charges filed in connection to Valdez's death, Wilson and Kellywood are also charged with attempted murder, shooting at an occupied dwelling, two counts of aggravated assault and conspiracy to commit murder.

A stuffed bear and flowers on July 30 lay near the corner of North Orchard Avenue and East Hopi Street in Farmington, the site of where Christopher Valdez
A stuffed bear and flowers on July 30 lay near the corner of North Orchard Avenue and East Hopi Street in Farmington, the site of where Christopher Valdez was shot and killed on July 27. (The Daily Times file photo)

O'Brien said prosecutors, under the current felony murder law in the state, would have to prove that either Wilson or Kellywood killed Valdez for both men to be convicted of felony murder.

The New Mexico law affecting Kellywood's and Wilson's prosecutions stemmed from a fatal shooting in Las Cruces in 2000.

Jimmy Ray O'Kelly, the defendant in that case, was charged with felony murder for the death of Gerald Pettes, according to court documents.

Two men with O'Kelly broke into Herman Tellez's apartment and robbed him. Tellez grabbed two guns, went outside and confronted O'Kelly, who was holding a man at gunpoint while other people beat him.

Tellez shot at O'Kelly, and a gunfight ensued. Tellez fired more than 20 shots and killed Gerald Pettes, who was an innocent bystander, according to court documents.

O'Kelly was charged and convicted of felony murder for Pettes' death. The New Mexico Court of Appeals reversed the district court conviction. The Appeals Court said in a ruling that because O'Kelly and Tellez weren't accomplices, O'Kelly couldn't be held accountable for Pettes' death.

In motions filed over the last few weeks, prosectors said the felony-murder law established in the O'Kelly is bad public policy.

"If this Court follows O'Kelly, then no one will be held accountable for what everyone agrees is the death of an innocent bystander," Brambl said in the motion. "Furthermore, violent criminals will have less concern about public safety during the commission of their violent crimes."

O'Brien said prosecutors will argue in front of the state Supreme Court that the Court of Appeals didn't have jurisdiction over the O'Kelly case and the court incorrectly interpreted state laws.

Valdez's mother said she was pleased that prosecutors were trying to change New Mexico's felony murder law in an attempt to get justice for her son.

"That law was going to prevent anyone from being tried for Chris' death," said Elsie Carpenter, Chris Valdez's mother. "It needs to be changed because people need to know you can't just go into a neighborhood and shoot it up. ... It's amazing no one else was killed. More people could have died, and the law could have prevented anyone from held accountable."

Ryan Boetel covers crime for The Daily Times. He can be reached at 505-564-4644 and rboetel@daily-times.com. Follow him on Twitter @rboetel on Twitter.