Judge excludes statements made by Tera Chavez

........................................................................................................................................................................................

State District Judge George P. Eichwald on Tuesday dealt blows to both prosecutors and the defense attorney for Levi Chavez, the former Albuquerque police officer accused of killing his wife in their Las Maravillas home and trying to make it look like a suicide in 2007.

Prosecutors will not be allowed to present evidence or testimony related to statements Tera Chavez made to friends and family members before her death that "if anything happens to (her) Levi did it," Eichwald ruled.

Eichwald also ruled that none of the statements Tera Chavez made about her husband and his "cop buddies" allegedly staging the theft of Levi Chavez's 2004 Ford F-250 truck as part of an insurance scam will be allowed at trial.

The judge said prosecutors did not present an argument compelling enough to overcome a defendant's Sixth Amendment right to confront witnesses.

But prosecutors will be allowed to present other testimony to support their theory that the New Mexico lawman killed his wife in part because she knew the details of the alleged insurance scam.

The latter of Eichwald's rulings on Tuesday raised the possibility of Levi Chavez testifying during the trial, which could get underway by the end of this week. His attorney has not said whether he plans to put Chavez on the witness stand.

Chavez is charged with murder and evidence tampering. He has pleaded innocent and maintains that Tera Chavez killed herself.

Valencia County Sheriff's deputies found Tera Chavez's body in the couple's home in October 2007 after receiving a call from her husband, who said his wife had committed suicide. She died from a single gunshot through the mouth from her husband's APD-issued handgun.

Buoyed by Eichwald's ruling, defense attorney David Serna sought to drive another spike through the state's case by asking the judge also to exclude Rose Slama's testimony from the trial.

Slama, according to prosecutors, was having a long-term affair with Levi Chavez. She also was a client of Tera Chavez's at the hair salon where Tera worked.

Tera had told Slama that the truck hadn't really been stolen, and Slama repeated that claim to Levi Chavez, according to prosecutors.

Serna said that, following the logic of Eichwald's earlier ruling, Slama should not be allowed to testify about what she told Levi Chavez, but lead prosecutor Bryan McKay fought for the right to present Slama's testimony.

"This goes directly to (Levi Chavez's) motive and intent," McKay said. "This is an essential piece of the case," that Tera Chavez was telling people she believed her husband had staged the theft of the truck and, more importantly, that Levi Chavez knew his wife was making such statements.

Prosecutors contend that Levi Chavez killed his wife, in part, to prevent her from becoming a witness in a potential insurance fraud case.

Eichwald did not explain in detail his rationale for ruling in favor of the prosecution on the issue of Slama's testimony, and Serna asked the judge to reconsider.

"This will allow into the jury's mind this whole theory of insurance fraud," he said, noting that the judge also is allowing limited testimony from a state Insurance Fraud Bureau agent who investigated the disappearance of the truck.

"This would be incredibly prejudicial," Serna continued, "and it could be the error that makes this case get tried twice."

In an interview after the hearing, Serna said Slama's testimony could become an "appellate issue."

But Serna also struck a hopeful note.

"We are pleased that all of the pretrial motions are out of the way, and the rules of the road have been set out by the judge," he said. "We look forward to showing the jury and the people of New Mexico what really happened in a real court of law."

Thirteenth Judicial District Attorney Lemuel Martinez said in an interview Tuesday that the "key difference" between the expected testimony from Slama and testimony from Tera Chavez's friends and family members that was excluded from trial is that Slama discussed what she had heard with Levi Chavez.

As a result, Levi Chavez would have the opportunity to dispute Slama's testimony by taking the witness stand himself.

"That's a possibility," Martinez said.

Meanwhile, jury selection continued Tuesday, and opening statements are expected at the end of this week or early next

Eichwald moved the trial from Valencia County to Sandoval County after Serna argued there was too much media scrutiny of the case and his client couldn't receive a fair trial if it were held in Los Lunas.