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Chavez v. Jones

United States District Court, D. New Mexico

March 27, 2018

LEVI M. CHAVEZ Plaintiff,


         This matter comes before the Court upon Defendants' Motion for Summary Judgment on the Basis of Qualified Immunity (Motion for Summary Judgment), filed on December 22, 2016. (Doc. 35). Plaintiff filed a response, with supporting exhibits, on August 28, 2017. (Doc. 50). Defendants filed a reply on September 11, 2017. (Doc. 52). Having considered the Motion for Summary Judgment and the uncontested evidence, the Court will enter summary judgment in Defendants' favor on all claims.

         A. Background and Uncontested Facts[1]

         I. The Initial Investigation by Detective Jones

         Plaintiff Levi Chavez (hereafter, Chavez) and Defendant Aaron Jones (Jones) are former law enforcement officers. In this case, Chavez claims Jones wrongfully caused him to be prosecuted for the death of his wife, Tera Chavez (hereinafter, Tera). See Second Amended Complaint (Complaint), filed February 15, 2017. (Doc. 19). The investigation began on October 21, 2007, when Tera was found dead in her home with a gunshot wound to the mouth. (Doc. 50- 2) at 1-5. Chavez dialed 911 and told the dispatcher he discovered Tera's body. (Doc. 35-1) at 8. He also told the dispatcher she had committed suicide. Id.

         Jones, then a detective with the Valencia County Sheriff's Department, was one of the first to respond. (Doc. 50-2) at 1-5. Chavez told police he had been away from the house because he and Tera were separated. (Doc. 50-2) at 2. At the time, Chavez was a police officer with the Albuquerque Police Department. Id. He stated: “I was on … duty … till midnight” and was otherwise “with [a woman] the whole … weekend.” (Doc. 50-2) at 2. When Jones asked for her name, Chavez stated, “Debra. She is a f**king freak.” Id.[2]

         On November 27, 2007, Jones interviewed Debra Romero (Romero). (Doc. 50-6) at 6. Romero disclosed that Chavez was her boyfriend. (Doc. 50-6) at 3-4. She believed the relationship was going well. Id. Romero also disclosed that on the night of Tera's death, Romero had fallen asleep “[p]robably about 20 minutes before [Chavez] arrived” at her home. (Doc. 50-6) at 6. She estimated he arrived at “1 o'clock in the morning.” (Doc. 50-6) at 6. In the interview, Jones reported Chavez referred to Romero as a “f**king freak” and that he obtained a new life insurance policy for Tera a month before she died. (Doc. 50-6) at 6, 9. Romero later testified she believed Jones.[3] (Doc. 50-6) at 9.

         Jones interviewed Rose Slama, another of Chavez's romantic partners, on November 6, 2007, and later, on November 21, 2007. (Doc. 50-4) at 9. Slama disclosed that there was a rumor “going around that [Chavez] was in the shower and he got out of the shower and that he heard a pop.” (Doc. 50-4) at 10. Otherwise, she maintained that she did not have any information about Tera's death. Id. During the interview, Jones informed Slama that Chavez had taken out an insurance policy a month before Tera died, adding, “The next thing you know, she was dead.” (Doc. 50-4) at 4. Jones also stated Chavez had called another of his girlfriends a “f**king freak. (Doc. 50-4) at 6. He added, “You can imagine what he called you.” Id. Jones further indicated Chavez had referred to Tera as a “worthless piece of skin” and lied during the 911 call. (Doc. 50-4) at 7-8. Finally, Jones indicated Slama, who was also married, “might come up on” any wiretap of Chavez's phones. (Doc. 50-4) at 8. Slama testified she believed Jones because he was a police officer. (Doc. 50-4) at 3.

         As part of his investigation, Jones became aware of an alleged insurance fraud scheme involving Chavez's truck. (Doc. 50-5) at 4. Fraud investigator Richard Farrelly indicated that a woman telephoned the state insurance fraud bureau on October 15, 2007. (Doc. 35-6) at 2. She claimed to have information about a person who arranged to have a vehicle stolen.[4] Id. The telephone call was determined to have been made from the hair salon where Tera worked. Id. The caller identified herself as either “Tera Lucero” or “Sera Lucero.” (Doc. 35-6) at 2. As a result of this information, Jones coordinated his investigation with Farrelly.[5]

         Tera's death initially was determined to be a suicide. (Doc. 50-9) at 3. Thereafter, Jones provided the medical examiner additional information concerning “suspicions that she may not have shot herself … and … the potential criminal activities of [Chavez]….” Id. As a result, the medical examiner, in consultation with forensic pathologists, revised the manner of Tera's death to “undetermined.” Id.

         According to Jones, the investigation stalled by 2008. (Doc. 50-7) at 4. Consequently, he recommended Tera's family “consider … filing some kind of lawsuit, up to, and including suing [him] if they had to to [sic] get information.” Id. On August 18, 2008, Tera's family filed a wrongful death suit through counsel against Chavez and the City of Albuquerque in New Mexico's Second Judicial District Court, The Estate of Tera Andrea Chavez v. Levi M. Chavez, II et al., case no. D-202-CV-2008-8659.[6] The central allegations were that the combined conduct of Chavez and the Albuquerque Police Department caused Tera's death. (Doc. 35-8) at 2. Chavez's counsel obtained recordings and/or transcripts of Jones' interviews with Slama and Romero no later than 2010.[7] Tera's estate settled its claims against the City for $230, 000. (Doc. 35-8) at 2. The estate later agreed to dismiss its claims against Chavez, because: (1) he had no collectable assets; and (2) he agreed to place Tera's life insurance proceeds ($100, 000) and the insurance proceeds from the truck ($7, 861.24) in trust for the benefit of the children. (Doc. 35-8) at 3-4. Jones left the police force in October 15, 2010, to work for a private company. (Doc. 35-3) at 2.

         II. The Independent Criminal Investigator

         On September 10, 2010, the Thirteenth Judicial District Attorney's office enlisted Agent James Mowduk of the New Mexico State Police to independently review the investigation into Tera's death. (Doc. 35-1) at 4. Mowduk was instructed to keep an open mind and to be as impartial as possible in determining whether the death resulted from a suicide or a homicide. Id.

         Between September 10, 2010, and April 1, 2011, Mowduk reviewed the entire criminal case file and the discovery materials from the civil suit, including:

[T]he initial 911 call by Levi Chavez, recorded interviews of Levi Chavez, recorded interviews with numerous witnesses, family members, friends, and co-workers of both Tera Chavez and Levi Chavez, crime scene photographs, [Office of Medical Examiner] photographs, Toxicology Reports, Crime Laboratory Reports, cellular telephone data and analysis, computer forensic analysis, civil depositions, information from Allstate Insurance Company, information from New Mexico National Guard, various financial, banking, and credit card information, medical history information, personnel and training records for Levi Chavez, time cards and work schedules for both Tera Chavez and Levi Chavez, as well as expert witness information and opinions.

(Doc. 35-2) at 3. His testimony regarding those materials is summarized below.[8] (Doc. 35-1).

         1. 911 Call by Chavez

         Mowduk noted that when Chavez called, he stated his wife committed suicide. (Doc. 35-1) at 8. He asked four times when the responders would arrive but repeatedly refused the 911 operator's request to check for a pulse. (Doc. 35-1) at 9. When the 911 operator asked, “Well, why not?” he responded, “She's been dead for a day and a half.” (Doc. 35-1) at 9.

         2. Crime Scene Photos

         Mowduk also described the crime scene photos. For example, he noted from the photos that Tera was lying on the bed in a peaceful position facing the television with pillows propped behind her and with her feet crossed. (Doc. 35-1) at 7. The photos reflect that Tera's cell phone was plugged in to charge on the opposite side of the bedroom. (Doc. 35-1) at 8.

         Mowduk also testified about the gun and blood patterns. Specifically, there was a bullet casing under the gun and the magazine was unseated, which is inconsistent with a weapon that cycled and did not malfunction. (Doc. 35-1) at 7-8. The photos also indicated Tera appeared to have been holding a remote control in her dominant hand, which ended up on top of the gun. (Doc. 35-1) at 8. Mowduk also determined that the blood on the gun was inconsistent with the blood flow from the shooting. (Doc. 35-1) at 7-8. There was no blood spatter on Tera's hands, as would be expected. Id. There was, however, a swipe of blood on a portion of the bed that was out of Tera's reach and that was covered by the comforter and sheets. (Doc. 35-1) at 8.

         Finally, Mowduk noted items in the photos suggesting Chavez was home on the night of Tera's death. (Doc. 35-1) at 11-12. For example, crime scene photos showed a towel draped over a chair near the bed, a single pair of shorts in the washing machine, and black flip flops near the bed. (Doc. 35-1) at 11. Mowduk also noted Slama told police that Chavez wore black flip flops and always threw his shorts in the washing machine and showered after sex. Id. Mowduk further noted that Chavez's police-issue bullet proof vest was hanging in a green armoire dresser. (Doc. 35-1) at 12. Similarly, the photos reflected that Chavez's police-issued duty weapon was used in connection with Tera's death. Id. Mowduk reported that Chavez was carrying a .38 caliber revolver - which is not a defensive weapon - when he was found at the crime scene. Id. Chavez's only defensive-grade weapon (a Kimber) was locked in the trunk of his police cruiser. Id.

         3. Laptop and Cell Phone Analysis

         Mowduk reviewed the search history from the home laptop seized on the night of Tera's death. (Doc. 35-1) at 11. The forensic analysis revealed queries and websites about “how to kill someone” or “how to kill someone and get away with it.” Id. Mowduk also reviewed Chavez's cell phone records and activity for the year of 2007. Id. He noted Chavez's last incoming text from Tera reads, “I'm afraid I am going to hurt myself, I am sooo upset, sad, and hurt.” (Doc. 35-1) at 12; (Doc. 50-2) at 4. Based on Mowduk's review of Tera's known text messages, diary entries, and written correspondence, he noted Tera never used the term “sooo.” (Doc. 35-1) at 12. Mowduk noted, however, that Chavez's known text messages and written correspondence frequently included the phrases “sooo sorry” and “sooo sad.” Id. Mowduk finally noted that Chavez had turned off his cell phone for 15 hours on the date of Tera's death, which was the longest period his phone was off in 2007. Id.

         4. Interviews with Tera's Family and Friends

         Mowduk also reviewed the statements by Tera's family members, friends, and co-workers. He noted that several witnesses told police that Tera thought Chavez was going to kill her.[9] (Doc. 35-1) at 10. Tera's parents reported that Chavez arranged to send the children out of town so that the couple could spend the weekend together to discuss parenting plans. Id. Mowduk noted from receipts and credit statements that on the night Tera died, she had rented five movies. (Doc. 35-1) at 10.

         5. Chavez's ...

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