United States District Court, D. New Mexico
LEVI M. CHAVEZ Plaintiff,
AARON JONES and BOARD OF COUNTY COMMISSIONER FOR VALENCIA COUNTY, Defendants.
MEMORANDUM OPINION AND ORDER
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
Background and Uncontested Facts
The Initial Investigation by Detective Jones
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.
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.”
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. (Doc. 50-6) at 9.
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.
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. 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.
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.
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. 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. 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.
The Independent Criminal Investigator
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.
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. (Doc. 35-1).
911 Call by Chavez
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.
Crime Scene Photos
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.
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.
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.
Laptop and Cell Phone Analysis
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.
Interviews with Tera's Family and Friends
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
(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.