An Arapahoe County judge refused to issue a key jury instruction in a high-profile murder trial, which lowered the prosecution’s burden of proof and prompted Colorado’s second-highest court to overturn the defendant’s conviction last month.

Lloyd Chavez IV, a student at Cherokee Trail High School, died in May 2019 after four teenagers attempted to rob him during a meetup to purchase vaping supplies. Demarea Mitchell was the one who fatally shot Chavez, but jurors also convicted Kenneth Alfonso Gallegos of felony murder.

Felony murder does not require that someone pull the trigger and cause another person’s death. Instead, to be guilty of felony murder, someone need only participate in certain serious offenses, like robbery, in which a person happens to die.

Gallegos insisted he did not plan to rob Chavez, nor was he aware the other members of the group had a gun. To that end, he asked District Court Judge Ben L. Leutwyler to instruct jurors about Gallegos’ affirmative defense to felony murder. Leutwyler rejected the request and jurors found Gallegos guilty.

Luetwyler made a mistake, concluded a three-judge panel of the Court of Appeals, because some evidence did exist to support the idea that, even if he were guilty of attempted robbery, Gallegos was not automatically guilty of felony murder. To hold otherwise would force Gallegos to admit to the underlying robbery in order to assert a defense for felony murder, or deny the robbery and relinquish his defense to murder.

“This argument erroneously equates guilt of the predicate offense with guilt of felony murder,” wrote Judge Lino S. Lipinsky de Orlov in the panel’s June 1 opinion. “A jury may convict a defendant of the predicate offense yet acquit on the felony murder count.”

Case: People v. Gallegos

Decided: June 1, 2023

Jurisdiction: Arapahoe County

Ruling: 3-0

Judges: Lino S. Lipinsky de Orlov (author)

Terry Fox

Karl L. Schock

Background: Teen vape juice shooter sentenced to life in prison in metro Denver

The Court of Appeals addressed an apparent misunderstanding of affirmative defenses, in which a defendant generally admits to a crime but has a justification that warrants acquittal. The standard for felony murder, explained Lipinsky, is not whether Gallegos admitted to or denied the underlying robbery. Instead, he was entitled to have the jury consider his defense if there was “some credible evidence” meriting an acquittal for murder.

The Colorado Supreme Court “has never imposed on the affirmative defense statute a categorical requirement that the defendant admit to the underlying charged offense. And the General Assembly has not done so either,” Lipinsky added.

Gallegos, Mitchell, Dominic Stager and Juliana Serrano went to Chavez’s home in Centennial to purchase vaping products from him. There was testimony that Gallegos played a role in planning the robbery. Stager had a gun, which he passed to Mitchell in the backseat. Once at Chavez’s house, Mitchell engaged in a struggle with Chavez and shot him. Gallegos drove them away.

Gallegos and Mitchell were tried as adults and received life in prison with the possibility of parole. Stager and Serrano were treated as juveniles and received light sentences after agreeing to testify against the others.

At the time of Chavez’s murder, there were six elements of an affirmative defense to felony murder – any one of which prosecutors could disprove in order to invalidate the defense and secure a conviciton. For example, the government would need to successfully dispute that Gallegos had “no reasonable grounds to believe that any other participant was armed,” or that Gallegos had no reasonable belief anyone “intended to engage in conduct likely to result in death.”

Leutwyler refused to let the jury evaluate Gallegos’ affirmative defense, as Gallegos was “not acknowledging in any way, through any evidence that has been presented, his involvement in any part of the crime.”

On appeal, Gallegos argued Luetwyler misunderstood the law on affirmative defenses. The Colorado Attorney General’s Office countered that the evidence was sufficient to show Gallegos knew his companions had a gun during the robbery attempt.

The Court of Appeals panel agreed the evidence, and not Gallegos’ denial, dictated whether jurors should have considered his affirmative defense. But contrary to the government’s claims, the evidence showed:

? Serrano and Stager did not initially implicate Gallegos in planning the robbery

? They changed their story when offered a plea deal in exchange for their testimony

? Serrano said there “wasn’t really a plan” for the gun

? Stager testified Gallegos had said to “stop it” when Mitchell began struggling with Chavez

While it was the jury’s job to decide which portions of Stager and Serrano’s testimony to believe, wrote Lipinsky, there was clearly evidence supporting Gallegos’ defense to felony murder.

“Failing to instruct on the affirmative defense ‘impermissibly lowered’ the prosecution’s burden of proof for the felony murder charge,” he concluded.

The panel ordered a new trial for felony murder, while upholding Gallegos’ convictions and 16-year sentence for the attempted robbery. The government has since asked the Court of Appeals to reconsider its decision.

The case is People v. Gallegos.