New AG advocates for bill that would close loophole in some murder cases

Feb. 7—Liz Frank felt little relief when the man accused of killing her son in a botched armed robbery was convicted of second-degree murder and sentenced to 23 1/2 years in prison.

Although it ended the ordeal of a jury trial, she said Matthew Chavez's conviction didn't change the fact she would never see her son, U.S. Army veteran Tyler Lackey, alive again.

"All I felt was relief that it was over and that [Chavez] was going to be behind bars where he couldn't torture anybody else's family," Frank recalled.

Her relief was short-lived. Years later, the state Court of Appeals overturned Chavez's conviction in what Attorney General Raúl Torrez called a profound miscarriage of justice.

Hoping to avert a repeat of what Frank and her family endured, Torrez unveiled a bill Tuesday he said is designed to close a loophole in state statute.

Senate Bill 363, sponsored by Sen. Moe Maestas, D-Albuquerque, would preclude a murder defendant from obtaining a jury instruction for a lesser manslaughter charge if the offense occurred while the accused was trying to escape after committing a felony or resisting lawful arrest, which is what happened in Lackey's slaying.

In 2016, Lackey was outside an ATM in Albuquerque when Chavez and his girlfriend are accused of trying to rob him.

Frank said her son had gone to dinner with a friend but didn't have enough money to tip the server, which is why he was at the ATM.

Lackey, who was armed, drew his weapon "and attempted to stop not only the robbery but to detain" Chavez, Torrez said.

"In the ensuing confrontation between the two of them, Matthew Chavez shot Tyler Lackey several times and killed him," he said.

Torrez, the former Bernalillo County district attorney, said his office took Chavez to trial and secured a conviction for second-degree murder and other charges.

After Chavez was sentenced to 23 1/2 years behind bars, his counsel filed an appeal "that made the frankly astonishing claim that Mr. Chavez's conviction should be overturned because he was entitled to a lesser included instruction of voluntary manslaughter," he said.

"Most states in this country would never permit an armed robber and the initial aggressor to get a step-down instruction for voluntary manslaughter," Torrez said.

The Attorney General's Office argued the case before the Court of Appeals, which overturned Chavez's conviction because the jury hadn't received an instruction for a lesser manslaughter charge, he said.

In a concurring opinion, Judge J. Miles Hanisee "agreed with the final conclusion of the court, but he said specifically that it is the role of either the New Mexico Supreme Court or the New Mexico Legislature to repair imperfections in the law," Torrez said.

The Attorney General's Office took the case to the state's high court, but it didn't render a judgment on the Court of Appeals' ruling, he said.

"So here we are today because the only avenue we have for making sure that this miscarriage of justice doesn't occur again is to introduce the proposed bill," Torrez said.

Torrez said his office has asked the Bernalillo County district attorney for the opportunity to retry the case against Chavez. But even if Maestas' bill becomes law, it won't affect Chavez.

"We fully anticipate that the trial court in the second trial will be required to make a voluntary manslaughter instruction available for the jury" to consider, he said. "But I think it's a real testament to Liz and to Tyler's memory that she has worked on a [proposed law] to make sure that someone who engages in this kind of violent behavior doesn't have the benefit of an imperfection in our law."

SB 363 has been named the Tyler Lackey Memorial Bill.

"It's my sincere hope that the members of the Senate and the House will give due consideration not only to the legal issues at question here but to really listen to Liz and to her story, to understand that someone who served honorably in defense of this country and was acting within his rights to defend himself, should never be placed in the position of being on the same footing as a criminal," he said.

Frank, who grew up in Santa Fe and lives in Albuquerque, urged the public to lobby legislators in support of the bill.

"The days are gone when you could pull a gun on somebody and they would do what you said," she said, referring to her late son's actions in trying to prevent the robbery and detain Chavez until police arrived.

"That's over," she said. "People pulling guns and committing armed robbery are suicidal. They don't care. They don't care about the consequences. They just want what they want."

Maestas, the bill's sponsor, said he was grateful to Frank, whom he had an opportunity to visit with last week and told him a little bit about Lackey.

"To take that pain and take that tragedy and turn it into political action and legislative action is a tribute to her as a person, as a mom," said Maestas. "There is nothing more tragic in the human condition than losing a child, and to lose that child to a homicide takes three generations for that family to heal, so hopefully with the wisdom of my colleagues and the leadership of the attorney general that healing will be a little better."

Follow Daniel J. Chacón on Twitter @danieljchacon.