A Petaca man who has been in the Tierra Amarilla jail since 2021 is set to be released pending his third trial in a case that left two people dead in 2018.
District Judge Anastasia Martin ordered Anthony Peña, 58, released “immediately” on Aug. 29, as his case is set to go to trial for a third time in October.
A judge found Peña a danger to the community following his March 29, 2021 arrest, and he had been in jail ever since, while his co-defendant, Bonita Burkheimer, 48, was released on house arrest pending the new trial set for jury selection on Oct. 14.
Peña’s attorney, public defender Meredith Cockman, is now asking a district judge to dismiss the case against him because his right to a speedy trial has been violated, as the prosecutor assigned to the case submitted an unsuccessful appeal of an order for a new trial just days before the trial was set to start, lengthening the case by over a year, while Peña sat in the Tierra Amarilla jail.
Multiple Trials
A Rio Arriba County jury found the couple guilty of voluntary manslaughter for the death of Michael Barela, conspiracy and tampering with evidence in December 2022, following the first trial. The voluntary manslaughter charge was a step-down from second-degree murder.
Larry Herrera and Barela were shot to death in 2018 in Petaca.
Peña and Burkheimer were also convicted of tampering with evidence and conspiracy.
The jury in December 2022 couldn’t decide on a second-degree murder charge against Peña for the death of Herrera and ended in a hung jury. The jury acquitted Burkheimer of Herrera’s death.
Prosecutors took Peña to trial a second time on the second-degree murder charge for Herrera’s death in April 2022 and a new jury also acquitted him on that charge.
After that, attorneys for Peña and Burkheimer filed motions for a new, third trial based on new evidence and testimony, which District Judge Jason Lidyard granted on Aug. 25, 2023.
As grounds for a new trial, Burkheimer’s attorney, Camille Cordova, wrote in a motion for a new trial that Louie Torres testified at Peña’s second trial, with a “completely different version of events” related to the discovery of the two weapons under a trailer.
Torres’ testimony contradicted another neighbor who said he heard someone moving metal under a trailer, the basis of the tampering with evidence charge, was based on the allegation that the couple hid the guns after the killings.
The ballistics evidence confirms testimony of another witness, Virginia Lovato, that “shots were fired from other parties than the Defendants, and that the Defendants were not the first aggressors in the situation,” Cordova wrote.
An assault-style rifle an AR-15, and the shotgun, were later found under a trailer.
The case was supposed to go to trial a third time on Dec. 4, 2023, but just days before, prosecutor Norman Wheeler filed an appeal of the motion for a new trial. Wheeler soon quit the First Judicial District Attorney’s Office for a successful run as the district attorney in the Sixth Judicial District while the appeal was pending, Cockman wrote in a motion.
Speedy Trial
The case languished in the appeals system between December 2023 and Feb. 10 of this year, when the Appeals Court upheld Lidyard’s order for a new trial. When it did, every prosecutor assigned to the case had left and no one else entered their appearance. It did not get a new hearing until Cockman submitted a request to get it back on the docket.
“These charges are now forty (51) months old,” Cockman wrote. “If the length of delay and the reasons for the delay weigh heavily in the defendant’s favor and the defendant has asserted his right then the defendant need not show prejudice for a court to conclude that the defendant’s right has been violated.”
While Peña has been in jail, his son, father and father-in-law all died in 2024.
“He has not been outside of the Tierra Amarilla jail or seen family members since his arrest,” Cockman wrote.
His house burned down after the fatal shootings and his possessions were stolen from his house, she wrote.
“He has been placed in segregation for extended periods of time while in custody and Mr. Peña has written letters to the Court in the above captioned cause number to describe the difficulties and anxiety he faces as a result of being in custody at T.A.,” Cockman wrote. “He suffered a neck injury in this incident from a blow to the head and experiences daily pain and suffering in his neck as a result. He has never received proper medical care to address this pain while incarcerated.”
In May 2028, Burkheimer requested she be released from house arrest and an ankle monitor, which was granted in July.