Conviction on lesser charge in ’18 killings in Petaca

Couple was charged with second-degree murder but convicted of manslaughter for death of one man; hung jury in other count

A Rio Arriba County jury reached a mixed verdict late last week following a murder trial for a couple accused of killing two men at a home in Petaca nearly five years ago.

Both Bonita Burkheimer, 45, and Anthony Peña, 55, had been charged with two counts of second-degree murder each. But following a two-week trial in Tierra Amarilla, jurors deliberated for about four hours Friday before convicting both of a lesser charge of voluntary manslaughter plus conspiracy and tampering with evidence in the March 2018 shooting death of Michael Barela.

Voluntary manslaughter convictions are often reached in cases in which jurors conclude a defendant acted in the heat of passion or in response to some type of provocation, such as fear or anger. It carries a lesser penalty — up to six years of incarceration — than second-degree murder, which is punishable by up to 15 years in prison.

Jurors acquitted Burkheimer in the death of the second victim, Larry Herrera. However, jurors couldn’t reach a unanimous verdict on Peña’s involvement in Herrera’s death, resulting in a hung jury for that count.

Chief Deputy District Attorney Jennifer Padgett Macias wrote in an email Monday the office “anticipates moving forward with a retrial.”

Barela and Herrera were shot to death in the remote community about 18 miles north of Ojo Caliente.

Public defender Sydney West, who represented Peña, said Monday she was disappointed in the guilty verdicts because ballistics evidence indicated there might have been a third shooter, and she believes the couple acted in self-defense.

“I feel like they were fired on,” West said. “Our expert

theorized there was definitely another gun.”

Both victims had wounds that couldn’t be linked to any of the weapons recovered from the scene, West said.

An arrest warrant affidavit said deputies went to the home in Petaca in response to a report of a double homicide and found Barela and Herrera’s bodies on the ground, covered with blankets.

A woman who identified herself as a relative of the men — Barela’s sister and Herrera’s niece — told officers Peña and Burkheimer had arrived at her home in Peña’s truck. Peña got out with a rifle and began yelling at Herrera, the woman told deputies, but she could not understand what he was saying.

Peña was poised to shoot Herrera, the woman said, according to the affidavit, but she hit his arm, causing his first shot to miss. Peña took another shot, which hit Herrera, she said, and Herrera fell to the ground.

Peña said he was going to shoot Barela next, the woman told police. But Burkheimer, who also was carrying a rifle, got out of the pickup and shot Barela instead, the woman told police.

Burkheimer brandished a knife and tried to stab the woman, she told deputies, but Peña called for Burkheimer, and she climbed back into the pickup. The couple then drove off.

A short while later, however, Peña and Burkheimer returned to the scene on foot and were arrested. Peña had a gash on his forehead. He told deputies the men had jumped him before the shooting, according to the affidavit.

West said Monday it was unclear what took place, even after the trial, in part because of the “wacky” nature of the evidence.

“The crime scene was really compromised,” West said, because of how long it to police to arrive. “Everyone in Petaca was there stomping around in the crime scene.”

Some evidence was lost before the trial, she added, and prosecutors did not submit all the key evidence to the state crime laboratory for testing.

One piece of evidence West speculated could have kept jurors from reaching a unanimous verdict in Hererra’s death concerned the weight of the projectiles recovered from his body.

Fragments “in excess of 90 grains,” a unit of measurement equal to about 5 grams, were recovered from Herrera’s body, but Peña is alleged to have shot him with a .223 rifle, with projectiles that would have a standard weight between 55 and 65 grains, West said.

Neither the state’s gun expert nor the defense’s had ever seen ammunition for

.223 rifle at 90 grains, she said. “That’s why we believe there was another shooter.”

If the state moves forward on a second trial for Peña, she added, “I’m going to try to ask for an order for the court to send those projectiles for actual testing.”