David Aguilera in the back seat of a Chaves County Sheriff's car moments before he was killed by deputies.

Almost 80 days after two Chaves County deputies shot and killed oil field worker David Aguilera at a dairy farm outside of Roswell, 5th Judicial District Attorney Diana Luce wrote a letter to the New Mexico Attorney General’s Office asking them to take over the case and any criminal prosecution. Now, nearly three months later, the shooting will finally be reviewed by a prosecutor.

The Paper. was the first to report on the killing of David Aguilera in April, when he was shot to death by CCSO deputies Joshua McKelvey and Benjamin Conklin. Lapel video from the deputies shows that during the first 11 minutes deputies were on the scene, Aguilera was shocked five times with 50,000 volts from McKelvey’s taser while being told to handcuff himself.

“I’m going to ask you one more time, to put those handcuffs on,” McKelvey said to Aguilera who lay prone on the ground in the lapel video. “If you don’t put those handcuffs on, you will be tasered again.”

Shortly afterward, when Aguilera was tased again, Conklin arrived and sat on Aguilera’s back. Then Conklin, McKelvey and Deputy Cody Smothermon walked Aguilera to the back of their sheriff’s office vehicle and put him inside.

That’s where the video stops and picks up again with Aguilera seated in the back of the vehicle, with only one handcuff on. Moments later Aguilera appears to exit, or was possibly pulled by Conklin, from the car. Aguilera was then in the driver’s seat of one of the sheriff’s office vehicles where Conklin and McKelvey shot him to death.

DA says “Nobody is above the law”

In the weeks after the shooting, District Attorney Diana Luce told the public that her office would be reviewing the shooting.

“As your District Attorney, I review incidents where officers use deadly force,” stated Luce in an April 19 press release from her office. “Citizens of our District have the right to accountability and transparency when their District Attorney makes the important determination of whether an officer’s use of deadly force is reasonable and permitted under the law…Upon completion of the investigation, the District Attorney’s office will independently review all evidence related to the incident.”

The press release was in stark contrast to the statement included in an Attorney General’s Office press release last week, where Luce said, “Nobody is above the law,” and further said that she was confident the case would get the full attention it deserved, albeit not from her office.  

“Because this incident took place in Chaves County, and as a prosecution office that works directly with the police agencies, and the victims of this county, it is standard protocol that a District Attorney can conflict a case in their jurisdiction to a third party such as another District Attorney’s office or the New Mexico Attorney General’s office,” Luce wrote last week.

Luce didn’t respond to questions about why she changed her mind about reviewing the case in-house, or why it took nearly three months for her to refer the case to the Attorney General’s office.

Back on the Streets

Both Conklin and McKelvey returned back to work as early as the first week of April according to public records received from the Chaves County Sheriff’s Office. It’s common practice in most law enforcement agencies for officers to be placed on administrative leave following a shooting while the investigation is completed, but there is no standard period of time for them to remain on leave statewide.

An April 1 text message between 5th Judicial District Chief Deputy District Attorney Taylor Jaggers and a CCSO lieutenant shows that the district attorney’s office was aware Conklin and McKelvey were back on patrol. “Just wanted to check in and see if Conklin and McKelvey will be on admin leave until further notice or what the plan is with that just so I can manage cases where they are witnesses.”

The response from the CCSO lieutenant the same day said both Conklin and McKelvey would return to work either the next day or the following week.

Chaves County Attorney Stanton Riggs said both Conklin and McKelvey returned to their regular patrol duties throughout the county during April, but that changed in early May.

“The deputies are on office duty now, and have been since the first or second week of May, primarily at the request of the District Attorney,” Riggs said. “In April they were back doing their job, out on patrol, but the DA informed us that while the investigation was ongoing she preferred that they not be on patrol.”

On May 10, Luce’s offices received and released the investigation report from the Roswell Police Department to The Paper. in response to a public records request.

This isn’t the first time Conklin has shot someone while on duty. Court records show that Conklin struggled with mental health issues after he was one of three officers who shot and killed 64-year-old Craig Heinzen on July 16, 2021. According to the court records, CCSO required he spend 35 days in alcohol rehabilitation at the beginning of 2022; after completing the required rehab, he returned to work just weeks before Aguilera was shot to death.

Timeline Unknown

Now that Luce has referred the case to the Attorney General, it’s out of her hands.

“We accept this referral and this serious matter will receive a full and timely review,” said Attorney General Hector Balderas.

It’s unclear exactly how long a review of the case by the Attorney General’s office will take.