Appeal granted for man denied affirmative defense in 2019 murder case

Heather Willard
Photo byWesley Tingey

Heather Willard / NewsBreak Denver / June 2, 2023

(Arapahoe County, Colo.) An Arapahoe County murder case will return to the trial court after a trio of Colorado Appeals Court judges determined the defendant was unfairly denied an affirmative defense for murder.

That means Kenneth A. Gallegos, 21, can argue in court that he was present and drove away with the alleged perpetrators of the crime, while also maintaining he had no knowledge that his friends were allegedly planning armed robbery or murder.

Gallegos was sentenced to life in prison on April 9, 2021, after a jury found him guilty of first-degree murder, aggravated robbery, robbery and theft for an incident on May 7, 2019.

According to court documents, Gallegos and three friends had arranged to buy vape supplies from a man and drove to the man’s house for the transaction.

Three of the four — Gallegos, Dominic Stager and Demarea Mitchell — exited the vehicle at the vape suppliers’ house. The appeals court record said Stager passed a gun to Mitchell, who approached the man selling vape supplies and began fighting. The appeals court said this ended with Mitchell firing the gun at the man, who screamed and ran to his house. All three returned to the car and Gallegos drove away with his friends.

The victim, who was unidentified in appeals court documents, died from the gunshot wound.

Stager and the remaining individual, Julianna Serrano, agreed to a plea deal and testified against Gallegos. The appeals court record found that the pair had changed some of their statements provided before the deal to what was provided as evidence.

Under the plea deal, Stager’s charges were dismissed. Mitchell was sentenced to life in prison without parole for murder, plus 16 years for robbery. Serrano does not appear to have any court records.

Gallegos appealed his life sentence and conviction on July 1, 2021. He contends he did not plan to rob or shoot the man selling vape supplies, nor did he think anyone else would kill or rob him. This would mean that a jury could rule that while Gallegos was involved in the crime, he is not guilty of murder.

Colorado’s law creates a two-tier threshold for felony murder to be met before conviction. First, the jury must find the defendant guilty of a predicate felony crime, such as robbery. Then the jury can consider whether the defendant is “also guilty of felony murder as a result of a death caused by ‘anyone’ furtherance of the crime.’”

Colorado Appeals Court Judge Lino Lipinsky said in his written opinion, published June 1, that Gallegos’s defense theory was not an “outright denial of everything.” Lipinsky noted Gallegos confirmed he did drive the group to and from the scene, that he was present during the attempted robbery, and that he was present for the shooting.

Lipinsky said the prosecution argued that Gallegos needed to admit he committed the robbery to then affirmatively defend the murder charge. However, Lipinsky wrote, guilt of the predicate offense does not equate to being guilty of the subsequent murder.

Lipinsky wrote that this “scenario would ensnare Gallegos…in a catch-22.”

“Either admit to, and be convicted of, the predicate offense, or deny the predicate offense and risk being convicted of felony murder,” Lipinsky wrote. “Gallegos would face a wrongful conviction for first degree murder if denied the right to present a (...) affirmative defense.”

The appeals court did not overturn Gallegos’s conviction of the lesser offenses from the case, for which he was sentenced to prison for 32 years and 6 months.

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Public safety reporter in DougCo, Denver metro. Previously: Pueblo Chieftain public safety reporter, Athens Messenger associate editor. Caffeine fiend, cat mom and lover of all things spooky.

Broomfield, CO

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