On March 29, 2021, 53-year-old Anthony Peña called 911 reporting a shooting in Petaca, New Mexico, a small community about 50 miles northwest of Taos in Rio Arriba County. Peña reported that he and 43-year-old Bonita Burkheimer had been attacked and that two men had been shot and needed medical attention.
Peña said he had taken a shotgun from one of the men and that he and Burkheimer also needed medical attention.
When police arrived more than two hours later, they found 74-year-old Larry Herrera and 59-year-old Michael Barela. Both had been shot. Not long after, Peña and Burkheimer walked over from the nearby home of Louie Torres with their hands up and surrendered.
At the scene, police recovered three .223-caliber shell casings, two pieces of shotgun wadding, and a piece of wood with a red stain. Blood was spattered on vehicles there as well.
When police went to Torres’s home, they found a .22-caliber rifle on the ground next to Peña’s truck. Another neighbor, Milton Edwards, told the officers that he had heard Peña and Burkheimer inside Torres trailer shouting and physically fighting. Behind the skirting around the trailer, police recovered a black AK-style rifle and a 20-gauge shotgun.
Based on a statement by Myra Barela, who was Barela’s sister and Herrera’s niece, Peña and Burkheimer were charged with second-degree murder, conspiracy, and tampering with evidence.
Prior to trial, defense lawyers for Peña and Burkheimer filed a motion to exclude the physical evidence because the evidence had been lost for a period of time. As a consequence, the bullets removed from the bodies were never sent for any examination. The trial judge denied the motion, but said the defense could delay the trial until the firearms evidence was examined. The defendants, who were in custody, did not want to wait.
So Peña and Burkheimer went to trial in December 2022 in Rio Arriba County District Court. The evidence showed that the shooting occurred on the property of Lillian Grant, who was Myra Barela’s daughter. Myra Barela lived in a trailer on the property.
At the time, Virginia Lavato, a friend of Myra’s, was at the trailer, watching the trailer. Usually, Lavato lived in her car. Lavato testified that Peña and Burkheimer showed up at the property in the morning of the day of the shooting, so she called Myra, who insisted on speaking to them. After Myra spoke to them, Peña and Burkheimer drove away in Peña’s truck.
However, sometime later, as Lavato was locking up Myra’s trailer before she returned to her car, Peña and Burkheimer returned. Peña got out and asked for Myra. Lovato said she thought they would have passed Myra on the highway. As Peña and Lovato walked away from Myra’s trailer, gunshots rang out. She said she and Peña dove to the ground. Before he could get up, she said that Michael Barela and Herrera jumped on him.
Lovato said she saw two other men, Joel Chavez and Jasper Martinez. She said Chavez had a gun in hand. She said he went into Myra’s trailer and emerged with a rifle. Lovato said she made her way to her car where she remained until the police arrived.
Myra Barela testified that she drove up to the parking area by her house with Michael Barela and Larry Herrera. She said Peña and Burkheimer were in Peña’s truck. She said that Peña attacked Herrera, then got a rifle, and shot Herrera. Myra said Peña then asked Burkheimer for another rifle, and she pulled out one and yelled, “I’ll get this [obscenity]!” Myra said Burkheimer then shot Michael Barela.
The state did present evidence regarding the three shell casings found near the shooting. Two of the casings were the same type of ammunition: .223-caliber. The third was a different brand of ammunition from the other two. Two of the casings were determined to have been fired from the AK-style rifle found under Torres’s trailer. One of the casings was inconclusive as to whether it was fired from the AK-style weapon.
Dr. Lauren Decker, a pathologist in the state of New Mexico Office of the Medical Investigator, reported that three fragments were found in the body of Larry Herrera, and that all were from a single gunshot wound that created a single path. She said that the type of ammunition used tended to break apart in the body, leaving pieces of the projectiles along the path and then making a partial exit. She concluded that there was one entrance and one exit wound and that the fragments found in the body were from a single shot. Dr. Decker said that both victims suffered non-fatal wounds from shotgun pellets.
Edwards testified that Torres came to his home following Peña's 911 call and reported that Peña and Burkheimer had shot someone. Edwards testified that he listened from his property and heard crying and screaming and what he believed to be a fight inside Torres’s home. Edwards also said that he heard the sound of old metal being moved around, and that is what led him to find the firearms.
He told the jury that there was a more direct path than the one taken by Pena and Burkheimer to turn themselves in, which he thought was odd.
Based upon that testimony, the prosecution argued that Peña and Burkheimer beat each other up inside Torres's home, suggesting that they were trying to deceive police into believing they were the victims.
On December 16, 2022, the jury convicted Peña and Burkheimer of voluntary manslaughter for the death of Michael Barela. They were also convicted of conspiracy and tampering with evidence. The jury acquitted Burkheimer of the murder of Herrera. When the jury was unable to reach a unanimous verdict on Peña in the murder of Herrera, a mistrial was declared.
Prior to Peña’s retrial, the prosecution sent the bullets recovered from the two bodies to the New Mexico State Laboratory for testing. The examination showed that a projectile that had been recovered from Michael Barela and one of the projectiles found in Herrera were both fired by the AK-style rifle. The examination showed that the two of the projectiles that Dr. Decker said were part of a single bullet were in fact “legacy” bullets, meaning bullets that were from a previous shooting and were still in Herrera’s body.
The prosecution investigated and learned that Herrera had been hospitalized about 30 years earlier for self-inflicted gunshot wounds. Dr. Decker reviewed the findings and agreed the projectiles were legacy bullets.
At the retrial, this firearms evidence was presented. It tracked with Peña’s assertion that he only fired once at each man, and that he was acting in self-defense.
Torres, who had not been called as a witness at the first trial, testified he did not hear any of the sounds that Edwards claimed he heard and characterized as Peña and Burkheimer fighting. Torres also cast doubt on Edwards’s testimony, saying that he had thoroughly searched under his trailer and found no weapons before Edwards claimed he heard the noises of metal being moved.
Peña’s attorney, Sydney West, argued to the jury that the evidence supported Peña’s self-defense claim. In April 2023, the jury acquitted Peña of Herrera’s murder.
West, and co-counsel Meredith Cockman, subsequently filed a motion on Peña’s behalf in the Barela murder case, arguing that the firearms evidence and the availability of Torres as a witness entitled him to a new trial. They noted that the subsequent testing showed that what had been believed to be two pieces of shotgun wadding were actually just separate parts of one wad. This also supported Peña’s claim in his 911 call that he had wrestled a shotgun away from one of the victims and fired only once after he was attacked.
“This case is in a unique situation where the new evidence has already been utilized in the second trial as to count one and resulted in an acquittal of Peña,” the motion said. “Since the first jury [in the Barela trial] reduced the charge from second degree murder to manslaughter, it is apparent that they believed there was provocation but not justification for self-defense. That has to mean that they believed Myra Barela's version of events to some extent – at least that Peña was the first aggressor. The new evidence shows her version of events to be impossible which seems likely to discredit her testimony that Pena started the fight.”
On November 30, 2023, Judge Jason Lidyard granted the motion, vacated Peña’s conviction in the Barela case, and ordered a new trial. Judge Lidyard subsequently granted a motion filed on behalf of Burkheimer to vacate her conviction for the Barela shooting. The prosecution appealed.
On January 7, 2025, the New Mexico Court of Appeals upheld that ruling. “Because we cannot say that the district court’s order is ‘clearly against the logic and effect of the facts and circumstances of the case,’ we hold that the district court did not abuse its discretion by finding that the newly discovered evidence will probably change the result.”
On July 9, 2025, Burkheimer was released on bond pending a retrial. On August 29, 2025, Peña was released as well.
On September 2, 2025, the prosecution dismissed the charges against Peña and Burkheimer.
– Maurice Possley
Posting Date: 12-05-2025
