BERNALILLO, N.M. (KRQE) - The former Albuquerquecop accused of murdering his wife with his department issued gun asked the judge for some time to decide if he wants to take the stand.
It is the first real confirmation that Levi Chavez was actually considering testifying in his own defense.
"(He) Implored me to ask the court if we could have the evening so that he could make up his mind as to whether or not he wants to take the stand," Chavez' Attorney David Serna said.
Chavez was a rookie officer in 2007 when prosecutors say he shot his wife Tera, 26 with his department issued semi-automatic glock once in the mouth.
The state claims Chavez then staged it to look like a suicide.
Chavez denies it saying Tera killed herself because she was depressed and distraught over their crumbling marriage.
Lead Prosecutor Bryan McKay recognized it is a big decision Chavez has to make.
"It's fairly normal for the defendant and counsel to want the evening to make that decision," McKay said.
Even so he was concerned about being able to prepare for a potential cross-examination of Chavez and closing arguments since he would now which he would be doing until tomorrow morning.
Judge George Eichwald pointed out that Serna would be in the same boat.
"We'll play it by ear for the morning, if Mr. Chavez decides to testify so be it if not we'll go to closing tomorrow," said Judge Eichwald.
Serna requested the jury not learn that his client was considering testifying in case he decides not to saying, "that looks really bad".
Earlier in the day the defense called its final expert witness, Dr. Charles Wetli, a well known Forensic Pathologist from New York.
He testified, as did all the defense's experts, that in his opinion Tera committed suicide.
"The documents which I reviewed that I think formed my opinion included the diary of Tera Chavez, notes that were found at the scene as well as the scene photographs and then of course the autopsy photographs from the office of the medical examiner, all these things together contributed to form my opinion," Dr. Wetli said.
He went on to say it was his opinion that Tera shot herself with the gun upside down using her thumb to pull the trigger, something Larry McCann, another defense expert said last week as well.
"If she's using her thumb her index finger would be extended the gun is fired, death is virtually instantaneous and she's found with her index finger extended, which is about what you would expect to find with that situation," said Dr. Wetli.
On cross-examination the state pointed out there was another reason Tera's index finger might be extended based on the photographs taken at the scene.
"The other item right next to her finger that she could have been holding instead of the gun is a remote control, that's right next to the body," Keener said, to which Dr. Wetli replies, "there's a remote control next to the body yes."
Dr. Wetli was on the stand for most of the morning, once he was finished the defense re-called a prosecution witness, Samantha Wheeler.
Serna said he was recalling her even though she had been permanently excused after the first time she took the stand because of a claim by the state last week that Chavez was the only one who said his department issued gun was at the house and not with him when Tera died.
Wheeler was Tera's friend and the maid of honor at her wedding to Levi. Tera had an affair with Wheeler's husband, Nick Wheeler a few months before she died.
In an interview with VCSO Detective Aaron Jones Wheeler said she knew Levi left a gun in the house for Tera's protection.
If Chavez does not take the stand Wednesday each side will give their closing arguments and the jury could start deliberations by the end of the day.
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