On Thursday, Judge Bruce Fox made the decision to let Eli-sha Upshaw, 19, go home to his mother in Maryland until trial.
“I am going to deny the state’s motion. I am going to release Mr. Upshaw on conditions.”
The 19-year-old is accused of being the one on surveillance video carrying a bat and hitting Peake several times in the knees.
Police said after the shooting, Upshaw and Jonathan Smith fled the scene, broke into Coronado Hall, and changed clothes before throwing them in a ravine.
Thursday, the state asked a judge to hold Upshaw behind bars until trial.
The state argued that, while Upshaw doesn’t have a criminal history, he willingly participated in a plot for revenge with Brandon Travis which stemmed from a fight at a Lobos-Aggie game. The game was in October, and the fight was between Travis and Peake.
“We do believe that the instant facts are extremely violent and resulted in, not only the death of a human being, but also, a serious disfigurement of another human being.”
The defense argued the only people identifying Upshaw as the person with the bat were Smith and Mya Hill, and that can’t be determined from the security footage alone.
“This was not Mr. Upshaw’s battle, he had nothing to do. It’s my understanding, with the fight that happened at NMSU in October, he was not involved. Essentially, this was him acting on behalf of Brandon Travis as payback to Michael Peake for what he had done.”
They also pointed to Upshaw’s lack of criminal history and good standing at UNM before the incident.
“It really all points to the fact that Mr. Upshaw is exactly the kind of person who will be successful, and there are conditions of release that can be contemplated that will both ensure the safety of the community.”
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Ultimately, Judge Bruce Fox sided with the defense and denied the state’s motion. Upshaw will be released to his mother in Maryland with a GPS monitor and curfew.
The state has negotiated a plea deal with Jonathan Smith, and he plans to testify against Upshaw. The state also expects Mya Hill to take a plea agreement.