New Bill Could Change Felony-Murder Law, but It Won't Help Luke Pelham
Ellen Weinstein

New Bill Could Change Felony-Murder Law, but It Won't Help Luke Pelham

Luke Pelham says he didn’t foresee what was going to happen the night he went to his friend Aaron Tuneberg’s apartment with another eighteen-year-old he barely knew. Pelham didn’t think it would turn tragic — not even when the other guy brought along a bat and a golf club.

“If I had the chance to change places with Aaron, I would,” Pelham, now 21, says from behind glass in a tiny visitation room at a Pueblo prison. His sandy brown hair is cropped short, and his blue eyes are bloodshot. He’s shivering a little in his dark-green prison uniform. “It’s not fair what happened to him. No one should have their life taken away from them.”

But Pelham’s advocates say it’s also unjust that he found himself facing life in prison for his role — small and unwitting, they say — in what they agree was a heinous crime.

They attribute his ignorance that night in March 2014 to the fact that he has always struggled to understand social cues and distinguish friends from enemies, partly because of a chromosomal condition that causes learning disabilities and whose sufferers tend to be meek and unassertive. Those impairments prevented him from sensing the danger that might have been more obvious to a typical teenager, his lawyers would later argue in court.

Prosecutors disagreed, convinced by the suspicious way Pelham acted in the wake of the crime and the fact that he was found competent to stand trial.

Boulder Chief Trial Deputy District Attorney Sean Finn uses a metaphor to describe his take on Pelham’s disabilities, which he believes the defense exaggerated throughout the case: “If someone has a fever and they take a thermometer and hold it up to a lightbulb and it goes up even higher, it’s hard to know what the truth of that is.”

Police interviews reveal that as Pelham stood on a second-story landing with the golf club, the other guy, Austin Holford, climbed the stairs to Tuneberg’s third-story Boulder apartment. They’d both met Tuneberg, a thirty-year-old with developmental disabilities, through Boulder’s Thursday-night cruiser bike rides, at which he and his lowrider bikes were a fixture.

Luke Pelham was charged with felony murder in the beating death of Aaron Tuneberg.
Luke Pelham was charged with felony murder in the beating death of Aaron Tuneberg.
Courtesy of Terri Cloonan-Pelham

Holford told police that he’d knocked on Tuneberg’s door, the aluminum bat in his hand. Tuneberg answered and almost immediately insulted a girl whom Holford had gone to the apartment to avenge. Holford’s plan was to rough Tuneberg up a bit — but when Tuneberg called the girl a name, he said, he snapped: “I remember feeling like I saw lights in my eyes, and then it was black and I remember swinging.”

He beat Tuneberg with the bat so violently that Pelham told police he could hear the blows — and Tuneberg shouting “Stop!” — from the landing. Tuneberg died of his injuries a week later.

Even though both teenagers claim Pelham never entered the apartment with a weapon and never hit Tuneberg, he was charged with felony murder.

In Colorado, felony murder allows a suspect to be charged with murder when a person is killed in the commission of certain other felonies. It carries one of the harshest penalties available: life in prison without the possibility of parole. Under the law, a lookout for a burglary gone awry faces the same sentence as a killer.

Defense attorneys and many academics despise it. They say it ensnares too many young people who had no intention of killing anyone and often didn’t commit the murder themselves.

One of the most famous such cases in Colorado is that of Lisl Auman. Auman was convicted in 1998 of the felony murder of a Denver police officer, even though she was handcuffed in the back of a police car when the officer was fatally shot by an acquaintance who’d led police on a high-speed chase with Auman in the passenger seat.

“These people who never intended to kill, and often were not the ones who killed, are being treated like they’re to the same degree as people who intentionally killed people,” says Ian Farrell, an associate professor of law at the University of Denver. “It’s inconsistent with the general principles of responsibility we have in criminal law.”

In the five-year period between January 1, 2009, and December 31, 2014, 1,886 people were charged in Colorado with some form of first-degree murder, according to statistics provided by the Colorado Judicial Branch. Ninety-nine cases included a charge of felony murder.

Prosecutors defend the law. Tom Raynes, the executive director of the Colorado District Attorneys’ Council, says that more than any other criminal law, felony murder is supported by the people — a law born of and sustained by “societal and political will.”

“If you engage in conduct that results in murder, the public is fine with treating you like a murderer,” he says. However, he acknowledges that “we always hear about a handful of cases where folks” — defense attorneys, academics — “suggest outrageous outcomes.”

Pelham’s attorneys say his case is one of them. They’re hoping that a new effort to reduce the penalty for felony murder in Colorado is successful this legislative session, even if it’s too late to help Pelham.

Aaron Tuneberg and his lowrider bikes were regulars at cruiser bike nights in Boulder.
Aaron Tuneberg and his lowrider bikes were regulars at cruiser bike nights in Boulder.
Courtesy of Gale Boonstra

Pelham’s case is especially egregious for several reasons, his attorneys and advocates argue.

One reason is his disabilities. Pelham was born in January 1996 after a high-risk pregnancy that required his mother, Terri Cloonan-Pelham, to be on bed rest for months. Because of the medical issues involved, she says, doctors suspected that as the pregnancy progressed, Pelham wasn’t receiving adequate oxygen in utero. Complications during labor caused doctors to perform an emergency C-section. When Pelham was born, his mother says, he screamed once and stopped breathing, cutting his brain off from oxygen again while he was resuscitated, likely causing more damage.

In the hospital, a nurse noticed abnormal creases on the palms of the baby’s hands, which can be a sign of Down syndrome. Pelham’s father had a son with the condition from a previous marriage, Cloonan-Pelham says, so she asked that her newborn be tested. The test was negative for Down syndrome but positive for another chromosomal abnormality: Klinefelter syndrome.

Boys with Klinefelter syndrome are born with an extra X chromosome, which is why the condition is sometimes called “XXY syndrome.” Affected baby boys may take longer than average to sit up or crawl, and they may be slower to talk. Kids and teens often have difficulty reading, writing and doing math, as well as delayed puberty and a tendency toward shyness.

Pelham didn’t talk until he was four or five and didn’t potty-train until he was six, according to his family. From the time he was in preschool, he was in special-education classes. One of his biggest struggles was understanding what others were saying. He could hear them fine, his mother says, but the meaning of their words became jumbled in his brain. In third grade, a teacher taught him a coping mechanism: Nod your head so I know you’re paying attention, and when I’m done speaking, raise your hand if you don’t understand.

At the time, Cloonan-Pelham thought it was genius. But her opinion changed.

“That pretty much destroyed the rest of his education, because he went through the rest of it nodding his head, and teachers were thinking he got it,” she says. “When this issue happened” — meaning the criminal case — “the same thing happened with his attorneys.”

Pelham also had trouble socializing. Immature and unable to tell whether other kids were joking or being serious, he was bullied and beat up at school and in the neighborhood, his mother says. Although he had friends, they often took advantage of him: He once traded a Game Boy for a Pokémon card because a kid told him the card was worth $1,000.

Pelham says he always preferred to hang out with kids who were much younger or much older than him because they tended to be nicer. “When people pick on me, I don’t like to stand up for myself,” he says. “It’s easier to walk away.”

Boulder County District Attorney Stan Garnett says prosecutors felt that charging Luke Pelham with felony murder was appropriate.
Boulder County District Attorney Stan Garnett says prosecutors felt that charging Luke Pelham with felony murder was appropriate.
Michael Albert

Standardized testing from when Pelham was sixteen shows that he was reading at a second-grade level and doing math at a third-grade level, according to a report prepared for the case.

In March 2014, when the crime occurred, the eighteen-year-old Pelham and his mother had recently moved back to Colorado so that he could attend Arapahoe Ridge High School in Boulder, an alternative program they hoped would succeed where others had failed in helping Pelham earn his diploma. His dream was to one day become a veterinarian.

A social worker who visited him a few months later in connection with the case found that he had trouble understanding at first why she was there. She wrote that he also had difficulty remembering events, told stories out of sequence, and confused words without noticing, such as saying “expended” instead of “expelled” and “break-fix” instead of “breakfast.”

She took photos of a bedroom clubhouse he’d made out of blankets and a nameplate on his door that said “Ahoy Mate Knock Before Entering Tell No Lies!” He told her his favorite TV outlets were the Disney Channel and Cartoon Network.

Pelham told police that on the day of the incident, he had run into Holford outside a Safeway, where Holford was panhandling. The two had met a few days earlier through mutual friends. Holford told him he was mad at Tuneberg over a girl and wanted to confront him. Pelham claimed he told Holford he wanted nothing to do with it but was planning to go to Tuneberg’s apartment to retrieve a friend’s guitar he’d left there. Pelham’s mother says her son had asked her for a ride to Tuneberg’s apartment, but she wasn’t able to pick him up right away.

So Pelham and Holford decided to take the bus. They stopped by the broken-down van where Holford was living and, according to police interviews, Holford grabbed the bat and the golf club. In separate interviews, both told police that they got on the bus just after 9 p.m.

Pelham went up first. He told police he chatted with Tuneberg for a minute about an upcoming Thursday-night cruiser bike ride, got the guitar and walked down the stairs. According to court documents, he told Holford that Tuneberg was up there alone.

Then Holford went up. On his way, Pelham said Holford handed him the golf club and said something about having his back. Pelham admitted to police that he said, “Okay,” but never meant that he’d use the club as a weapon.

“I wasn’t planning on going up and helping him,” Pelham told the cops. What’s more, he said, he didn’t think Holford was planning a serious assault.

At most, he said, he thought Holford was going to punch Tuneberg and use the bat to smash some of his stuff: “I had no intentions of knowing he was going to hit him with a baseball bat,” Pelham said. When he heard the dings of the bat striking Tuneberg, he froze.

If that’s true, the punishment doesn’t fit the crime, Pelham’s attorneys say.

“The idea that you have a really low-functioning lookout getting charged with a life-without-parole crime when there’s no plan that someone [would] die is kind of outrageous,” says Ben Collett, a Boulder criminal defense attorney who was appointed to represent Pelham. “For a mature, high-functioning person, you can say, ‘You’re going into someone’s home, you’re armed, that seems sketchy and seems like a real possibility that someone dies.’ And so felony murder might make sense in that circumstance. It makes so much less sense when you’re talking about someone who has the cognitive impairments that Luke has.”

Prosecutors came to disagree with Pelham’s attorneys about the severity of his disabilities — as well as about the extent of his role in the crime. A large part of their reasoning was the way Pelham acted in the wake of the beating.

Although it was Pelham who eventually called the police — and led them to Tuneberg’s apartment when he couldn’t remember the address — he wasn’t completely truthful at first.

He initially told police that he didn’t know who’d assaulted Tuneberg. He said he’d gone to retrieve the guitar and when he was leaving, he saw a guy in a black-and-red hoodie going up the stairs toward Tuneberg’s apartment, trying to conceal a baseball bat at his side.

He said he heard Tuneberg greet the guy and then the dings of the bat. Pelham said he got scared and ran away. He said he tried to call the police but his phone was dead, so he ran to a friend’s house several miles away and used her phone instead.

In subsequent police interviews, it came out that Pelham knew Holford, that they’d gone to the apartment together, that Pelham had held the golf club during the assault, and that he’d left with Holford and helped stash the club and the bloody bat.

“The first thing that popped in my head is, ‘I gotta get rid of the golf club, because I don’t want to be tied to something I didn’t do,’” Pelham says.

Afterward, the teens returned to Tuneberg’s apartment. Pelham told police he wanted to check on his friend and break away from Holford, who he figured wouldn’t want to go back to the scene of the crime. But Holford insisted on coming along.

When they got there, Pelham said, he couldn’t bring himself to go inside. From the doorway, he could see Tuneberg lying on the floor, covered in blood. He said Tuneberg was moving a little and making a “snoring noise.” “I closed the door,” Pelham said. “I couldn’t handle it.”

Defense attorneys Luke McConnell (left) and Ben Collett believe that the outcome of Pelham’s case was unjust.
Defense attorneys Luke McConnell (left) and Ben Collett believe that the outcome of Pelham’s case was unjust.
Jim Narcy

Holford went inside, Pelham continued, and emerged with some of Tuneberg’s things, including his Xbox and one of his bicycles. Holford told police the same thing. The two of them then walked back in the direction of Holford’s van with the stolen goods.

Pelham said he was terrified. “I’m scared, I’m pale, I’m about to cry,” he told police. When he eventually got to his friend’s house, without Holford, he used her phone to call the police.

If Pelham was elusive with police, Holford was the opposite. Videotaped interviews show it took only a few minutes for him to admit to beating Tuneberg and to calmly recount the entire story. When police told him he was going to jail, he asked for a cigarette and some food. When police told Pelham the same thing, he began sobbing and insisting he “didn’t do this.”

However, their interviews have one significant thing in common: Both boys insisted that Pelham hadn’t participated in the beating. When the cops told Holford they’d found more blood on the golf club than the bat, he looked genuinely surprised.

“If there is any blood evidence or DNA from Aaron on there, it’s because the baseball bat touched the golf club,” Holford told police. “That’s the only thing I can think of.”

Forensic testing later revealed that no blood — and none of Tuneberg’s DNA — was found on the golf club, despite what the police had told Holford. By contrast, both were found on the bat, according to a lab report from the Colorado Bureau of Investigation.

But prosecutors weren’t convinced.

The fact that none of Tuneberg’s DNA was found on the club “didn’t strike me as significant at all,” says Boulder County District Attorney Stan Garnett, who oversaw the prosecution. Hitting someone with a metal object isn’t a particularly effective method of transferring DNA, he points out.

Prosecutors also doubted Holford’s version of events. “We concluded that [Holford] was not the most reliable source and that he had various motives for what he was saying,” Garnett says.

A sentencing memorandum signed by lead prosecutor Finn chronicles Pelham’s many lies to police in the hours after the incident.

“Mr. Pelham’s post-offense behavior is not consistent with someone who stood by and unwittingly watched an assault unfold,” the memo says. “Rather, it is consistent with his direct participation in the assault [and] his attempts to cover up that involvement.”

Police later found Tuneberg’s cell phone among Pelham’s possessions. The memo also notes that Dr. Michael Arnall, a forensic pathologist who examined Tuneberg in the hospital and later conducted his autopsy, concluded that two different weapons had been used in the assault — one consistent with a bat and one consistent with a golf club.

Bruises on Tuneberg’s back and face matched the club, Arnall testified at a preliminary hearing in the case. In fact, he said, the ridges on the head of the golf club “matched to the millimeter” linear abrasions on Tuneberg’s right cheek.

That an expert hired by the defense concluded otherwise and that Tuneberg’s apartment was cluttered with hard objects upon which he could have fallen — including a coffee table and a kitchen knife block police found by his head — didn’t change Arnall’s opinion.

Tuneberg’s mother, Gale Boonstra, also believes that Pelham was more involved than he admitted.
“I’m a mother and I lost my son, and I loved him very, very much,” she says. “The way he died was terrible. He lived on life support for a week in the hospital. After a week, he wasn’t responsive...and so we let him go.... That’s where I go when people bring this up again.”

Furthermore, the sentencing memo states that Pelham had a motive. The girl whom Holford went to Tuneberg’s apartment to avenge also knew Pelham and told police that Pelham was mad at Tuneberg for throwing a chair at him a few days earlier and wanted to “jump him.”

Prosecutors also argued that Pelham’s “mental condition is not what he suggests,” citing as proof his ability to maintain several social-media profiles, discuss short- and long-term goals with evaluators and perform routine household chores and other tasks.

In addition, the memo refers to evaluations of Pelham conducted at the state mental hospital after his attorneys raised the issue of whether he was competent to stand trial.

Although experts hired by the defense testified about Pelham’s low IQ and language-comprehension difficulties, the judge ruled that he was competent after hearing from a state-appointed evaluator who said that Pelham was able to participate in classes and group activities at the hospital and at a jailhouse program meant to restore defendants to competency, and that he had a good understanding of the facts of his case.

“It’s not that I don’t believe that he has any disabilities — he might,” Finn says. But judging from the evaluations conducted at the state hospital, Pelham was “someone who was obviously exacerbating the state of the disabilities he had.”

To Pelham’s mother, that denial was a particularly difficult aspect of the case.

“Disability was put on trial,” she says. “Disability lost.”

Luke Pelham’s mother, Terri Cloonan-Pelham, supports the effort to reduce the penalty for felony murder.
Luke Pelham’s mother, Terri Cloonan-Pelham, supports the effort to reduce the penalty for felony murder.
Jim Narcy

Perhaps most difficult for Pelham’s supporters was the unyielding nature of the felony-murder law. It says that if a person commits arson, robbery, burglary, kidnapping or sexual assault and a victim dies, he or she can be charged with first-degree murder.

There is a defense against felony murder, but the bar to prove it is high.

According to Colorado law, if a person was not the only participant in the crime and did not kill the victim himself and was not armed with a deadly weapon and had no reasonable grounds to believe the other participant was armed with a deadly weapon and would do something to cause the victim’s death and “endeavored to disengage” from the commission of the crime once he realized the other participant was armed or intended to engage in conduct that was likely to result in a death, then that person can be found not guilty of felony murder.

Pelham’s case wouldn’t have cleared that bar. If prosecutors could have convinced a jury that he was there and holding the golf club, that he knew Holford had a bat and was planning to harm Tuneberg in any way, and that he did nothing to stop him once he realized what was happening, he would have been on the hook for felony murder and sentenced to prison for life.

“We didn’t have much of a defense if we went to trial,” says Pelham attorney Collett.

“Whether or not Luke was in the room swinging the golf club, it really has minimal impact on whether he should be convicted from a strictly legal standpoint,” says Pelham’s other attorney, Luke McConnell, whom Collett asked to join the case after he was appointed.

That, detractors say, is one of the main problems with the law.

“This really is an aberration in terms of the normal way we think of criminal law, moral responsibility and murder,” says Farrell, the DU law professor. “One of the things that makes murder bad is that you deliberately kill people.” That’s not true with felony murder.

“The whole point of felony murder is that accidental death can be prosecuted as murder,” adds Aya Gruber, a law professor at the University of Colorado. Although she thinks the law is unfair, she admits that there has been little political will over the years to change it.

“We’re still in a very tough-on-crime era,” she says. “Nobody is going to have a pity party that you have a rule that violent offenders who cause a death are getting murder charges.”

That isn’t stopping the Colorado Criminal Defense Bar from trying. The group pushed for and is supporting a bill recently introduced during this year’s legislative session, which started January 11, to reduce the penalty for felony murder from life in prison to a range of sixteen to 48 years, the same penalty as for second-degree murder.

Criminal Defense Bar legislative-policy coordinator Carrie Thompson, who was a defense attorney for 28 years and defended several clients charged with felony murder, says the bill wasn’t sparked by a particular case. Rather, it’s a law that members identified as needing reform.

“It’s always been a frustration for our membership,” she says, particularly because it covers what she describes as “an overly broad range of conduct,” meaning that an unwitting accomplice can be found guilty just as easily as the triggerman.

McConnell likens the law to “the worst trawling net you could imagine.” Say you’re trying to catch tuna, he says. But when you deploy your net, you catch a lot of other fish, too. Those fish are usually thrown back into the ocean because they don’t belong in the net.

“The felony-murder statute is, ‘We catch every fucking thing we can, and nobody is going back in the ocean,’” he says. Because the penalty is an automatic life sentence, the judge has no discretion to decide if a defendant deserves a lesser penalty.

And jurors often don’t know what the penalty is, opponents point out. “I have spoken to jurors in the past who were in shock when they rendered a verdict...[of] guilty on felony murder and found out [the defendant was] going to be sentenced to life without parole,” Thompson says.

All of that adds up to a lot of power in the hands of prosecutors and leaves defense attorneys with little leverage when it comes to negotiating a plea deal, detractors argue.

Raynes, the executive director of the Colorado District Attorneys’ Council, knows about the effort to change the law. While he agrees there may be ways to “tighten” the defense to felony murder in order to “make sure abhorrent cases can be weeded out,” he disagrees with abolishing the law altogether, which Thompson and others admit they’d prefer to do.

“Ultimately, in the violent reality that is our world, there are a handful of things citizens demand from the criminal-justice system,” he says, even though those things may be “repugnant to the confines of academic opinion.

“And this is just one of those scenarios.”

Booking photos of Luke Pelham (left) and Austin Holford.
Booking photos of Luke Pelham (left) and Austin Holford.
Colorado Department of Corrections

In the end, Pelham took a plea deal.

“I was being told I’d lose at trial, that I had no chances at trial,” Pelham says into a beige telephone from behind a glass wall at the San Carlos Correctional Facility in Pueblo, an unimposing brick building with a small yard surrounded by barbed wire.

But he says he doesn’t understand why. The intricacies of the felony-murder law remain a mystery to him. “I don’t understand anything about the legal system,” he says. “It sucked. I’d call my mom after court and say, ‘What happened?’”

Pelham pleaded guilty to second-degree murder, first-degree assault of an at-risk victim, and aggravated robbery. In August 2015, he apologized to the Tuneberg family in court, saying he should have done more to stop Holford.

Boulder District Court Judge Patrick Butler called Pelham “a weakling and a coward that day” before sentencing him to thirty years in prison, according to the Boulder Daily Camera . It was the minimum possible sentence; the deal stipulated that he’d serve between thirty and fifty.

“What I’m deciding is if taking away a third life in this case is justice,” Butler said, according to the Camera. “That’s not justice; that’s vengeance.”

Still, Pelham’s attorneys say they will never feel comfortable with the outcome of the case.

“There will never be a time in either of our lives where we feel good about that plea bargain,” McConnell says. “It is a ridiculous, ridiculous sentence. But we had no choice.”

“Because the DA knew he’d get a conviction for felony murder, sending Luke to prison for the rest of his life, he could be effective in negotiations without being realistic about what was appropriate,” Collett says.

If felony murder carried a sentencing range of sixteen to 48 years, the negotiations might have gone differently, he adds.

Finn, the prosecutor, doesn’t see it the same way. Neither does Tuneberg’s mother.

“I think Luke Pelham was treated pretty fairly,” Finn says, noting that, given the law, he could be in prison for life. “Instead, he’s in a situation where he will have another chance.”

In fact, he says, Pelham’s case is an example of prosecutors’ willingness to be reasonable in the face of felony murder, despite the fact that the crime itself was “as senseless a case as I’ve ever run across and as violent a case as I’ve ever run across.

“This was a case where we were extremely thoughtful about it,” Finn continues. “Given his age and given what we believe about him and his situation, he did get a plea bargain.... He’s absolutely responsible. But we’re trying to do justice. I feel the sentencing range was justice.”

Boonstra, Tuneberg’s mother, echoes Finn. “I believe in the criminal-justice system, and I think there was a fair outcome in this,” she says.

Pelham struggles to understand it.

“I take responsibility for what I did, which was lying,” he says. “But serving thirty years for lying — that isn’t fair.” He believes that if he had told police the truth from the outset, the results would have been different.

He spends the majority of his days in his cell, with a few hours set aside for classes on topics like anger management and drug and alcohol dependence; he doesn’t have such a dependence, but he figured the class would be useful “because when I get out, if I have a friend who does, I can help them.”

He reads middle-school science-fiction novels and draws pictures that he sells as part of a prison art show, often donating the profits. His favorite subjects, he says, are trees, animals, skulls and crosses. He’s trying to finish high school through correspondence courses, but it’s been difficult. He calls his mom at least once a day and sometimes more. She visits every Sunday.

His mother describes his confinement at San Carlos as “the least of all evils.” It’s a smaller facility, and Pelham is in a small pod. A spokeswoman for the Colorado Department of Corrections characterizes San Carlos as a “facility for offenders with mental illness.”

Prison records provided to Westword by Pelham’s advocates note that he “presents as significantly victim-prone” and has a low chance of thriving in the general prison population.

“The offender is in a chronic position for manipulation and victimization based on his obvious developmental disability and impairment,” the records state. “He appears eager to please and appears to be unaware of social norms and appropriate friendships.”

It’s caused problems for him in prison, his advocates say. Just like it did on the outside.

Editor's note: Luke Pelham apologized to Aaron's Tuneberg family in court in August 2015, not 2014 as the story originally indicated.

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