443 P.3d 1130
N.M.2019Background
- On Feb 1, 2015, Jason Comitz and two armed companions went to the Rael residence after an earlier fight; an exchange of words escalated into a gunfight in front of the house.
- During the confrontation the group fired guns; Randy Rael was shot and later died, Paul Rael was shot and survived, Manuel Ramirez was shot and survived; ballistic evidence did not tie the fatal bullet to Comitz’s gun.
- Comitz was tried and convicted on multiple counts including first-degree felony murder (predicated on shooting at a dwelling), second-degree murder, aggravated-battery and aggravated-assault counts (two victims), several conspiracy counts, shooting at a dwelling, and child abuse; he was sentenced to life plus additional terms.
- On appeal the Court reviewed (1) sufficiency of the evidence for shooting at a dwelling and conspiracy to shoot at a dwelling, (2) multiple convictions for possible double jeopardy violations, and (3) whether a mistrial was required after the prosecutor elicited testimony about Comitz’s motorcycle-club affiliation in violation of a pretrial ruling.
- The Court affirmed several convictions (including second-degree murder, one aggravated battery per victim, one conspiracy to aggravated battery, aggravated-assault counts, child abuse, and firearm enhancements) and vacated others (including felony-murder predicated on shooting at a dwelling, shooting at a dwelling, conspiracy to shoot at a dwelling, duplicate aggravated-battery convictions, and multiple conspiracy convictions beyond one).
Issues
| Issue | State's Argument | Comitz's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for shooting at a dwelling (predicate for felony murder) | Evidence of gunfire in front of dwelling supports shooting at dwelling conviction | Shooting targeted the people, not the house; no proof shots were directed at dwelling | Vacated shooting-at-dwelling and felony-murder conviction for failure of proof |
| Sufficiency for conspiracy to shoot at a dwelling | Conspiracy shown by traveling to house armed and acting in concert | No agreement to shoot at the house; intent was to shoot at people | Vacated conspiracy-to-shoot-at-dwelling for failure of proof |
| Double jeopardy for multiple aggravated-battery convictions per victim (alternative theories) | Multiple convictions OK as charged alternatives | Convictions for two alternative theories of same act violate double jeopardy | Vacated one aggravated-battery conviction per victim (retain one each) |
| Multiple conspiracy convictions (distinct conspiracies) | Different conspiracy counts supported | There was one overarching conspiracy; multiple convictions violate double jeopardy | Vacated excess conspiracy convictions; affirm single conspiracy (to commit aggravated battery) |
| Double jeopardy between aggravated assault and aggravated battery | Assault and battery are distinct, not unitary here | Assaults merged into batteries; double jeopardy violation | Affirmed both: conduct separated by identifiable pause (no double jeopardy) |
| Mistrial motion over motorcycle-club questioning | Cross-exam rebuttal permitted; curative instruction sufficed | Pretrial ruling barred referencing club; prosecutor’s question required mistrial | Denied mistrial; court did not abuse discretion (curative instruction cured) |
Key Cases Cited
- State v. Marquez, 376 P.3d 815 (N.M. 2016) (collateral-felony/felonious-purpose analysis limiting felony-murder predicates)
- State v. Varela, 993 P.2d 1280 (N.M. 1999) (shooting at dwelling not a lesser-included offense of second-degree murder under elements test)
- State v. Torrez, 305 P.3d 944 (N.M. 2013) (upholding shooting-at-dwelling where defendant fired indiscriminately at occupied house)
- State v. Arrendondo, 278 P.3d 517 (N.M. 2012) (affirming shooting-at-dwelling where trajectories and multiple bullets supported intent to shoot house)
- State v. Cooper, 949 P.2d 660 (N.M. 1997) (vacating duplicate aggravated-battery convictions charged under alternative theories)
- State v. Gallegos, 254 P.3d 655 (N.M. 2011) (presumption of a single conspiracy; multi-factor test to determine multiple conspiracies)
- State v. Baroz, 404 P.3d 769 (N.M. 2017) (firearm sentence enhancements do not violate double jeopardy)
- State v. Andrade, 954 P.2d 755 (N.M. Ct. App. 1998) (doctrine of curative admissibility permits cross-examination to rebut defendant-opened topics)