435 P.3d 1231
N.M.2018Background
- On May 25, 2015, Rio Rancho Police Officer Gregg Benner stopped a Dodge Durango. Passenger Andrew Romero (Defendant) fled, later shot Officer Benner four times when Benner approached the stopped vehicle, and Benner died.
- Romero and driver Tabitha Littles had committed a Taco Bell robbery hours earlier; Romero later committed a Shell/Giant robbery and was arrested; a Beretta recovered from the chase matched the murder weapon and had Romero’s DNA; Durango keys found on Romero.
- A grand jury indicted Romero on multiple counts; a jury convicted him of first‑degree murder (with aggravators), tampering with evidence, conspiracy to commit armed robbery, aggravated fleeing a law enforcement officer, concealing identity, and shooting at or from a motor vehicle; sentence: life without parole plus 60 years.
- Romero appealed raising venue/publicity, juror exposure, courtroom security, admissibility of other‑acts (uncharged robberies), severance, admission of a muted interrogation video (nonverbal gestures), admission/authentication of a jail phone call, cumulative error, double jeopardy, and sufficiency of evidence (aggravated fleeing and deliberate intent for first‑degree murder).
- The Supreme Court of New Mexico affirmed all convictions except vacated the shooting‑from‑a‑vehicle conviction on double jeopardy grounds (because it duplicated the murder conviction arising from the same act).
Issues
| Issue | State's Argument | Romero's Argument | Held |
|---|---|---|---|
| Change of venue / juror prejudice from publicity | Venue move to Valencia County was appropriate; actual jurors were impartial by voir dire | Pretrial publicity required transfer to a county outside Albuquerque metro and jurors exposed to media were presumptively prejudiced | Denied relief: trial court did not abuse discretion; empaneled jurors demonstrated no actual prejudice |
| Courtroom security presence | Security was reasonable and not inherently prejudicial | Excessive armed security during voir dire prejudiced jurors and warranted mistrial | Denied mistrial: record lacked evidence showing security was so pervasive as to bias jurors; jurors said security did not affect impartiality |
| Admission of uncharged robberies (other‑acts) | Relevant to identity, motive, plan, context for witness plea and cross‑admissible with conspiracy charge | Prejudicial other‑acts evidence should have been excluded | Admitted: trial court limited scope, found probative value outweighed unfair prejudice and did not abuse discretion |
| Severance of conspiracy to commit armed robbery | Charges were cross‑admissible and contextually linked; no unfair prejudice | Joinder of highly prejudicial conspiracy charge required severance | Denied severance: evidence was cross‑admissible; Romero failed to show actual prejudice |
| Admission of muted interrogation video (nonverbal gestures) | Nonverbal conduct is admissible; not testimonial; not compelled | Nonverbal gestures occurred after Miranda invocation and should be suppressed as compelled testimonial evidence | Admitted: court found gestures not compelled; Fifth Amendment protection inapplicable to voluntary nonverbal conduct |
| Admission/authentication of jail phone call | Sufficient circumstantial indicia and voice familiarity supported authentication | Identification uncertain (other inmates named Andrew, PIN issues) so tape inadmissible | Admitted: minimal showing of voice identity met (self‑ID, PIN, references to Crystal, movement between facilities); trial court did not abuse discretion |
| Cumulative error (including prosecutorial slide and in‑court IDs) | No significant trial errors; cross‑examination addressed eyewitness flaws | Cumulative minor errors deprived Romero of a fair trial | Rejected: court found no reversible errors in aggregate |
| Double jeopardy for shooting at/from motor vehicle | Distinct statutory offense | Conviction duplicates murder conviction for same unitary act | Vacated shooting‑from‑vehicle conviction under double jeopardy; murder conviction affirmed |
| Sufficiency: aggravated fleeing (element: pursuit) | Evidence of willful, careless driving endangering life and that flight and pursuit were part of continuous course supported conviction | Insufficient because defendant was not "in pursuit" when fleeing the stop | Affirmed: viewing evidence in State’s favor, jury could find continuous flight that produced pursuit and satisfied statutory elements as instructed |
| Sufficiency: deliberate intent for first‑degree murder | Evidence (statements, repositioning gun, shoving driver out, pausing between shots, four controlled hits) supported deliberation | Shooting was sudden or impulsive, insufficient to show deliberate intent | Affirmed: reasonable inferences from conduct, statements, shooting pattern, and circumstances supported deliberate intent beyond reasonable doubt |
Key Cases Cited
- Holbrook v. Flynn, 475 U.S. 560 (U.S. 1986) (presence of security/guards at trial does not automatically indicate defendant’s dangerousness or prejudice jurors)
- Arizona v. Mauro, 481 U.S. 520 (U.S. 1987) (Fifth Amendment privilege protects compelled communicative evidence; noncompelled conduct is not testimonial)
- Perry v. New Hampshire, 565 U.S. 228 (U.S. 2012) (due process exclusion of eyewitness ID applies when law enforcement is the source of pretrial suggestiveness)
- State v. Montoya, 306 P.3d 426 (N.M. 2013) (double jeopardy analysis when multiple convictions arise from a unitary act)
- State v. Astorga, 343 P.3d 1245 (N.M. 2015) (manner of killing and related facts can support an inference of deliberation)