435 P.3d 1231
N.M.2018Background
- On May 25, 2015, Officer Gregg Benner stopped a Dodge Durango; during the stop the vehicle fled, Defendant Andrew Romero fired four shots and mortally wounded Officer Benner; Romero then fled.
- Hours earlier Romero and Tabitha Littles committed a Taco Bell robbery; shortly after the murder Romero committed a Shell/Giant gas station robbery and was arrested; the recovered Beretta matched the murder weapon and bore Romero's DNA; keys to the Durango were found on Romero.
- A grand jury indicted Romero on multiple counts; a jury convicted him of first‑degree murder (with statutory aggravators), tampering with evidence, conspiracy to commit armed robbery, aggravated fleeing, concealing identity, and other counts; sentence: life without parole plus 60 years.
- On appeal Romero raised 11 issues including venue, juror publicity exposure, courtroom security, admission of other‑acts/robbery evidence, severance, admission of a muted interrogation video and a jail telephone call, cumulative error, double jeopardy, sufficiency of evidence for aggravated fleeing, and sufficiency of evidence of deliberate intent for first‑degree murder.
- The Supreme Court affirmed all convictions except it vacated the conviction for shooting at or from a motor vehicle on double jeopardy grounds (unitary act of killing and the vehicle‑shooting conviction punish the same conduct).
Issues
| Issue | State's Position | Romero's Position | Held |
|---|---|---|---|
| Venue change / juror publicity | Valencia County venue was appropriate; voir dire showed jurors could be impartial | Pretrial publicity required change to a county far from Albuquerque; empaneled jurors had been exposed and were biased | Affirmed venue in Valencia County because voir dire showed no actual prejudice among seated jurors |
| Courtroom security during voir dire | Security presence did not prejudice jurors; jurors said it would not affect impartiality | Heavy armed security (rifles, large presence) prejudiced jurors and warranted mistrial | Denial of mistrial affirmed; no evidentiary proof of prejudicial security and jurors testified they could be impartial |
| Admission of prior/uncharged robberies | Admissible under Rule 11‑404(B) for identity, motive, plan, context; probative value outweighed prejudice | Prior robberies were unfairly prejudicial and required exclusion or severance of conspiracy count | Admission affirmed: limited testimony allowed; evidence cross‑admissible and relevant to motive/identity and context; severance denial not an abuse |
| Admissibility of muted interrogation (nonverbal gestures) | Nonverbal conduct not compelled; Fifth Amendment protects testimonial communications, not voluntary gestures | Video should be suppressed as compelled testimonial evidence after Miranda invocation | Admitted: gestures were voluntary and not compelled, so Fifth Amendment not implicated |
| Admission of jail phone call | Authentication (voice, PIN, context) and corroborating facts sufficient for admissibility | Insufficient authentication; other inmates shared the name/PIN; date unknown | Admitted: minimal showing met (detective's voice ID plus corroborating circumstantial facts) |
| Double jeopardy (shooting at/from vehicle) | Both convictions arise from the same unitary act; one must be vacated | Conviction for shooting at/from a motor vehicle should stand separately | Vacated shooting‑from‑vehicle conviction under state Double Jeopardy because it punished the same act as the murder conviction |
| Sufficiency of evidence: deliberate intent for 1st‑degree murder & aggravated fleeing | State: evidence (planning, moving gun into firing position, shoving driver out, waiting for officer, multiple controlled shots, prior statement never returning to prison) supports deliberation and aggravated fleeing | Romero: insufficient proof of deliberate intent; statute requires “in pursuit” for aggravated fleeing | Affirmed: jury could infer deliberation from conduct and statements; aggravated fleeing proved by continuous flight/pursuit context and jury instruction used |
Key Cases Cited
- Holbrook v. Flynn, 475 U.S. 560 (1986) (presence of guards does not necessarily imply defendant's dangerousness; jurors may infer nothing)
- Arizona v. Mauro, 481 U.S. 520 (1987) (voluntary conduct not compelled by police is not protected by Fifth Amendment)
- State v. Montoya, 306 P.3d 426 (N.M. 2013) (double jeopardy protects against multiple punishments for a unitary act)
- State v. Barrera, 22 P.3d 1177 (N.M. 2001) (exposure to publicity alone does not establish juror prejudice; actual prejudice requires inquiry)
- State v. House, 978 P.2d 967 (N.M. 1999) (standard of review for venue determinations and need to investigate juror attitudes)
- State v. Astorga, 343 P.3d 1245 (N.M. 2015) (manner of killing may support inference of deliberation)