State v. GuerraState v. Guerra
DANIELS, Justice.
{1} Defendant was convicted of first-degree murder and tampering with evidence in the fatal stabbing of Andrew Gama during a fight at a Clovis apartment complex in March 2010. In his direct appeal to this Court, he argues that (1) there was insufficient evidence to support his conviction for tampering with evidence, (2) the district court abused its discretion by denying his motion for а new trial when two defense exhibits left on counsel table after closing arguments were not included with other exhibits provided to the jury during deliberation, (3) he received ineffective assistance of counsel because his attorney failed to
{2} In this Opinion, we clarify the standard for sufficiency of evidence to support tampering-with-evidence convictions and reverse Defendant‘s tampering conviction. We reject the remainder of Defendant‘s claims and uphold his first-degree murder conviction.
I. BACKGROUND
{3} Defendant was at a party at the Clovis apartment of Erica Nañez on the night of the killing. While at the party, Erica and four other witnesses saw Defendant playing with a folding white pocketknife that Defendant claimed he carried for protection. At one point, Erica asked Defendant to put the knife away, which he apparently did.
{4} Around midnight, a grоup of uninvited people unexpectedly showed up at the party, and a fight broke out between one of them and one of Erica‘s guests. A separate fight took place between Defendant and the uninvited victim, Andrew Gama, who apparently had been in a fight with Defendant‘s cousin a few days before. According to most of the witnesses at trial, the fight between Defendant and the victim was “one on one,” and the victim did not have a weapon.
{5} When someone yelled that the police were coming, the fighting stopped and the uninvited group began running away. The victim, bleeding heavily, fell to the ground while running and was helped to a car by a friend, who drove the victim to the hospital where the victim later died.
{6} Defendant returned to Erica‘s apartment, where several witnesses testified that Defendant said “I think I stabbed that fool seven or eight times. I stabbed that fool.” When asked to describe how Defendant was acting after the fight, Erica told the jury that Defendant and his companions were acting “fine, like nothing, like high-fiving each other.”
{7} The autopsy of the victim revealed that he suffered thirteen stab wounds in the left side of his chest and that the wounds were consistent with a single-edged knife. Stab wounds to the victim‘s heart, left lung, and spleen were the cause of death. The victim had no injuries to his hands or arms, and marijuana and alcohol were found in his blood. The police searched Defendant‘s house but could not find the clothes Defendant wore to the party or the knife used to inflict the fatal wounds.
{8} The jury convicted Defendant of first-degree murder and tampering with evidence, and the district court sentenced Defendant to life in prison for the murder and three years in prison, concurrently, for tampering. Because Defendant received a life sentence, he appealed directly to this Court. See
II. DISCUSSION
A. The Evidence Was Insufficient to Convict Defendant of Tampering with Evidence.
{9} Defendant argues that his conviction for tampering with evidence should be overturned because the facts that Defendant had a knife and that no knife was later recovered after the killing are, by themselves, insufficient as a matter of law to support the conviction. The State concedes that the evidence was insufficient as a matter of law to uphold Defendant‘s tampering conviction; and while we are not bound by this concession, see State v. Foster, 1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d 140, abrogated on other grounds by State v. Frazier, 2007-NMSC-032, ¶¶ 31, 35, 142 N.M. 120, 164 P.3d 1, we agree.
1. Standard of Review
{10} “The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internаl quotation marks and citation omitted). The reviewing court “view[s] the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The question before us as a reviewing [c]ourt is not whether we would have had a reasonable doubt [about guilt] but whether it would have been impermissibly unreasonable for a jury to have concluded otherwise. See State v. Rudolfo, 2008-NMSC-036, ¶ 29, 144 N.M. 305, 187 P.3d 170.
2. Tampering with Evidence Requires Proof in Some Form of a Defendant‘s Specific Intent to Tamper.
{11} In order to prove that Defendant tampered with evidence, the State had to prove that (1) Defendant hid physical evidence; (2) he did so with the intent to prevent his apprehension, prosecution, or conviction; and (3) this happened in New Mexico on or about the date specified in the criminal information.
{12} This Court has previously recognized that the crime of tampering with evidence requires evidence that the defendant specifically intended to tamper with evidence. In State v. Silva, the state successfully argued at trial that the defendant tampered with evidence solely because (1) the defendant had a gun at the scene of the crime, (2) a gun was used to murder the victim, (3) the murder weapon was removed from the scene, and (4) the murder weapon was never recovered. 2008-NMSC-051, ¶ 17, 144 N.M. 815, 192 P.3d 1192. We
{13} In explaining our conclusion, we noted that “[i]ntent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence.” Id. ¶ 18 (alteration in original) (internal quotation marks and citation omitted). But after that clear discussion of the proper role of circumstantial evidence, we concluded by saying: “However, absent both direсt evidence of a defendant‘s specific intent to tamper and evidence of an overt act from which the jury may infer such intent, the evidence cannot support a tampering conviction.” Id.
{14} Taken out of context, that single sentence could be misconstrued as requiring both direct and circumstantial evidence of intent to tamper, instead of either. Such an unprecedented dual requirement would make prosecution of tampering with evidence possible only when the defendant has explicitly admitted that the act of tаmpering was committed with the intent to elude capture or prosecution, which has never been the standard. We did not intend such a reading of the law. Silva should have said that “absent either direct evidence of a defendant‘s specific intent to tamper or evidence from which the factfinder may infer such intent, the evidence cannot support a tampering conviction.” See State v. Nathaniel Duran, 2006-NMSC-035, ¶ 16, 140 N.M. 94, 140 P.3d 515, noting that this Court‘s reversal of a tampering conviction for insufficiency of supporting evidence
does not mean that direct evidence is necessаry to prove tampering with evidence. Statements by defendants and witnesses regarding the disposition of evidence may allow a jury to reasonably infer an overt act and intent, as may many other kinds of circumstantial evidence that would tend to prove a defendant acted to tamper with evidence and in so acting intended to thwart a police investigation. Rather, we hold that it is the State‘s burden to prove each element of the crime beyond a reasonable doubt, and the proof offered here, with no direct or circumstantial evidence regarding an overt act and no reasonable way for a jury to infer intent, falls short of that burden.
{15} Accordingly, we clarify Silva insofar as it may have inadvertently suggested that the state must always present both direct and circumstantial evidence of a defendant‘s specific
{16} Having clarified Silva, we conclude that its bedrock principle applies in this case: The State cannot convict Defendant of tampering with evidence simply because evidencе that must have once existed cannot now be found. As in Silva, the State in this case alleged that Defendant tampered with evidence based on the fact that (1) Defendant had a weapon at the scene of the crime, (2) Defendant used that weapon to kill someone, (3) the weapon was removed from the scene of the crime, and (4) the weapon was never recovered. And as in Silva, the State in this case essentially asked the jury to infer that an overt, intentional act of hiding the weapon had taken place based sоlely on the fact that the police never found the weapon. We rejected such facts as insufficient evidence as a matter of law to support a tampering with evidence conviction in Silva, and we do so here as well. Accordingly, we reverse Defendant‘s conviction for tampering with evidence.
B. Any Error in Not Sending Two Exhibits to the Jury Room Was Harmless.
{17}
1. Standard of Review
{18} “The trial court has broad discretion in granting or denying a motion for new trial, and such an order will not be reversed absent clear and manifest abuse of that discretion.” State v. Chavez, 98 N.M. 682, 684, 652 P.2d 232, 234 (1982). “An abuse of discretion occurs when thе ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize [the ruling] as clearly untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (1999) (internal quotation marks and citation omitted).
2. Harmless Error
{19} “[W]here a defendant has established a violation of statutory law or court rules, non-
{20} By explaining that the complained of error was a “technical” violation, the district court made it clear that its decision to deny Defendant‘s motion for a new trial was based on the conclusion that the error was harmless. This conclusion is not “clearly against the logic and effect of the facts and circumstances of the case.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks and citation omitted).
{21} There is no reasonable probability that the jury‘s verdict would hаve been different if the jury had access to the two exhibits during deliberation. The jury was well aware of their contents. An expert medical witness testified at trial about the reports and testified that the information in the report was not sufficient for her to conclude whether the victim was impaired or whether the alcohol and marijuana had any impact on the victim‘s ability to tolerate pain. Therefore, the reports were useful only to prove that the victim had alcohol and marijuana in his system, facts the State never challenged. And because defense counsel used the admitted exhibits in closing argument, the jury had very recently been reminded of the facts contained in them. After hearing testimony and argument about the two admitted exhibits, the jury never displayed sufficient interest in them to ask for them. Viewing all the circumstances, we conclude that the error was harmless and that the district court did not abuse its discretion in denying Defendant‘s motion for a new trial on that ground.
C. Defendant Received Effective Assistance of Counsel.
{22} Defendant also argues that if the district court did not abuse its discretion by denying his motion for a new trial, then his trial attorney‘s failure tо send the exhibits back to the jury amounted to ineffective assistance of counsel.
{23} “Questions of law or questions of mixed fact and law, . . . including the assessment of effective assistance of counsel, are reviewed de novo.” Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993). “Under the Sixth Amendment, criminal defendants are entitled to reasonably effective assistance of counsel.” State v. Garcia, 2011-NMSC-003, ¶ 33, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted). “Ordinarily, a claim of ineffective assistance of counsel has two parts.” Rael v. Blair, 2007-NMSC-006, ¶ 10, 141 N.M. 232, 153 P.3d 657 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). First, “[a] defendant must show counsel‘s performance was deficient.” Id. (internal quotation marks and citation omitted). Second, a defendant must show “that the deficient performance prejudiced the defense.” Id. (internal quotation marks and citation omitted). “Failure to prove either prong of the test defeats a claim of ineffective assistance
{24} Just as we previously determined that any error in not sending the two exhibits to the jury in the context of this case was harmless, we conclude that Defendant cannot demonstrate the requisite prejudice to prevail on his ineffective assistance of counsel claim.
D. The Jury Received Sufficient Evidence to Convict Defendant of First-Degree Murder.
{25} Defendant argues that the evidence was insufficient to support his first-degree murder conviction because the jury ignored evidence that tended to show Defendant did not deliberate before he killed.
{26} In order to convict Defendant of first-degree murder, the jury had to find beyond a reasonable doubt that (1) Defendant killed Andrew Gama, (2) he did so with the deliberate intention of taking the victim‘s life, and (3) this happened in New Mexico on or about the date specified in the criminal information.
{27} Defendant‘s argument centers around his claim at trial that he was “jumped,” which he maintains is рroof that he acted on a rash impulse and did not deliberate. But because the jury is free to reject Defendant‘s version of the facts, “[c]ontrary evidence supporting acquittal does not provide a basis for reversal.” See Riley, 2010-NMSC-005, ¶ 12 (internal quotation marks and citation omitted). Instead, we consider the evidence that supports the verdict in this case. Id.
{28} The requisite state of mind for first degree murder is a “deliberate” intention to kill. See
{29} The jury received sufficient evidence to find that Defendant deliberated before he
E. Defendant‘s Other Due Process of Law Claims Lack Merit.
{30} Defendant also argues that the district court abused its discretion when it denied his motion for a new trial based on claims he was denied due process when (1) the district court improperly released a medical expert from subpoena, (2) the State‘s reenactment of the murder before the jury was improper, (3) the prosecutor made derogаtory comments about defense counsel to a prosecution witness, and (4) the State misrepresented a witness‘s testimony in its closing argument. Because Defendant does not demonstrate any harm from these alleged errors, we conclude that he was not denied due process of law.
{31} “The trial court has broad discretion in granting or denying a motion for new trial, and such an order will not be reversed absent clear and manifest abuse of that discretion.” Chavez, 98 N.M. at 684, 652 P.2d at 234. “An abuse of discretion occurs when the ruling is clearly against the logic and effeсt of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks and citation omitted).
1. Release of the State‘s Medical Expert Before the Defense Case
{32} The State called a forensic pathologist who testified as an expert medical witness at trial. Defense counsel cross-examined her after her direct testimony. The district court released the expert witness after her testimony, and Defendant never аttempted to call her in his case in chief. Defendant later argued in his motion for a new trial that releasing the
2. The State‘s Reenactment of the Murder During Closing
{33} The State initially intended to call an investigator as an expert witness who would present an expert opinion in the form of a reenactment of the attack. The proposed reenactment apparently would have been based on the expert‘s file, which contained pictures, calculations, facts, and demonstrations that he had performed. Defendant objected and asked the district court to exclude the testimony. The district court determined that the State failed to give notice to the defense that the witness would be called as an expert and that the State failed to give Defendant a copy of the expert‘s file, in violation of
{34} The witness told the jury that he investigated the murder and explained what he found at the scene. He told the jury that he examined the victim‘s clothing and that he saw pictures of the victim. The victim‘s sweatshirt had blood and “numerous” cuts on the left side, in the rib cage area under the left arm, and the right sidе had no blood or cuts. When the witness examined the T-shirt the victim wore beneath the sweatshirt, he found cuts or holes that were “in direct correlation” with those in the sweatshirt. And when the witness examined the victim‘s undershirt, he found cuts consistent with those in the T-shirt the victim wore and consistent with the injuries the victim suffered.
{35} The State argued in closing, through a reenactment based in part on this factual testimony, that the victim‘s thirteen stab wounds in the rib cage area on his left side suggested that Defendant intentionally prevented the victim from defending himself by trapping the victim‘s left arm in a raised position, exposing the left side of the victim‘s chest.
{36} Defendant now claims that he was denied due process of law because the prosecutor was allowed in closing to reenact in a theory of the case that was the same as the expert‘s unadmitted opinion and based on admitted evidence which had not been made available in timely pretrial discovery.
{37} The “trial court has wide discretion in . . . controlling counsel‘s argument to the jury and, if no abuse of this discretion or prejudice to the defendant is evident, error does not result.” State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991) (internal quotation marks and citation omitted). Defendant does not explain why he was prejudiced by either the delay in disclosing the expert‘s report or by the State‘s arguments in closing. See Rojo,1999-NMSC-001, ¶ 61, 126 N.M. 438, 971 P.2d 829 (refusing to hold that the prosecution‘s delay in disclosing evidence required reversal in the absence of a showing of prejudice from the nondisclosure); State v. Ruffino, 94 N.M. 500, 503, 612 P.2d 1311, 1314 (1980) (explaining that the inquiry on appeal is whether the prosecutor‘s comments in closing prejudiced the jury); see also State v. McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701 (“The prejudice must be more than speculative.“). The record indicates that the State‘s argument was based on the evidence admitted at trial, and Defendant cites no authority that stands for the proposition that precludes counsel from thinking about an unadmitted expert opinion in preparing and presenting closing argument. See Lee v. Lee (In re Adoption of Doe), 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (“We assume where arguments in briefs are unsupported by cited authority [that] counsel . . . was unable to find any supporting authority.“).
{38} Because Defendant has not argued why the late disclosure or the State‘s closing arguments prejudiced him, we reject Defendant‘s arguments on this issue.
3. The Prosecutor‘s Pretrial Comments to a Witness About Defense Counsel
{39} Defendant claims that just before trial defense counsel reviewed an audio recording of an interview with a witness for the State in which the prosecutor allegedly made improper comments about defense counsel. Defendant now argues without explanation that as a result of those statements, the witness “became more hostile and ‘State oriented.‘”
{40} But Defendant does not indicate the content of the alleged improper statements or their location in the record. “The burden is on appellant to provide the necessary record in this Court.” State v. Alonzo L. Duran, 91 N.M. 756, 759, 581 P.2d 19, 22 (1978), overruled on other grounds by State v. Gonzales, 111 N.M. 363, 366, 805 P.2d 630, 633 (1991). Where a defendant fails to provide sufficient record for review of an issue, the reviewing court may deem the issue abandoned. See id.
{41} Because Defendant has not provided the allegedly derogatory statements, this Court cannot review whether the statements would have prejudiced Defendant‘s case or whether the district court abused its discretion when it denied Defendant‘s motion on this issue. See id. Accordingly, we reject Defendant‘s claims on this issue.
4. The State‘s Characterization of the “High-Fiving Each Other” Testimony
{42} Defendant appears to argue that the State mischaracterized the testimony of Erica Nañez when the State argued in closing that Defendant and his friends were acting “fine, like
{43} In sum, we hold that the district court did not abuse its discretion when it denied Defendant‘s motion for a new trial based on the various alleged errors.
III. CONCLUSION
{44} We affirm Defendant‘s conviction for first-degree murder and remand to the district court with instructions to vacate Defendant‘s conviction for tampering with evidence.
{45} IT IS SO ORDERED.
CHARLES W. DANIELS, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
PATRICIO M. SERNA, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
Topic Index for State v. Guerra, Docket No. 33,052
APPEAL AND ERROR
Exhibits
Harmless Error
Standard of Review
Due Process
Misconduct by Prosecutor
CRIMINAL LAW
Murder
Specific Intent
Tampering with Evidence
CRIMINAL PROCEDURE
Effective Assistance of Counsel
Expert Witness
New Trial
Substantial or Sufficient Evidence