State v. KingState v. King
BOSSON, Justice.
{1} Relying on Santobello v. New York, 404 U.S. 257 (1971), this Court has previously held that a plea-bargained sentence must be fulfilled by the prosecution, and if not, will be enforced by the courts. See State v. Miller, 2013-NMSC-048, ¶¶ 29, 31, 314 P.3d 655. In this first-degree murder appeal, we apply that principle of law to a prosecutorial promise to dismiss a tampering-with-evidence charge if the accused would locate and produce the murder weapon. Here, Defendant Donovan King produced the weapon, but the prosecutor did not drop the charge as promised and Defendant was convicted of tampering with evidence. Accordingly, we reverse the tampering conviction. Affirming all remaining convictions, including first-degree murder, we remand for resentencing.
BACKGROUND
{2} Defendant and Justin Mark arrived at Kevin Lossiah‘s apartment the morning of May 29, 2011. Initially, Lossiah‘s neighbors saw Defendant and Mark outside Lossiah‘s apartment. Neighbor Wesley Gray talked to Defendant briefly before returning to his apartment. Moments later Gray and his wife Nicole Beyale heard banging coming from Lossiah‘s apartment and someone yelling “Please stop! Shut up!” Beyale immediately called the police, who were dispatched to the apartment and
{3} Farmington police officers, having the descriptions of both Defendant and Mark, began canvassing the area. Shortly after the incident, Detective Paul Martinez and Officer Frank Dart came into contact with Mark and Defendant. Detective Martinez testified that Mark was shirtless and had fresh scratches on his back, and that the clothing on both men was wet and muddy. Detective Martinez also testified that both individuals looked like they had been involved in a struggle. DNA testing later revealed Lossiah‘s blood on their clothing. While being questioned by Officer Dart, Defendant stated that Lossiah “came at him with a sword.” Both Mark and Defendant were arrested and taken to the Farmington Police Department. Lossiah died later that night.
{4} Ultimately, Defendant was charged with and convicted of first-degree murder, conspiracy to commit first-degree murder, armed robbery, conspiracy to commit armed robbery, and tampering with evidence. The district court sentenced Defendant to life imprisonment plus 18 years. Recently this Court upheld Mark‘s conviction for first-degree murder for his participation in Lossiah‘s murder. See State v. Mark, No. 34,025, dec., ¶¶ 1, 48 (N.M. Sup. Ct. Apr. 13, 2015) (non-precedential). Defendant
DISCUSSION
{5} On direct appeal to this Court, Defendant raises five issues. The principal issue is whether the prosecutor made a promise to Defendant to dismiss one of the charges if Defendant would locate and turn over the murder weapon. If such a promise was made, we must decide the appropriate remedy, if any. To establish necessary context, we begin with Defendant‘s custodial interrogations.
{6} Officers questioned Defendant on May 29, 2011, the day of the arrest, and again on May 30, 2011. This Court previously upheld the district court‘s determination that Defendant‘s interrogation on May 29, 2011, violated Defendant‘s constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966), making Defendant‘s incriminating statements from that interview inadmissible at trial. State v. King, 2013-NMSC-014, ¶¶ 1-2, 13, 300 P.3d 732. When Detective Martinez questioned Defendant the next day, he properly advised Defendant of his Miranda rights and Defendant signed a waiver, consenting to questioning without an attorney.
{7} After being advised of his Miranda rights, Defendant asked the detective for his paperwork. Defendant indicated that he did not want to talk about the events of
Detective Martinez: Well, what would you like to see dropped and why?
Donovan King: The tampering with evidence.
Detective Martinez: And how would you like that one to get dropped?
Donovan King: If I show you personally what I did with what I had?
Detective Martinez: Look, I can‘t make that promise, but if you . . . tell me now where you [put it] I can talk to the [district attorney] but I cannot make you a promise. But I can tell you that if you cooperate and tell me where everything you guys did and where it went well, yeah, that‘s going to help in the tampering because then it would no longer have, . . . I‘m sure the [district attorney] would be willing to work with us.
{8} During the discussion, Defendant admitted that he and Mark had taken a
{9} Because Detective Martinez did not have the authority to drop the charge, he called his supervisor. After the supervisor returned Detective Martinez‘s telephone call, the detective had this exchange with Defendant:
Detective Martinez: Here is what I was told word for word. We just talked with the district attorney that is actually charging you. The district attorney is willing to talk dismissal of the charge of tampering if we go today and actually find the weapon where you hid it. Is that what you want to do?
Donovan King: Yeah.
Detective Martinez: Okay, let me make arrangements and I got somebody meeting us and we will go right now.
Defendant then went with the officers to the location of the wooden branch Defendant had hidden. At trial the prosecution used the branch as evidence of a murder weapon.
{10} The exchange between Defendant and Detective Martinez is significant because the assistant district attorney, speaking through Detective Martinez, appears to have promised to dismiss the tampering charge in exchange for Defendant locating
{11} Normally, we would analyze custodial statements made to a police officer in reliance on a promise of leniency in terms of whether the individual‘s “‘will has been overborne and his capacity for self-determination critically impaired.‘” State v. Munoz, 1998-NMSC-048, ¶ 20, 126 N.M. 535, 972 P.2d 847 (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). The analysis differs, however, when examining a plea agreement entered into with a prosecutor. See Miller, 2013-NMSC-048, ¶ 9. (“Upon review, appellate courts construe the terms of the plea agreement according to what Defendant reasonably understood when he entered the plea.” (internal alteration omitted) (internal quotation marks and citation omitted)). The distinction exists in part because “[t]he police have no authority to make prosecutorial decisions.” State v. Reed, 879 P.2d 1000, 1002 (Wash. Ct. App. 1994). The district attorney obviously does have such authority.
{12} Notably, this appeal presents a kind of hybrid of custodial statements made to
{13} After talking directly with the prosecutor, Detective Martinez, acting as a kind of proxy, relayed the prosecutor‘s offer—not the detective‘s offer—that the prosecutor would dismiss the tampering charge if Defendant showed the police where the tampered-with evidence—the hidden murder weapon—was located. Importantly, there is no claim here that the detective misunderstood or misrepresented the prosecutor‘s offer. At the suppression hearing, the same prosecutor who made the offer played the audio interview between Detective Martinez and Defendant without any contradiction, objection, or claim of inaccuracy.
{14} The fundamental problem is not the officer‘s willingness to participate in the discussion Defendant initiated, but the prosecutor‘s failure to follow through on his
{15} A literal, finely-parsed reading of the exchange might suggest that the prosecutor promised only to “talk dismissal” of the tampering charge, but not necessarily to dismiss the charge. The State makes such a claim on appeal. A fair reading of this exchange, however, leads ineluctably to a different conclusion. If Defendant showed the branch to Detective Martinez, then the tampering charge really would be dismissed; they would not just “talk” about it. Clearly, that is what Defendant believed and reasonably so. Why else would he locate the branch for Detective Martinez if not in reliance on such an agreement? Defendant performed on his promise; the prosecutor did not. Accordingly, we must consider the appropriate remedy for the prosecutor‘s unfulfilled promise.
Specific performance is the appropriate remedy for an unfulfilled promise made
{16} Santobello, 404 U.S. 257, provides a helpful framework for this issue. In Santobello, the prosecutor permitted the accused to plead guilty to a lesser-included offense and agreed not to recommend any sentence to the court. Id. at 258. After a series of delays, a new prosecutor who took over the case failed to adhere to the original plea agreement and recommended the maximum sentence, which the defendant received. Id. at 259. The U.S. Supreme Court reversed, saying that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262. Declining to decide categorically how that promise should be enforced, the Court remanded, stating “[t]he ultimate relief to which petitioner is entitled we leave to the discretion of the state court” because the state court is in a better position to choose the remedy. Id. at 263. The Court did suggest specific performance of the original plea agreement as one alternative. Id.
{17} Citing Santobello, this Court granted specific performance in Miller, 2013-NMSC-048, ¶¶ 30-31, as a proper remedy for a broken plea agreement. In Miller, the defendant and the prosecutor had agreed that the defendant would receive a maximum sentence of forty years. Id. ¶ 3. The district court then proceeded to sentence the
{18} In the present case, Defendant voluntarily presented a potential plea agreement to the State, saying essentially: “If you dismiss the tampering charge, I will find the branch.” While the deal may not have been in Defendant‘s best interest, it is the deal he freely proposed; it was not coerced or extracted unfairly. The prosecutor‘s response, through Detective Martinez and his conduct thereafter, led Defendant reasonably to understand that they had an agreement. There was no apparent reason for the prosecutor not to keep his end of the bargain. We strongly favor the language from Santobello quoted earlier that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello, 404 U.S. at 262. See State v. Unga, 196 P.3d 645, 651 (Wash. 2008) (en banc) (charge dismissed when confession was based on a promise not to prosecute for that crime; other charges were upheld).
Defendant was on notice that he could be convicted as an accessory even though he was only charged as a principal
{20} Defendant failed to preserve his challenge to the jury instruction on accessory liability, which we now review for fundamental error. See
{21} Defendant is correct that the State did not initially charge Defendant with accessory liability. However, New Mexico long ago abolished the distinction between accessory and principal liability. See State v. Wall, 1980-NMSC-034, ¶ 10, 94 N.M. 169, 608 P.2d 145 (“The Legislature and our courts have abolished the distinction between a principal and an accessory.“), overruled on other grounds by State v. Lucero, 1993-NMSC-064, ¶ 13, 116 N.M. 450, 863 P.2d 1071. See also State v. Nance, 1966-NMSC-207, ¶ 18, 77 N.M. 39, 419 P.2d 242 (“The purpose of the [L]egislature to authorize charging and convicting an accessory as a principal is made evident when we consider that no different penalty is provided by law for one who aids and abets.“), abrogated on other grounds by State v. Wilson, 2011-NMSC-001, ¶¶ 14-15, 149 N.M. 273, 248 P.3d 315; Tapia v. Tansy, 926 F.2d 1554, 1561 (10th Cir. 1991) (“New Mexico, like many other states, long ago abolished the distinction between conviction as a principal and an accessory, so that the charge as principal includes a corresponding accessory charge.“). The charge against Defendant as a
Defendant‘s statements were hearsay not falling within any recognized exception
{22} Defendant, in reliance on his Fifth Amendment privilege against compelled self-incrimination, declined to testify at trial. Defense counsel, trying to lay an evidentiary foundation for Defendant‘s claim of self-defense, sought to question Officer Dart about certain statements Defendant had made to him. The State made a hearsay objection. Defense counsel called Officer Dart outside the presence of the jury to make a proffer of evidence. During the proffer, Officer Dart acknowledged being told by Defendant that “Lossiah came at him with a sword.” The court granted the State‘s hearsay objection.
{23} Defendant maintains on appeal that his statement to Officer Dart was admissible either as a nonhearsay statement or, in the alternative, as a statement that satisfied one or more exceptions to the hearsay rule. “We review the admission of hearsay evidence for an abuse of discretion.” State v. Sisneros, 2013-NMSC-049, ¶ 18, 314 P.3d 665. We begin by asking whether Defendant‘s statement to Officer Dart was hearsay.
{24} “Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.” Id.; see also
{25} This Court has stated: “The purpose of recognizing self-defense as a complete justification to homicide is the reasonable belief in the necessity for the use of deadly force to repel an attack in order to save oneself or another from death or great bodily harm.” State v. Coffin, 1999-NMSC-038, ¶ 12, 128 N.M. 192, 991 P.2d 477 (emphasis added). We agree with the State‘s analysis that “[Defendant‘s] statement only shows a reasonable belief of imminent danger if the statement is true. If the statement is false, then it shows no such thing.” Defendant cannot use this statement to demonstrate a reasonable belief in the necessity of his use of force for self-defense unless he stated truthfully to Officer Dart that the victim came at him with a sword.
{26} Defendant also argues for various recognized exceptions to the hearsay rule. He first proposes that his statement was admissible under
{27} Defendant‘s statement that “Lossiah came at him with a sword” does not show Defendant‘s mental state, only its cause. This Court has held that “the rule does not permit evidence explaining why the declarant held a particular state of mind.” State v. Baca, 1995-NMSC-045, ¶ 19, 120 N.M. 383, 902 P.2d 65. Even if Defendant had told the officer that he was afraid because of Lossiah‘s conduct, that would not have been his state of mind at the time he made the out-of-court statement, only his previous state of mind at the time of the alleged incident. Therefore, the district court
{28} Defendant next argues for the first time on appeal that this was an exception to hearsay as a statement against interest under
{29} Defendant was not unavailable as contemplated by
{30} Defendant argues that since his statement (“Lossiah came at [me] with a sword“) exposed him to criminal liability, it was “an inculpatory statement with an aspect of self-defense.” We disagree. Defendant gave the statement to Officer Dart
{31} Defendant also argues for the first time on appeal that the statement should fall under
(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice.
Ineffective assistance of counsel
{33} Defendant argues that he received ineffective assistance of counsel. This Court has repeatedly stated that ineffective assistance of counsel claims are best served through habeas corpus proceedings so that an evidentiary hearing can take place on the record. See State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that provides a basis for remanding to the trial court for an evidentiary hearing on ineffective assistance of counsel is rare. Ordinarily, such
{34} Because we have vacated Defendant‘s conviction of tampering while concluding that three other issues he raises are without merit, the fifth issue in which Defendant claims cumulative error is moot.
CONCLUSION
{35} We vacate Defendant‘s tampering with evidence conviction and remand for resentencing. We affirm Defendant‘s remaining convictions.
{36} IT IS SO ORDERED.
RICHARD C. BOSSON, Justice
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice