State v. Trujillo

7Q9 2002-NMSC-005

42 P.3d 814 Mexico, of New

STATE

Plaintiff-Appellee, TRUJILLO, Defendant-Appellant.

Chris 26,108.

No.

Supreme Court of New Mexico.

Feb. 2002.

Rehearing Denied March 2002.

713

injury), dwelling or occu- building injury). pied (resulting in 12-102(A)(1) Pursuant to Rule NMRA following Defendant raises the issues (1) appeal: tape the admission of the transcript Joseph Ortiz’s out-of-court statement violated Defendant’s constitutional right process and due to confrontation be- impeachment cause it inadmissible (2) evidence; hearsay conviction for first- degree depraved-mind murder violated due process of law because sufficient evidence did (3) support any theory; the conviction on Defendant was convicted of a crime that does conspiracy depraved- to commit exist — (4) murder; mind there was no evidence that Freedman, Daniels, Hollander, Boyd, dwelling occupied at a Defendant shot Cline, P.A., Cassidy, Goldberg Lisa N. & (5) building; per- Defendant’s trial counsel’s NM, Subin, Phyllis Albuquerque, H. Chief formance constituted ineffective assistance of Hewitt, Defender, Nancy M. Assistant Public (6) counsel; prosecutor’s acts of miscon- Defender, Fe, NM, Ap- Appellate Santa for duct distorted the evidence on the issue of pellant. identification, depriving Defendant of due General, Madrid, Attorney M. Patricia A. (7) trial; process conspiracy and a fair General, Kelly, Attorney Anne Assistant San- charges and Defendant’s convictions violate Fe, NM, appellee. ta Jeopardy there the Double Clause because any agreement agreements or no evidence of OPINION (8) support separate charges; above BACA, Justice. constitute cumulative error that denied De- trial; (9) process fair and fendant due and a Trujillo Defendant Chris was convicted {1} disproportionate Defendant’s sentence is and murder, first-degree depraved-mind con- in violation of the state and federal constitu- first-degree depraved- spiracy to commit prohibitions against tional сruel unusual and assault, murder, aggravated conspiracy mind punishment. affirm Defendant’s convic- aggravated battery, conspiracy to to commit first-degree depraved-mind tions for murder shooting dwelling occupied at a or commit conspiracy aggravated bat- and to commit harm), building (great bodily conspiracy to tery. We vacate Defendant’s conviction for shooting dwelling occupied at a or commit conspiracy depraved-mind murder to commit building (resulting injury), shooting in at a (no con- and reverse Defendant’s convictions for dwelling occupied building injury), and or shooting dwelling at a or spiracy to commit shooting dwelling conspiracy to commit at a harm), (no building bodily occupied (great con- injury).1 occupied building or dwelling spiracy shooting at a or guilty aggravated to commit found Defendant not assault, building (resulting injury), in battery, shooting occupied shoot- aggravated at a (no building building (great bodily ing dwelling occupied dwelling occupied at a or or 1978, 30-2-l(A)(3) (1994) 28-2(B)(2) (1979) (conspiracy § to commit shoot- 1. Pursuant NMSA murder); (first-degree depraved-mind § dwelling occupied building (great 30-2- ing at a or 1(A)(3) 30-28-2(B)(l) (1979) § 30-3-8(A) 30-28-2(B)(3) harm)); and NMSA bodily § § and (conspiracy first-degree depraved- to commit shooting dwelling (conspiracy at a or to commit murder); 30-3-2(A) (1963) § mind NMSA injury)); § occupied building (resulting 30-3- (1993) (aggravated § and NMSA assault); 31-18-16 building (shooting dwelling occupied at a or 30-3-5(A) (1969) (C) §§ NMSA & 30-3-8(A) (no injury)); § § and 30-28- and (con- 30-28-2(B)(3) (1979) § and NMSA 2(B)(3) shooting (conspiracy at a to commit battery); spiracy aggravated NMSA to commit (no occupied building injury)). dwelling or 1978, 30-3-8(A) (1993) § § and NMSA 30- shooter, injury), conspiracy shooting original firing to commit at two or at three times (no dwelling injury). Mendez, occupied building gun then Defendant took the Ortega. night and shot at Canas and On the I. shooting, Ortega of the identified Defendant photo array the shooters as one of from a July On Defendant Char- Ortega shown to him Detective Shawn. lie Allison were outside on a second-floor again identified trial as the balcony neighbor- at. apartment in the Barelas second shooter. Albuquerque they in- hood when became argument volved men with four located Doug Shawn, Detective the officer as- Ortiz, ground Joseph Ortega, level: Juan ease, signed to the testified inter- that he Canas, and Javier Mendez. As a re- Jesus eyewitnesses shooting, viewed several to the argument, of this sult shots were fired from all of whom identified one of Defendant as upstairs balcony angle, at a downward gun shooters indicated that one killing wounding Mendez and Canas. The had been used. Detective Shawn stated State introduced evidence that Defendant night shooting Ortega on the identified and Allison were members of Barelas as one from a shooters Ortega, Canas, gang, and that and Mendez photo lineup and that he recorded this identi- gang, were members of a rival the Juaritos fication. He also testified that Ortiz identi- Maravilla. fied Defendant as one of the shooters from a Ortiz, cousin, Allison’s was a former photo lineup as well but refused to have his gang Barelas member who had “ranked been identification recorded. apparently longer out” and was no welcome planned area. He testified that he had up apartments to meet with Mendez at the II. day on the and that soon tried, convicted, Defendant was argument after arrived he heard an first-degree sentenced murder as a seri- gunshots. Shortly fired, after the were shots youthful pursuant ous offender to NMSA ran after lying Ortiz Mendez and found him 31-18-15.3(D) (1993), § which allows a alley. ap- face down Ortiz district court to “sentence the offender to parently could specific not recall more details than, exceeding, mandatory less not shooting, including gun. of the who fired the result, § term for an adult.” NMSA 31-18- рrosecutor played tape As a of 14(A) (1993) grants the district an interview between court discre- Ortiz and Detective sentencing tion in Shawn conducted a few hours after Mendez minors who have been capital felony: was killed. In that a interview Ortiz stated convicted of “[I]f defen- recognize he did not shooters but age majority dant has not reached the guy” wearing light described them as a “little capital the time of the commission of the jeans shirt, striped presumably and a blue convicted, may felony be for he was which he Defendant, “big guy” wearing and a black imprisonment life sentenced to but shall t-shirt, jeans and a presumably black Allison. added.) punished by (Emphasis death.” Ortiz, According though bigger even discretion, Exei’cising this the trial court sen- guy gun, guy asked for the did the little (30) tenced Defendant to a “term of THIRTY give him, telling it to want the four down YEARS, BUT NOT LIFE” for his first- below, guys joking,” “You think I’m before degree murder conviction. The court trial began shooting. provided that “[i]t is this Court’s inten- eligible good tion that the Defendant be for Ortega testified that someone on the imposed.” time credit to the sentence balcony they asked the four men what were omitted.) (Emphasis doing in the Defendant invoked this neighborhood Barelas and that responded, mandatory appellate jurisdiction anywhere Court’s Mendez “We could be want, Immediately first-degree Juaritos.” based on his murder thereafter conviction thirty years shots fired down at them from the he was because sentenced to balcony. Ortega prison. stated that Allison was the first-degree may mandatory jur- convicted of murder appellate adults This Court’s Court, prison appeal directly Supreme sentence to to the as of is not based on

isdiction years, they always it based on a first- right, a term of nor is will be sentenced because mandatory death, degree ap- murder conviction. Our imprisonment life or while it jurisdiction is constitutional and is appellate juvenile pears offenders convicted of first- judgment “[ajppeals from a limited to appeal degree murder not be able to imposing sentence of death or district court directly Supreme their convictions to the Const, VI, imprisonment.” N.M. art. life Court because the trial court has discretion provision § is but- 2. This Constitutional to sentence them to less than a life sentence. 12-102(A)(1) tressed Rule and NMSA jurispru- From the onset of New Mexico 34-5-8(A)(3) (1983) 1978, § which reiterate dence, first-degree murder convictions have jurisdiction. 12- limitation to our Rule Court, appealed directly been to this 102(A)(1) “appeals from the provides that Ap- even after the creation of Court of in which a sentence of death district courts peals, crucial area of this Court retained this imposed” imprisonment has been or life jurisdiction. developed We have the entire Supreme taken to the Court. Sec- shall be body first-degree for of New Mexico case law 34-5-8(A)(3) indicates that the Court of tion cases, only it would create confu- murder jurisdiction Appeals appellate over crimi- has inconsistency for the rare case of a sion actions, “except judg- nal those which youthful offender convicted of first- serious imposes a ment of the district court sentence degree murder but sentenced to less than life (Emphasis imprisonment.” death life imprisonment proceed first to the Court of added.) a life sentence has never been While first-degree Appeals when all other cases imprison- interpreted to mean a sentence to directly unlikely proceed to this Court. It is nat- ment for the duration of the defendant’s VI, of Article that either the drafters Section life, interprеted mean ural it has been Constitution, or this of the New Mexico thirty years imprisonment pos- before the 12-102(A)(1), adopted when it Rule Court sibility parole sentence or reduction of considered, foresaw, or even this issue when good Martinez v. through time credits. See language limiting our mandato- adopting the State, 1305, 1306 jurisdiction appeals criminal ry appellate (1989). Defendant in this case was sen “[ajppeals judgment those thirty years imprisonment, tenced to imposing the district court a sentence of judge explicitly providing that he be eli Const, imprisonment.” life death or gible good case raises time credit. This VI, § to allow art. 2. It makes little sense jurisdictional unique issue whether first-degree murder to adults convicted of youthful offender convicted of first- serious Court, directly to force appeal to this degree murder is allowed to invoke our man juveniles convicted of the same crime to first appellate jurisdiction though he datory even appeal Appeals. to the Court imprisonment is sentenced to less than life “ afforded district court due to discretion duty ‘It is the of this court {10} youthful judges sentencing serious of when provisions interpret the various capital felony. fenders convicted of a carry spirit of that Constitution to out ” County Bd. Comm’rs v. instrument.’ youthful conclude that serious McCulloh, 210, 215, 1005, 52 195 P.2d N.M. first-degree convicted of murder offenders (1948) rel. (quoting 1008 State ex Ward this man shall be allowed invoke Court’s 617, Romero, 88, 100, 125 P. 621 17 N.M. jurisdiction datory appellate under Article (1912)). Furthermore, policy it of this VI, 2 Section of the New Mexico Constitution liberally so that to construe its rules 12-102(A)(1). Mexico, Court In New and Rule “[wjhoever appeal on be determined on their causes murder in the first de commits Insurors, Inc., merits. See Danzer v. felony.” gree guilty capital Section Prof'l 1276, 178, 180, 1278 101 679 P.2d N.M. a defendant has been con 30-2-1. “Whеn (1984); Sys., N. Am. 112 also Govich v. felony, pun see capital victed of a he shall be (1991); 230, 94, Lowe imprisonment N.M. ished life or death.” Sec 31-18-14(A). Bloom, 555, 555, Thus, law, 798 P.2d 110 N.M. tion under our (1990). Accordingly, we hold that seri- of this evidence on grounds, confrontation youthful ous offenders convicted of first-de- nor did he raise or general allude to gree murder shall be allowed to invoke this constitutional violations which occur would as mandatory jurisdiction result, Court’s under Article result of its admission. As a we do VI, Section of the New Mexico Constitution address Defendant’s confrontation con 12-102(A)(1). Thus, jurisdiction appeal. Mora, Rule cerns on See State v. 1997- ¶ proper NMSC-060, 1, 124 this case is and we review Defen- 47 n. 950 P.2d appeal (finding dant’s on the merits. preserve that defendant did not appellate confrontation issue for review timely object because he “did not

III. to the admission of [the deceased witness’s] state argument Defendant’s first is that the grounds, ment on confrontation nor did he by admitting tape trial court erred timely object general constitutional transcript of Ortiz’s out-of-court statements. grounds”); 2000-NMSC-003, Lopez, cf. argument point Defendant’s on this is two- ¶¶ 9-21, (review 128 N.M. 993 P.2d 727 (1) fold: the trial court’s admission of the ing defendant’s confrontation concerns after evidence violated Defendant’s constitutional determining that the confrontation issue had right against him; to confront the witnesses preserved been trial because defendant (2) ruling the trial court erred in that the objected inability to his to cross examine or evidence was admissible. witness). confront the A. B. first trial, At the State called Ortiz as tape transcript admission of Or eyewitness testify regarding the details tiz’s out-of-court right statement violated his shooting. On the stand Ortiz stated against to confront the witness him under the that he could not particular recall the details Sixth Amendment to the United States Con prosecutor of the crime. The requested then applied stitution to the States play court allow him to for the Amendment, Fourteenth and under Article tape July of Ortiz’s 3rd statement II, Section 14 of the New Mexico Constitu Detective gave Shawn which Ortiz a more that, result, tion. Defendant asserts as a detailed account of the events. Defendant admissibility of this evidence should be re objected tape being played jury, to the viewed de novo rather than for an abuse of claiming improper impeach discretion. Lopez, See State v. 2000-NMSC- ment and hearsay inadmissible under Rules ¶ 003, 10, 128 N.M. 993 P.2d 727. As a 11-613(B), 11-803(E), ll-801(D)(l)(c), 11- preliminary matter, we must first consider 11-803(X) 804(A)(3), and NMRA 2002. De question “pre whether Defendant spite objections, Defendant’s the court admit served the appellate confrontation issue for pursuant ted the evidence to Rules 11- Ross, (quoting review.” Id. State v. 803(E), U-803(X), 11-804(A)(3), and 11-612 1996-NMSC-031, NMRA 2002. 1087) (internal quotation marks omit ted). general rule, As a “Admis trial, At objected sion of evidence is entrusted to the discretion taped admission of Ortiz’s gen- court, statement on rulings of the trial and of the trial impeachment eral hearsay grounds. judge will not be disturbed absent a clear object he did not to the admission abuse of Worley, discretion.”2 State v. 100 agrees general 2. The dissent 11-803(X), that as a judge matter we the trial relied on Rule should judge defer to the though may discretion of the trial even it not have been the corner- matters, "[sjuch evidentiary argues on but ruling. stone of its The dissent cites to no au- case, deference ... has less thority support force in this where it its conclusion that less defer- is less than clear from the record that the trial ence is due when the trial court admits evidence 11-803(X) upon on, court relied ruling.” Rule rely in its principally under a rule that it did not ¶ Dissent 80. We think the contrary authority, record makes clear and without some we believe

717 723, 247, (1984); type expressly considered 720, 250 see statement is of a 676 P.2d N.M. ¶ 2000-NMSC-003, 10, by exceptions, 128 N.M. other but which does not satis- Lopez, Torres, 727; 410, fy exceptions Id. v. 1998- those establish.” P.2d State rules 993 ¶ 477, NMSC-052, 15, 971 P.2d has interpretation 126 N.M. This of the rule ‍​‌​‌​‌‌​​​​​‌​​‌​​​​​​‌‌‌​‌‌​​​​​​‌​‌‌​​​‌​‌‌​‌​‍narrow Stout, 29, 32, circuits, 1267; rejected P.2d by majority v. 627 State been (1981). 871, In to find that adopt jurisdiction. order we decline to it our See admitting Berger, trial court abused its discretion Margaret & A. 5 Jack B. Weinstein transcript 807.03[4], tape § of Ortiz’s interview Federal Evidence Weinsteins’s Shawn, ed., must conclude that with Detective we (Joseph McLaughlin M. ed. at 807-26 2d “ ‘obviously 2001) court’s was the trial decision initially (“Although there some ” erroneous, arbitrary or unwarranted.’ State meaning phrase, this debate about Brown, 1998-NMSC-037, ¶ 39, v. N.M. specifically fore- by any covered of the [‘not Stills, v. (quoting P.2d 313 State going exceptions,’] majority of circuits 1998-NMSC-009, 33, 125 N.M. 957 P.2d phrase that the means have concluded 51). that, if one is admissible under statement exception hearsay exceptions, of the found the trial court state residual should relied on instead of the be 11-803(X), admissible under Rule ment exception. hearsay If a is similar statement that it its we conclude did not abuse discre specific exception by those but defined admitting by statement under tion Ortiz’s actually qualify does not for under admission 11-803(X) hearsay Rule. Rule allows this the state- exception, these courts allow specifically if to be admitted not statements under ment to considered admission be hearsay exception by any covered other so agree exception.”). the residual While long “equivalent are as there circumstantial supply the cannot be rule used guarantees of trustworthiness” and the court missing which elements admit evidence that: determines almost, quite, require- meets but (1) statement is offered as evidence of specific exception, ments of it can be another fact; a material used admit out-of-court statements (2) probative the statement is more on indicia of trustworthiness otherwise bear than point for which it is offered other equivalent specific exceptions. to those other procure proponent which the can evidence words, In other “if a statement is inadmissi- efforts; through reasonable prior hearsay exception, the ble under (3) general these purposes rules may statement nonetheless be considered justice will best be served the interests exception.” under the catch-all admission of the statement into evi- admission Earles, 796, 800 113 F.3d United States dence. (8th Cir.1997). adopt If we were to analysis un- Id. The dissent that our rule, de- reading dissent’s of this we would 11-803(X) misplaced because this der Rule is probative evidence prive the of reliable “ exception ‘cannot read mean that be Ac- jury’s truth-seeking role. relevant to the almost, quite, hearsay fits an- which respectfully disagree with the cordingly, we specific exception, be admitted other reasoning point. dissent’s ” subsection____’ exceptions’ under the ‘other ¶82 Barela, determining “In whether (quoting Dissent sufficiently trustworthy the (Ct.App. statement 1982)). Rather, inherently urges, statement reliable the rule must the dissent Williams, 117 it time made.” State v. used in situation not con- “should be a novel (1994). “The ‘specifically N.M. and not the drafters sidered foregoing catch-all rules is whether the by any excep- test under the covered tions____’ the witness’s used out-of-court statement —not It should not be when 526, 527, Beachum, ruling 494 obligated also State v. N.M. to the trial court’s we are review ("A 188, (Ct.App.1972) decision of the P.2d abuse of discretion under the well-established any upheld right for Salgado, trial will be if it is See 1999-NMSC- court standard. State v. 5-11, 691, 661; reason.”). 008, ¶¶ see testimony guarantees danger circumstantial of misjudged, misinterpreted, that Ortiz —has trustworthiness.”3 This Court evening Id. has rec- what misunderstood he saw that ognized primary dangers hearsay impediments four of because there were no to his potentially hearsay perception which can present make state- and because he was throughout ment unreliable. the event.

They are: The dissent that concludes with re- (1) danger candor, Ambiguity spect danger, that mean- to the the second lack of —the ing by intended the declarant will mis- did in be Ortiz fact have a motive to lie and interpreted by the witness and hence the “therefore his statement lacked circumstan- (2) jury; guarantees danger Lack of inherently candor —the the tial and was untrust- ¶ (3) lie; consciously Faulty worthy.” will declarant Dissent 74. The essence of the memory danger argument that the on point declarant dissent’s this is that while —the forgets material; (4) simply key and Mis- one could that reason Ortiz not would have perception danger implicated family that the declarant member unless he be- —the misjudged, true, misinterpreted, or it to equally misunder- lieved be one could reason stood what he saw. that he had a motive to shift the blame from his cousin to Defendant because of familial 560, Id. (quoting P.2d at 21 retaliation, loyalty, fear presumed his Taylor, 103 N.M. 704 P.2d that culpable. belief his cousin would less (Ct.App.1985)). ¶¶ However, Dissent argument 75-78. this respect ambiguity, With to we con- adequately does take into account the danger clude that there is no that the mean- implicate fact Ortiz did not have to ing misinterpreted intended Ortiz will be Furthermore, cousin at all. if even Ortiz had taped because played the statement was believed culpa- that his cousin be less would jury opportunity and the had shots, ble he not the fatal fired one could interpret Ortiz’s statement rather themselves speculate he would have believed rely interpreta- than some on other witness’s culpable his cousin to be even less had he not candor, tion. As lack of we find fact any agree fired shots. While we that Ortiz not a suspect was subjective legal beliefs the declarant about and therefore had no reason to shift blame culpability can in determining be relevant away himself, implicat- fact admissibility Torres, hearsay, see 1998- cousin, Allison, statement, ed his own in his ¶ NMSC-052, 18, 126 N.M. likely placed and the that he fact himself 1267, Ortiz never testified as to what his family grave danger giving Detec- subjective beliefs and we refuse to en- physical tive description Shawn of the speculation gage point. See id. shooters, likely make it less that Ortiz would consciously have lied to Detective Turning Shawn to the other three criteria night. about what he required by Rule, first, observed that Similar- the statement ly, might danger faulty that Ortiz have a was offered as evidence of a material fact— memory here, present Ortiz identity Second, because of the shooters. gave just his statement probative hours after statement was more identity shooting. Finally, we find there little any was of the shooters than other evidence the Furthermore, 3. The dissent notes that the statement lacks cir- them. Detective Shawn also testi- guarantees cumstantial of trustworthiness be- fied that he believed Ortiz’s statement was truth- Shawn, "person cause Detective in the best ful because it was consistent with other wit- position gauge the testimony candor of the out court physical nesses' and the evidence event, lying statement” felt that Ortiz was him. Dis- found at the scene. In we do not ¶ respectfully agree sent 79. We person believe this conclu- that Detective Shawn is the in the First, position sion is gauge unfounded. the dissent’s discussion best the candor of Ortiz's state- suggests duty that Detective prelimi- Shawn fоund Ortiz's It ment. is the court’s to determine generally nary questions evidence, statement concerning untruthful. Detec- admissibility 11-104(A) tive testified Shawn that he believed was Ortiz see Rule NMRA truth, telling generally rulings but that he was with- Court reviews trial court's for an holding the actual names of the Lopez, shooters and abuse discretion. See 2000-NMSC- willing give physical description 993 P.2d 727. ” in that Id. Based on these procure through reasonable ef- statement.’ 27. could State facts, taped equivalent indicat- we that there cir- forts —in Ortiz’s statement find are guy” wearing a “big black guarantees that there of trustworthiness to ed cumstantial t-shirt, Allison, jeans presumably and black make under Rule this statement admissible wearing light jeans guy” “little blue 11-803(X) and a court’s and conclude that the trial Defendant, shirt, striped presumably and a that the was admissi- determination evidence guy” balcony and that the “little did on the erroneous, arbitrary, or unwar- ble was not trial, shooting. after Ortiz trial ranted. therefore hold that We danger gang appreciate the time to by court did its discretion admit- not abuse retaliation, testifying that it was and after ting tape transcript into evidence gang member and unacceptable to “rat out” a 11-803(X). under Rule family could he or one his members it, changed story killed for Ortiz IV. not repeatedly stated that he could recall 3rd, July shooting which on details argues next insuffi- probative taped statement the most made the supports cient evidence his conviction procured point on this that could be evidence first-degree on either depraved-mind murder Finally, gen- through reasonable efforts. accessory liability theory. De- principal purposes of rules and the interests eral these pre- fendant that the evidence by justice will best be served admis- suggesting was the sented at trial that he evidence, taped into statement sion of Ortiz’s improp- directly at one shot Mendez was who surrounding the state- as the circumstances erly before the court that no evidence equivalent to ment indicate trustworthiness finding supports that Defendant intended hearsay the other evidence admitted under Mendez he encour- that Allison shoot or that exceptions. aged unpersuaded him shoot. We are circumstances, Under these we find find that there arguments Defendant’s taped transcript statement convict was sufficient evidence at trial jury important consid- reliable first-degree depraved-mind er, identity of it went to the the shooters. murder. Furthermore, present Ortiz was and avail- cross-examination, which meant the able for sufficiency of the Under a jury observe demeanor and make could analysis, we first determine evidence must regarding own determinations Ortiz’s its a di “whether substantial evidence of either Sanchez, credibility. v. 112 N.M. See State sup rect or nature exists circumstantial (“In 92, 59, 65, (Ct.App.1991) 811 P.2d beyond port guilt a reasonable verdict admissibility ruling upon the of the state- every respect doubt element essential trial does not determine the ment the court v. 107 N.M. Sutphin, to a State conviction.” questions of the declarant’s credibil- ultimate (1988). “A instead, jury”); ity; province this is must the evidence reviewing court view 2002. see also UJI 14-5020 NMRA state, light resolv most favorable to the opinion in a this Court unan- note that recent ing indulging all all conflicts therein and court, un- imously concluded that the district in favor of permissible inferences therefrom facts, exact did not abuse its der the same Id.; Lankford, see also the verdict.” prior by admitting Ortiz’s state- discretion (1978). 1, 2, 92 N.M. 582 P.2d 11-803(X). under Rule State v. Alli- ment appellate duty has a “to determine court ¶¶ 27-31, son, 2000-NMSC-027, jury have found whether rational could Although did have 11 P.3d 141. we the crime to be established each element of analysis this issue and we extensive on beyond doubt.” State Gar a reasonable persuade that the defendant did us noted cia, otherwise, recognized that district (1992). in criminal verdict “[W]here found ‘that the circumstances of the “court evidence, the statement, supported ease is substantial proximity time to original appeal.” itself, reliability verdict will not be disturbed indicia of all are death, Anaya, N.M. State to cause each act is cause such a of (1982). death. See UJI 14-251 NMRA 2002. Depraved-mind killing is “the murder {24} dispute Defendant does not being by of one human another without law- shooting balcony act of from second floor excuse, justification by any ful group people greatly into a of was an act means with which death be caused ... dangerous to the lives of others. Defendant dangerous greatly act to the lives of dispute does that he this act knew others, depraved indicating regard- a mind greatly dangerous was to the lives of others. 30-2-l(A)(3). less of human life.” Section Rather, Hernandez, relying on offense, In order convict Defendant of (1994), 873 P.2d 243 prove beyond the State had to reasonable prove the State failed to that his doubt Defendant committed the crime of death, actions caused Mendez’s therefore fail- depraved-mind principal murder either as a ing to meet its burden as to the causation accessory. or an We find there was suffi- requirement. cient evidence to of convict Defendant first- Defendant’s on reliance Hernandez is degree depraved-mind murder either of case, misplaced. In that found that

these theories. depraved-mind shooting defendant’s acts of people

toward two at two different times distinguishable separate from the A. actually shot which killed victim. See id. at 245. The stated Court In order convict Defendаnt attempt [defendant, that “[t]he to disarm first-degree depraved-mind of murder as a elapse of time between the initial random principal, beyond prove the state had to shooting during strug- shot fired following reasonable doubt of each ele gle, apparent change in- defendant’s ments the crime: stopped tent when the random (1) discharged The defendant firearm house, and returned to his all us lead balcony apart- several times from the of an conclude there was no evidence that defen- dwelling; ment depraved-mind dant’s initial action caused omitted). (emphasis victim’s death.” Id. (2) The defendant’s act caused the death present None of those factors is in this case. Mendez; of Javier question There is no that Mendez’s death (3) The act of the greatly defendant was by depraved-mind act, was caused hail others, dangerous to lives of indicating balcony. ques- bullets from the depraved regard mind without for human jury tion for responsible was who life; the bullets that struck and killed him. trial, At the evidence showed that (4) The defendant knew act was Defendant and standing Allison were on the greatly dangerous others; the lives balcony opened second floor fire at a (5) happened This in New Mexico on or group gang of rival members below. Accord- July, day about 3rd Ortiz, ing to Defendant shot at Mendez first Ortega. and then let Allison shoot Canas and See 14-203 UJI NMRA 2002. Because cau- Detective Shawn testified that Ortiz identi- here, sation was at issue was also photo fied Defendant lineup from a as one of instructed that: shooters, but refused to have his re- which, The cause of is an death act in a sponse tape. Ortega recorded on testified events, natural and continuous chain that Allison shot at Mendez first and then produces the death without which the took gun Allison death would not have occurred. There shot at the other two. He also identified may be more one than cause of death. If Defendant as one of the shooters from a persons photo performed by the acts two or more lineup contribute Detective Shawn during of the crime is ence the commission again positively identified Defendant as enough, man- It true but rather some outward at trial. of the shooters one necessary to approval show align itself with two ifestation tends the evidence purpose or that Defendant shared Allison’s either De factual conclusions—that different intent. shot and killed Mendez. fendant or Allison the Court in State Ortiz- agree We Baca, 1997-NMSC-059, In State v. 1999-NMCA-146, ¶ 22, 128 N.M.

Burciaga, 15, 124 conclud 950 P.2d 96, however, a that under sub guilty ed that in order to find the defendant review, is the ‘exclusive “[i]t stantial evidence first-degree depraved- accessory to as an jury’ to factual incon province of the resolve show, required murder mind the State was testimony.” will not re We sistencies circumstantial evi through “either direct or weigh judg or our the evidence substitute dence, principal] [the committed ‘an act that Sutphin, jury. See ment that of the for greatly dangerous to lives indi the of others P.2d at conclude N.M. at 1319. We depraved regard cating without for mind find, jury from this that a rational could accomplice] [the that human life’... and also testimony, beyond reasonable doubt that princi encouraged or caused’ ‘helped, [the shooting into the crowd Defendant’s act of act, intending pal’s] that the crime occur.” caused Mendez’s death. (citations omitted). the Id. Based on evi below, we conclude the dence summarized B. evidentiary is met burden. There its Defendant also have been findings support that sufficient evidence first-degree depraved-mind (1) mur convicted of greatly danger committed an act Allison accessory (2) crime. In order others, knowing der the ous the lives of that theory, the to convict Defendant on great bodily or the a risk of death act created that, though prove even Defen State had harm, depraved-mind, which indicated a constituting (3) others, dant did not commit acts regard without lives act, crime himself: helped him commit that and Defendant (4) purpose Allison’s that Defendant shared 1. that the crime The defendant intended design. or committed; be committed; [and]

2. The crime was Ortega trial that he and testified at encouraged helped, or 3. The defendant gang Maravilla members fellow Juaritos the crime to be committed. caused doing in they were were asked what standing by people sec- Barelas barrio 14-2822 2002. Defendant ar- UJI NMRA balcony. apartment ond-floor He stated gues is evidence to estab- there insufficient answered, anywhere beyond a could be one and three rea- Mendez ‘We lish elements want, Juaritos,” immediately thereaf- for we and doubt —that Defendant intended sonable at from the ter were fired down them Mil and that shots Allison to shoot and Mendez above, balcony. As there was con- helped encouraged him to discussed or do Defendant first, Alli- flicting testimony about who shot testi- it. maintains that the Defendant Ortega son Defendant. both mony regarding sequence of events sur- or one of the two men shooting Ortega indicated that rounding from who Ortiz multiple first Mendez and then other shot at testified that Allison shot at Mendez immediately Ortega Fur- at and Canas. gun and shot times Defendant took the before thermore, as one identified Defendant Ortega. both Defendant shot towards Canas lineup “Javier, photo from shown presumably, long of the shooters argues had night run, Shawn in all them Detective ‍​‌​‌​‌‌​​​​​‌​​‌​​​​​​‌‌‌​‌‌​​​​​​‌​‌‌​​​‌​‌‌​‌​‍likelihood since turned first, the shooting. Regardless of who shot already hit bullet” been fatal clearly supports an inference that began shooting. evidence He as- when Defendant caused, encouraged, helped, Defendant no showed that Defen- serts that evidence shooting committed. inten- intended that anything knew about Allison’s dant taking gun action encouraged Allison to shoot Defendant’s tions or that he shooting clear evi- pres- continue the Allison to Defendant that mere Mendez. accessory liability. dence The finder dwelling occupied fact Defendant shot at a or reject building. “can version of an defendant’s He asserts that there was no evi- Vigil, any any incident.” State v. dence from witness that shots (1975). per- any building any are were directed We merely present building. suaded Defendant was bullets hit State asserts shooting. discussion, during citing find that there was without and without record, sufficient evidence a rational to find evidence in the that Defendant “will- beyond fully discharged a reasonable doubt that gun occupied at an caused, helped, encouraged, apartment building.” Viewing intended the evidence light State, which in the most resulted Mendez’s death. favorable to the resolving indulging per- all all conflicts and for the liable crime of uphold missible inferences to a verdict of first-degree depraved-mind murder whether conviction, find that there was no evi- or he appears fired the fatal shot. It jury’s support dence to conclusion that rejected jury that in this case the Defen- dwelling occupied Defendant shot at a or incident, dant’s version we will not Garcia, building. See 114 N.M. at judgment jury. our substitute for that of the P.2d at 867. exists, that We hold sufficient to evidence first-degree affirm Defendant’s conviction “Shooting dwelling occupied at a or {35} depraved-mind principal murder on either a building willfully discharging consists of a accessory liability theory. or dwelling occupied building.” firearm at a or 30-3-8(A) added). (emphasis Section In or- V. guilty, der to find the Defendant the State prove beyond to a reasonable doubt that charged Defendant was {33} willfully a a shot firearm at dwell- conspiracy convicted of to commit a first- ing occupied building. or an See UJI14-340 degree depraved-mind murder. The State NMRA 2002. evidence at trial revealed that concedes this conviction must be vacated apartment that shots were fired from an explicitly because Court has held balcony courtyard downward a into area. cognizable this is not a in crime New Mexico. Necessarily, apartment there were other Baca, agree. 1997-NMSC-059, 51, See buildings Nevertheless, vicinity. in the (holding N.M. that a put no forth evidence from which the conspiracy conviction to commit first-de jury any could infer that of the shots from depraved-mind gree murder could not stand any any shooter were at directed or hit build- under current law conspiracy case because ing, any nor it cite in briefing did to its to requires agree both to intent and intent to Ortega this Court. testified that the shots object commit offense which of the Mendez, were first directed at and then at conspiracy depraved-mind is an murder gave himself and testimony Canas. He no killing resulting highly unintentional from any that shots were fired direction other behavior); Varela, reckless State v. cf. standing than towards four men at 1999-NMSC-045, ¶ 42, ground level. Della Gonzales also testified (refusing P.2d 1280 to holding extend Baca’s that she heard noise bullets prohibit to conspiracy conviction of nearby apartment but that she did not hear shooting dwelling requires commit at a which striking the noise of bullets a surface or willful, behavior). reckless, rather than Ac building. Detective J.D. Herrera stated that cordingly, we vacate Defendant’s conviction findings physi- were consistent with other accompanying nine-year pris concurrent cal evidence that tended demonstrate that on sentence for this crime. the shots fired downward. There nothing in his statement VI. indicated any of the shots had been fired at Defendant next that his building. relating convictions for all counts dwelling at occupied building or must be It absence evidence on this reversed point because there was no evidence that convinces us that Defendant did errors, dwelling proceeding fessional result willfully discharge gun at ” Brazeal, different.’ would have been building agree or with another occupied or 757-58, (quoting at at 1038-39 there- crime. We person to commit such 2052) Strickland, 466 U.S. 104 S.Ct. at con- convictions for fore Defendant’s reverse omitted). (internal dwelling citation or shooting at a spiracy to commit harm), bodily con- occupied building (great following Defendant claims dwelling or shooting at a spiracy to commit performance counsel’s re- flaws defense injury), occupied building (resulting in shoot- counsel was sulted ineffective assistance: (no building dwelling occupied or ing aat trial, he failed to review unprepared to start shooting at injury), conspiracy to commit selection, prior jury questionnaires he (no injury). building dwelling occupied Ortega, complete interview with failed of, interview, presence secure the he failed to VII. until time as continuance such or secure a he claims that received located, object could be failed Canas every assistance counsel ineffective hearsay statements, he elicited prejudicial proceedings. He stage the trial asserts against prejudicial his own highly evidence performance, viewed counsel’s that defense client, challenge he failed to an indict- reasonably cumulatively, of a fell below crime. assum- ment for a nonexistent Even competent attorney his de- prejudiced per- competent would not have ing counsel of Defendant’s alle- fense. review each manner, in we do not find the such formed of gations ineffective assistance counsel of necessary prejudice.

individually considering in to their addition argues even that the Defendant first effect. cumulative acknowledged from in case State this ineffective, stat- his counsel was has the outset that Defendant burden you here is ing: have ineffectiveness showing counsel. “What ineffective assistance ¶ 24, crusading Baca, 1997-NMSC-059, as someone who wants 124 N.M. of counsel See in 333, disqualify participation me from this is to P.2d “Assistance counsel 950 776. today, proceed to prepared He not the defendant case. presumed effective unless apparently This comment was was not rea Your Honor.” both that counsel demonstrates to by prosecutor response in de- made competent counsel’s incom sonably and that one-day request for a continu- prejudice.” fense counsel’s petence caused the defendant 221, 229-30, be in Gonzales, comment must considered 824 ance. This 113 N.M. State v. made; it occurred (1992). 1023, the context in which it “[T]o establish P.2d 1031-32 counsel, exchange during a between de- heated the defen ineffective assistance in which attorney prosecutor, lapses by ... trial fense point specific to dant must 752, that the Brazeal, informed court defense counsel counsel.” State v. 1033, committed an assault prosecutor had (Ct.App.1990). 1038 eyeglasses whether, battery by removing in on him “The then determine court must during a witness interview. circumstances, his face from light all thе identified requested continuance wide Defense counsel were outside the acts omissions or upset by he was so he claimed that range competent assis because professionally proceed he he could not incident that felt Washington, 466 U.S. Strickland tance.” of their day. we remind counsel While L.Ed.2d S.Ct. counsel, civility professionalism un- (1984). However, obligations of “[a]n error Conduct, unreasonable, see the Rules Professional der professionally does even if are not Rule 16-804 NMRA we judgment e.g., of a setting aside warrant incident, the trial this persuaded had if the no effect proceeding error criminal continu- request for a 691, 104 judge’s denial of the 2052. judgment.” Id. S.Ct. on the ance, to Defendant. prejudice in resulted Accordingly, must still affirma “defendant Furthermore, just prosecutor words, because tively prejudice. ‘[t]he In other prove to ineffective thought counsel defense reason must show that there defendant it so. that, unpro- not make but counsel’s does probability able tion, questioned next defense counsel Detective jury question Ortega’s trial counsel failed to review alleged Shawn about statement to Landaras, prior jury specifically attacking naires selection. While counsel his failure to hearing follow-up admitted at the November on this information known one up detectives, picked question that he those had of his Detective Martinez. Coun- naires, specifically dur Ortega alleged he referred them sel’s failure ask about ing dire, indicating voir that he had reviewed inconsistent identification could have been a may not had much strategy. ques- them. Counsel have rational trial If counsel had jury questionnaires Ortega time to review as he tioned about this statement lilted, it, making would have record indicates stand and he had denied Defеn- thoughtful theory that he in fact conducted a voir dant’s of the case could have been engaged dire in active by bringing which an discus weakened. this evi- panel. Shawn, sion with the has through identi dence Detective Defen- prejudice resulting no police fied lack of argue dant was able did preparedness, any. inadequate investigation, nor do find potentially leaving with reasonable doubt as to the Defendant also claims that his attor- identification of the shooters. As noted ney complete failed to his interview with Swavola, Ortega. Defense counsel told the court 1238, 1241 (Ct.App.1992), prima “a facie case Ortega he was not aware and Canas ineffective [of assistance] is not made when been arrested on material witness warrants plausible, strategy rational or tactic ex can until some ar- time after two had been plain the conduct of defense counsel.” We rested, prosecutor but that he and the did find that question defense counsel’s failure to Ortega conduct an interview which Ortega alleged about his statements Lan eventually animosity due be- broke down challenge daras and his failure his conflict lawyers. tween the It is evident from the ing explained identifications can be as a ra judge recognized record that the trial that strategy tional trial and therefore conclude attorney completed the defense had not his acting that defense counsel was with reason point that interviews at and made ar- some and, event, competence, in able did not rangement complete him prior for to them to prejudice Defendant’s ease. opening Although appears statements. it Ortega that not defense counsel did interview We next consider Defendant’s statements, prior opening to thе court noted argument that defense was counsel ineffec that it would allow counsel to finish inter- failing interview, in tive pres to secure the viewing him he took before the It stand. of, ence secure or a continuance until such seems clear from the record that defense time as Canas could located. Defendant Ortega, by counsel did interview as indicated supports argument his with his own counsel’s judge’s the trial statement: “In reference to statement, “If I would have been able to interview, the that I’m not much con- so Jesus, put oath, interview him under cerned about that because was conducted out could have had a statement here ... I’ve So presence jury interview, the the above, been in thwarted that.” As noted Ortega, happened.” at least Mr. with We Ortega brought Canas were arrested and nothing find in the record to indicate that in on shortly material witness warrants be defense counsel did not avail himself of this However, fore trial. the court then released opportunity. men, authority keep two unsure its to holding Defendant also claims in his trial them detention. counsel Defense attorney Ortega question apparently timely failed to they about his was not informed that alleged and, therefore, statement his brought to friend Landar had been Juan did not night shooting, as on the that a opportunity third have an to interview them at Güero, Defendant, person, later, not Little was that time. At the start of trial a week court, challenge shooter and that counsel to appear failed did not Canas and it was Ortega’s conflicting apparently identifications of the later that he had learned fled However, court, during During argument shooters. cross-examina- Colorado. to the alternative, al, in the in- what had for curative counsel discussed Canas defense struction, after was for argued dismissed that Canas’ told Detective Shawn day, arguing ov- that the statement was that was “bald” was statement the shooter erly prejudicial. judge trial denied both hair. exculpatory because his client had short following finding: motions and made the argued that the “issue counsel also Defense so forth baldness and shortness and about all, very many jurors I think First don’t ad- have been used to defendant’s could all, I it. Second of think it would be heard doing actually vantage as to who was your disadvantage for me reiterate arguing shooting.” addition to really they it was because then will what excul- portions Canas’ statement were allegedly on the that he focus fact patory, acknowledged that defense counsel buying handgun. going I’m to leave So inculpatory. portions of his statement it alone. I’ve instructed the State And dispute not the ac- Defense counsel also did open that did the door and I don’t not following argued to curacy of the statement pursued, that’s I’m want that far as court State: go. you going to I think are stuck with say strategy in the Mr. I would interviews there. [co-defendant Charlie Allison’s DeVoe suggest find no evidence to that defense [sic] with Mr. Huero counsel] conducted purposely an- counsel elicited the Detective’s Canas, two Mr. Mr. DeVoe showed the swer, coming. it or could have known was arrays Trujillo Ig-

photo of Allison and Moreover, jury’s counsel did draw the [Ortega] they reaf- uado and Canas and it, not repeated it was attention firmed their both defen- identification Although prosecutor. counsel or request. at Mr. dants DeVoe’s prejudicial statement have some Moreover, effect, Defendant did demonstrate Defendant has not demonstrated in, that had his counsel moved a continuance not come had this statement thе result located, motion until Canas could be different. proceeding would have been Gonzales, granted. e.g., would have been See Finally, de- (finding P.2d at 1032 challenge indict- counsel’s failure to fense prevail in order on his ineffective conspiracy depraved- to commit ment for claim, had to of counsel defendant assistance murder, crime, a non-existent constitut- mind demonstrate that had counsel moved first disagree. De- per se ineffectiveness. We ed severance, motion have been would conspiracy charged to com- fendant was Thus, though granted). even he failed 22, July on 1997. depraved-mind mit murder interview, of, presence secure a secure the or 1997, 13, this Court filed its On November located, it until Canas could be continuance Baca, 1997-NMSC-059, 51, 124 opinion in undisputed portions that at least of appears 333, 776, holding conspir- 950 that N.M. P.2d testimony highly have would been Canas’ is not acy depraved-mind to commit murder persuaded that inculpatory, we are cognizable in New Mexico. Defen- a crime testimony sufficiently have been his would go did to trial November dant’s case until acquittal. exculpatory to in an result 9, 1998, nearly year to leaving counsel a crime. challenge the this argues that de indictment object challenge this prejudicial Certainly failure to counsel failed to counsel’s fense prejudiced his preju Defendant as to hearsay highly and elicited indictment statements con- crime. this against his own client. He conviction this evidence dicial vacated, has testimony during has been and Defendant came out viction claims that timely had he chal- that examination of Detective not demonstrated defense counsel’s Shawn, lenged this he would have been during asked indictment which defense counsel Thus, acquitted of other cоnvictions. open-ended question one of about Shawn assuming reasonably competent attor- responded a interviews. The Detective even timely objected, ney “Silly gun, him a .25 would have tried to sell a that “ coun- ‘but for on with has not demonstrated Defense counsel moved caliber.” errors, the of the unprofessional result questions then moved for a mistri- sel’s other 726 ”

proceeding have Id. of would been different.’ son.” Our resolution this issue “rests Brazeal, 757-58, prosecutor’s at P.2d at improprieties on whether Strickland, (quoting persuasive prejudicial 1038-39 U.S. had such a effect 2052). jury’s 104 S.Ct. on verdict that the defendant was deprived of a fair trial.” Id. proceeding the entire We consider as judge any a whole and claim ineffective- “ Defendant first on counsel’s conduct so un- ness ‘whether prosecutor engaged by in misconduct functioning proper dermined the of the ad- failing to disclose material evidence to the process that the trial cannot be versarial ” properly preserved defense. Defendant having produced just relied result.’ timely objection issue at trial. Defense Richardson, State counsel, in prosecuto a motion to dismiss for (Ct.App.1992) (quoting Strick- misconduct, alleged rial two instances in 2052). land, 466 104 S.Ct. U.S. at provide which the failed to State material alleged failings conclude that of counsel evidence to the defense. Defendant first al in this case not result in do ineffective assis- leged that provide the State failed to accu regardless they tance of counsel of whether Mendez, “rap Ortega rate sheets” on individually cumulatively. are considered or

stating that neither record showed history VIII. men though two had criminal even testimony presented at trial indicated that argu- We next address Defendant’s previously in Springer Boys both been prosecutor engaged prose- ment or “D Home home.” Defendant also deprived cutorial misconduct him a provide claimed that State failed to fair prose- trial. Defendant asserts that the July booking photo taken of Defendant short cutor’s failure to disclose material evidence ly after his arrest. The has an affirma defense, improper leading ques- to the use duty “any tive to disclose material evidence tions, improper hearsay introduction evi- favorable to the defendant which the state is dence, inflammatory use of and irrelevant required produce process under due evidence, improper argument, distorted clause of the United States Constitution.” the evidence on the crucial issue of identifica- 5-501(A)(6) Rule NMRA 2002. The United allega- tion. We review each of Defendant’s Supreme States Court has held that “the prosecutorial individually tions misconduct suppression prosecution of evidence considering addition to their cumulative upon request favorable an accused violates conclude, however, effect. We al- process due where the evidence is material leged prosecutorial instances misconduct guilt or punishment, irrespective either to in this case do not rise to the level of revers- good or prosecu faith bad faith of the regardless ible or fundamental error Brady Maryland, tion.” 373 U.S. they individually whether are considered (1963). 83 S.Ct. L.Ed.2d How cumulatively. ever, Brady “[e]videnee material under ‘only that, if probability there is reasonable A. had the evidence been disclosed to the de prosecuto When an issue of fense, proceeding the result of the would properly preserved by rial misconduct is ” Baca, have been different.’ State v. 115 objection trial, timely at we review trial the 541, 536, 363, N.M. 854 (Ct.App. P.2d 368 ruling court’s on this issue under the defer 1993) (quoting Bagley, United v. States 473 ential abuse of discretion standard because 667, 682, 105 U.S. S.Ct. 87 L.Ed.2d 481 “trial in position the court is the best (1985)). analysis, In our any significance alleged pros evaluate the of Duffy, ecutorial errors.” State concentrating v. 1998- must sup- we avoid on the ¶ NMSC-014, 46, 126 Rather, pressed N.M. 967 807. P.2d evidence in isolation. “The trial place court’s determination of these must in it the context of the entire questions will not be may disturbed its record. appear unless Evidence that first ruling arbitrary, capricious, is beyond quite or rea- compelling be when considered alone appellate court weighed preclude shall the potency and rule not lose when can its discretion, evidence, ques considering ... the both its all other measured with involving: ... error or Implicit in fundamental inculpatory exculpatory. tions see materiality rights party.”); notion of of is the fundamental standard the Allen, 2000-NMSC-002, ¶ 95, any particular bit of significance the N.M. by com- ris P.2d “Prosecutorial misconduct evidence can determined 728. rest. error when it parison to the level of fundamental es persuasive egregious so and had such is (10th Sullivan, Trujillo v. 815 F.2d jury’s prejudicial effect on the verdict Cir.1987). deprived a fair ‍​‌​‌​‌‌​​​​​‌​​‌​​​​​​‌‌‌​‌‌​​​​​​‌​‌‌​​​‌​‌‌​‌​‍the defendant was judge The Defendant’s trial denied isolated, impropriety An minor ordi trial. came on the basis that it motion to dismiss reversal, narily warrant is not sufficient to “swearing two match” between the down to per necessarily a fair trial not because attorneys prejudice to the and she found no Allen, 2000-NMSC-002, 95, 128 fect one.” not find the trial court’s do Defendant. We (internal quotation arbitrary, capricious, or be- to be decision omitted). De Because marks citations indicated that as yond reason. court properly preserve did the follow fendant shooter, identity Defendant was review, ing appellate we review issues for prejudiced could have tes- because Canas error. them fundamental bald, “but at the that the shooter was tified elicited information time he have same person’s Silly [De- that bald name Ortega on the cru prosecutor improperly led gone It have ... ei- alias]. fendant’s could identification, undermining the cial issue of way, prejudice again, the ther violating truth-finding process principles defendant, just agree it.” I don’t see alleges fundamental fairness. Defendant rec- in the of the entire that viewed context pros leading questions asked ord, nothing had the to indicate that there is Ortega questioning dominated the ecutor disclosed, the July booking photograph been merely attempt lay a and were not proceeding would have been result cojole a hostile or timid wit foundation or persuaded that are also not different. We specifically ex cites to two ness. Defendant attorney re- the defense received the had cerpts in record he claims rap Ortega’s that contained quested sheets conviction which crucial Defendant’s juvenile history, Mendez’s difference testimony on improperly elicited prosecutor would have resulted. While in the outcome example, For issue of identification. be- prosecutor cannot hide information prosecutor asked: State, Kyles see hind other arms many you Q. Do know how shots Charlie Whitley, 115 S.Ct. 514 U.S. fired? (1995), 131 L.Ed.2d Like A. two. juvenile rec- knowledge men’s of these two gun? Q. Silly took the And then over here any prejudice and has not demonstrated ords A. Yeah. failure to resulted from the State’s which Accordingly, we information. provide that Q. And fired rest? its did not find that the trial court abuse us,At A. at Javier and Jesus. motion it Defendant’s discretion when denied Similarly, later asked: prosecutor based prosecutorial misconduct to dismiss for you court- Q. Silly here As look discovery these two violations. on skin today, room skin —the it back than was face the same different B. then? has not been When issue A. same. by timely objection at preserved properly you pimples or acne Q. And see like do trial, to review the claim we have discretion on face? scars 12- error. Rule appeal for fundamental on 216(B)(2) (“This Yes. [preservation] A. NMRA following excerpt preceded the be used on the direct examination of a wit- by

both except necessary develop of those identified Defendant and ness clearly Ortega Orona, testimony.” demonstrates that the In identified witness’s State v. (1979), the as the second shooter without improper testimony that, the Court prosecutor: from concluded under 11- the Rule 611(C), “[developing testimony by the use of Q. said, “I go any- And after Javier can leading questions distinguished must be want, Juaritos, where I ... hap- what substituting prosecutor the words of the pened? testimony the of the witness.” The Court They shooting. A. started found that trial court “abused its discre- Q----[H]ow many people gun? shot the tion in a manner principles such as to violate A. Two of them. permitted fundamental fairness” after it Q. you people see Do one of those every describing alleged word offense to today? courtroom prosecuting attorney come from the rather Id, There, than

A. from the witness. Yes. after the witness stated she could not recall exact- Q. he? Where is ly happened, prosecutor, what in- over Right A. there. court, struction from the lead the witness evidence adduced at trial which Q. you do him And what know as? support charge would of criminal sexual Silly. A. penetration first-degree. in the At point led,

the trial court allowed the witness to be and the “direct examination continued with Q----[H]ow shooting did this start? prosecutor graphically describing sexual just they just A. he When —when like — acts of by way leading defendant ques- said, shooting started when he “Juaritos.” tions, gave to each which the witness said, anywhere When he “I could be I ” Id, simple ‘yes.’ answer Unlike the testi- want, Juaritos,” they just shooting. started Orona, mony prosecutor in this case Q. gun Who shot first? did not substitute his words those A. Charlie. Ortega. quoted above, Ortega As told the

story Thus, own words. even assum- Q. Now, you ing prosecutor improperly said Charlie started shoot- led the wit- ing excerpts Defendant, ness in first. Did fire all shots? identified prejudice we find no to Defendant on the A. I don’t think so. Accordingly, issue of identification. we con- Q. happened? What What did he do? prosecutor’s leading clude that the questions shooting, A. He guys and these over did not constitute fundamental error. gun away here took the from his hands Defendant next shooting started at me and Jesus. prosecutor improperly damaging elicited Q. Now, at, who was Charlie if hearsay testimony on the issue of identifica you know? tion. improper He claims that it was for the A. Javier. prosecutor question Detective Shawn re Q. And who gun away then took the from garding his identification shooters. Charlie? Canas was arrested a material Silly. A. witness warrant but was not interviewed Q. And then where did he shoot? apparently jurisdic- the defense and fled the A. At Aaron. me and prior tion During prosecution’s to trial. concedes, As the Defendant himself Shawn, direct “[w]hen examination of Detective speak freely, clearly allowed to prosecutor Juan testimony testified elicited that indicated that Charlie Silly shot Javier and then shot he had eyewitnesses interviewed three to the 11-611(C) at him and Rule shooting: Ortega, Ortiz, Jesus.” NMRA and Canas. He “Leading questions states: should not then that all testified three identified both De- the State also introduced evidence that as the shooters and and Defendant Allison only night of gun interviewed Ortiz the they all told him that one tective Shawn had that timely to shooting, although Ortiz was reluctant counsel did the used. Defense was shooting testify the details of the or his object questioning. to line about this of The also pre- at trial. State object prosecutor prior asked statement when the did descriptions of there was a verbal ex- evidence that Detective about the witnesses’ sented Allison, during change Defendant and Men- prosecutor’s between acne and Defendant’s testify gang as to and that some identification attempt have the Detective dez to shooting. prosecutor The prompted from the identification of Defendant Canas’ aligned objec- sought to was array. In instances the show that Ortiz photo both sustained, limiting Barelas, gang. no not the Maravilla but instruc- Juaritos tions were inextricably find such evidence was requested. was that tion We of part the State’s case. agree Detective Shawn’s that We of regarding identification statements Canas’ current, former, or Ortiz’s hearsay testimony. improper Defendant was gang impor was membership the Barelas conclude that these references we First, for two reasons. Ortiz’s fear of tant deprive statement did not Defen- to Canas’ credibility, by showing to retaliation went his testimony jury of fair trial. The dant including the he had valid that reasons — eyewitnesses, two Ortiz and Orte- other safety and his fami well-being of himself findings guilt. Ortega support of ga, that its being candid his ly less than about cous —for that unequivocally testified Defendant and in the in’s and Defendant’s involvement shooters, jury Allison was were Second, “ranking trial. Ortiz’s opportunity pri- to given the consider Ortiz’s plausible gang of Bаrelas offered a out” Thus, effect. we con- or statement quarrel; his explanation for the start of the references clude that Detective Shawn’s objected showing comrades Ortiz former sufficiently testimony preju- Canas’ up disgrace. at the scene of his More back finding require of fundamental dicial over, statement, opening the defense error. attorney completely forthright about De was affiliation, stating that “there gang fendant’s asserts that Trujillo gang is a question that repeatedly asked inflamma no Chris prosecutor Ortiz is say on to expe Defense counsel went tory questions and irrelevant about his member.” “nobody going room is to think gang this member and fear riences as Trujillo Boy is retaliation, jurors’ or Mr. serving prej that Mr. Allison to arouse the certainly guilty by ... can’t avoid issue We and make Defendant look Scout udices something responds gangs, about to this ar involves association. drugs, certainly violence.” Defense prosecutor some by claiming that “the gument spectrum gang spoke of a pains counsel also great to neutralize bad went involvement, trying gangs to demonstrate to feelings jurors may have had about Boy not a judge jury that while Defendant was repeatedly cautioned the Scout, “for trial, gang he also not a member only At was case on its facts.” death, acts, destruc profit, criminal judge the State could introduce ruled tion, dealing, Al drug intimidation.” relating gang [or] and affilia names evidence “guilt by recognize danger though tion, scope purpose of and the limited gang member testimony when evidence so it would be admis association” introduced, motive, ship evidence admissi such probative state sible “insofar it’s mind, important intent, things.” to show other elements ble and those sorts crime, examination, or intent. See State he such as motive Ortiz testified that On direct Nieto, 2000-NMSC-031, ¶ 25, 129 N.M. basically up in born grew Barelas was expert testimony on (finding he 12 P.3d 442 gang. in the stated that and raised He specific affiliation gang ritu up gang members when defendant’s other beaten gang was admissi longer procedures of that was no als he was ranked out because motive). above, alleged to show defendant’s hanging As ble out with them. discussed 730 gang membership that Defendant’s strate

conclude the existence circumstances that by undisputed was the defense and that implicate the ‘shock the conscience’ or a funda gangs system evidence of to the State used extent mental unfairness within the judicial integrity that it was relevant to its ease. We there- would undermine if left un Cunningham, no error. checked.” fore find 2000- ¶ NMSC-009, 21, 128 711, N.M. 998 P.2d 176. prose- Defendant next claims that the {59} jury The had before it evidence from two injected improperly opinion cutor own eyewitnesses other that identified Defendant closing during arguments the definition of as one of the shooters. Because we find “shooting dwelling “at” at a or occupied for in support substantial evidence the record to building” charges. We do address this convictions, Defendant’s and because Defen argument since we have reversed Defen- dant failed demonstrate circumstances charges relating dant’s as to all convictions that “shock the conscience” or show funda shooting dwelling occupied building. at or unfairness, mental we find no fundamental Defendant’s final claim is error. prosecutor “aggravated damage IX. closing by repeatedly referring in to Jesus’ ‘story1 though identification” and it were Defendant next asserts that the mul- properly jury valid before for .evidence tiple conspiracy charges and convictions vio- prosecutor In closing consideration. late Jeopardy the Double where Clаuse there made two references to Canas’ statement: any agreement, was no evidence let alone you balcony. Let take me This is separate agreements support separate happened, where it and that sounds like a charges. disposition Because our of De- story consistent and that comes from Ca fendant’s convictions for conspiracy to com- Ortiz, Iguado you nas and and don’t dis depraved-mind mit conspiracy murder and and try count that throw that out and dwelling commit at occupied story you’re if derive Detective Shawn building, conspiracy remaining con- conspiracy aggravated

viction is to commit Thus, battery. we do not address Defen- The reference second came the middle of jeopardy argument. dant’s double We find argument about the consistent statements support sufficient evidence to Defendant’s Ortega and Ortiz: conspiracy one ag- conviction commit expect completely You’d two different sto- gravated battery and affirm this conviction. theory if everyone ries we believe this gangs lies. But what Detective Shawn Conspiracy specific ais in found was consistent. Also the statements Baca, 1997-NMSC-059, tent See crime. skinny, of Canas was that a thin Hispanic ¶ 51, 333, 124 N.M. 950 P.2d “In 776. order guy acne up balcony with was on the and a to be of conspiracy, convicted the defendant big-boned, heavyset guy ponytail requisite agree must have the intent significantly bigger thin Hispanic than the the intent to commit the offense that is the guy up balcony was on the and those are object Varela, conspiracy.” 1999- guys the two who killing. committed the ¶ NMSC-045, 42, 454, 128 N.M. 993 P.2d ¶ agree Baca, “We 1280; 1997-NMSC-059, with Defendant that it [was] im- see also proper prosecution to refer agreement P.2d 776. The Allen, verbal, to matters outside the record.” 2000- neеd not be be shown to NMSC-002, exist acts which demonstrate Viewing prosecutor’s 728. alleged co-conspirator partici statements in knew Deaton, pated context facts individual and cir- scheme. See State case, however, (1964). of this cumstances we do not N.M. they persuasive agreement may find that such a circum established prejudicial jury’s effect on verdict that stantial Id. evidence. at P.2d at 967. deprived fair trial. Ortega “Par- Both and Ortiz indicated that one of alleging Mendez, ties fundamental error must demon- two men first shot then gun off to the other who XI. was handed Ortega At immediately Canas. shot at Lastly, Defendant claims trial, Ortega positively identified thirty year sentence constitutes cruel shooter, stating that he took as the second punishment in violation of the and unusual began Allison shoot- gun away the and Eighth Amendment to the United States According ing Ortega Canas. to Or- at and II, 13 of the Constitution and Article Section statement, Alli- resisted tiz’s after Defendant However, as New Mexico Constitution. De gun, told the request son’s for the below, it did not raise this issue was fendant below, jok- guys I’m four “You think down preserved appellate properly for review. not Furthermore, shooting. ing,” began non-jurisdictional in not raised the claim “[A] Ortega the both Ortiz and indicated properly court is not reviewable on lower the result a verbal conflict was Burdex, 197, 201, appeal.” v. 100 N.M. State gang Ortega competing members. between 313, (Ct.App.1983) (finding P.2d 317 de 668 the balco- testified that he heard someone on claim of cruel fendant’s constitutional ny they doing in ask were their them what punishment not asserted at the unusual was meaning the Barelas barrio —and barrio — properly court and was therefore not trial Canas, talking Ortega was preserved appeal a claim for because such is above, Mendez, As noted Men- all Juaritos. non-jurisdictional).4 therefore We review anywhere responded, go dez then “we can we claim for fundamental error. Defendant’s want, passing find that the Juaritos.” We gun Allison the between and Defendant Defendant asserts of a verbal conflict between evidence disproportionate to his ‍​‌​‌​‌‌​​​​​‌​​‌​​​​​​‌‌‌​‌‌​​​​​​‌​‌‌​​​‌​‌‌​‌​‍sentence was involve immediately pre- competing gang members in as ment the crime evidenced fact ceding shooting is sufficient evidence jury did him of willful not convict beyond find reasonable a rational murder, aggravated or of bat and deliberate doubt that either words or acts there Mendez, tery against rather of first- agreement at men located but an to shoot murder, balcony deadly weapon. degree depraved-mind which meant below the Allison, jury clearly not believed Defendant, shot the shots. Defendant fatal X. facts, find that of these urges us to because time of he was a child at the and because that cumula crime, disproportionate his sentence is so as requires tive in this case. eiTor reversal general “violate to “shock conscience” “In cumulative New Mexico doctrine of unfairness.” principles of fundamental Stills, strictly applied.” error 1998- is may acknowledge that consti “[a] sentence ¶ NMSC-009, 51, 66, 125 N.M. P.2d 51 957 if punishment its tute cruel and unusual Martin, 595, 601, (quoting v. N.M. State pun crime length disproportionate to the is (1984)). in It cannot be 686 P.2d “ Burdex, ished,” 100 N.M. at record as demon voked when ‘the a whole province it is and that within “the a fair strates that the defendant received ” judiciary to review whether a sentence con trial.’ Because we have vacated all Id. punishment in cruel and vio error, stitutes unusual for which we found convictions provision.” State v. accumulate, of a constitutional lation no error to there otherwise 1999-NMCA-033, 10, 126 Rueda, N.M. fair the defendant received a conclude that conclude that Defendant’s applicable 975 P.2d 351. We trial and that the doctrine thirty year possibility sentence with this case. challeng- were not sen- cases the defendants 4. that an unconstitutional In those Defendant asserts may illegal be chal- ing tence sentence that of the constitu- is an sentences violations their relying lenged appeal, the first time on against prohibition and unusual cruel tional Sinyard, P.2d State claiming that their punishment, but were rather Smith, (Ct.App.1983) and illegal authorized under as not sentences 350, 351-353, 835-837. De- applicable statute. misplaced. on these fendant’s reliance cases is praved-mind good conspiracy time credit not constitute does funda- murder and to com- aggravated battery. mit mental error. IT IS SO ORDERED. 31-18-15.3(D) provides: Section youthful alleged serious offender is

“When SERNA, murder, CONCUR: M. WE PATRICIO guilty degree found of first court Justice, Chief PETRA JIMENEZ pursuant shall sentence offender to the MAES, Justice. provisions Sentencing Criminal Act----The court sentence the offender FRANCHINI, E. GENE Justice than, exceeding, to less mandato- (concurring part, dissenting part). ry term for an adult.” Adults convicted first-degree punished by murder be “shall MINZNER, B. PAMELA Justice imprisonment life or death.” Section 31-18- (concurring part, dissenting part). in in 14(A). However, statute, juvenile under MINZNER, (concurring part, Justice first-degree offenders convicted of murder dissenting part). “may imprisonment be sentenced to life by punished shall be death.” Id. It is I would remand case a for new {69} incarceration, rare that a term of “which has otherwise, majority holding trial. The I re- Legislature, been authorized will be spectfully dissent. excessively long inherently found to be or agree I properly that Defendant in- {70} Augustus, cruel.” State 97 N.M. mandatory juris- appellate voked this Court’s (Ct.App.1981) (finding 637 P.2d diction, preserve that he failed to a Confron- trial court’s sentence did not constitute claim, improperly tation Clause was he punishment cruel and unusual it because did of conspiracy depraved convicted to commit not exhibit a deliberate indifference to defen- murder, mind improperly and he was needs, though prior dant’s medical even multiple convicted of of conspiracy counts sentencing open defendant underwent heart shooting dwelling occupied commit at a or surgery surgeon expressed and his his belief Thus, II, building. parts 111(A), I concur in that defendant should never be incarcerated V, and VI. problems). due his medical As summa- prosecutorial Defendant’s claims above, {71} rized there was sufficient evidence to misconduct cruel punish- and unusual first-degree depraved- convict Defendant of arising ment from sentence could arise principal mind murder as either or accesso- remand, agree on I questions so these ry conspiracy aggravated to commit bat- ought reached; additionally, agree to be I tery. Accordingly, thirty we conclude that a majority’s disposition with the on the mer- year opportunity good with the for sentence agree its. I also that there was sufficient was time authorized statute and not con- support evidence the conviction of con- stitutionally disproportionate to the crimes spiracy aggravated battery. Be- commit involved. improperly cause we consider admitted evi- evaluating dence sufficiency when XII. Post, appeal, evidence State v. above, For the reasons stated (Ct.App.1989), I vacate Defendant’s conspiracy conviction for agree sup- that there is sufficient evidence depraved-mind to commit murder and re- porting depraved the conviction of mind verse Dеfendant’s conspiracy convictions for principal accessory. as a I murder or as shooting to commit dwelling occupied at a or IV, VIII, parts therefore also concur in IX building harm), (great bodily conspiracy to and XI. shooting dwelling commit at occupied or building (resulting injury), shooting would, however, I a new remand for (no dwelling occupied building injury), or following trial because I believe rea- conspiracy dwelling tape to commit at a sons that the admission of the tran- (no occupied building injury). script Joseph We affirm Ortiz’s interview with the first-degree police Defendant’s convictions I de- was reversible error. therefore re- III(B). 11-803(X) part thy. ma- I that Rule does not conclude speetfully dissent provide admitting out of court statements a basis for the statement. jority admits Ortiz’s 11-803CX) 2002. I dis- Rule NMRA under It is true that Ortiz’s did statement reasons. agree for three cousin, implicate his own could rea- and one First, persuaded I am not family implicate would not son that Ortiz Rule 11- requirements for admission under with a statement unless he believed member 803(X) Further, despite a satisfied. Ortiz, however, it to true. did have rule, to that the trial court reference brief fatal motive to shift blame for the shot have admitted the statement on Defendant, assuming I from his cousin —as Finally, I do not that the use of basis. think can—that Ortiz aware that think we 11-803(X) comports in this Rule context eyewitnesses put both and Defen- his cousin intentions. Because none of its drafters’ balcony, assuming on the familial dant ap- upon which relied rules the State other accessory loyalty Although to his cousin. applicable, I reverse pear to be would liability legally culpa- might make Defendant murder, depraved aggra- mind convictions shots, I or not fired the fatal ble whether assault, conspiracy ag- to commit vated say people would think it is fair to that most battery, and a new trial gravated remand for target who less view a shooter missed his my disposition In of counts. of on these view target. slays who The culpable than one III(B), I would not the ineffective part reach likely most would view his fact Ortiz error of counsel and cumulative assistance culpable being less had he not fired cousin as parts VII claims found and X. significantly any shots diminishes the fatal 11-803(X) provides: Rule {74} guarantee of trustworthiness circumstantial specifically A covered statement impli- people on the notion that do not based having foregoing exceptions any of the but believing it to family members unless cate equivalent guarantees circumstantial of 1998-NMSC-952, Torres, v. true. State Cf. trustworthiness, included in the [is not 477, 18, (agreeing 126 N.M. P.2d 1267 hearsay if the that: rule] court determines that, analogous in the context of statements (1) interest, as evidence subjective the statement is offered against penal beliefs fact; of a material legal culpability about are of the declarant admissibility (2) determining of to probative on relevant the statement is more hearsay). point for which it is offered than can proponent which the other evidence majority also reasons that be- efforts; through procure reasonable family in put himself and his cause Ortiz (3) general rules purposes of these by giving description a of the shoot- danger justice interests of will best be and the police, likely it is that he lied. to the less ers into admission of the statement served Any danger inherent true identification a may not a statement evidence. member, however, seem gang would also of a exception under this unless be admitted argue against the candor of such a state- known, it to the proponent of makes ment, with especially police. to the Faced pаrty sufficiently in advance of the adverse retaliation, gang of Ortiz possibility hearing to adverse provide trial pressure give incom- might felt have opportunity party prepare a fair the events. description inaccurate of plete or it, proponent’s intention to offer meet it, particulars statement and the fact, In the State introduced evidence including the name and address of gang membership and Defendant’s Ortiz’s declarant. trial why Ortiz have lied at explain I quarrel. prof- provide a motive for the expressly requires that and to This rule fear shows agree that of retaliation “equivalent have circumstan- Ortiz’s fered statement “being than reasons for less I be- that he has valid guarantees tial of trustworthiness.” Defendant’s lie and about cousin’s and had motive to candid lieve that Ortiz a Major- in the at trial.” circumstantial involvement therefore his statement lacked ¶58. have had ity Opinion, His fear could inherently untrustwor- guarantees and po- guar- on his statement to the the same effect ness’s statement bears circumstantial vein, “ranking In antees of lice. this Ortiz’s out” trustworthiness. certainly gang provided plausible Barelas general We have said —and mat- quarrel. explanation for the start of the It agree I ter defer to the should —that provides plausible explanation for judge evidentiary discretion of trial police than

less candid statement Ross, 1996-NMSC-031, matters. State quarrel. about that 919 P.2d 1085. Such deference, however, has less force loyalty Both familial and fear retal- case, it is where less than clear from the iation could lead to an inference that Ortiz upon record that the trial court relied Rule would not have made the statement to the 11-803(X) ruling. in its In pages fourteen police unless he believed it be true. On discussion, transcript the trial court hand, argue the оther both facts also 11-803(X) Rule once mentions and it certain- gave than statement he was less candid. Ev- ly cannot be said to be the thrust of the supports contradictory idence that two infer- argument. initially prof- State’s The State properly proved said ences to have neither. fered the out of court statements under Rule Garcia, 11-803(E) lengthy After NMRA 2002. (1992). loyalty Familial fear of rule, noted, discussion of the State argue retaliation would seem to force- more exceptions “There are some other I against statement; fully a truthful at the argue could or basis on the rules of evidence very they provide least do not circumstantial argue this, that I could for the admission guarantees trustworthiness. Because [, 11-803(E),] Rule I think [the 11-803(X) requires Rule an affirmative show- principal basis].” After re- Defendant’s ing guarantees, of such I do not believe that sponse argument, to the State’s the State provides admitting it a basis this state- proffered grounds several other for the ad- ment. mission of the 11- statement: Rule 801(D)(1)(c) 11-803(X), NMRA Rule I note also that the who detective 11-804(A)(3) Rule NMRA and Rule took Ortiz’s statement felt that Ortiz was 11-613(B) During NMRA 2002. its discus- lying cross-examination, to him. On Detec- 11~803(X), recognized of sion Rule the State tive Shawn testified that of at the time the it require- that had not all of satisfied the interview he felt that Ortiz knew who the of ments the rule: “I realize that notice concealing shooters were was but their iden- sufficiently given should be in advance of tity. He also testified that was unaware trial to I prepare, allow counsel to but think at time the of the interview that Ortiz and the Court is well aware of the circumstances Allison were cousins. Detective Shawn’s appeared under which Mr. Ortiz has here. hiding identity frustration that Ortiz was the And I requirement think that notice is a of the shooters understandable. Either requirement.” somewhat flexible The trial gang of out fear of retaliation or out of expressly court never decided whether the Allison, loyalty every familial to Ortiz had requirement notice enough is flexible to al- motive to be than with police. less candid low use of rule absent notice. The same motivation that influenced to Ortiz neglect balcony response arguments, to In name two men on the to these would, think, initially encourage I him trial court to shift the indicated that the state- ment a blame for the fatal shot from was admissible as combination of his cousin to ll-801(D)(l)(c) 11~803(E). Rule In person Defendant. In this case the in the making ruling, position its final the trial court men- gauge best the candor of the out tions, time, 11-803(X): Shawn, for the first Rule of court statement was Detective who alone observed Ortiz’s time demeanor at the grounds I think there for me to [that are] of person played interview. When in the go ahead allow it least to be position judge just best a jury, witness’s candor feels for the not into evi- admitted truthful, being exhibit, was that witness less than dence as an but for all other holding State], I by am uncomfortable that [the the wit- reasons that cited case, In I do sion of this statement. that of the other 804-A3. 80BXand some ultimately that. allowed the admission of Ortiz’s appropriate it’s allow believe 11-803(X), Rule out-of-court statement under then State could The court noted merits, on the but because the defendant not every line of the impeached have Ortiz against argue did in that case not the use statement, more it was out-of-court ¶31. Id., 11-804(A)(3) Rule that rule. just tape jury. play to the efficient simply the definition of unavailable that transcript what it is unclear from While apply ground to Ortiz and is not would grounds ruling for the trial court’s the exact 11- the admission the statement. Rule 11-808(X) were, clear did not it is that Rule 613(B) allow, ease, im- would in this for the play significant role the deliberаtions. peachment proof of of Ortiz with extrinsic ruling express court made an The trial never statements, but those out-of-court would requirements Rule the three textual pur- in for allow them to come substantive 11-803(X) met, nor rule that been did it poses. comply failure to with the notice the State’s requirement excusable. those Under ll-801(D)(l)(c) (state Finally, Rule circumstances, persuaded I am not identification) would not allow the ments principle apply. reasons for deference inter statements to come in because Ortiz’s Appeals The Court of has said of the identify did not either two shoot view essentially 11- predecessor identical to Rule shooting. ers but instead described the Ma 803(X) that it be read mean that “cannot ¶ 4. jority Opinion, Lopez, State 1997- almost, hearsay quite, fits an- which NMCA-075, 943 P.2d 1052 N.M. specific exception, admitted other ought give recognizes that a narrow courts subsection____” exceptions’ the ‘other under identification, interpretation of stat the word Barela, State hinges ing: “Identification in its usual sense In (Ct.App.1982). this case recognition suspect upon a witness’ rely appears me to rule ability person per then to match the to the rejected

way Appeals the Court as con- give son now and assurances this is trary purpose. As its to its first sentence 1997-NMCA-075, Lopez, individual.” same 11-803(X) clear, used makes Rule should be ¶ 11, 943 P.2d 1052. In this in a novel not considered situation “big seeing guy” and a Ortiz described case “specifically and not covered drafters guy.” He described what each “little foregoing exceptions----” It should of the big wearing guy how the asked was told type not be used when the statement is of guy gun, but little did not want exceptions, but expressly considered other yelled at give guy it to him. little then excep- satisfy the rules which does not those below, joking,” guys think I’m the four “You establish. tions shooting. Although description before perpe- might help police alleged find the case, initially In this the State offered trators, ought I charac- do not believe we (record- 11-803(E) testimony under Rule un- of identification terize it as statement recollection), that was focus of ed ll-801(D)(l)(c), in it Rule because Ortiz der of its The State also of- most discussion. suspect any match current did not hearsay a number of other fered the under at the crime scene. people witnessed (extrinsic 11-613(B) pri- proof of rules: Rule statements), 11- Rule inconsistent case, In this the State was faced with (statements 801(D)(1)(c) identification), almost, out-of-court that was statement (one 11-804(A)(3) of the definitions of Rule quite, recollection under recorded unavailable) 11-803(X). ap- Rule None 11-803(E), almost, quite, a but not support use of Ortiz’s interview pears under 11- Rule statement identification police. 801(D)(1)(e). “spe- was thus The statement foregoing cifically covered already [some] noted the related We have 11-803(X). not, 2000-NMSC-027, 30, Allison, It did exceptions____” Rule case State however, satisfy requirements of 11- Rule 803(E) use of exceptions. In this situation the ground admis- those proper is not for the 11-803(X) contrary Rule pur- seems to its stantive use of respectfully the evidence. I pose, and allows the State to avoid the III(B). re- part dissent parts I concur in quirements hearsay of the rule and its nor- II, 111(A),IV, V, VI, VIII, IX and XI. Be- exceptions.

mal my disposition cause of of Defendant’s evi- dentiary objection, I would not parts I reach would reverse the trial court’s ‍​‌​‌​‌‌​​​​​‌​​‌​​​​​​‌‌‌​‌‌​​​​​​‌​‌‌​​​‌​‌‌​‌​‍de- hearsay termination VII or X. that Ortiz’s statement was admissible and reverse Defendant’s con- 11-803(X) I

victions. do not think that Rule FRANCHINI, I GENE CONCUR: E. allows the admission of his statement be- Justice. met, cause the elements that rule are not because the trial court rely did not seem to decision,

on that rule its and because the 11-803(X)

use of Rule in this context seems

contrary purpose. to its I Because find none upon by other rules relied the State persuasive,

and the trial court I would re-

mand for a new trial and not allow the sub-

Case Details

Case Name: State v. Trujillo

Court Name: New Mexico Supreme Court

Date Published: Feb 5, 2002

Citation: 42 P.3d 814

Docket Number: 26,108

Court Abbreviation: N.M.