State v. Astorga

Opinion

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:______________ 3 Filing Date: February 16, 2015 4 CASE NO. 33,684 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 MICHAEL ASTORGA, 9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Neil Candelaria, District Judge

12 Hector Balderas, Attorney General 13 Sri Mullis, Assistant Attorney General 14 Santa Fe, New Mexico

15 for Plaintiff

16 Jorge A. Alvarado, Chief Public Defender 17 David Henderson, Assistant Appellate Defender 18 Santa Fe, New Mexico

19 for Defendant 1 OPINION 2 CHÁVEZ, Justice. 3 {1} A jury convicted Defendant Michael Astorga (Defendant) of one count of first- 4 degree murder, two counts of tampering with evidence, and one count of being a 5 felon in possession of a firearm. These convictions stemmed from the March 2006 6 shooting death of Deputy James McGrane during a traffic stop in the East Mountain 7 area of Bernalillo County. Because Deputy McGrane was an on-duty peace officer, 8 and because the shooting occurred prior to July 1, 2009, the effective repeal date of 9 the death penalty, the State opted to seek a sentence of death. See NMSA 1978, § 31- 10 20A-5 (1981) (listing aggravating circumstances for capital felony sentencing 11 determinations, including the victim’s identity as “a peace officer who was acting in 12 the lawful discharge of an official duty when he was murdered,” that could support 13 a sentence of death prior to July 1, 2009); 2009 N.M. Laws, ch. 11, §§ 1 to 7 14 (abolishing the death penalty for all crimes committed on or after July 1, 2009). 15 {2} At Defendant’s request, the district court impaneled a jury under Rule 5-704(D) 16 NMRA (2004) to decide only the question of his guilt. After a full trial on that issue 17 (the guilt phase), the jury returned a guilty verdict on all counts. A separate jury was 18 then impaneled to consider whether Defendant should “be sentenced to death.” Rule 19 5-704(D). After a second trial, which was limited to determining whether Defendant

2

1 should receive the death penalty (the penalty phase), the sentencing jury did not 2 unanimously agree that Defendant should be sentenced to death. The district court 3 therefore sentenced Defendant to life imprisonment for the first-degree murder 4 conviction, followed by 13-1/2 years for the remaining convictions. 5 {3} Defendant advances five grounds for reversal, all limited to purported errors 6 that occurred during the guilt phase of his trial. We consider each argument below 7 and affirm. 8 BACKGROUND 9 {4} Deputy McGrane was patrolling the area around Tijeras during the early hours 10 of March 22, 2006, when he radioed the dispatch operator that he was pulling over 11 a silver Dodge pickup truck with New Mexico license plate number 459-CDS. About 12 five minutes later, an area resident called 911 and reported that: (1) he had heard two 13 gunshots; (2) he could see a police vehicle pulled over on the side of the road; and (3) 14 it looked like an officer was lying on the ground about ten feet from the vehicle with 15 his flashlight on. The caller also reported that after he heard the shots, his girlfriend 16 saw a white truck “peel[] out of there.” 17 {5} When officers arrived at the scene, they found Deputy McGrane lying face-up 18 on the road with “an apparent gunshot wound to the face.” Near Deputy McGrane’s

3

1 body, the officers recovered two spent 10-millimeter casings, both of which had been 2 fired from a Glock handgun. At trial, a pathologist testified that Deputy McGrane had 3 been shot from a distance of “less than 12 inches” and that the bullet had struck him 4 in the chin, severed his spine, and killed him instantly. The pathologist further 5 testified that Deputy McGrane’s left leg had multiple abrasions, which “could be” 6 consistent with being run over. 7 {6} The license plate number given to the dispatch operator by Deputy McGrane 8 was registered to a Dodge truck owned by Defendant. Cash Mart sold the Dodge 9 truck to Defendant, but the title to the truck was still in Cash Mart’s name. At the time 10 of the shooting, Defendant was a convicted felon and also had an outstanding warrant 11 for his arrest. Earlier in 2006, Defendant had purchased property in the East 12 Mountains under the name of Donnie Sedillo, looking to make a new life for himself 13 and his family. At about the same time, Defendant had become a regular customer at 14 the Ten Points General Store, where he was known as Donnie Sedillo. Approximately 15 two months before Deputy McGrane’s death, Defendant had shown the owner of the 16 general store his 10-millimeter Glock handgun. The 10-millimeter Glock used to kill 17 Deputy McGrane was never recovered. Defendant’s truck, however, was found at a 18 residence about 160 yards from Defendant’s property.

4

1 {7} After the shooting, law enforcement identified Defendant as a potential suspect 2 in Deputy McGrane’s death and embarked upon a multiagency investigation. 3 Defendant was eventually apprehended in Mexico and deported back to New Mexico, 4 where he faced charges relating to Deputy McGrane’s death. 5 {8} Defendant was tried for an open count of murder, two counts of tampering with 6 evidence (for hiding the truck and the 10-millimeter Glock handgun), and one count 7 of being a felon in possession of a firearm. In addition to the evidence described 8 above, several witnesses testified during the guilt phase about statements that 9 Defendant had made after the shooting and before his capture in Mexico. One of 10 Defendant’s friends testified that Defendant came to the friend’s house shortly after 11 the shooting and told him, “[The Sheriff’s Office] fucked it up again, and I started to 12 do good again, and they fucked it up.” Another witness testified that she had first met 13 Defendant in Ciudad Juárez, Mexico during a trip to buy marijuana, and that 14 Defendant had volunteered to her, “I’m Michael Astorga, I blasted that cop.” The 15 same witness recounted that, on the same occasion, Defendant had tried to sell her 16 guns, and when she asked him whether any of the guns had been used to kill “the 17 cop,” Defendant answered, “No, I got rid of that one.” 18 {9} Defendant testified at trial and denied shooting Deputy McGrane. He claimed

5

1 that he was in Albuquerque at the home of two of his friends at the time of the 2 shooting. When Defendant learned that he was wanted for Deputy McGrane’s murder, 3 he fled to Mexico because he was “terrified” that he was “going to be killed by the 4 police.” The jury rejected Defendant’s alibi and convicted him on all counts. 5 {10} The penalty phase of Defendant’s trial then was held before a separate jury to 6 decide whether Defendant should receive a death sentence. The penalty-phase jury 7 found that Defendant knew or should have known that Deputy McGrane was a peace 8 officer performing his duties, and that Defendant intended to kill Deputy McGrane 9 or acted with reckless disregard for Deputy McGrane’s life. However, the jury did not 10 unanimously agree that Defendant should be sentenced to death. This appeal 11 followed. 12 {11} This Court has jurisdiction over Defendant’s direct appeal under Article VI, 13 Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. Defendant 14 advances five grounds for reversal, all limited to purported errors that occurred during 15 the guilt phase of his trial: (1) trial counsel’s failure to litigate certain evidence 16 amounted to either fundamental error or ineffective assistance of counsel; (2) the 17 district court improperly excluded a prior inconsistent statement during Defendant’s 18 cross-examination of a key witness for the State; (3) the State improperly questioned

6

1 Defendant’s alibi witness about Defendant’s alleged involvement in another murder; 2 (4) the State failed to introduce sufficient evidence of deliberation to support a 3 conviction for first-degree murder; and (5) the district court abused its discretion by 4 denying Defendant’s motion for a change of venue. 5 DISCUSSION 6 I. Failure to Litigate Certain Evidence: The “10-8” Call 7 {12} Defendant’s first argument for reversal hinges on a piece of evidence that 8 defense counsel claims to have overlooked during the guilt phase of the trial. At the 9 beginning of its case-in-chief, the State played a recording for the jury of Deputy 10 McGrane’s call to the dispatch operator shortly before his death. In the recording, 11 Deputy McGrane can be heard describing his location and a vehicle:

12 McGrane: South 14 and 66, New Mexico, 459, Charles-David-Sam, 13 silver Dodge pickup, one inside. 14 Dispatch: 10-9 you’re . . . South 14 and what mile marker? 15 McGrane: Mile marker 29. It’s cross with 66. 16 Dispatch: 10-4.

17 At the same time as the “10-4,” a voice can be heard stating, “10-8,” the code that 18 means that an officer has cleared the last call and is back in service. Defense counsel 19 claimed during the penalty phase that he “didn’t catch” the 10-8 call during the guilt 20 phase of the trial, and therefore failed to argue its significance to the jury. He also

7

1 argued that if the “10-8” was Deputy McGrane clearing the call involving 2 Defendant’s truck, “then [Defendant] should have never been a suspect. He shouldn’t 3 have been a target, much less convicted,” because the shooter was someone else. 4 {13} Defendant now maintains that defense counsel’s failure to litigate the 10-8 call 5 during the guilt phase—“whether Deputy McGrane cleared the call . . . 4-1/2 minutes 6 before the report of shots fired”—requires reversal for two reasons. First, citing 7 Montoya v. Ulibarri, Defendant argues that the 10-8 call was evidence of his “actual 8 innocence” and that as a result, defense counsel’s failure to litigate the call was 9 fundamental error. See 2007-NMSC-035, ¶¶ 14, 23-25, 142 N.M. 89, 163 P.3d 476 10 (holding that Article II, Sections 13 and 18 of the New Mexico Constitution support 11 an actual innocence claim in a habeas corpus proceeding, absent any other 12 constitutional violation at trial). Second, Defendant maintains that the failure to 13 litigate the 10-8 call violated his right to effective assistance of counsel under the 14 Sixth Amendment of the United States Constitution. We address each argument in 15 turn. 16 A. Failure to litigate the 10-8 call was not fundamental error 17 {14} Under the doctrine of fundamental error, an appellate court has the discretion 18 to review an error that was not preserved in the trial court to determine if a

8

1 defendant’s conviction “shock[s] the conscience” because either (1) the defendant is 2 “indisputably innocent,” or (2) “a mistake in the process makes a conviction 3 fundamentally unfair notwithstanding the apparent guilt of the accused.” State v. 4 Barber, 2004-NMSC-019, ¶¶ 8, 17, 135 N.M. 621, 92 P.3d 633 (internal quotation 5 marks and citations omitted); see also Rule 12-216(B)(2) NMRA. When reviewing 6 for fundamental error, “we first determine if error occurred; if so, we next determine 7 whether that error was fundamental.” Campos v. Bravo, 2007-NMSC-021, ¶ 8, 141 8 N.M. 801, 161 P.3d 846. 9 {15} Defendant argues that the error in this case was defense counsel’s failure to 10 litigate the 10-8 call during the guilt phase, purportedly in violation of Defendant’s 11 “right . . . to have this critical evidence introduced at the trial that determined his guilt 12 or innocence.” The State concedes that the failure to litigate the 10-8 call was an 13 oversight on defense counsel’s part, but it disagrees that the call was evidence of 14 Defendant’s actual innocence; instead, from the State’s perspective, defense counsel’s 15 focus on the call during the penalty phase was merely a “shift in trial strategy” after 16 “the guilt-phase jury rejected [Defendant’s] alibi.” 17 {16} We conclude that defense counsel’s potential oversight, while possibly an 18 “error” in layman’s terms, is not the sort of legal error that the fundamental error

9

1 doctrine is intended to remedy. Whether to litigate certain evidence at trial is a matter 2 entrusted to the discretion of defense counsel. See, e.g., Lytle v. Jordan, 2001-NMSC- 3 016, ¶ 47, 130 N.M. 198, 22 P.3d 666 (“ ‘The decision whether to call a witness is a 4 matter of trial tactics and strategy within the control of trial counsel.’ ” (quoting State 5 v. Orosco, 1991-NMCA-084, ¶ 35, 113 N.M. 789, 833 P.2d 1155)). Similarly, 6 whether defense counsel erred by failing to discover the importance of certain 7 evidence is a question of reasonableness considered in light of the record. See State 8 v. Arrendondo, 2012-NMSC-013, ¶¶ 38-39, 278 P.3d 517 (noting that for the 9 Supreme Court to remand to the trial court an ineffective assistance of counsel claim 10 raised on direct appeal, a defendant has to demonstrate that “defense counsel’s 11 performance” fell outside “the range of reasonable representation,” relying upon a 12 defendant’s development of the record “with respect to defense counsel’s actions” to 13 evaluate said counsel’s performance, and refusing to speculate about the reason for 14 trial counsel’s delay in discovering potentially exculpatory evidence). Thus, to claim 15 that defense counsel’s failure to “catch” the 10-8 call during the guilt phase was error, 16 is really just to challenge the adequacy of defense counsel’s performance at trial. This 17 is not a claim of fundamental error, but one of ineffective assistance of counsel, a 18 claim to which we now proceed.

10

1 B. Defendant has not made a prima facie claim of ineffective assistance of 2 counsel

3 {17} Defendant contends that defense counsel’s failure to litigate the 10-8 call was 4 ineffective assistance of counsel under the Sixth Amendment of the United States 5 Constitution. “To establish ineffective assistance of counsel, a defendant must show: 6 (1) ‘counsel’s performance was deficient,’ and (2) ‘the deficient performance 7 prejudiced the defense.’ ” State v. Paredez, 2004-NMSC-036, ¶ 13, 136 N.M. 533, 8 101 P.3d 799 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). On 9 direct appeal, the record is frequently inadequate to either evaluate counsel’s 10 performance or to determine prejudice. Arrendondo, 2012-NMSC-013, ¶ 38 (“The 11 record is frequently insufficient to establish whether an action taken by defense 12 counsel was reasonable or if it caused prejudice.”). As a result, we prefer an 13 ineffective assistance of counsel claim to be brought in a habeas corpus proceeding, 14 “so that the defendant may actually develop the record with respect to defense 15 counsel’s actions.” Id. However, if the defendant presents a prima facie case on direct 16 appeal, we will remand the ineffective assistance of counsel claim to the district court. 17 Id. Absent a prima facie case, we presume that counsel’s performance was reasonable. 18 Id. 19 {18} To determine if defense counsel’s performance was deficient, we consider

11

1 whether it “ ‘fell below an objective standard of reasonableness.’ ” State v. Hunter, 2 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168 (quoting Strickland, 466 U.S. 3 at 688). This is not an easy standard for convicted defendants to meet because “[w]e 4 indulge a strong presumption that counsel’s conduct falls within the wide range of 5 reasonable professional assistance; that is, the defendant must overcome the 6 presumption that, under the circumstances, the challenged action might be considered 7 sound trial strategy.” Hunter, 2006-NMSC-043, ¶ 13 (internal quotation marks 8 omitted). “A prima facie case for ineffective assistance of counsel is not made if there 9 is a plausible, rational strategy or tactic to explain the counsel’s conduct.” State v. 10 Ortega, 2014-NMSC-017, ¶ 55, 327 P.3d 1076 (quoting Jordan, 2001-NMSC-016, 11 ¶ 26). 12 {19} In this case, defense counsel stated that he “made a mistake and overlooked 13 evidence” concerning the 10-8 call. Defendant contends that this admission 14 demonstrates that the failure to litigate the call was a mistake and not the result of 15 trial tactics or strategy. We disagree. Without further factual development, defense 16 counsel’s statement is ambiguous and therefore insufficient to support a prima 17 facie ineffective assistance claim, particularly since the State has not had an 18 opportunity to cross-examine counsel about his alleged oversight. When defense

12

1 counsel stated that he “didn’t catch . . . at trial” the evidence concerning the clearing 2 of the call, he may have meant, as Defendant suggests, that he did not notice the 10-8 3 call until after the jury returned its guilty verdict against Defendant. But the State 4 offers an alternative meaning: that defense counsel noticed the call and disregarded 5 it for some strategic reason until he “caught” its significance after the jury found 6 Defendant guilty. 7 {20} The State’s interpretation of defense counsel’s words appears plausible, given 8 that defense counsel reasonably could have concluded that the 10-8 call was not 9 helpful to Defendant’s case. Defense counsel could have decided not to emphasize 10 the 10-8 call because the jury had the recording of the entire call to dispatch during 11 its deliberations and, as we explain more fully below, the phrase “10-8” sounds as 12 though it may have been made on an overlapping airwave by an officer other than 13 Deputy McGrane. Alternatively, defense counsel may have concluded that even if the 14 10-8 call had been made by Deputy McGrane, the call would not have proved that 15 Deputy McGrane necessarily terminated all contact with Defendant. Under these 16 circumstances, we cannot determine whether defense counsel’s performance “fell 17 below an objective standard of reasonableness” without affording the State an 18 opportunity to question defense counsel about the precise meaning of his statement

13

1 and whether he chose to not litigate the 10-8 call as a matter of trial strategy. Hunter, 2 2006-NMSC-043, ¶ 13 (internal quotation marks and citation omitted); see also 3 Arrendondo, 2012-NMSC-013, ¶ 38-39 (noting that the record is “frequently 4 insufficient to establish whether an action taken by defense counsel was reasonable” 5 and refusing to speculate, for example, as to why a defense counsel delayed in 6 learning of a piece of evidence, so as to conclude that the defendant had failed to 7 make a prima facie claim of ineffective assistance of counsel). 8 {21} Even assuming that defense counsel’s performance was deficient, Defendant 9 has not established that he was prejudiced by the deficient performance. To prove 10 prejudice,

11 [A] defendant must demonstrate that counsel’s errors were so serious, 12 such a failure of the adversarial process, that such errors undermine[] 13 judicial confidence in the accuracy and reliability of the outcome. A 14 defendant must show a reasonable probability that, but for counsel’s 15 unprofessional errors, the result of the proceeding would have been 16 different.

17 State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (second 18 alteration in original) (internal quotation marks and citations omitted). 19 {22} Defendant forcefully argues that the result of the guilt phase would have been 20 different had defense counsel litigated the 10-8 call. He contends that the dispatch 21 call was central to the State’s case, including the State’s argument that the call

14

1 showed that Deputy McGrane “had acted as a witness to his own murder.” According 2 to Defendant, the 10-8 call potentially flips the meaning of the dispatch call on its 3 head by suggesting that Deputy McGrane had already cleared his investigation of 4 Defendant’s truck “minutes before he was killed.” 5 {23} We are not persuaded that, had defense counsel litigated the 10-8 call during 6 the guilt phase, there was a reasonable probability that the result would have been 7 different. We agree with the State that the relevance of the 10-8 call went to the 8 question of Defendant’s identity as the shooter. Defense counsel argued as much 9 during the penalty phase: “If . . . th[e] dispatch tape is correct and [Deputy McGrane] 10 cleared that scene, then [Defendant] should have never been a suspect. He shouldn’t 11 have been a target, much less convicted.” However, the guilt-phase jury heard ample 12 additional evidence from which it could have concluded that Defendant killed Deputy 13 McGrane. Such evidence includes Defendant’s own admissions concerning his role 14 in the shooting, the facts supporting the inference that Defendant owned a Glock 15 handgun (which was the murder weapon), and the facts indicating that the truck 16 Deputy McGrane had pulled over prior to his murder was owned by Defendant. Cash 17 Mart sold the Dodge truck to Defendant, but the title to the truck was still in Cash 18 Mart’s name. In the face of all of the evidence of Defendant’s identity as Deputy

15

1 McGrane’s killer, we are not persuaded, to a reasonable probability, that litigating the 2 10-8 call would have changed the outcome of the guilt phase of Defendant’s trial. The 3 10-8 call was just another piece of evidence for the jury to weigh in deciding whether 4 Defendant murdered Deputy McGrane. 5 {24} Our conclusion is based on more than mere speculation. Due to the procedural 6 history of this case, the State effectively had to re-litigate the question whether 7 Defendant murdered Deputy McGrane during the penalty phase, and defense counsel 8 took full advantage of the second opportunity to argue Defendant’s innocence. See 9 UJI 14-7014 NMRA (providing that, to find the defendant guilty of the aggravating 10 circumstance of “murder of a peace officer,” the jury must find, inter alia, that “the 11 defendant knew or should have known that (name of victim) was a peace officer” and 12 that Defendant “intended to kill or acted with a reckless disregard for human life and 13 knew that [his] [her] acts carried a grave risk of death”). The 10-8 call featured 14 prominently in that phase of the proceedings, and the jury heard conflicting testimony 15 about whether the call had been made by Deputy McGrane or by another officer on 16 an overlapping airwave. Significantly, defense counsel placed the 10-8 call front-and- 17 center during his closing remarks:

18 You know, Folks, I should sit down now. This case should be over with 19 because [the dispatch recording] alone, if anybody would have ever

16

1 taken the time to look at it, to think about it, to study, to get the CAD1 2 reports to listen to what was really said in this case should have ended 3 this. Why? Because [Deputy McGrane] went 10-8. The State may get up 4 and say, well, we don’t think that was his voice. I’m sorry, it was your 5 dispatch tape. It was your operator. It was your dispatch operator, it was 6 your exhibit. You’re the one that admitted it. You’re the one that told us 7 that. I’m sorry, that is what they said. There is no way around that, and 8 there is no way around it for a jury either. It’s cold and clear as you can 9 get it.

10 The penalty-phase jury considered this conflicting evidence and argument together 11 with the recording and transcript of the dispatch call, and unanimously found the 12 aggravating circumstance of “murder of a peace officer.” Thus, even after the 10-8 13 call was fully litigated, the penalty-phase jury unanimously concluded that Defendant 14 had murdered Deputy McGrane. We therefore cannot say to a reasonable probability 15 that litigating the 10-8 call during the guilt phase would have produced a different 16 result.2

17 1 CAD reports are “everything that the [law enforcement] dispatcher types in on 18 [his or] her computer.” These CAD reports include information concerning the “call, 19 the location,” etc. Dispatchers “dispatch[] [law enforcement] units to their calls and 20 tak[e] care of all units.”

21 2 At oral argument, this Court questioned Defendant’s appellate counsel about 22 whether the phrase “10-8” was actually part of the larger phrase, “two-oh-nine, 10-8,” 23 that can be heard immediately preceding and overlapping with the dispatch operator’s 24 “10-4.” The parties were granted leave to file supplemental briefing to address the 25 issue, and both acknowledged that the larger phrase, “two-oh-nine, 10-8” or “two- 26 one-niner, 10-8,” can be heard on the recording. Defendant’s appellant counsel 27 acknowledges that the significance of this larger phrase was neither argued nor raised

17

1 {25} We hold that Defendant has not made a prima facie case of ineffective 2 assistance of counsel on direct appeal. However, Defendant is not precluded from 3 pursuing this claim in a separate habeas proceeding, where he may get the 4 opportunity to fully litigate the reasonableness of defense counsel’s failure to litigate 5 the 10-8 call and whether he was prejudiced by that failure. See Arrendondo, 2012- 6 NMSC-013, ¶¶ 42-44 (noting that although there was not “enough evidence to 7 properly address” the defendant’s ineffective assistance of counsel claim, the 8 defendant was “free to pursue habeas corpus proceedings where he may actually 9 develop the record” with respect to said claim). 10 II. Gonzales’s Prior Inconsistent Statement 11 {26} Defendant next argues that the district court improperly prevented him from 12 calling a witness to impeach the testimony of Ernest Gonzales, the owner of the Ten 13 Points General Store, who testified that he had seen Defendant several weeks before 14 Deputy McGrane’s death with a 10-millimeter Glock handgun—the same type of 15 handgun used to shoot Deputy McGrane. Gonzales testified that Defendant was a 16 regular customer at Gonzales’s convenience store and that on one occasion, 17 Defendant noticed the 9-millimeter Glock handgun that Gonzales carried on his hip

18 during Defendant’s trial.

18

1 and said “I’ve got one similar to that.” Some time later, Defendant again visited 2 Gonzales’s store and said, “Oh, I brought that gun so I could show you the one that 3 I had like yours.” Gonzales testified that he picked up Defendant’s gun and saw that 4 it said “Glock” and “ ‘10 mm’ right on it.” 5 {27} On cross-examination, defense counsel asked Gonzales about his previous 6 statement to a defense investigator about why Gonzales thought that the gun 7 Defendant had shown him was a 10-millimeter Glock. According to defense counsel, 8 Gonzales told the investigator that he actually never saw the “10 mm” stamp, and that 9 instead, Defendant had told Gonzales that it was a 10-millimeter handgun when 10 Defendant pulled it out of his pocket. Defense counsel pressed Gonzales about his 11 prior statement that he had not actually looked at the stamp, and Gonzales responded, 12 “From what I saw, that’s what I saw,” but he did not remember exactly what he had 13 told the investigator about seeing the stamp. 14 {28} Defendant later tried to call the investigator to testify about Gonzales’s prior 15 statement. The State objected, arguing that Gonzales had not testified in a manner that 16 was inconsistent with the prior statement. In considering the objection, the district 17 court asked sua sponte, “Prior inconsistent statements, don’t they have to be under 18 oath as well, Counsel?” Defense counsel responded, “No, not under the rule. That

19

1 changed some years ago.” Unconvinced, the district court asked counsel for both the 2 State and the defense to research the “prior inconsistent rule” over recess. Upon their 3 return, the court conferred with counsel off the record and disallowed the 4 investigator’s testimony, apparently because Gonzales’s prior statement was not 5 given under penalty of perjury as required for prior inconsistent statements admitted 6 under Rule 11-801(D)(1)(a) NMRA (2006). Defense counsel then made the following 7 statement “to make a record”:

8 I understand the Court has examined the rule and that rule requires that 9 that be under oath before we can impeach in the fashion that I desire to 10 do such. I respectfully disagree with the rule. I think that it denies us the 11 opportunity to present evidence that would contradict what Mr. 12 Gonzales is saying, but I do understand the rule.

13 {29} Defendant argues on appeal that the district court erred by disallowing the 14 investigator’s testimony under Rule 11-801(D)(1)(a), contending for the first time 15 that the testimony was admissible under Rule 11-613(B) NMRA (1993) as extrinsic 16 evidence of a prior inconsistent statement for impeachment purposes. We review de 17 novo whether the district court applied the correct evidentiary rule to exclude the 18 investigator’s testimony. See, e.g., State v. Torres, 1999-NMSC-010, ¶ 28, 127 N.M. 19 20, 976 P.2d 20 (“[T]he threshold question of whether the trial court applied the 20 correct evidentiary rule or standard is subject to de novo review on appeal.”). Given

20

1 the apparent confusion that arose in this case, we take this opportunity to clarify the 2 different purposes and effects of these two rules, which both relate to the 3 admissibility of prior inconsistent statements.

4 A. Rules 11-613 and 11-801(D)(1)(a) govern different aspects of the 5 admissibility of a prior inconsistent statement

6 {30} Under the New Mexico Rules of Evidence, a prior inconsistent statement has 7 three elements: (1) the statement was made by a witness who testifies at trial; (2) the 8 statement was given before the witness testifies at trial; and (3) the statement is 9 inconsistent with the witness’s trial testimony. See Rule 11-801(D)(1)(a). Because of 10 the second element, a prior inconsistent statement is not given “at the current trial or 11 hearing”; thus, the admissibility of this prior statement invariably implicates the rule 12 against hearsay. Rule 11-801(C) (defining hearsay as a statement that is not made 13 while testifying at the current trial or hearing and that is offered to prove the truth of 14 the matter asserted in the statement); Rule 11-802 NMRA (providing that hearsay is 15 inadmissible except as provided by rule or statute). 16 {31} However, courts have long recognized that prior inconsistent statements differ 17 from other types of out-of-court statements in several important ways. First, prior 18 inconsistent statements are inherently relevant for a “non-hearsay” purpose: 19 impeaching a witness’s credibility. See, e.g., State v. Carlton, 1971-NMCA-019, ¶ 34,

21

1 82 N.M. 537, 484 P.2d 757 (“It is fundamental that a statement, written or oral of a 2 witness as to a material matter inconsistent with his testimony at trial is admissible 3 for impeachment purposes.”); see also 3A John Henry Wigmore, Evidence in Trials 4 at Common Law § 1017, at 993 (James H. Chadbourn ed., 1970) (“We place [the 5 witness’s] contradictory statements side by side, and, as both cannot be correct, we 6 realize that in at least one of the two he must have spoken erroneously. Thus, we have 7 detected him in one specific error, from which may be inferred a capacity to make 8 other errors.”). As a result, a prior inconsistent statement used for impeachment is not 9 hearsay because it is not admitted for the truth of the matter asserted; rather, “it is the 10 fact of the inconsistency that is admissible, not the substantive truth or falsity of the 11 prior statement.” State v. Macias, 2009-NMSC-028, ¶ 20, 146 N.M. 378, 210 P.3d 12 804, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 13 110. 14 {32} A second distinguishing feature of a prior inconsistent statement is the 15 declarant’s presence in the courtroom. See Rule 11-801(D)(1)(a). Because the 16 declarant actually testifies at trial and is subject to cross-examination about the prior 17 statement, the usual concerns about the reliability of the out-of-court statement are 18 greatly diminished. See, e.g., 4 Christopher B. Mueller & Laird C. Kirkpatrick,

22

1 Federal Evidence § 8:1, at 9 (4th ed. 2013) (noting that prior inconsistent statements, 2 inter alia, “are often more reliable than testimony because [prior inconsistent 3 statements are] closer in time to the matter reported and less likely to have been 4 influenced by the controversy”). 5 {33} Rules 11-613 and 11-801(D)(1)(a) codify the differences between prior 6 inconsistent statements and other out-of-court statements, albeit in a somewhat 7 indirect manner. Rule 11-613 is a procedural rule that governs two aspects of how a 8 prior inconsistent statement may be used for impeachment purposes. Our focus here 9 is on Rule 11-613(B), which provides that “[e]xtrinsic evidence of a prior inconsistent 10 statement by a witness is not admissible unless the witness is afforded an opportunity 11 to explain or deny the same and the opposite party is afforded an opportunity to 12 interrogate the witness thereon, or the interests of justice otherwise require.” The rule 13 thus presumes that a witness may be impeached by questioning the witness about a 14 prior inconsistent statement, and the rule allows, but does not require, extrinsic 15 evidence of the prior statement when the requirements of the rule have been satisfied. 16 See 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 17 613.05[1] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2014) (“Rule 613 18 does not require a party who seeks to impeach a witness through alleged prior

23

1 inconsistent statements to present extrinsic evidence of the statements.”). 2 {34} Rule 11-801(D)(1)(a), by contrast, embodies a limited recognition of the notion 3 that a prior inconsistent statement is more reliable than other types of out-of-court 4 statements. Rule 11-801(D)(1)(a) singles out one category of prior inconsistent 5 statements as “not hearsay” because of the circumstances under which the statements 6 are made.3 See 5 Weinstein & Berger, supra, § 801.21[1] (“[P]rior inconsistent 7 statements that fulfill the requirements of Rule 801(D)(1)(A) are uttered under 8 circumstances that make them at least as reliable as in-court testimony.”). Under Rule 9 11-801(D)(1)(a), a prior inconsistent statement is “not hearsay” when the declarant 10 testifies and is subject to cross-examination about the prior statement, and the 11 statement was “given under oath subject to the penalty of perjury at a trial, hearing, 12 or other proceeding, or in a deposition.” Because the statement is “not hearsay,” it can 13 be admitted as substantive evidence—“to prove the truth of the matter asserted” in 14 the statement and not just for impeachment. Rule 11-801(C)(2) NMRA. This can be 15 particularly important in a case in which the prior statement is the only evidence

16 Before 1995, Rule 11-801(D)(1)(a) excluded all prior inconsistent statements

3

17 from the definition of hearsay. Rule 11-801(D)(1)(a) NMRA (1973, amended 1993). 18 The rule was amended in 1995, consistent with Federal Rule of Evidence 19 801(d)(1)(a), to exclude only statements “given under oath subject to the penalty of 20 perjury.” Rule 11-801(D)(1)(a) (1995, amended 2012).

24

1 presented on a particular element of a crime. Cf. 5 Weinstein & Berger, supra, § 2 801.21[5] (“If a statement admitted under Rule 801(d)(1)(A) is the only evidence on 3 an element in an offense charged, the court must determine whether the nature of the 4 evidence is sufficient for conviction.”). 5 {35} Thus, extrinsic evidence of a prior inconsistent statement—including a 6 statement admitted under Rule 11-801(D)(1)(a)—is always admissible for 7 impeachment purposes, subject to the requirements of Rule 11-613 and to the general 8 rules governing relevance. See, e.g., State v. Davis, 1981-NMSC-131, ¶¶ 18-20, 97 9 N.M. 130, 637 P.2d 561 (holding that the district court properly relied on Rule 11- 10 403 NMRA to exclude extrinsic evidence of a prior inconsistent statement when the 11 probative value of the evidence was substantially outweighed by the “needless 12 presentation of cumulative evidence”). However, to introduce a prior inconsistent 13 statement for its truth—as substantive proof of the matter asserted in the prior 14 statement—the statement must have been given under “penalty of perjury” as 15 provided in Rule 11-801(D)(1)(a) or fall within a hearsay exception under Rule 11- 16 803 NMRA (1993). Due to the potential for misuse of a statement admitted only for 17 impeachment purposes, a limiting instruction is often appropriate when a prior 18 inconsistent statement cannot be considered for its truth. See UJI 14-5009 NMRA

25

1 (articulating jury instructions concerning the admission of evidence for a limited 2 purpose); see also 3 Mueller & Kirkpatrick, supra, § 6:99, at 614 (“Of course the 3 court on request should give an appropriate limiting instruction advising the jury that 4 the statement is admissible only for whatever light it might shed on the credibility of 5 the witness, and not as proof of what the statement asserts . . . .”).

6 B. The district court erred by relying on Rule 11-801(D)(1)(a) to exclude 7 extrinsic evidence of Gonzales’s prior inconsistent statement

8 {36} In this case, Defendant’s cross-examination of Gonzales emphasized that 9 Gonzales’s in-court testimony (about having seen the “10 mm” stamp on the Glock 10 handgun) was inconsistent with his previous statement to the investigator that he 11 never actually saw the stamp. The record also shows that Defendant gave Gonzales 12 a chance during cross-examination to explain or deny his prior statement and that the 13 State had the opportunity to question Gonzales about the prior statement during his 14 re-direct examination. These circumstances easily satisfy the requirements for the 15 admission of extrinsic evidence of a prior inconsistent statement for the purpose of 16 impeachment under Rule 11-613(B). 17 {37} Further, nothing specific in the record indicates that Defendant intended to 18 argue the prior statement for its truth. Indeed, in responding to the State’s objection 19 to the investigator’s testimony, defense counsel explicitly stated that he had laid the

26

1 proper foundation to “impeach” Gonzales, although he did not directly reference Rule 2 11-613. Thus, Defendant’s purpose for the investigator’s testimony seemingly was 3 to cast doubt on Gonzales’s credibility—not to prove that Gonzales did not actually 4 see the “10 mm” stamp. Under these circumstances, when the prior statement was 5 offered only to impeach Gonzales and not to prove its truth, Rule 11-801(D)(1)(a) 6 simply was not implicated. 7 {38} The State argues that irrespective of the rule upon which the district court 8 relied to exclude the investigator’s testimony, Gonzales’s trial testimony was not 9 inconsistent with his prior statement. Because Gonzales only testified that he could 10 not remember what he might have said and did not dispute what he may have told the 11 investigator, the State maintains that Gonzales “made no prior inconsistent 12 statement.” 13 {39} The State’s argument misses the mark. In evaluating whether a witness’s trial 14 testimony is inconsistent with the witness’s prior statement, the question is not 15 whether the witness denies—or even recalls—having made the prior statement. In 16 fact, under “current practice,” the witness need not even be confronted with the prior 17 statement before extrinsic evidence is presented as long as the witness has an 18 opportunity to “explain or deny” the statement at some point during the proceeding.

27

1 See State v. Dominguez, 2007-NMSC-060, ¶¶ 18-19, 142 N.M. 811, 171 P.3d 750 2 (“[T]he federal rule, identical to our Rule 11-613(B), ‘permits departure from the 3 traditional, although often still preferred, method of confronting a witness with his 4 inconsistent statement prior to its introduction in to evidence.’ ” (quoting State v. 5 Gomez, 2001-NMCA-080, ¶ 14, 131 N.M. 118, 33 P.3d 669)); see also 3 Mueller & 6 Kirkpatrick, supra, § 6:101, at 638-39 (“Rule 613 does not specify any particular time 7 or sequence, so the chance for explanation or denial (and for additional questioning 8 by parties defending or repairing the witness’ credibility) may be provided either 9 before or after the statement has been proved by extrinsic evidence.” (internal 10 quotation marks and footnote omitted)). 11 {40} The question, instead, is simply whether the substance of the witness’s trial 12 testimony is inconsistent with the prior statement. See, e.g., State v. Varela, 1999- 13 NMSC-045, ¶ 36, 128 N.M. 454, 993 P.2d 1280 (holding that “there must be 14 substantive inconsistencies” to justify admitting a prior inconsistent statement into 15 evidence). In this case, Gonzales testified at trial that he actually saw the “10 mm” 16 stamp on the Glock handgun. Defendant sought to impeach Gonzales with his prior 17 statement that he did not actually look at the stamp. These statements are clearly

28

1 inconsistent, irrespective of Gonzales’s ability to recall the prior statement.4 The 2 requirements of Rule 11-613(B) were therefore satisfied, and the investigator’s 3 testimony was admissible to impeach Gonzales, subject to the district court’s broad 4 discretion under Rule 11-403. We note that defense counsel failed to cite Rule 11- 5 613(B) to the district court when he conceded that the testimony did not meet the 6 required elements for admissibility under Rule 11-801(D)(1)(a) and did not 7 emphasize his intent to simply introduce the evidence as impeachment evidence. 8 Nonetheless, excluding the extrinsic evidence of Gonzales’s prior inconsistent 9 statement under Rule 11-801(D)(1)(a) was error when the evidence was offered only 10 for the purpose of impeachment. We now address whether the improper exclusion of 11 the investigator’s testimony requires reversal. 12 C. The error was harmless 13 {41} The State contends that Defendant failed to preserve his argument that the 14 evidence was admissible under Rule 11-613(B), and we therefore must limit our 15 review to fundamental error. As we previously recounted, the record suggests that

4

16 The State does not argue, and we do not decide, whether extrinsic evidence of 17 a prior inconsistent statement is admissible when the witness admits having made the 18 prior statement. See, e.g., United States v. Soundingsides, 820 F.2d 1232, 1240 (10th 19 Cir. 1987) (holding that it was error to admit extrinsic evidence of prior inconsistent 20 statements when the witnesses acknowledged having made the inconsistent 21 statements; there was no need for further proof of the statements).

29

1 defense counsel conceded that the testimony was inadmissible under Rule 11- 2 801(D)(1)(a) and did not alert the district court to its admissibility under Rule 11- 3 613(B). Under a crabbed reading of our preservation requirements, we could limit our 4 review either to plain error under Rule 11-103(E) NMRA or to fundamental error. 5 See, e.g., Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, ¶ 22, 133 N.M. 669, 6 68 P.3d 909 (explaining that Rule 12-216(A) NMRA requires a party to object to a 7 trial court’s ruling “on the same grounds argued in the appellate court” (internal 8 quotation marks and citations omitted)); see also State v. Lucero, 1993-NMSC-064, 9 ¶ 12, 116 N.M. 450, 863 P.2d 1071 (“ ‘Even if the defendant did not raise proper 10 objections at trial, he may be entitled to relief if the errors of which he complains on 11 appeal constituted plain error . . . or fundamental error.’ ” (quoting State v. Barraza, 12 1990-NMCA-026, ¶ 17, 110 N.M. 45, 791 P.2d 799) (internal citations omitted)). 13 However, defense counsel’s explanation that he intended to offer the investigator’s 14 testimony for the purpose of impeachment—a non-hearsay purpose firmly embedded 15 in our Rules of Evidence—was sufficiently specific to preserve the issue for appellate 16 review. 17 {42} When an error is preserved, we review for harmless error, and our inquiry 18 depends on whether the error was constitutional. See Tollardo, 2012-NMSC-008, ¶

30

1 36. Defendant contends that the exclusion of the investigator’s testimony violated his 2 Sixth Amendment right of confrontation and his Fourteenth Amendment right to due 3 process. The State persuasively argues that these contentions lack merit, and it 4 appears that Defendant abandoned them in his reply brief. Even so, we note that 5 Gonzales testified at trial, and defense counsel actually cross-examined him about his 6 prior statement. Further, defense counsel argued in his closing remarks that Gonzales 7 was not a credible witness based, in part, on his inconsistent statements about having 8 seen the “10 mm” stamp. We therefore fail to see how excluding the investigator’s 9 testimony implicated Defendant’s confrontation or due process rights. 10 {43} Absent a constitutional violation, we look to whether there is a reasonable 11 probability that the error affected the verdict. See id. Defendant bears the initial 12 burden of demonstrating that he was prejudiced by the error. State v. Holly, 2009- 13 NMSC-004, ¶ 28, 145 N.M. 513, 201 P.3d 844. Apart from the claimed constitutional 14 errors addressed above, Defendant contends that the absence of the investigator’s 15 testimony “permitted the jury erroneously to infer [that] the statement had not in fact 16 been made.” We disagree. Defense counsel impeached Gonzales with his prior 17 inconsistent statement during cross-examination, and Gonzales did not deny that he 18 may have told the investigator that he did not actually look at the “10 mm” stamp

31

1 when Defendant showed him Defendant’s handgun. Also, irrespective of whether 2 Gonzales saw the “10 mm” stamp or Defendant told him that the handgun was a 10- 3 millimeter Glock, both statements confirmed that Defendant had shown Gonzales the 4 type of weapon used to kill Deputy McGrane. Thus, extrinsic evidence of the prior 5 statement was minimally relevant to Gonzales’s credibility on the material issue at 6 hand, and therefore such evidence could have been excluded as causing “undue delay, 7 wasting time, or needlessly presenting cumulative evidence.” Rule 11-403; see also 8 Davis, 1981-NMSC-131, ¶¶ 17-20 (holding that the district court did not abuse its 9 discretion by excluding extrinsic evidence of a prior inconsistent statement when the 10 defense attorney had cross-examined the witness about the statement and argued the 11 inconsistencies to the jury during closing arguments). 12 {44} We could affirm the exclusion of the investigator’s testimony on the basis of 13 Rule 11-403 alone. See, e.g., Macias, 2009-NMSC-028, ¶ 17 (“The trial record does 14 not clearly reveal the trial court’s specific reason for admitting the statements, but we 15 may uphold the judge’s decision if it was right for any reason.”). However, we also 16 conclude that the exclusion of the investigator’s testimony was harmless error 17 because whether the investigator saw the stamp on the gun or Defendant told the 18 investigator that the gun was a 10-millimeter Glock, there is no reasonable probability

32

1 that impeachment of the investigator would have affected the verdict. 2 III. Improper Questioning about Defendant’s Involvement in Another Murder 3 {45} Defendant next contends that his conviction should be reversed because of a 4 question asked by the State during its cross-examination of one of Defendant’s alibi 5 witnesses, Yolanda Saiz, that improperly referred to Defendant’s suspected 6 involvement in a prior homicide. Approximately five months before Deputy 7 McGrane’s death, Defendant had been charged with an open count of murder for the 8 death of Candido Martinez, and a warrant had been issued for Defendant’s arrest. In 9 a pretrial motion, the State argued that evidence of the outstanding warrant was 10 “essential to prove the defendant’s motive and intent at the time of the shooting” of 11 Deputy McGrane. The State therefore asked the district court to “admit evidence that 12 a warrant had been issued for the defendant for [the] previous murder, and that the 13 warrant was in effect at the time of the murder of Deputy McGrane.” 14 {46} Over Defendant’s objection, the district court granted the motion in part, ruling 15 that the State could inform the jury that Defendant had an outstanding arrest warrant 16 at the time of Deputy McGrane’s death. However, the court also ruled that the State 17 could not introduce evidence that the warrant was for murder, reasoning that such 18 evidence would be highly prejudicial to Defendant. The district court later rejected

33

1 the State’s follow-up request to introduce evidence that the warrant was simply for 2 a felony. 3 {47} The State repeatedly and forcefully renewed its motion to inform the jury that 4 the warrant was for murder, also arguing that the evidence was necessary to provide 5 context for a central theme of the defense: that several defense witnesses had given 6 inconsistent statements to law enforcement because they had been terrorized during 7 the manhunt for Defendant. The State contended that the only way to rationalize the 8 aggressive search for Defendant by law enforcement not only was to explain that 9 Defendant was suspected of Deputy McGrane’s murder, but he also was a convicted 10 felon who was wanted for another murder, and who was believed to be armed and 11 dangerous. The district court denied many such requests by the State, reasoning each 12 time that the fact that the warrant was for murder would be highly prejudicial to the 13 defense. 14 {48} Before the State’s cross-examination of Saiz, the State renewed its request to 15 inform the jury that the outstanding warrant was for murder. Saiz had given several 16 conflicting statements to the police about her knowledge of Defendant’s whereabouts 17 at the time of Deputy McGrane’s death. In the midst of questioning Saiz about a 18 number of inconsistencies between one of her prior statements and her trial testimony,

34

1 the State asked the following question:

2 Q: In fact, what you said [was], “If you guys would have caught him before, 3 he wouldn’t have killed somebody else,” that’s what you said in your 4 first statement, isn’t it? 5 A: I mean, that’s what it says there, yes.

6 The question and answer were admitted without objection, without any reaction from 7 defense counsel or the district court, and were never alluded to again during the 8 proceedings. 9 {49} Defendant contends that the State “intentionally used a statement concerning 10 [the] other homicide to impeach a key defense witness” in violation of the district 11 court’s repeated rulings that “evidence regarding the unrelated homicide should be 12 excluded.” Defendant acknowledges that the asserted error was not preserved, and 13 therefore asks this Court to review for plain error. See Rule 11-103(E) (“A court may 14 take notice of a plain error affecting a substantial right, even if the claim of error was 15 not properly preserved.”). The State counters that we should limit our review to the 16 more stringent fundamental error standard. Under either standard, we must be 17 convinced that “admission of the evidence in question ‘creates grave doubts 18 concerning the validity of the verdict.’ ” State v. Rojo, 1999-NMSC-001, ¶ 45, 126 19 N.M. 438, 971 P.2d 829 (quoting Lucero, 1993-NMSC-064, ¶ 12). 20 {50} The first step in a plain or fundamental error analysis is to determine whether

35

1 the evidence in question was erroneously admitted. See Campos, 2007-NMSC-021, 2 ¶ 8 (“[W]e first determine if error occurred; if so, we next determine whether that 3 error was fundamental.”). Defendant contends that the State’s question was unrelated 4 to the impeachment of Saiz and that “its only connection to the issues before the jury 5 was as highly improper propensity evidence.” We disagree. Saiz testified that 6 Defendant was at her house until sometime “after midnight” on the morning of 7 March 22, 2006, the morning that Deputy McGrane was killed shortly after 12:44 am. 8 As a result, her prior inconsistent statement to the police that, “If you guys would 9 have caught him before, he wouldn’t have killed somebody else,” was relevant to her 10 credibility. Saiz’s prior statement clearly acknowledged that she found Defendant’s 11 involvement in Deputy McGrane’s death to be at least plausible, which would not be 12 true had Defendant been at her house that morning. Thus, the prior statement was 13 relevant to show that Saiz had been untruthful, either in her statement to the police 14 or in her testimony at trial. See Macias, 2009-NMSC-028, ¶ 20 (“We place [the 15 witness’s] contradictory statements side by side, and, as both cannot be correct, we 16 realize that in at least one of the two he must have spoken erroneously. Thus, we have 17 detected him in one specific error, from which may be inferred a capacity to make 18 other errors.” (alteration in original) (quoting 3A Wigmore, supra, § 1017, at 993)).

36

1 {51} Given the relevance of the prior statement, it could only have been excluded 2 if its relevance was “substantially outweighed by a possibility of . . . unfair 3 prejudice.” Rule 11-403. The district court had determined that evidence that the 4 warrant was for murder was inadmissible under Rule 11-403, and it had staunchly 5 adhered to that holding throughout the trial—with the vigorous support of defense 6 counsel. That neither the district court nor defense counsel reacted to the State’s 7 question leads us to conclude that, in the context of the trial, the question was not as 8 “highly prejudicial” as Defendant now contends. In fact, the State renewed its request 9 to inform the jury that the warrant was for murder during Saiz’s redirect 10 examination—after it had asked the question in dispute—and neither the district court 11 nor defense counsel took issue with the State’s previous question. 12 {52} The single question and answer was the lone reference to Saiz’s prior statement 13 that the jury heard in a trial that lasted more than two weeks, a trial that, as explained 14 later in this opinion, included abundant evidence of Defendant’s guilt. Thus, even 15 under the harmless error standard that applies to errors that are properly preserved, 16 the admission of the question would not require reversal. See State v. Serna, 2013- 17 NMSC-033, ¶ 23, 305 P.3d 936 (“When assessing the probable effect of evidentiary 18 error, ‘courts should evaluate all of the circumstances surrounding the error.’ This

37

1 includes the source of the error, the emphasis placed on the error, evidence of the 2 defendant’s guilt apart from the error, the importance of the erroneously admitted 3 evidence to the prosecution’s case, and whether the erroneously admitted evidence 4 was merely cumulative.” (quoting Tollardo, 2012-NMSC-008, ¶ 43)). As a result, 5 even if the admission of the State’s question was erroneous, the error does not require 6 reversal under either the plain or fundamental error doctrines. 7 {53} Defendant also suggests that we should evaluate the State’s question under the 8 standard applied to prosecutorial misconduct arising from the intentional introduction 9 of evidence about a defendant’s post-arrest silence, as in State v. Hennessy, 1992- 10 NMCA-069, ¶¶ 21-23, 114 N.M. 283, 837 P.2d 1366, overruled on other grounds by 11 Lucero, 1993-NMSC-064. In Hennessy, the Court of Appeals reversed the 12 defendant’s conviction based on a finding of fundamental error after the prosecution 13 impeached the defendant using his “failure” to contact the police to correct a false 14 statement that he had made upon his initial arrest. Hennessy, 1992-NMCA-069, ¶ 7. 15 On re-direct examination, the defendant explained that his attorney had counseled 16 him “not to say anything to anybody about the case.” Id. During closing arguments, 17 the prosecution referred to the defendant’s testimony as evidence that the defendant 18 “never bothered” to tell the truth, and that his attorney had told him not to tell the

38

1 truth. Id. The Court reasoned that fundamental error occurred because the prosecution 2 “intentionally elicited direct comment on the exercise of [the] defendant’s rights, 3 despite [the Court of Appeals’] repeated admonitions not to do so.” Id. ¶ 23. 4 {54} Even if we were to agree that the State’s question in this case amounted to 5 prosecutorial misconduct, Hennessy is not on point. The questioning in Hennessy 6 implicated the defendant’s Fifth Amendment right to remain silent, whereas here, 7 Defendant does not contend that the State’s question about Saiz’s prior statement 8 violated anything other than Rule 11-403. In addition, unlike the single, fleeting 9 question in this case that was never referred to again, the prosecution in Hennessy 10 repeatedly questioned the defendant about his purported failure to correct the false 11 statement and referenced the exchange during closing arguments. Id. ¶¶ 7-8. Thus, 12 Hennessy is neither controlling nor persuasive. 13 {55} We acknowledge that the State’s decision to impeach Defendant with that 14 particular statement was very near the line that had been drawn by the district court. 15 The better practice would have been to ask to approach the bench to confirm that the 16 question was permissible in light of the court’s ruling to exclude evidence that the 17 warrant was for murder. But under the circumstances, the State’s questioning was 18 sufficiently distinct from the substance of the court’s ruling that we will not second-

39

1 guess the lack of a reaction from the court or from defense counsel. Indeed, defense 2 counsel could have reasonably concluded that objecting to the State’s questioning 3 may have merely highlighted the prejudice such that the better course of action was 4 to remain silent. See, e.g., Anderson v. Sternes, 243 F.3d 1049, 1057-58 (7th Cir. 5 2001) (noting that a counsel’s strategy of avoiding emphasis of prejudicial evidence 6 may reasonably encompass the eschewing of limiting instructions). Moreover, we will 7 assume that the court permitted the State’s questioning under its broad discretion to 8 control the examination of witnesses and the overall fairness of the presentation of 9 evidence. See, e.g., State v. Jett, 1991-NMSC-011, ¶ 13, 111 N.M. 309, 805 P.2d 78 10 (“A trial court’s ruling as to the permissible scope of cross-examination is also 11 reviewed under the abuse of discretion standard.” (internal quotation marks and 12 citation omitted)). 13 IV. Substantial Evidence to Show Deliberation 14 {56} Defendant argues that his first-degree murder conviction must be reversed 15 because the State failed to prove the essential element of deliberation. See NMSA 16 1978, § 30-2-1(A)(1) (1994) (“Murder in the first degree is the killing of one human 17 being by another without lawful justification or excuse, by any of the means with 18 which death may be caused . . . by any kind of willful, deliberate and premeditated

40

1 killing . . . .”); see also UJI 14-201 NMRA (providing that willful and deliberate 2 murder requires proof beyond a reasonable doubt that “[t]he killing was [done] with 3 the deliberate intention to take away the life of [the victim]”). 4 {57} When reviewing for substantial evidence, we ask “whether substantial evidence 5 of either a direct or circumstantial nature exists to support a verdict of guilt beyond 6 a reasonable doubt with respect to every element essential to a conviction.” State v. 7 Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. We “view the 8 evidence in the light most favorable to the guilty verdict, indulging all reasonable 9 inferences and resolving all conflicts in the evidence in favor of the verdict.” State 10 v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks 11 and citation omitted). “Contrary evidence supporting acquittal does not provide a 12 basis for reversal because the jury is free to reject [the defendant’s] version of the 13 facts.” Id. (internal quotation marks and citations omitted). Instead, we ask whether 14 a “rational jury could have found beyond a reasonable doubt the essential facts 15 required for a conviction.” Id. (internal quotation marks and citation omitted). 16 {58} To support a conviction for first-degree murder by deliberate killing, the State 17 must prove beyond a reasonable doubt that Defendant killed Deputy McGrane with 18 the deliberate intention of taking away his life. UJI 14-201.

41

1 A deliberate intention refers to the state of mind of the defendant. 2 A deliberate intention may be inferred from all of the facts and 3 circumstances of the killing. The word deliberate means arrived at or 4 determined upon as a result of careful thought and the weighing of the 5 consideration for and against the proposed course of action. A calculated 6 judgment and decision may be arrived at in a short period of time. A 7 mere unconsidered and rash impulse, even though it includes an intent 8 to kill, is not a deliberate intention to kill. To constitute a deliberate 9 killing, the slayer must weigh and consider the question of killing and 10 his [or her] reasons for and against such a choice.

11 Id. 12 {59} Defendant contends that the evidence introduced and relied upon by the State 13 to prove deliberation was insufficient to prove that the homicide was “more than an 14 impulsive killing.” See State v. Garcia, 1992-NMSC-048, ¶ 22, 114 N.M. 269, 837 15 P.2d 862. He argues that although the State introduced substantial evidence that the 16 shooting occurred during a traffic stop, the record is “silent regarding how the 17 shooting took place.” Without an eye-witness account to describe the details of the 18 shooting, Defendant contends, the State’s evidence was “equally consistent with an 19 impulsive, panicked reaction to being pulled over by the police as it is [with] a 20 deliberate-intent murder.” 21 {60} A deliberate intention is rarely subject to proof by direct evidence and often 22 must be inferred from the circumstances. See Duran, 2006-NMSC-035, ¶ 7 (“Intent 23 is subjective and is almost always inferred from other facts in the case, as it is rarely

42

1 established by direct evidence.” (internal quotation marks and citations omitted)); see 2 also UJI 14-201 (“A deliberate intention may be inferred from all of the facts and 3 circumstances of the killing.”). The State contends that it introduced “ample 4 evidence” at trial to allow the jury to infer Defendant’s deliberate intention to kill 5 Deputy McGrane. In particular, the State maintains that the circumstances of the 6 shooting itself support an inference of a deliberate intention. The jury reasonably 7 could have concluded that Defendant complied when Deputy McGrane pulled him 8 over, retrieved his gun while he waited for Deputy McGrane to approach the truck on 9 foot, and when Deputy McGrane neared the window, shot twice at Deputy McGrane 10 from point-blank range. 11 {61} Defendant compares these facts to those in Garcia and contends that the 12 evidence relied on by the State shows merely that Defendant had an opportunity to 13 deliberate, not that he actually deliberated. See 1992-NMSC-048, ¶ 28. In Garcia, this 14 Court found insufficient evidence of a deliberate intention when the evidence showed 15 that the defendant and the victim argued, appeared to reconcile, and argued again, 16 ending with the defendant stabbing the victim to death. Id. The Court reasoned that, 17 even though the defendant had time between the arguments to form a deliberate 18 intention, “nothing in the evidence enabled the jury to infer that this is when he

43

1 formed the requisite deliberate intent, or that he ever formed such an intent.” Id. ¶ 30. 2 {62} Garcia represents the high-water mark of what this Court has required on 3 appeal to show substantial evidence of a deliberate intention. See Flores, 2010- 4 NMSC-002, ¶ 21 (“The facts in Garcia have been distinguished many times by this 5 Court from the facts in cases where there was sufficient evidence of deliberation.”). 6 We take this opportunity to emphasize that the factual basis for our holding in Garcia 7 was narrow. Despite abundant evidence that the killing in Garcia was intentional, our 8 concern was that the State had utterly failed to introduce evidence that the killing was 9 anything other than “rash and impulsive”:

10 [W]e believe that the evidence was not only insufficient to allow a 11 rational jury to find the essential element of deliberation in [the 12 defendant’s] stabbing of [the victim]; it was altogether lacking to serve 13 as a basis for any such inference. There was no evidence to support the 14 jury’s conclusion that, as contemplated by the trial court’s instruction, 15 [the defendant] decided to stab [the victim] as a result of careful 16 thought; that he weighed the considerations for and against his proposed 17 course of action; and that he weighed and considered the question of 18 killing and his reasons for and against this choice.

19 Garcia, 1992-NMSC-048, ¶ 28 (first emphasis added). 20 {63} The circumstances of this case are far removed from those of Garcia. Rather 21 than proving only “a rash and impulsive killing,” Garcia, 1992-NMSC-048, ¶ 28, the 22 evidence in this case supported an inference beyond a reasonable doubt that

44

1 Defendant “weigh[ed] and consider[ed] the question of killing and his reasons for and 2 against such a choice.” UJI 14-201. We agree with the State that the manner of the 3 killing alone supported an inference of deliberation. The jury could have reasonably 4 inferred that, once Defendant saw that he was being pulled over, he faced several 5 options, including whether: (1) to cooperate with Deputy McGrane during the stop 6 and likely be arrested on the outstanding warrant; (2) to attempt to flee from Deputy 7 McGrane; or (3) the option that he chose—to wait for Deputy McGrane to approach 8 the truck and shoot him in the face at point-blank range. The jury could have found 9 that Defendant contemplated all of these choices and, even if he did not make his 10 final decision until the last second, the decision to kill Deputy McGrane was 11 nonetheless a deliberate one. See State v. Sosa, 2000-NMSC-036, ¶ 14, 129 N.M. 12 767, 14 P.3d 32 (“Based upon the evidence, a reasonable jury could determine that 13 [the] [d]efendant intended to kill [the victim] when he went to [the victim’s] home 14 armed with a gun, waited for him to arrive, and then shot the unarmed victim 15 numerous times.”); see also UJI 14-201 (“A calculated judgment and decision may 16 be arrived at in a short period of time.”); cf. People v. Mendoza, 263 P.3d 1, 13-15 17 (Cal. 2011) (finding substantial evidence of “premeditated and deliberate murder” 18 when the defendant obeyed an officer’s command to sit on a curb, hid behind another

45

1 person to conceal drawing his gun, and shot the officer in the face). 2 {64} We also agree with the State that other evidence introduced at trial supported 3 finding a deliberate intention to take away the life of Deputy McGrane. The jury 4 could have inferred that Defendant had a motive for the shooting, which may be 5 probative of a deliberate intention. See, e.g., State v. Motes, 1994-NMSC-115, ¶¶ 14- 6 15, 118 N.M. 727, 885 P.2d 648 (relying in part on evidence of the defendant’s 7 motive to find a deliberate intention to kill his ex-wife). The jury could have found 8 that Defendant killed Deputy McGrane to avoid arrest because Defendant knew that 9 he was wanted on an outstanding arrest warrant and had organized his life to hide his 10 identity by driving a truck registered in someone else’s name, purchasing a mobile 11 home under an alias in the isolated East Mountains, and making himself known under 12 that alias. Cf. Mendoza, 263 P.3d at 14-15 (finding evidence of a “preexisting motive” 13 when the defendant was on parole and knew that he would be arrested and sent back 14 to prison if the victim-officer found that the defendant was in possession of a 15 firearm). 16 {65} The jury also could have found that Defendant’s actions after the killing aided 17 in proving a deliberate intention. Shortly after the shooting, Defendant told his friend, 18 “[The Sheriff’s Office] fucked it up again, and I started to do good again, and they

46

1 fucked it up.” Moreover, Defendant fled to Mexico after the shooting, where he 2 informed a new acquaintance, “I’m Michael Astorga, I blasted that cop.” While these 3 statements, standing alone, might have been insufficient to prove Defendant’s 4 deliberate intention, they were probative of deliberation in the context of all of the 5 evidence introduced on that element of first-degree murder. See Duran, 2006-NMSC- 6 035, ¶ 9 (finding evidence of a deliberate intention based in part on the defendant’s 7 statement after the killing that he had “straight up murdered some bitch”); see also 8 Flores, 2010-NMSC-002, ¶ 23 (“Not only may [the] [d]efendant’s acts before and 9 during the crime provide evidence of intent, evidence of flight or ‘an attempt to 10 deceive the police’ may prove consciousness of guilt.” (quoting State v. Martinez, 11 1999-NMSC-018, ¶¶ 29-30, 127 N.M. 207, 979 P.2d 718)); Rojo, 1999-NMSC-001, 12 ¶ 23 (“[J]ust because each component may be insufficient to support the conviction 13 when viewed alone does not mean the evidence cannot combine to form substantial, 14 or even overwhelming, support for the conviction when viewed as a whole.”); cf. 15 Mendoza, 263 P.3d at 14-15, 18 (affirming the defendant’s conviction based on 16 substantial evidence of “planning activity, preexisting motive, and manner of 17 killing”). 18 {66} In sum, the circumstances of this case are nowhere near the circumstances of

47

1 Garcia. The State introduced abundant evidence of Defendant’s deliberate intention 2 to take away the life of Deputy McGrane. 3 V. Change of Venue 4 {67} For his last argument, Defendant claims that the district court abused its 5 discretion when it denied his motion for a change of venue before the guilt phase of 6 his trial. Defendant filed a pretrial motion for change of venue, claiming the jury pool 7 in Bernalillo County would be prejudiced against him due to extensive media 8 coverage of the case. After an evidentiary hearing on the motion, the district court 9 denied Defendant’s request, citing a lack of evidence that the entire jury pool was 10 presumptively prejudiced. After the guilt phase, however, the district court granted 11 Defendant’s renewed motion for a change of venue, reasoning that the guilt-phase 12 trial had generated “a lot of public excitement” and that the court had received a low 13 number of responses to the juror questionnaires sent out to potential members of the 14 penalty-phase jury pool. Defendant contends that the district court’s decision to 15 change the venue for the penalty phase shows that the court abused its discretion 16 when it denied Defendant’s motion before the guilt phase. We disagree. 17 {68} We review the denial of a motion for change of venue for an abuse of 18 discretion. State v. House, 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967. The

48

1 trial court may change venue based on presumed prejudice or on actual prejudice. Id. 2 ¶ 45-47. Presumed prejudice arises when “evidence shows that the community is so 3 saturated with inflammatory publicity about the crime that it must be presumed that 4 the trial proceedings are tainted.” Id. ¶ 46. However, if the court concludes that 5 presumed prejudice is not present and instead proceeds to voir dire, “we will limit our 6 review to the evidence of actual prejudice.” State v. Barrera, 2001-NMSC-014, ¶ 16, 7 130 N.M. 227, 22 P.3d 1177. “Actual prejudice requires a direct investigation into the 8 attitudes of potential jurors [during voir dire] . . . to establish whether there is such 9 widespread and fixed prejudice within the jury pool that a fair trial in that venue 10 would be impossible.” House, 1999-NMSC-014, ¶ 46. A finding of no actual 11 prejudice must be supported by substantial evidence and “necessarily precludes a 12 finding of presumed prejudice.” See Barrera, 2001-NMSC-014, ¶ 16. 13 {69} In this case, the district court found insufficient evidence of presumed 14 prejudice and proceeded to voir dire. Potential jurors filled out extensive 15 questionnaires, and over the course of the voir dire, each potential juror was 16 questioned regarding actual prejudice. Jurors who could not be impartial were 17 excused, and the jury that was finally impaneled was composed of jurors who 18 affirmed their ability to remain impartial.

49

1 {70} Defendant does not offer, and we are unable to find, any evidence in the record 2 of actual prejudice against Defendant held by the members of the guilt-phase jury 3 panel. We also note that Defendant did not renew his motion for a change of venue 4 after voir dire, tacitly agreeing that there was no evidence of actual prejudice among 5 the members of the guilt-phase jury panel. This procedure was adequate to safeguard 6 Defendant’s right to a fair and impartial jury. See Barrera, 2001-NMSC-014, ¶ 18 7 (noting that the trial court determined “through voir dire that the jurors, although they 8 may have heard of the case, were not incapable of impartiality” and that “[m]ore is 9 not required” (quoting State v. Chamberlain, 1991-NMSC-094, ¶ 6, 112 N.M. 723, 10 819 P.2d 673)); see also State v. Lasner, 2000-NMSC-038, ¶ 27, 129 N.M. 806, 14 11 P.3d 1282 (holding that the trial court did not abuse discretion in denying change of 12 venue where the defendant was able to question jurors and challenge those who 13 indicated partiality). 14 {71} The district court’s decision to grant the renewed motion for a change of 15 venue—after the highly publicized guilt-phase trial—does not lead us to a different 16 result. Rather, we view the district court’s grant of the renewed motion as indicative 17 of its ability to maintain a fair and open mind throughout the complicated and lengthy 18 proceedings of this case. The district court did not abuse its discretion when it denied

50

1 Defendant’s motion for a change of venue. 2 CONCLUSION 3 {72} We affirm all of Defendant’s convictions. 4 {73} IT IS SO ORDERED.

5 ______________________________ 6 EDWARD L. CHÁVEZ, Justice

7 WE CONCUR:

8 ___________________________________ 9 PETRA JIMENEZ MAES, Justice

10 ___________________________________ 11 RICHARD C. BOSSON, Justice

12 ___________________________________ 13 CHARLES W. DANIELS, Justice