State v. Carrera

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 28,712 10 YRENIO CARRERA, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 13 Jane Shuler Gray, District Judge

14 Gary K. King, Attorney General 15 Farhan Khan, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee

18 Trace L. Rabern 19 Santa Fe, NM

20 for Appellant 21 MEMORANDUM OPINION 22 WECHSLER, Judge.

1 Defendant Yrenio Carrera appeals his conviction for two counts of assault with 2 intent to commit a violent felony on a peace officer, one count of aggravated battery 3 on a peace officer, and one count of resisting, evading, or obstructing an officer. His 4 brief in chief states that (1) the district court deprived him of his constitutional right 5 to present a defense by excluding medical testimony and records; (2) the jury 6 instructions were inadequate to reflect his defense of self-defense and to shift the 7 burden to the State to prove unlawfulness; (3) the State’s prosecutorial misconduct 8 requires reversal; and (4) the district court violated his constitutional protections 9 regarding double jeopardy by convicting and sentencing him for both aggravated 10 assault on a peace officer with intent to kill and aggravated battery with a deadly 11 weapon for the same incident relating to the same officer, as well as convicting and 12 sentencing him for three counts of aggravated assault on a peace officer with intent 13 to kill for only one incident involving only one officer. We affirm. 14 MEDICAL EVIDENCE 15 After the incident giving rise to the charges in this case, Defendant fled to Big 16 Spring, Texas and received medical care at the Big Spring Hospital. Defendant 17 asserted in the district court that he had been shot in the back and that officers shot at 18 him first while Defendant was still in his car. He states that he told the medical 19 providers that he was shot in the back. He further states that his attorney reviewed the

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1 medical records and interviewed medical personnel and that the wounds were 2 described “as an entry wound on the back of the shoulder and an exit wound on the 3 front of the shoulder/chest, and a second shot to the back of the neck.” Defendant was 4 treated by an emergency room doctor and nurse. 5 The doctor had moved “outside the jurisdiction of the courts” and “would not 6 be available to testify.” Defendant contacted the nurse to testify at trial. According 7 to Defendant, her testimony was necessary because she had observed Defendant’s 8 wounds, heard Defendant tell his medical providers that he was shot in the back, and 9 could provide the foundation for Defendant’s medical records. The nurse had young 10 children and did not want to travel to New Mexico for trial. After Defendant moved 11 to have the nurse testify telephonically at a deposition, the district court required 12 Defendant to serve the nurse with an out-of-state subpoena duces tecum, which a 13 Texas state court quashed. The district court then granted Defendant’s motion to take 14 the nurse’s video deposition. 15 The day before trial, the district court, on the State’s motion, ruled that the 16 nurse’s testimony concerning the direction of Defendant’s wound was inadmissible 17 because the nurse lacked “any expertise in the area with regard to entry and exit 18 wounds.” It allowed the nurse to testify about her notes, except as they pertained to 19 the entry and exit characteristics of the wounds. It ruled that testimony about the

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1 emergency room doctor’s notes or statements Defendant made were inadmissible 2 hearsay. 3 Later that day, Defendant notified the State that he intended to call as a witness 4 another doctor to provide a foundation for the forensic evidence. The judge sustained 5 the State’s objection to the witness on the basis of an untimely disclosure. 6 On appeal, Defendant argues that the district court denied him his right to 7 present his defense that he was shot in the back because the district court did not allow 8 the nurse’s testimony and the medical records as evidence. He contends that the 9 testimony “supported the core defense theme that [he] did not shoot with intent to 10 murder, as the State charged, but only to try [to] defend himself from imminent threat 11 of death.” Defendant also raises a confrontation argument. 12 Defendant’s arguments fail because he does not address the district court’s 13 rulings determining that the nurse’s testimony was inadmissible because the nurse was 14 not qualified to testify about the entry or exit wounds and that the other medical 15 records were hearsay for which there was no foundation for admissibility. Because 16 Defendant has not raised these issues, we will not address them on appeal. State ex 17 rel. Children, Youth & Families Dep’t v. Hector C., 2008-NMCA-079, ¶ 10, 144 N.M. 18 222, 185 P.3d 1072 (“We do not address arguments not raised on appeal.”). Although 19 Defendant argued to the district court that the evidence was essential for his defense,

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1 the district court did not rule on that issue, and it did not need to make such a ruling 2 because it determined that the evidence was not admissible for other reasons. 3 Defendant was not entitled to introduce evidence without proper foundation for 4 testimony on the wounds or proper foundation for establishing an exception to hearsay 5 merely because it was important, or even essential, to his defense. See State v. 6 Thompson, 2009-NMCA-076, ¶ 12, 146 N.M. 663, 213 P.3d 813 (stating that it is an 7 abuse of discretion to admit evidence without the necessary foundation), cert. denied, 8 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43. 9 JURY INSTRUCTIONS 10 Defendant argues on appeal that the jury instructions did not adequately reflect 11 Defendant’s entitlement to act in unreasonable self-defense or to shift the burden to 12 the State to prove unlawfulness. Defendant specifically argues that the district court 13 should have given an imperfect self-defense instruction or, alternatively, instructed the 14 jury concerning the reasonableness standard of State v. Mantelli, 2002-NMCA-033, 15 131 N.M. 692, 42 P.3d 272, including a reasonableness test for Defendant’s conduct. 16 Defendant asserts in his brief in chief that he objected to the jury instructions 17 as being inadequate to inform the jury of his right to use force against the officers and 18 that his “trial counsel’s defense and closing argument fairly include the concept of 19 imperfect self-defense.” Defendant did not proffer any instructions addressing the

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1 issues he now argues on appeal. See State v. Rivera, 2009-NMCA-132, ¶ 40, 147 2 N.M. 406, 223 P.3d 951 (stating that the defendant did not preserve a jury instruction 3 issue for appeal when he tendered no such instruction at trial), cert. denied, 2009- 4 NMCERT-011, 147 N.M. 463, 225 P.3d 793. As a result, he did not preserve in the 5 district court the arguments he raises on appeal, and we will review his arguments 6 only for fundamental error. See State v. Cunningham, 2000-NMSC-009, ¶ 11, 128 7 N.M. 711, 998 P.2d 176. 8 FUNDAMENTAL ERROR 9 Fundamental error, in connection with jury instructions, occurs when “a 10 reasonable juror would have been confused or misdirected by the jury instruction.” 11 Id. ¶ 14 (internal quotation marks and citation omitted). It “only applies in 12 exceptional circumstances when guilt is so doubtful that it would shock the judicial 13 conscience to allow the conviction to stand.” Id. ¶ 13 (internal quotation marks and 14 citation omitted). 15 The district court instructed the jury on self-defense that Defendant had “the 16 right to self defense against a [p]eace [o]fficer when the officer uses excessive force 17 to effect an arrest.” The court further instructed that “[e]xcessive force means greater 18 force than reasonably necessary to the performance of the duties of the officer.” The 19 jury ruled against Defendant on this defense, necessarily finding that the officers did

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1 not use excessive force. 2 Imperfect self-defense permits a murder charge to be reduced to manslaughter 3 based on mitigating circumstances. State v. Abeyta, 120 N.M. 233, 240, 901 P.2d 164, 4 171 (1995), abrogated on other grounds by State v. Campos, 1996-NMSC-043, ¶ 32 5 n.4, 122 N.M. 148, 921 P.2d 1266. It applies when a defendant has used excessive 6 force when lawfully defending himself or herself. State v. Romero, 2005-NMCA-060, 7 ¶ 16, 137 N.M. 456, 112 P.3d 1113; see also Abeyta, 120 N.M. at 241, 901 P.2d at 8 172. If Defendant was lawfully defending himself, there was no evidence at trial that 9 he was using excessive force to do so. As a result, even if the defense of imperfect 10 self-defense were available to Defendant, which would be an extension of existing 11 law, the evidence would not support it in this case. 12 Defendant also contends that he was entitled to jury instructions that addressed 13 both the objective reasonableness of the officer’s actions, as well as Defendant’s 14 reasonableness when confronting the officer’s actions. Defendant principally relies 15 on Mantelli. However, Mantelli is not applicable to this case. In Mantelli, a police 16 officer was the defendant, charged with shooting and killing a fleeing suspect. 2002- 17 NMCA-033, ¶¶ 3, 6. The officer’s actions were at issue in the case, and, in order to 18 decide whether the officer was entitled to a justifiable homicide instruction, this Court 19 had to determine “whether a jury could find that [the officer] had probable cause to

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1 believe [the victim] posed a threat of serious harm or deadly force to him or [another 2 officer], and that the use of deadly force was necessary to avert the threat.” Id. ¶ 31. 3 Additionally, Defendant cites to NMSA 1978, Section 30-2-6 (1989), which is a 4 justifiable homicide defense available to public officers and public employees. It is 5 not available to Defendant. Moreover, the district court instructed the jury on self- 6 defense and Defendant’s right to self-defense against a police officer who uses 7 excessive force. The jury was able to address Defendant’s arguments that the officers 8 acted unlawfully. There was no fundamental error in the jury instructions in this case. 9 PROSECUTORIAL MISCONDUCT 10 Defendant, in a heading in his brief in chief, asserts that prosecutorial 11 misconduct requires reversal and states several bases for his conclusion. With the 12 exception of one sentence in the argument section of his brief in chief concerning the 13 prosecutor’s discussion about gangs, Defendant only discusses authorities in his 14 argument. Although he discusses facts that apparently pertain to his argument in his 15 discussion of the procedural background of the case earlier in his brief in chief, 16 Defendant does not connect the authorities he discusses in his argument with facts that 17 might support his argument. We decline to address these arguments that Defendant 18 has not properly developed. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, 19 ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to address unclear and undeveloped

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1 arguments). Moreover, headings in briefs alone are not argument. See State v. 2 Boergadine, 2005-NMCA-028, ¶ 34, 137 N.M. 92, 107 P.3d 532 (“As [the d]efendant 3 only mentions issues three and four in a heading, but makes no further reference to or 4 argument about these issues, we will not address them.”). 5 As to Defendant’s reference to gangs, Defendant argued that the “prosecutor’s 6 blatant resort to discussions about gangs, against the trial court’s orders, clearly was 7 evidence which improperly appeals to the passions and prejudices of the jury [and] 8 should be excluded.” Defendant does not cite to the record or explain the discussions 9 that he references. Again, we will not address Defendant’s undeveloped argument. 10 See Headley, 2005-NMCA-045, ¶ 15. 11 DOUBLE JEOPARDY 12 Defendant lastly contends that his convictions and sentences for both 13 aggravated assault with intent to kill and aggravated battery with a deadly weapon 14 with respect to Officer Devore, as well as his convictions and sentences of aggravated 15 assault on a police officer with intent to kill, violated principles of double jeopardy. 16 As to Officer Devore, Defendant argues that under State v. Mora, 1997-NMSC- 17 060, ¶ 64, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds as recognized by 18 Kersey v. Hatch, 2010-NMSC-020, ¶ 17, __ N.M. __, __ P.3d __, “the assault on 19 [O]fficer Devore was subsumed in the battery conviction.” Mora is not on point

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1 because the double jeopardy violation in the case involved multiple punishments for 2 felony murder and intentional child abuse resulting in death. Id. To determine 3 whether there is a double jeopardy violation for multiple punishments, we must first 4 analyze “whether the conduct underlying the offenses is unitary.” Swafford v. State, 5 112 N.M. 3, 13, 810 P.2d 1223, 1233 (1991). Defendant has not, however, stated the 6 basis for his contention, stating only his conclusion that the assault was subsumed 7 within the battery conviction. We again decline to address his undeveloped argument. 8 See Headley, 2005-NMCA-045, ¶ 15. 9 As to the other officers, Defendant cites State v. LeFebre, 2001-NMCA-009, 10 130 N.M. 130, 19 P.3d 825, and contends that, under LeFebre, he “should face only 11 one assault charge for his unitary actions as against all of the officers who were not 12 injured.” In LeFebre, this Court held that a defendant’s actions in leading police in 13 a high-speed car chase and subsequently fleeing on foot constituted a single act of 14 fleeing for double jeopardy purposes. Id. ¶ 18. Again, Defendant has not asserted the 15 facts that support his conclusionary statement. We also decline to address this 16 argument. See Headley, 2005-NMCA- 045, ¶ 15. 17 CONCLUSION 18 We affirm Defendant’s convictions.

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1 IT IS SO ORDERED.

2 ________________________________ 3 JAMES J. WECHSLER, Judge

4 WE CONCUR:

5 ________________________________ 6 CELIA FOY CASTILLO, Judge

7 ________________________________ 8 LINDA M. VANZI, Judge