State v. Chavez

867 P.2d 1189, 116 N.M. 807
New Mexico Court of Appeals·Decided August 19, 1993·No. 13549·Published·Cited by 21 cases

Opinion

OPINION

BLACK, Judge.

Defendant appeals from his convictions for second degree murder, two counts of tampering with evidence, and conspiracy to tamper with evidence. He raises five issues on appeal: (1) error in failing to grant a motion for new trial based on the State’s suppression of material evidence; (2) error in failing to grant a motion for new trial based on the recantation of testimony by the State’s key witness; (3) admission of evidence in violation of the spousal privilege; (4) sufficiency of the evidence; and (5) cumulative and fundamental error in the prosecutor’s closing argument. Issues listed in the docketing statement but not briefed are deemed abandoned. See State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). Since the record is sufficient to enable us to evaluate the merits of the second and third issues we deny Defendant’s contingent motion to remand for an evidentiary hearing and we affirm.

FACTS

On December 31, 1989, Defendant and his wife, Stacey Chavez, had a New Year’s Eve party at their mobile home. Dari “Pops” Hicks, Debbie McDaniel, and her friend, Les Hall, attended the party. Everyone drank very heavily and the group consumed four or five marijuana cigarettes. Hall also inhaled four or five lines of cocaine and swallowed “some pills.”

As Hall continued to consume alcohol and drugs, his mood soured. He made several disparaging and hostile remarks to Defendant during the evening, including a statement that Defendant had two women; this was presumably a reference to Defendant’s affair with McDaniel. Sometime before midnight, Hall got up, remarked that the others were spoiling the party, and left. Defendant told McDaniel that Hall was leaving to get more cocaine and that he was coming back.

Between 1:00 and 2:00 a.m., the group heard a loud truck outside the trailer. Defendant said it sounded like Hall was back. There is some dispute as to exactly when, or why, but at least by the time Hall returned, Defendant had placed his derringer in his back pocket. When Hall reentered the trailer, the two women went into the back bedroom, leaving Defendant and Hicks in the kitchen.

Hall entered without knocking, holding a whiskey bottle in his hand, and accused Defendant and Hicks of stealing his winning Colorado lottery ticket. Hall and Defendant pushed each other, and Hall shattered a glass table top with the whiskey bottle. Since the glass table had been a wedding gift, Defendant was angry and demanded to know who would pay for it. Hall either stumbled or was pushed out the door. According to Defendant, Hall then threatened to get a gun and kill “all of you sons of bitches.”

When Hall began walking quickly toward his truck, where Defendant knew Hall kept a gun, Defendant followed him. Defendant testified: “That’s when I pulled my gun out of my back pocket and fired a warning shot and said, ‘Don’t do it, Les, don’t do it, I got the drop on you.’ ” Defendant said that Hall reached the door of his pickup and was “within arm’s reach” of his gun. Defendant testified, “He turned on me and we had a struggle for my gun and he tried to trip me and take my gun away and the gun went off.” Hall’s body was discovered in his truck off a dirt road south of Bloomfield on New Year’s Day.

THE FIRST MOTION FOR NEW TRIAL

When initially questioned by a state police officer, Stacey Chavez admitted Hall had been in their home New Year’s Eve, but insisted he left after dinner and never returned. On January 6, 1990, Stacey Chavez gave a formal statement to state police officer Lonnie Valencia and a local officer. After Stacey repeated the story that Hall never returned, she was asked if she heard gunshots. At her request, the tape recorder was then shut off.

At some point during the ensuing discussion, the prosecutor, Assistant District Attorney Craig Westberg, was contacted. West-berg told Stacey that she would be given immunity from prosecution if she cooperated. Stacey then admitted that Hall had returned after midnight. She described how he had argued with Defendant, and Hall had been forced to leave. Stacey told the police that Hall fell or was pushed from the porch. She said Hall threatened to get his gun and shoot them and ran off into the darkness towards his truck. She heard her husband shout, “Don’t do it Les, don’t do it,” and a shot. A few seconds later, she said she heard a second, muffled, gunshot. When she went outside, she saw Hall lying still on the ground. Stacey admitted to the police that she and the others had decided to get rid of the body and hide the evidence. At her request, the police took Stacey and her children to a “safe house,” as she was afraid Defendant would be angry that she did not stick with her story.

After a preliminary hearing in February, Defendant was bound over for trial on charges of second degree murder, conspiracy, and tampering with evidence. Stacey Chavez was not called as a witness.

About four months after the preliminary hearing, Stacey Chavez took her children and moved to Grand Junction, Colorado. Sometime during this stay in Colorado, Stacey told a pastor and a counselor that she had lied to police when she said she had not seen the shooting. Her counselor contacted Officer Valencia and told him that Stacey wanted to change her story. Officer Valencia travelled to Colorado and took a third statement from Stacey. It differed in two main respects from the second story. Stacey now claimed that Hall had made no threats when he was ejected from the trailer, and she claimed to have actually witnessed the shooting. As a result of Stacey’s new recitation, the State moved to amend the criminal complaint to charge Defendant with first degree murder.

Before the second preliminary hearing, however, Stacey Chavez moved back in with Defendant. She also contacted Defendant’s attorney and said she wished to recant her third story. She insisted the second statement was correct.

Within a few days of her conversation with Defendant’s lawyer, Stacey placed another phone call, this time to the District Attorney’s Office. She stated that she needed help to get herself and her children out of the house. In response to her call, the prosecutor and a witness coordinator from his office drove out to the Chavez trailer, picked up Stacey and her children, and took them to another “safe house.” Stacey appeared as a witness at the second preliminary hearing, and testified in a manner consistent with her third statement to Officer Valencia.

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State v. Chavez, 867 P.2d 1189, 116 N.M. 807 (N.M. Ct. App. 1993).

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