State v. Hester

1999 NMSC 020, 979 P.2d 729, 127 N.M. 218
CourtNew Mexico Supreme Court
DecidedApril 12, 1999
Docket24,251
StatusPublished
Cited by113 cases

This text of 1999 NMSC 020 (State v. Hester) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hester, 1999 NMSC 020, 979 P.2d 729, 127 N.M. 218 (N.M. 1999).

Opinion

OPINION

MAES, Justice.

{1} Defendant Wesley Dean Hester was indicted on the following charges: (Count I) murder in the first degree, contrary to NMSA 1978, § 30-2-1 (A) (1994); (Count II) conspiracy contrary to NMSA 1978, § 30-28-2 (1979), and NMSA 1978, § 30-2-l(A)(l), (B) (1994); and (Count III) tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963). Defendant was convicted on all three counts. Defendant was sentenced to life imprisonment on Count I, nine years on Count II, and eighteen months on Count III, to run concurrently. After trial Defendant filed a motion for a new trial based on ineffective assistance of counsel and insufficiency of the evidence, claiming the State failed to show deliberate intent to kill. The motion was denied by the trial court. We affirm the trial court on all counts and find no ineffective assistance.

I. Background

{2} Alice Rush testified that she and Defendant first attempted to kill Richmond Rush in early December 1994. They combined a rat poison and an herbicide and put it in a bag with Richmond Rush’s “crank,” a methamphetamine. The poison did not work. On December 16, 1994 the Defendant and Alice Rush planned to kill Richmond Rush by shooting him as he drove home from work. The second plan also was carried out, but Defendant’s shots missed Richmond Rush. About 2:30 a.m. on December 17,1994, Defendant showed Alice Rush the body of Richmond Rush in the back of Defendant’s pickup. Richmond Rush had been killed by ten shots to the head and chest. His hands and arms were tied. Together Defendant and Alice Rush transported and disposed of the body, the gun and other items used in the murder.

{3} On Monday, December 19, 1994, Alice Rush filed a petition for a restraining order against Richmond Rush.

{4} After Richmond Rush was killed, Alice Rush and Defendant became lovers. In early June 1995, Defendant beat Alice Rush. Later, Defendant, who was in Oklahoma, told Alice Rush to come to Oklahoma by July 4, 1995, or he would come to New Mexico to get her. Alice Rush became frightened of Defendant’s threats: to come and get her, to prostitute her, and to take her children away from her. She went to the police. She called Defendant from the police station. The conversation was recorded, but the recording was of very poor quality. Defendant’s angry tone and some expletives were distinguishable. After the phone call, Alice Rush told police that she was afraid of Defendant because he had killed Richmond Rush.

{5} Alice Rush described the details of the body of Richmond Rush as she last saw it: the clothing, the ropes, the plastic bag. Her description matched the state of the body as it was found by police. Then, Alice Rush took officers to the location where the body had been found. That location had not been disclosed to the media.

{6} Alice Rush was granted immunity and testified against Defendant. Alice Rush admitted that certain earlier statements to police had been false and that her petition for a restraining order was false because she knew Richmond Rush was already dead. Alice Rush’s attorney testified that he had entered into an immunity agreement on behalf of Alice Rush requiring her to testify truthfully at a preliminary hearing and trial. Her attorney stated that he was not present for earlier statements she gave to police.

II. Sufficiency of the Evidence

{7} Defendant raises insufficiency of the evidence. This Court will not substitute its judgment for that of the fact finder so long as there is sufficient evidence to support the verdict. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829; State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). The testimony of Alice Rush provided substantial evidence to support the convictions. Alice Rush testified that she and the Defendant made a conscious decision to kill the Defendant and made two failed attempts to do so. Defendant first attempted this murder by poison, then attempted this murder by lying in wait to shoot the victim as he traveled by, then accomplished this murder by shooting ten bullets into the victim’s head and chest. The victim’s hands, chest and arms were tied when the body was first observed after the murder. The victim’s head was concealed. This evidence supports the jury’s conclusion that the Defendant had the intent required for conviction of first degree murder.

{8} In a proper case, this Court would discount criminal witness testimony on review if it were inherently improbable. See State v. Seaton, 86 N.M. 498, 501, 525 P.2d 858, 861 (1974). Defendant argues that the testimony of Alice Rush was inherently improbable. We do not agree. The credibility of Alice Rush was an issue for the jurors to determine; their verdict indicates they believed her. From Alice Rush’s testimony concerning the previous attempts on the victim’s life and the delivery of the body, the jury could infer both premeditation and the identity of the killer.

III. Ineffective Assistance of Counsel

{9} Defendant also alleges ineffective assistance of counsel. New Mexico follows the test for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proof of ineffective assistance is two-fold: (1) Defendant must show that counsel’s performance fell below that of a reasonably competent attorney, and (2) Defendant also must prove “that the deficient performance prejudiced the defense.” Id. The Defendant has the burden of proving both prongs of the test. See State v. Baca, 1997-NMSC-045, ¶ 20, 124 N.M. 55, 946 P.2d 1066; State v. Gonzales, 113 N.M. 221, 229-30, 824 P.2d 1023, 1031-32 (1992). Defendant failed to meet either part of the test. Evidence in the record supports the trial judge’s commendation of defense counsel’s representation of Defendant.

{10} In this case, Defendant identifies several errors of counsel which he claims constitute constitutional ineffectiveness. First, the body was found with one hand in an obscene gesture. Defendant alleges that failure to cross-examine Detective J.R. Lucero as to why he did not ask the ranch hand who found the body about the obscene gesture was ineffective assistance of counsel. Second, Defendant claims he last saw the deceased getting into a pickup with Brian Maddox. Deputy J.R. Lucero and the investigator for the Defendant both searched for Brian Maddox. The defense investigator found a person named Brian Maddox who had been in. jail at the time of the murder. Defendant alleges failure to seek out Brian Maddox was incompetency of counsel. Third, on December 24, 1994, blood was observed being washed out of the bed of a white pickup belonging to Isleta Gaming Palace. Defendant alleges that failure to follow up on the pickup at the carwash was ineffective assistance of counsel. The driver of the white pickup and a witness who saw the pickup being washed were both interviewed. It was determined that the blood being washed out of the pickup was fresh.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gardner v. Stevenson
D. New Mexico, 2024
State v. Romero
New Mexico Court of Appeals, 2021
State v. Amador
New Mexico Court of Appeals, 2021
State v. Getchell
New Mexico Court of Appeals, 2021
State v. Salazar
New Mexico Court of Appeals, 2020
State v. Clark
New Mexico Court of Appeals, 2019
State v. Rael-Gallegos
2013 NMCA 092 (New Mexico Supreme Court, 2013)
State v. Favela
2013 NMCA 102 (New Mexico Court of Appeals, 2013)
State v. Samples
New Mexico Court of Appeals, 2013
State v. Cortina
New Mexico Court of Appeals, 2013
State v. Littleton
New Mexico Court of Appeals, 2013
State v. Silva
New Mexico Court of Appeals, 2013
State v. Trujillo
New Mexico Court of Appeals, 2013
State v. Chacon-Lozano
New Mexico Court of Appeals, 2012
State v. Calderon
New Mexico Court of Appeals, 2012
State v. Sandoval
New Mexico Court of Appeals, 2012
State v. Hernandez
New Mexico Court of Appeals, 2012
State v. Blake
New Mexico Court of Appeals, 2012
State v. Vigil
New Mexico Court of Appeals, 2011
State v. Morgan
New Mexico Court of Appeals, 2011

Cite This Page — Counsel Stack

Bluebook (online)
1999 NMSC 020, 979 P.2d 729, 127 N.M. 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hester-nm-1999.