State v. Lovett

Opinion

This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Filing Date: June 2, 2016 3 STATE OF NEW MEXICO, 4 Plaintiff-Appellee, 5 v. NO. S-1-SC-34815 6 PAUL LOVETT, 7 Defendant-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 9 Mark T. Sanchez, District Judge

10 Bennett Baur, Chief Public Defender 11 Allison H. Jaramillo, Assistant Appellate Defender 12 Santa Fe, NM

13 for Appellant

14 Hector H. Balderas, Attorney General 15 Kenneth H. Stalter, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee 18 DECISION

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1 VIGIL, Justice. 2 {1} Defendant appeals his conviction for first-degree murder, contrary to NMSA 3 1978, Section 30-2-1(A) (1994). Defendant challenges his conviction on three 4 grounds, arguing that: 1) the trial court erred by failing to either grant a mistrial or to 5 voir dire interview alternate jurors after the State inadvertently violated a stipulation 6 agreement by using a different murder victim’s name during examination of a witness; 7 2) the trial court erred by failing to declare a mistrial when prospective jurors saw 8 Defendant in the company of uniformed detention officers; and 3) there was 9 insufficient evidence to support a verdict of first-degree murder because the State 10 failed to prove that Defendant was the killer and that his conduct was willful, 11 deliberate and premeditated. 12 {2} We reject each of the Defendant’s claims of error and affirm his conviction for 13 first-degree murder. We render this non-precedential decision because settled New 14 Mexico law controls each of the issues raised by Defendant. See Rule 12-405(B)(1) 15 NMRA. 16 I. BACKGROUND 17 {3} In 2002 Paul Lovett (Defendant) was convicted, in a joint trial, of two counts 18 of first-degree murder for the killings of Elizabeth Garcia (Victim) and Patty Simon.

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1 State v. Lovett, 2012-NMSC-036, ¶ 1, 286 P.3d 265. In Defendant’s capital appeal 2 from those convictions, this Court reversed the conviction for Victim’s murder due 3 to impermissible joinder. Id. ¶ 37. The details of the previous trial and appeal can be 4 found in this Court’s opinion in State v. Lovett, 2012-NMSC-036. Upon remand of the 5 vacated conviction for a new trial, Defendant was again convicted of first-degree 6 murder for killing Garcia, and that conviction forms the basis of the instant capital 7 appeal. The facts and evidence presented in the second trial are as follows. 8 {4} On January 15, 2002, Victim worked the night shift at a gas station in Hobbs, 9 New Mexico. In the early morning of January 16, 2002, between 2:15 a.m. and 3:00 10 a.m., Victim’s boyfriend discovered she was missing. He also discovered that her 11 homework book had been left open on a counter inside the gas station and her car was 12 still parked outside. A store manager confirmed that the cash register’s last transaction 13 occurred at 2:24 a.m., and that $12.49 was missing from the drawer. The panic alarm 14 was never activated. 15 {5} Victim’s body was discovered in a vacant lot; she was clothed, but her shirt was 16 pulled up around her neck. Police observed tire tracks, two distinct sets of shoe 17 impressions, and “drag marks or gouges” leading from the tire tracks to Victim’s 18 body. There were claw marks and a clump of Victim’s hair found in the dirt. Victim

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1 had defensive wounds on her arm, twenty-seven wounds on her left front chest, and 2 abrasions to her face consistent with “falling on her face . . . during the struggle.” 3 Though there were incise wounds to her neck, they did not go deep enough to sever 4 any major arteries. She died slowly of blood loss, after being stabbed fifty-six times 5 and sustaining multiple incise wounds. 6 {6} Following the murder police questioned Shelly Terrell, who was married to 7 Defendant at the time, because her brother Stephen DeMoss was a possible suspect. 8 Defendant was present and was in a position to overhear the interview. Shortly after 9 that interview, Defendant appeared at home crying and told Terrell that he had to 10 leave and start over. He then left for Alabama with another woman. Terrell ultimately 11 testified that on the night of the murder Defendant was home when she went to bed, 12 that she did not hear him leaving or showering in the night, and that she did not notice 13 soiled clothing or anything unusual about Defendant’s physical appearance. 14 {7} The case went cold until a year and a half later, in June 2003, when police 15 finally questioned Defendant about Victim’s murder. At this time, Defendant revealed 16 to the detective that on January 15, 2002, DeMoss came to him claiming that some 17 unknown persons had threatened to kill DeMoss if DeMoss did not give them some 18 DNA. In response, Defendant gave DeMoss his own pubic hairs and semen in a

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1 condom. Defendant claimed he had withheld this information from the authorities 2 “because that’s such a weak little statement right there that I could be very well 3 convicted of killing somebody.” During the interview Defendant denied killing 4 Victim, instead pinning the murder on DeMoss because he was under the impression 5 that DeMoss had never actually come under that alleged threat by some unknown 6 person. Until then, investigators were not aware that Defendant’s DNA was present 7 inside Victim’s underwear. Over the course of that interview, Defendant would state 8 “I’m just fucked,” and “[t]here’s not a way out.” 9 {8} An expert in DNA analysis testified at trial that a mixture of DNA was present 10 on Victim’s underwear. The DNA mixture contained DNA from a major male 11 contributor, a female contributor, and a third minor contributor. The expert testified 12 that Defendant was the major male contributor to the DNA mixture, that Victim was 13 the female contributor, and that the source of the third minor contribution remained 14 unknown to him. The expert’s DNA analysis also excluded four other male suspects 15 as contributors to the DNA mixture, including DeMoss. 16 {9} The tire tracks at the scene were identified as being consistent with the BF 17 Goodrich Advantage Plus brand, sold only at Sam’s Club, designed to fit on vehicles 18 with a fifty-five inch wheelbase. Terrell provided evidence that during a trip to Kansas

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1 in 2001 she and Defendant purchased BF Goodrich brand tires from Sam’s Club for 2 their brown, four-door, and fifty-five inch wheelbase Ford Taurus. The receipt lists 3 the tires as model “820449 205/65 ADV+.” This particular tire model, a detective 4 testified, was consistent with the tire tracks left at the murder scene. A qualified expert 5 witness in tire-track identification independently analyzed the tire tracks and also 6 testified that they were consistent with the BF Goodrich Advantage Plus brand. The 7 tires were never recovered because the Taurus was not located until late 2003 at a car 8 dealership in Louisiana, and the tires had been changed. 9 {10} Photographs of Defendant wearing athletic shoes were introduced at trial. In 10 these photographs Defendant is wearing the Nike Air Integrity shoe. A shoe box 11 matching the Nike Air Integrity shoe was given to police by Defendant’s former wife 12 (of a marriage prior to Terrell). Investigators identified the shoe prints recovered at the 13 murder scene as being consistent with the Nike Air Integrity outsole. Nike 14 manufactured two other types of shoes with the same outsole as the Nike Air Integrity, 15 namely the Nike Air Raceway and Nike Air Determination. Still, there were 16 approximately 280,000 pairs of athletic shoes manufactured by Nike with the same 17 outsole design as the shoe prints recovered at the murder scene. At trial a qualified 18 expert witness in footwear identification examined the shoe prints left at the scene and

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1 testified that they were consistent with the outsole of the Nike Air Integrity. 2 {11} Defendant called one witness in his defense who testified that he had gone to 3 physical therapy at 7:45 a.m. on January 16, 2002, the morning after the killing, for 4 approximately four hours and fifteen minutes. According to this witness, Defendant 5 did not seem unusually fatigued, as he might have been had he been awake all night. 6 {12} The jury was instructed on the elements of first and second-degree murder, 7 returning the guilty verdict for first-degree murder that Defendant now appeals. 8 II. DISCUSSION

9 A. The trial court did not abuse its discretion in denying the request for a 10 mistrial, or the request to voir dire interview alternate jurors, based on the 11 State’s isolated reference to a murder victim from a separate trial

12 {13} Defendant first argues two claims of error. Defendant argues there was 13 reversible error due to the trial court’s refusal to grant his motion for a mistrial based 14 on the State’s inadvertent reference to Patty Simon, the name of the victim Defendant 15 was convicted of killing in the joint 2002 trial. See Lovett, 2012-NMSC-036, ¶ 1. 16 Defendant also claims that the trial court abused its discretion in denying his motion 17 asking the trial court to conduct individual voir dire interviews of alternate jurors 18 regarding the impact of the reference to Patty Simon. We hold that the trial court did 19 not abuse its discretion in denying either Defendant’s motion for a mistrial or his

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1 motion to voir dire interview alternate jurors, and affirm the trial court. 2 {14} Before trial, the parties agreed that there would be no reference to the murder 3 of Patty Simon, for which Defendant was convicted of first-degree murder. On the 4 sixth day of trial, as the State examined DNA analyst Brendan Shea the following 5 exchange occurred:

6 State: And just to clarify one last point, with respect to the, um, 7 Patty Simon’s panties, we talked about semen, and we also 8 talked about sperm, is that correct? 9 Shea: I’m sorry, counsel . . . 10 State: We talked about semen and we talked about sperm with 11 respect to the panty crotch of [Victim]. 12 Defense: Your Honor, may we approach?

13 The trial court then held a brief bench conference, and called a recess so the jury could 14 leave the courtroom. Defendant moved for a mistrial, arguing that a ruling in his favor 15 was necessary because the State’s question was inherently prejudicial as the reference 16 to Patty Simon may have refreshed the jurors’ recollections of Defendant’s previous 17 trial. Defendant also argued that a curative instruction would not be adequate to cure 18 the prejudice, and that any individual questioning would only reinforce the taint. The 19 State responded that the reference was inadvertent, that it was both quickly corrected 20 and unanswered, and that there was a thorough jury screening process that ensured 21 that the selected jurors had no knowledge of the previous trial which was held in

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1 another county. The trial court denied Defendant’s motion to declare a mistrial, citing 2 the careful jury selection process, the inadvertent nature of the reference, and the fact 3 that the reference occurred in a question, rather than in an answer. Defendant renewed 4 the motion for a mistrial at the close of the State’s case, and it was again denied. 5 {15} Defendant also requested that the trial court interview alternate jurors in order 6 to assess what impact, if any, the reference to Patty Simon had on the jury. The trial 7 court denied Defendant’s request, concluding that the reference was not inherently 8 prejudicial because it occurred in a question by counsel, the jury was instructed that 9 counsel’s statements were not evidence, the defense was otherwise satisfied with the 10 jury selected, and that in the trial court’s own view of the proceedings the reference 11 did not reflect any prejudicial impact. 12 {16} Additionally, earlier in the trial during the cross-examination of an expert 13 witness who had performed Victim’s autopsy, the expert responded to one of 14 Defendant’s questions by saying that “there was a fire in the warehouse of our files 15 some years ago and then the records were destroyed, except for the autopsy report, 16 which we keep electronically. And I suspect you have a copy because it was probably 17 introduced at the last—.” Defense counsel promptly interrupted the expert before he 18 completed his answer that would have revealed the fact of the previous trial. A recess

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1 was taken, and the parties entered into a stipulation that the witness would testify that 2 the document previously referred to was made available “at the last hearing.” 3 Defendant now argues that the reference to Patty Simon, taken together with the 4 autopsy expert’s testimony, was sufficient to alert jurors to the fact that Defendant had 5 been previously tried for the murder of Patty Simon. 6 {17} “A motion for a mistrial is addressed to the sound discretion of the trial court 7 and is only reviewable for an abuse of discretion.” State v. Saavedra, 1985-NMSC- 8 077, ¶ 11, 103 N.M. 282, 705 P.2d 1133, abrogated on other grounds by State v. 9 Belanger, 2009-NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d 783. “An [a]buse of 10 discretion exists when the trial court acted in an obviously erroneous, arbitrary, or 11 unwarranted manner.” State v. Gallegos, 2009-NMSC-017, ¶ 21, 146 N.M. 88, 206 12 P.3d 993 (alteration in original) (internal quotation marks and citation omitted). “[T]he 13 power to declare a mistrial should be exercised with the greatest caution.” State v. 14 Sutphin, 1988-NMSC-031, ¶ 18, 107 N.M. 126, 753 P.2d 1314. 15 {18} Similarly, we review the trial court’s denial of a motion to interview alternate 16 jurors for an abuse of discretion, since trial courts have considerable discretion in 17 choosing from a variety of remedies to address allegations of juror bias. Gallegos, 18 2009-NMSC-017, ¶ 29; cf. State v. Benavidez, No. 33,480, dec. ¶¶ 43-46 (N.M. Sup.

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1 Ct. Nov. 7, 2013) (non-precedential) (reviewing denial of a defendant’s request to 2 question jurors for an abuse of discretion). We conclude that the trial court did not err 3 in denying both Defendant’s motions for a mistrial and to interview alternate jurors 4 for the reasons that follow. 5 {19} Defendant argues that the mere mention of Patty Simon’s name was inherently 6 prejudicial to his constitutional right to a fair trial and an impartial jury as the 7 reference to Patty Simon would have caused any juror paying close enough attention 8 to recall that Defendant had in fact been previously charged in and tried for another 9 murder. Defendant urges this Court to review the exposure of this prejudicial 10 information to the jury under the framework governing midtrial publicity. In State v. 11 Holly, 2009-NMSC-004, ¶¶ 5-6, 145 N.M. 513, 201 P.3d 844, after the jury had been 12 empaneled, a local newspaper ran an article that the defendant argued caused a 13 prejudicial exposure. We held that in the event of midtrial publicity:

14 First, the trial court determines whether the publicity is inherently 15 prejudicial. If so, the court undertakes to canvass the jury as a whole to 16 assess whether any of the jurors were actually exposed to the publicity. 17 Finally, in the event of exposure, the court conducts an individual voir 18 dire of the juror to ensure that fairness of the trial has not been 19 compromised.

20 Id. ¶ 19. In Holly, we set forth a litany of factors to consider when determining 21 whether midtrial publicity was inherently prejudicial to a defendant:

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1 (1) whether the publicity goes beyond the record or contains information 2 that would be inadmissible at trial, (2) how closely related the material 3 is to matters at issue in the case, (3) the timing of the publication during 4 trial, and 4) whether the material speculates on the guilt or innocence of 5 the accused. In addition, the trial court should consider the likelihood of 6 juror exposure by looking at (1) the prominence of the publicity, 7 including the frequency of coverage, the conspicuousness of the story in 8 the newspaper, and the profile of the media source in the local 9 community; and (2) the nature and likely effectiveness of the trial 10 judge’s previous instructions on the matter, including the frequency of 11 instruction to avoid outside materials, and how much time has elapsed 12 between the trial court’s last instruction and the publication of the 13 prejudicial material.

14 Id. ¶ 20. 15 {20} The State responds that because the reference to Patty Simon did not come in 16 the form of a news article or broadcast Holly does not apply. Instead, the State argues 17 the trial court should use a different framework, one that we have developed to 18 analyze improper comments by counsel, as set forth in State v. Torres, 2012-NMSC- 19 016, ¶¶ 7-15, 279 P.3d 740. Under Torres, the relevant factors for determining the 20 prejudicial effect of an improper statement by counsel are: “1) whether the statement 21 invades some distinct constitutional protection; 2) whether the statement [was] 22 isolated and brief, or repeated and pervasive; and 3) whether the statement [was] 23 invited by the defense.” 2012-NMSC-016, ¶ 10 (alterations in original) (internal 24 quotation marks and citation omitted). “When these considerations lead to a

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1 conclusion that the comments materially altered the trial or likely confused the jury 2 by distorting the evidence, the State has deprived the defendant of a fair trial, and 3 reversal is warranted.” Id. (internal quotation marks and citation omitted). In Torres, 4 this Court held that the trial court did not abuse its discretion in denying the 5 defendant’s motion for a mistrial where the prosecutor called defense counsel a liar 6 and then referenced information outside of the evidence in a closing statement. Id. ¶ 7 9. 8 {21} Both the Holly and Torres factors remain good guidelines for assessing either 9 the prejudicial effect of midtrial publicity or an improper comment made by counsel 10 during the course of trial, as the case may be. Here, though, we need not decide which 11 framework is best suited to the unique circumstances of the case, because we reach the 12 same conclusion under either. Under both frameworks our task is to ultimately decide 13 whether the trial court abused its discretion in determining that the brief and 14 inadvertent reference to Patty Simon was not inherently prejudicial and did not 15 otherwise impair the fairness of Defendant’s trial. See Torres, 2012-NMSC-016, ¶ 10 16 (explaining that the Torres factors are only guidelines, and the essential question is 17 whether, in the unique context of any given case, a defendant received a fair trial); 18 Holly, 2009-NMSC-004, ¶ 20 (advising trial courts to consider a myriad of factors in

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1 order to determine if midtrial publicity was inherently prejudicial). We conclude that 2 it did not. 3 {22} We agree with the trial court that the reference to Patty Simon was inadvertent 4 and came in the form of a question from counsel, and thus was not inherently 5 prejudicial to Defendant. The record supports that the reference was brief, the jury had 6 been preemptively screened for knowledge of the previous trial, and the reference 7 came from counsel, rather than from a witness. On this basis, we conclude, the trial 8 court did not abuse its discretion in finding that there was no inherent prejudice to 9 Defendant. Such is appropriate under both the Torres and Holly analytical 10 frameworks. 11 {23} First, examining the comment under the Torres framework, counsel’s 12 inadvertent reference to Patty Simon was so brief and isolated that it did not impair 13 the fairness of Defendant’s trial. 2012-NMSC-016, ¶ 11 (looking at the prosecutor’s 14 conduct in the context of the whole trial, and determining it was not pervasive, 15 outrageous, or unrelenting enough to hamper the fairness of the proceedings). 16 Similarly, under the Holly framework, because the jury had been carefully screened 17 and the inadvertent reference to Patty Simon by counsel was so brief, more 18 information would have been needed for the jury to fully comprehend and consider

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1 that Defendant had been previously tried for the murder of Patty Simon. See 2009- 2 NMSC-004, ¶ 21. Thus, the trial court reasonably concluded that there had been no 3 inherently prejudicial midtrial publicity requiring a mistrial. See id. 4 {24} Having concluded that there was no inherent prejudice under the analysis of 5 either Torres or Holly, the trial court did not err in refusing to conduct individual voir 6 dire interviews of the alternate jurors. Holly, 2009-NMSC-004, ¶ 22 (“Only when 7 mid-trial publicity presents a serious possibility of prejudice, does voir dire become 8 mandatory.”). We conclude that the trial court did not abuse its discretion in either 9 denying Defendant’s motion for mistrial or motion to interview individual alternate 10 jurors.

11 B. There was no fundamental error when prospective jurors saw Defendant 12 under the supervision of uniformed detention officers

13 {25} Defendant next argues that the trial court should have sua sponte ordered a 14 mistrial when it became aware that certain jurors may have observed Defendant in the 15 presence of uniformed detention officers. Before the jury was selected, prospective 16 jurors allegedly saw uniformed detention officers hovering near Defendant. Defendant 17 had asked that the courtroom be cleared of prospective jurors during his escort into 18 the courtroom, and that detention officers remained seated apart from Defendant while 19 any jurors were in the courtroom. At one point, though, some prospective jurors

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1 observed uniformed detention officers near Defendant in the courtroom. Defendant 2 was not shackled, and was wearing a white shirt with dark pants. 3 {26} When defense counsel realized that some of the prospective jurors had observed 4 Defendant in the presence of the uniformed detention officers he promptly brought the 5 issue to the attention of the trial court. Defense counsel, though, did not request a 6 mistrial and instead the trial court and prosecutor worked with defense counsel to 7 make sure the procedure was followed thereafter. None of the prospective jurors that 8 saw Defendant on this occasion were ultimately selected for the jury panel that 9 convicted Defendant. 10 {27} In addition to addressing whether midtrial publicity is inherently prejudicial, 11 this Court in Holly also addressed whether fundamental error occurred where jurors 12 may have observed a defendant in shackles and defense counsel chose not to move for 13 a mistrial but instead tendered a general jury instruction. 2009-NMSC-004, ¶¶ 40-41. 14 In this case, because defense counsel did not request a mistrial on this basis, and the 15 trial court and prosecutor made subsequent efforts to ensure that Defendant was not 16 in close proximity with uniformed detention officers, and perhaps more importantly 17 because none of the selected jurors had observed Defendant with the uniformed 18 detention officers, we review for fundamental error. See id.

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1 {28} Fundamental error occurs where a conviction represents a miscarriage of justice 2 because “(1) the defendant is indisputably innocent, or (2) a mistake in the process 3 makes a conviction fundamentally unfair notwithstanding the apparent guilt of the 4 accused.” State v. Astorga, 2015-NMSC-007, ¶ 14, 343 P.3d 1245 (internal quotation 5 marks and citation omitted). Defendant argues that the trial court should have sua 6 sponte declared a mistrial after potential jurors saw him in the presence of uniformed 7 detention officers because such a sight is so prejudicial that it constitutes fundamental 8 error. We disagree, and conclude that there was no fundamental error. 9 {29} While Defendant is correct in his assertion that visible shackling is inherently 10 prejudicial to Defendant’s right to be presumed innocent, Deck v. Missouri, 544 U.S. 11 622, 630 (2005), where a single juror may have seen a defendant in handcuffs, this 12 Court held that the defendant was not unfairly prejudiced. Holly, 2009-NMSC-004, 13 ¶¶ 40-41. Consistent with that holding we conclude that, where potential jurors who 14 did not ultimately decide Defendant’s fate observed uniformed detention officers in 15 Defendant’s presence, there was no prejudice to Defendant. See id. Thus, no 16 fundamental error occurred.

17 C. There was sufficient evidence of deliberate intent to support a rational 18 jury’s verdict of first-degree murder

19 {30} Defendant also challenges the sufficiency of the evidence regarding his

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1 identification as Victim’s killer and the existence of deliberate intent. We conclude 2 that the State presented sufficient evidence to prove both Defendant’s identity as the 3 killer and his deliberate intent to commit murder. 4 {31} “Murder in the first degree is the killing of one human being by another without 5 lawful justification or excuse . . . by any kind of willful, deliberate and premeditated 6 killing.” Section 30-2-1(A)(1). “Deliberate intention” is intention “arrived at or 7 determined upon as a result of careful thought and the weighing of the consideration 8 for and against the proposed course of action.” State v. Cunningham, 9 2000-NMSC-009, ¶ 25, 128 N.M. 711, 998 P.2d 176 (quoting UJI 14-201 NMRA). 10 “Though deliberate intent requires a calculated judgment to kill, the weighing required 11 for deliberate intent may be arrived at in a short period of time.” State v. Guerra, 12 2012-NMSC-027, ¶ 28, 284 P.3d 1076 (internal quotation marks and citation omitted). 13 {32} “Evidence is sufficient to sustain a conviction when there exists substantial 14 evidence of a direct or circumstantial nature to support a verdict of guilt beyond a 15 reasonable doubt with respect to every element essential to a conviction.” State v. 16 Smith, 2016-NMSC-007, ¶ 19, ___ P.3d ___ (internal quotation marks and citation 17 omitted). “Substantial evidence is relevant evidence that a reasonable mind might 18 accept as adequate to support a conclusion.” State v. Largo, 2012-NMSC-015, ¶ 30,

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1 278 P.3d 532. “In reviewing whether there was sufficient evidence to support a 2 conviction, we resolve all disputed facts in favor of the State, indulge all reasonable 3 inferences in support of the verdict, and disregard all evidence and inferences to the 4 contrary.” Id. (internal quotation marks and citation omitted). 5 {33} We first address the sufficiency of the evidence that Defendant was the person 6 who committed this murder. The jury could have reasonably inferred that Defendant 7 was the murderer from the evidence that the killer’s shoe prints were consistent with 8 a pair of shoes Defendant owned at the time of the murder; that the tire prints, made 9 by a product sold only at Sam’s Club, were consistent with the tires Defendant 10 purchased at a Sam’s Club; and that Defendant’s DNA was found on Victim’s 11 underwear. Considering all of the evidence in favor of the verdict, when viewed as a 12 whole, a reasonable mind could have concluded that Defendant was the killer based 13 upon those facts. See State v. Rojo, 1999-NMSC-001, ¶¶ 20-24, 126 N.M. 438, 971 14 P.2d 829. Additionally, Defendant’s explanation as to how his DNA came to be on 15 Victim’s underwear is so implausible that it further supports a juror’s inference of 16 guilt. See State v. Flores, 2010-NMSC-002, ¶ 23, 147 N.M. 542, 226 P.3d 641 17 (explaining that “an attempt to deceive the police may prove consciousness of guilt”) 18 (internal quotation marks and citation omitted). Additionally, Defendant fled the

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1 jurisdiction soon after Victim’s body was found—and such evidence of flight 2 strengthens the inference of guilt. See id. Thus, based upon the totality of the evidence 3 presented at trial, a jury could have reasonably concluded that Defendant was the 4 murderer. 5 {34} We turn next to the sufficiency of the evidence that Defendant acted with 6 deliberate intent. “Deliberate intent may be inferred from the particular circumstances 7 of the killing as proved by the State through the presentation of physical evidence.” 8 State v. Duran, 2006-NMSC-035, ¶ 8, 140 N.M. 94, 140 P.3d 515. Substantial 9 evidence of deliberation can include fleeing the scene, disposing of evidence, or 10 concocting false alibis. Flores, 2010-NMSC-002, ¶ 22. It can also include overkill, 11 like shooting postmortem or inflicting a large number of stab wounds, killing a victim 12 over a prolonged period of time, or pursuing a victim that evades capture. Smith, 13 2016-NMSC-007, ¶¶ 20-23 (collecting cases, and finding deliberate intent where the 14 defendant stabbed his former girlfriend ninety times); Guerra, 2012-NMSC-027, ¶ 29 15 (concluding that a defendant who rendered the victim defenseless and then proceeded 16 to stab the victim thirteen times was overkill sufficient to establish deliberate intent); 17 Flores, 2010-NMSC-002, ¶ 22 (determining that a factor supporting deliberate intent 18 was proof the defendant stabbed the victim “so many times that it evidenced an effort

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1 at overkill”). 2 {35} Defendant stabbed Victim fifty-six times, and also inflicted various other 3 abrasions and incise wounds. The extent of these injuries, and the prolonged nature 4 of the struggle, supports a rational jury’s inference that Defendant killed with 5 deliberate intent. See Smith, 2016-NMSC-007, ¶¶ 22-23; Guerra, 2012-NMSC-027, 6 ¶ 29; Flores, 2010-NMSC-002, ¶¶ 11, 22. As well, Defendant fled the scene, and later 7 concocted an implausible explanation as to the presence of his DNA on Victim’s 8 underwear, suggesting both consciousness of guilt and deliberate intent. See Smith, 9 2016-NMSC-007, ¶¶ 22-23; Flores, 2010-NMSC-002, ¶¶ 22-23. We conclude that 10 there was sufficient evidence to support Defendant’s conviction of first-degree 11 murder, and we affirm the trial court. 12 III. CONCLUSION 13 {36} In conclusion, the brief reference to Patty Simon was not inherently prejudicial 14 and did not otherwise result in an unfair trial. As such, the trial court did not err in 15 denying Defendant’s motions for a mistrial and to interview alternate jurors to gauge 16 the reference’s impact on the jury. There was also no fundamental error by the trial 17 court in failing to declare a mistrial after prospective jurors, who were not ultimately 18 empaneled, observed uniformed detention officers with Defendant. Lastly, sufficient

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1 evidence was presented to support Defendant’s conviction for first-degree murder. For 2 the foregoing reasons, we affirm Defendant’s conviction. 3 {37} IT IS SO ORDERED.

4 ______________________________ 5 BARBARA J. VIGIL, Justice

6 WE CONCUR:

7 __________________________________ 8 PETRA JIMENEZ MAES, Justice

9 __________________________________ 10 EDWARD L. CHÁVEZ, Justice

11 ____________________________________ 12 JUDITH K. NAKAMURA, Justice

13 ____________________________________ 14 FREDDIE J. ROMERO, Judge 15 Sitting by designation