State v. Salas

2010 NMSC 028, 236 P.3d 32, 148 N.M. 313
New Mexico Supreme Court·Decided June 15, 2010·No. 30,967·Published·Cited by 47 cases

Opinion

OPINION

MAES, Justice.

{1} Following a jury trial, 1 Demetrio A. Salas (Defendant) was convicted of (1) first-degree murder in violation of NMSA 1978, Section 30-2-1(A)(1), (2) (1994); (2) attempted first-degree murder in violation of Section 30—2—1(A)(1) and NMSA 1978, Section 30-28-1 (1963); (3) shooting at a dwelling or occupied building and causing death or great bodily harm in violation of NMSA 1978, Section 30-3-8(A) (1993); (4) tampering with evidence in violation of NMSA 1978, Section 30-22-5 (2003); and (5) intimidation of a witness in violation of NMSA 1978, Section 30-24-3(A)(3) (1997). Pursuant to Rule 12-102(A)(1) NMRA, Defendant appeals directly to this Court, claiming that (1) the trial court improperly granted the State’s second motion to reconsider a change of venue under NMSA 1978, Section 38-3-3 (2003) and NMSA 1978, Section 38-3-7 (1965); (2) the trial court improperly held that Defendant had violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) by striking a white male venireperson from the jury, but that the State had not violated Batson by striking Hispanic venirepersons from the jury; and (3) Defendant’s convictions must be reversed under the cumulative error doctrine. We reject Defendant’s claims and affirm his convictions.

I. BACKGROUND

{2} At approximately 2:20 a.m. on September 15, 2005, ten-year-old Carlos Perez (Victim) was shot to death while sleeping in the bedroom he shared with his older brother, Ruben Perez (Ruben), at the Gatewood Apartment Complex in Clovis, New Mexico. Nine gunshots were fired through the boys’ bedroom window, one of which struck Victim in the head, causing his death.

{3} At trial, the State adduced the following relevant evidence regarding the shooting. On September 14, 2005, Ruben, a junior at Clovis High School, was threatened at knife point by Orlando Salas (Orlando). Orlando informed Ruben that his older brother, Defendant, wanted to fight him. It was arranged that Ruben and Defendant would fight after school. Ruben reported to the designated location for the fight, but Defendant never appeared. Ruben went home and later went to sleep in the bedroom that he shared with Victim.

{4} That night, Defendant and Orlando picked up Melissa Sanchez (Melissa), a student at Clovis High School. Defendant was driving a white Suburban with a blue pinstripe and carrying a loaded .22 caliber revolver. Defendant drove Orlando, Melissa, and his codefendant, David Griego, to the Gatewood Apartment Complex, where he asked Melissa to point out the apartment in which Ruben, whom he referred to as a “sewer rat,” lived. Melissa complied by pointing out Ruben’s apartment window.

{5} Defendant then drove to Eric Gutierrez’s (Eric) house, which was located approximately two blocks away from Ruben’s apartment. Defendant ordered Orlando and Melissa to get out of the vehicle, explaining that he had to “go do some business” and that he had “a mission.” Soon thereafter, Defendant and Griego returned, acting “hyped up” like “they just got a rush out of something.” Defendant informed Melissa that he had just “blasted nine rounds at that sewer rat’s house.”

{6} At this point, Defendant, Griego, Eric, Orlando, and Melissa heard on the police scanner that an eleven-year old boy had been shot and that the police were looking for a “white Suburban with blue lines around [it].” Defendant “started flipping out” and insisted upon parking his Suburban in Eric’s garage. Melissa became upset and reached out toward Defendant, but he informed her that she should not touch him because he had gun powder residue on him. That night and the next day, Defendant repeatedly threatened Melissa “to keep [her] mouth shut or else.”

II. DISCUSSION

A. Whether the Trial Court Properly Granted the State’s Second Motion to Reconsider a Change of Venue

{7} Defendant claims that, due to the public excitement and local prejudice surrounding this ease, he could not obtain a fair trial in the Ninth Judicial District, which is composed of Curry County and Roosevelt County. Defendant argues that the trial court, Judge Joe Parker, therefore properly ordered a change of venue to Lea County, which is located in the Fifth Judicial District, and that Judge David W. Bonem improperly reconsidered and modified Judge Parker’s order, resulting in a second change of venue to Roosevelt County in the Ninth Judicial District.

{8} The following additional facts and procedural history are relevant to Defendant’s claim. Prior to trial, Defendant requested a change of venue, claiming that “[t]his case has received extensive publicity” and, therefore, “Defendant cannot receive a fair trial in the County of Curry, State of New Mexico, and this case should be moved to another Judicial District.” Defendant suggested that venue must be changed to a neighboring county outside of the Ninth Judicial District, such as Lea or Chavez County, to preserve Defendant’s right to a fair trial. Judge Parker asked Defendant whether he “[had] any numbers” to support his change of venue motion. Defendant responded that he did not have any numbers because a survey of prospective jurors would have been cost prohibitive.

{9} The State opposed Defendant’s change of venue motion, claiming that (1) Defendant had failed to file an affidavit as required by Section 38-3-3(B), (2) the ease had not received extensive publicity, and (3) Defendant had failed to produce any evidence indicating that an impartial jury could not be obtained in Curry County. Alternatively, the State argued that if a change of venue is appropriate, then the case must be moved to another county free from exception within the same judicial district, which in this case, would be Roosevelt County.

{10} Defendant acknowledged that it would be “somewhat easier” to' choose a jury in Roosevelt County, but stated that his “instincts tell [him] real clear that people there are going to have a few percentage points less knowledge than people in Curry County.” However, Defendant informed Judge Parker that he would defer to the court’s discretion with respect to whether Roosevelt County is an appropriate venue.

{11} At the conclusion of the hearing, Judge Parker found, based on his own personal experience as a member of the community, that the case had been subject to extensive trial publicity. Judge Parker held that “justice in this matter will be better served by having the jury, the jury pool selected from out of county and having this matter heard in a neighboring county.” Accordingly, Judge Parker ordered venue to be changed from Curry County to Lea County.

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State v. Salas, 2010 NMSC 028, 236 P.3d 32, 148 N.M. 313 (N.M. 2010).

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