State v. Stanley

Opinion

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 28,579 5 DONALD STANLEY, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 John Dean, District Judge

9 Liane E. Kerr, L.L.C. 10 Liane E. Kerr 11 Albuquerque, NM

12 for Appellant

13 Gary K. King, Attorney General 14 M. Victoria Wilson, Assistant Attorney General 15 Santa Fe, NM

16 for Appellee

17 DECISION 18 DANIELS, Justice. 19 {1} Defendant Donald Stanley was convicted of the willful and deliberate first-

1 degree murder of his housemate, Toby Peek, by pouring gasoline on him and setting 2 him on fire. The issues Defendant raises in this direct appeal are whether (1) the 3 district court erred in not allowing him to waive counsel and represent himself, (2) he 4 received ineffective assistance of counsel, and (3) the evidence was insufficient to 5 support his conviction for deliberate first-degree murder. We reject Defendant’s 6 claims and affirm his conviction. 7 I. BACKGROUND 8 A. Factual Overview 9 {2} A week before Toby Peek’s death, Peek had invited Defendant to move into his 10 small apartment. Peek, who was unemployed and disabled, suffered from 11 schizophrenia and had a history of alcohol abuse, inhalant abuse, and suicide threats. 12 During the night of February 27, 1998, the two had an argument in which Peek 13 apparently angered Defendant by criticizing him and by getting his cigarettes wet. 14 Neighbor Donovan Dickinson testified that Defendant flagged him down around 1:00 15 a.m. and caught a ride to a convenience store. Defendant appeared to have been 16 drinking. At the store, Defendant purchased what Dickinson described as one or two 17 cups of gasoline. The store clerk and store records confirmed that Defendant made 18 a gasoline purchase in the total amount of thirty-nine cents. The store clerk later

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1 identified Defendant as the person who made the thirty-nine cent purchase after 2 claiming he had run out of gas. 3 {3} When Dickinson realized that Defendant was buying gasoline by the cupful, he 4 offered Defendant the use of a gasoline can to put gasoline into his car. Defendant 5 responded that he did not have a car. When Dickinson asked him what he needed the 6 gasoline for, Defendant angrily responded, “None of your goddamn business.” A 7 short time later, he said to Dickinson, “If you are ever to testify against me, there’s 8 going to be a lot of trouble.” Dickinson dropped off Defendant at the apartment by 9 2:00 a.m. One of the last things Dickinson remembers Defendant saying as he got out 10 of the car to walk to his dark apartment with the small quantity of gasoline was that 11 he “may or may not do something bad to somebody tonight.” 12 {4} The next events were the subject of the testimony of witness Randy Brittain, 13 who testified to statements Defendant made while they were coincidentally being 14 taken to jail in the same police transport vehicle later that morning, after Brittain was 15 arrested on an unrelated drug charge. Brittain testified about Defendant’s description 16 to him of the events surrounding Peek’s death. Defendant said that he became angry 17 with Peek for having gotten his cigarettes wet and having called him a sniveler. He 18 told Brittain that he left the apartment and got some gasoline. When he came back to

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1 the apartment, he threw it onto Peek and yelled, “Who’s sniveling now, you son of a 2 bitch?” He then lit a match and threw it at Peek, setting him on fire. Peek, who had 3 been sitting on the couch, attempted to get to the bathroom to put out the fire, but he 4 collapsed by a closet before he could make it. Defendant told Brittain he then poured 5 some water on Peek to put out the fire after items in the closet began to burn, because 6 he was afraid the entire place would catch on fire. 7 {5} Another neighbor, Pasqual Montano, testified that Defendant woke him up 8 around 5:00 a.m., several hours after Dickinson testified he had brought Defendant 9 back from the convenience store with his take-out gasoline. Defendant exhibited the 10 effects of drinking alcohol. His account to Montano was that he had come home that 11 morning and discovered that Peek happened to be on fire at the moment of his arrival. 12 He said that he had thrown water on Peek to try to put out the fire, but he thought Peek 13 was now dead. Montano immediately got dressed and took Defendant back to the 14 apartment, calling 911 from a mobile phone in his truck. He found Peek’s burned 15 body inside the apartment. By that time, the body was cold, wet, and stiff. Although 16 it was obvious that a fire had taken place at some point, there were no flames or smoke 17 still present by the time Montano went to the apartment. 18 {6} The official investigation confirmed the use of gasoline as an accelerant for the

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1 fire. Although Peek’s clothing, face, hands, and chest had all been burned, the 2 gasoline appeared to have been poured primarily onto his shoulder and crotch areas. 3 Burn patterns indicated that the fire had originated while Peak was sitting in the center 4 of the couch and had continued as he made his way across the floor to the spot by the 5 closet where he stopped moving and died. A vacuum cleaner in the closet by the body 6 had also caught fire. Used matches on the floor were consistent with matchbooks 7 found in Defendant’s jacket. Evidence of the recent presence of gasoline was also 8 found in the living room and kitchen, although no traces were found in the cup in the 9 sink that Dickinson identified as having earlier been used by Defendant to carry the 10 small quantity of gasoline from the convenience store to the apartment. A package of 11 wet cigarettes also was found in the apartment. 12 {7} The defense presented its own arson expert to offer his opinion that the fire was 13 caused accidentally by unidentified sources. He disagreed with the State’s experts that 14 there was any indication of someone pouring or splashing gasoline on or around the 15 victim. Instead, he suggested that Peek had caught fire from an unknown ignition 16 source after he became saturated by gasoline vapors, which could have occurred if he 17 had been sniffing gasoline. 18 {8} The defense also called clinical psychologist Dr. William Foote to testify that

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1 Peek had a long history of schizophrenia, inhalant abuse, other substance abuse, and 2 attempted suicide. 3 B. Procedural Overview 4 {9} This is the second time Defendant has appealed a jury verdict and conviction 5 for the murder of Toby Peek. His first jury trial ended in convictions of first-degree 6 murder and intimidation of a witness. The conviction for first-degree murder was 7 subsequently reversed for evidentiary errors, the exclusion of expert testimony 8 regarding Peek’s suicidal tendencies, and the preclusion of impeachment of a witness 9 regarding a statement about Peek’s inhalant abuse. See State v. Stanley, 2001-NMSC- 10 037, ¶ 3, 131 N.M. 368, 37 P.3d 85. 11 {10} At his retrial, Defendant was again convicted by a jury of first-degree willful 12 and deliberate murder. We review this direct appeal from that conviction pursuant to 13 our exclusive appellate jurisdiction over sentences imposing life imprisonment or 14 death. See N.M. Const. art. VI, § 2; Rule 12-102(A)(1) NMRA. 15 II. DISCUSSION OF ISSUES 16 A. Claim of Erroneous Denial of Self-Representation 17 {11} We first address Defendant’s argument that the district court erred in not 18 granting his request during trial to discharge his appointed attorney and to represent

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1 himself. In order to assert successfully the right to self-representation, there must first 2 be a knowing, intelligent, and voluntary waiver of a defendant’s constitutional right 3 to the assistance of counsel. State v. Chapman, 104 N.M. 324, 327, 721 P.2d 392, 395 4 (1986). We review de novo the question of law involved in making that 5 determination. See State v. Padilla, 2002-NMSC-016, ¶ 18, 132 N.M. 247, 46 P.3d 6 1247 (“Whether a defendant made a valid knowing, intelligent, and voluntary waiver 7 of his constitutional rights is a question of law which we review de novo.” (internal 8 quotation marks and citation omitted)); State v. Plouse, 2003-NMCA-048, ¶ 21, 133 9 N.M. 495, 64 P.3d 522 (requiring de novo review of whether a defendant’s decision 10 to waive counsel and represent himself was made voluntarily, knowingly, and 11 intelligently). 12 {12} Defendant argues that he validly asserted his right to waive his appointed 13 representation. We evaluate a claim of waiver based on the record, and we indulge 14 every reasonable presumption against waiver of the constitutional right to assistance 15 of counsel. See State v. Sanchez, 2000-NMSC-021, ¶ 26, 129 N.M. 284, 6 P.3d 486 16 (stating most fundamental rights may be waived or lost by an accused, although every 17 reasonable presumption against waiver must be indulged). In determining whether 18 Defendant made a knowing and intelligent waiver of counsel, we must examine the

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1 particular facts and circumstances of the case. See Plouse, 2003-NMCA-048, ¶ 27; 2 State v. Castillo, 110 N.M. 54, 57, 791 P.2d 808, 811 (Ct. App. 1990) (“The question 3 of an intelligent waiver of the right to counsel turns not only on the state of the record 4 but on the circumstances of the case, including defendant’s age and education, 5 previous experience with criminal trials, and representation by counsel before trial.”). 6 {13} Defendant concedes, and we agree, that the district court made a proper inquiry 7 as to whether he understood the multitude of dangers inherent in self-representation 8 and into his understanding, background, education, training, experience, and 9 expressed willingness to observe court procedures and protocol. We are satisfied that 10 the district court conducted a comprehensive inquiry into Defendant’s requests and 11 advised him of the disadvantages and dangers of self-representation in such a serious 12 prosecution with potentially grave consequences. Therefore, the issue before us is not 13 whether the court properly engaged in a proper circumstance-specific inquiry, it is 14 whether the record demonstrates that Defendant responded with the knowing, 15 intelligent, and voluntary waiver of counsel required in order to proceed pro se. 16 {14} The record before us does not demonstrate such a waiver. It reflects that 17 Defendant’s chief expressed concern was a desire to play a larger role in the 18 presentation of his own defense, rather than a willingness to give up his right to have

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1 counsel assist in his defense. 2 {15} Throughout the history of this case, Defendant has repeatedly complained 3 about every one of the five court-appointed attorneys who have represented him 4 during his trials and appeals. After one of those attorneys secured a reversal of his 5 first conviction, notwithstanding Defendant’s complaints, a third attorney was 6 appointed to represent him for his retrial. At subsequent pretrial proceedings, 7 Defendant complained about the new trial attorney and succeeded in having him 8 replaced by yet another appointed attorney, who ultimately tried the case. 9 {16} Because a pro se defendant is precluded from complaining on appeal that 10 ineffective self-representation amounts to a denial of effective assistance of counsel, 11 courts require that the demand to defend pro se must be stated unequivocally. See 12 State v. Reyes, 2005-NMCA-080, ¶ 10, 137 N.M. 727, 114 P.3d 407. Despite 13 Defendant’s persistent complaints that his appointed lawyers failed to follow his 14 directions as to how he wanted the case to be handled and had engaged in 15 “professional manipulation,” he repeatedly made it clear that he did not wish to 16 proceed to trial without the assistance of appointed counsel. He stated, for example, 17 “I don’t have any aspirations of representing myself all the way. I need a lawyer on 18 these matters because they’re so crucial.” While Defendant may not have felt

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1 personally satisfied with any of his court-appointed attorneys, mere discontent with 2 counsel does not serve as a clear and unequivocal assertion of his right to represent 3 himself. See State v. Sisk, 79 N.M. 167, 169, 441 P.2d 207, 209 (1968) (providing a 4 defendant “cannot prevail on an otherwise baseless claim because of dissatisfaction 5 with counsel.”); see also State v. Salazar, 81 N.M. 512, 514, 469 P.2d 157, 159 (Ct. 6 App. 1970) (stating mere dissatisfaction with court-appointed counsel does not require 7 court to discharge counsel and appoint new counsel). 8 {17} In State v. Vincent, 2005-NMCA-064, ¶ 22, 137 N.M. 462, 112 P.3d 1119, the 9 Court of Appeals held that a defendant validly waived his Sixth Amendment right to 10 counsel where the record clearly indicated he made a knowing, intelligent, and 11 voluntary waiver. After the Vincent trial court made a careful and thorough 12 examination of the facts and circumstances of the defendant’s case, including his 13 background, experience, conduct, and ability to observe the court’s procedures and 14 protocol, the defendant made it clear that he was consciously choosing to proceed 15 without any assistance of counsel because he was certain he knew his case best and 16 would present the most effective defense. Id. ¶ 20. Vincent also verbally concurred 17 with the granting of his counsel’s motion to withdraw, and he acknowledged his 18 choice to represent himself was not as a result of being dissatisfied with counsel or

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1 because he could not find alternative counsel. Id. ¶¶ 20-21; see also Reyes, 2 2005-NMCA-080, ¶ 18 (holding valid waiver where request was “unequivocal, 3 unwavering, coherent, and calm” throughout the proceedings). 4 {18} Unlike the situation in Vincent, the circumstances of this case reflect that 5 Defendant expressly realized that he could not adequately represent himself without 6 the assistance of an attorney. At every juncture where Defendant “fired” his counsel 7 or expressed a desire to play a larger role in the presentation of the defense, he also 8 expressed an equal desire to have counsel assist him in doing so. This is not the kind 9 of unequivocal and unconditional waiver of the right to counsel required in order to 10 forego the constitutionally-guaranteed right to assistance of counsel. See State v. 11 Lewis, 104 N.M. 677, 682, 726 P.2d 354, 359 (Ct. App. 1986) (vacillating as to 12 whether to proceed pro se or have the services of court-appointed counsel inconsistent 13 with an unequivocal waiver of counsel and assertion of the right to 14 self-representation). 15 {19} Not only did Defendant fail to unequivocally waive his right to assistance of 16 counsel, he demonstrated that he was not eligible to proceed pro se by his disruptive 17 behavior. The district court, although not required to do so by law, made 18 extraordinary attempts to try to accommodate Defendant’s desire to participate as “co-

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1 counsel” with his appointed lawyer. See State v. Martinez, 95 N.M. 421, 422-23, 622 2 P.2d 1041, 1042-43 (1981) (providing there is no constitutional right that permits a 3 defendant to act as co-counsel in conjunction with one’s appointed counsel). The 4 court even allowed Defendant to attempt cross-examination of a key witness. That 5 experiment ended in failure. Defendant repeatedly misquoted the witness’s direct 6 testimony and improperly referred to purported facts that were not properly part of the 7 record. Finally, after several unsuccessful admonitions, the court found it necessary 8 to stop Defendant’s active participation in the cross-examination, turning the witness 9 over to appointed defense counsel for a proper cross-examination. This episode 10 underscored the unreadiness and ineligibility of Defendant to represent himself. The 11 right to proceed pro se is not a license to manipulate the court, introduce error, engage 12 in dilatory tactics, or ignore either substantive law or rules of procedure. See Castillo, 13 110 N.M. at 57, 791 P.2d at 811 (noting self-representation requires a defendant to 14 “follow the rules of evidence and courtroom procedure”); Reyes, 2005-NMCA-080, 15 ¶ 21 (noting a defendant may not misbehave or be “disruptive in the course of seeking 16 to obtain self-representation”); State v. Rotibi, 117 N.M. 108, 111, 869 P.2d 296, 299 17 (Ct. App. 1994) (stating self-representation may be terminated if a defendant 18 “deliberately engages in serious and obstructive misconduct”).

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1 {20} The district court specifically found that Defendant was disruptive and was 2 unwilling or unable to abide by rules of procedure and courtroom protocol. After 3 several legitimate objections by the State to Defendant’s improper cross-examination, 4 Defendant blurted out in open court that his counsel was “fired.” The court was 5 compelled to stop the proceedings, dismiss the jury, and address Defendant’s outburst. 6 Exacerbated, the judge told Defendant that the court and counsel for both sides had 7 “bent over backwards” to give him a fair trial. Both the court and his counsel 8 repeatedly explained the rules regarding prior testimony, but Defendant nevertheless 9 failed to follow the rules and disrupted the trial in the process. 10 {21} Defendant’s claim that the district court erred in denying his request to 11 represent himself therefore fails for two independent reasons: (1) he did not clearly 12 and unequivocally waive his constitutional right to the assistance of counsel, and (2) 13 his disruptive behavior would have forfeited any right to proceed pro se, even if he 14 had validly waived his right to counsel. 15 B. Claim of Ineffective Assistance of Counsel 16 {22} Defendant also contends that his representation by appointed counsel fell below 17 the standards of the right to effective assistance of counsel guaranteed by the Sixth 18 Amendment to the United States Constitution and Article II, Section 14 of the New

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1 Mexico Constitution. We disagree and hold that the assistance Defendant received 2 was not constitutionally deficient. 3 {23} To prevail on a claim of ineffective assistance of counsel, a defendant must 4 establish: (1) that counsel was ineffective, in that his representation fell below the 5 objective standard of a reasonably competent attorney, as measured by professional 6 norms and (2) that he was prejudiced, in that the result would have been different had 7 it not been for the attorney’s deficient performance. State v. Schoonmaker, 8 2008-NMSC-010, ¶ 32, 143 N.M. 373, 176 P.3d 1105. “The prejudice must be of 9 sufficient magnitude to call into question the reliability of the trial results.” State v. 10 Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. 11 {24} Defendant’s brief does not point to any facts in the record that show defense 12 counsel’s performance fell below that of a reasonably competent attorney or that but 13 for counsel’s deficient performance the proceeding would have been different. In 14 addition, our own review of the record before us reflects that trial counsel’s 15 performance exceeded the standards required of reasonably competent counsel. 16 Counsel performed his professional duties at every stage of the proceedings. He 17 actively participated in voir dire of the jury, made an opening statement, conducted 18 direct and cross-examination of witnesses, made evidentiary objections and legal

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1 arguments, reluctantly brought Defendant’s motion to withdraw to the district court’s 2 attention, struggled to accommodate Defendant’s desire to participate more in 3 counsel’s presentation of the defense, participated in settling of jury instructions, and 4 delivered a closing argument. 5 {25} Without specifics, Defendant’s attack seems to be a generalized complaint that 6 counsel disagreed with some of Defendant’s notions regarding the best way in which 7 to present an effective defense, to call certain witnesses, and to ask particular 8 questions that Defendant demanded be asked. 9 {26} Generally, decisions concerning the conduct of the trial and trial tactics lie with 10 the lawyer. See State v. Henry, 101 N.M. 277, 280, 681 P.2d 62, 65 (Ct. App. 1984). 11 Although defense counsel certainly should consider the preferences of the client, it is 12 both the right and the professional responsibility of the attorney to make final 13 decisions about which witnesses should be called, whether and how to conduct 14 cross-examination, which jurors to accept or strike, what motions should be made, 15 what evidence should be introduced, and similar tactical matters that arise out of the 16 representation. See State v. Singleton, 2001-NMCA-054, ¶ 13, 130 N.M. 583, 28 P.3d 17 1124. If counsel did not have the ultimate responsibility for making such professional 18 decisions and could be required instead to set aside his or her professional judgment

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1 to accede to the client’s opposing demands on tactical matters, the entire inquiry into 2 whether a defendant had validly waived his right to effective assistance of counsel 3 would be reduced to a meaningless exercise. If counsel is to perform the function of 4 effective counsel, he or she must be able to make the necessary professional decisions 5 attendant upon that responsibility. 6 {27} Defendant does not suggest that he was denied the right to make any one of the 7 non-tactical and very personal decisions that are within the exclusive right of the client 8 to exercise in a criminal case, such as whether or not to plead guilty, whether or not 9 to waive a jury, and whether or not to take the witness stand. See State v. Bonilla, 10 2000-NMSC-037, ¶¶ 7, 13, 130 N.M. 1, 15 P.3d 491; Singleton, 2001-NMCA-054, 11 ¶ 12. 12 {28} Despite this established allocation of decisional rights and responsibilities 13 between attorney and client, counsel went to great lengths to try to comprehend and 14 accommodate the various demands of his client. Our review of the record persuades 15 us that the district court was correct in holding that Defendant was permitted to have 16 his views considered in every aspect of his trial. On several occasions, the judge 17 noted for the record that Defendant participated in every bench conference and 18 discussion, was allowed to submit questions to be asked by counsel, conferred with

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1 counsel, and reviewed the evidence at trial. The record also supports the observation 2 of the district court that the defense was marked by “vigorous cross-examination of 3 every witness,” “vigorous opposition at appropriate times,” and “vigorous 4 participation of [Defendant].” 5 {29} With regard to his complaint that some witnesses were not called, Defendant 6 does not advance which specific witnesses were precluded from testifying, nor why 7 their absence would have prejudiced the result. See State v. Weber, 76 N.M. 636, 644, 8 417 P.2d 444, 449 (1966) (“We will not search the record in an effort to try to 9 determine what appellant has in mind.”). To the extent this Court can understand 10 Defendant’s complaint that his counsel failed to call certain witnesses and issue 11 subpoenas, we conclude the matter was properly addressed by the district court. 12 While Defendant, at a point close to the end of trial, did vociferously complain to the 13 judge about an assortment of witnesses not called by his counsel, the judge did not 14 rule they could not appear. He merely told Defendant that if the witnesses were 15 readily available, and a credible explanation could be offered as to why they should 16 testify, he would consider allowing their testimony. The judge did scold Defendant 17 that these witnesses had not been brought to the court’s attention in a timely manner 18 in any of Defendant’s numerous communications and complaints to the court on

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1 various occasions. Defendant has not alerted us to any point in the record where he 2 pursued the matter further. In any event, since Defendant was not proceeding pro se, 3 a tactical or strategic decision as to whether to call specific witnesses is ordinarily not 4 viewed as a lapse in professional representation. State v. Bernal, 2006-NMSC-050, 5 ¶ 32, 140 N.M. 644, 146 P.3d 289; see Jacobs, 2000-NMSC-026, ¶ 49 (“An attorney’s 6 decision to object to testimony or other evidence is a matter of trial tactics.”). 7 {30} As to Defendant’s argument that his attorney failed to ask questions requested 8 by him, Defendant does not explain what questions his counsel failed to ask and how 9 this information would have aided in his defense. See State v. Martinez, 10 2007-NMCA-160, ¶¶ 22-24, 143 N.M. 96, 173 P.3d 18 (requiring that an ineffective 11 assistance claim be supported by a showing of how counsel’s performance prejudiced 12 the defense). The record does not support Defendant’s complaint that his attorney 13 failed to present both the accidental death and suicidal death theories that Defendant 14 urged counsel to present. The record affirmatively reflects the opposite. Although 15 counsel expressed misgivings about presenting both of these potentially conflicting 16 defenses, he ultimately acceded to Defendant’s wishes to call both Dr. Foote and the 17 defense arson expert to support both theories demanded by Defendant. Defendant 18 makes no claim that counsel’s acquiescence to his demand constituted ineffective

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1 assistance of counsel, and we therefore have no reason to consider whether the 2 decision to do so was within the range of permissible tactical choices available to 3 counsel. 4 {31} Counsel complied with Defendant’s desire to participate in his own defense and 5 effectively permitted Defendant to have a great deal of input into its organization and 6 content. Counsel made repeated efforts to accommodate Defendant’s concerns and 7 instructions throughout and was forthright with the court about Defendant’s 8 disagreements regarding counsel’s use of trial tactics and the calling of witnesses. 9 After Defendant’s equivocal demand that counsel withdraw and participate only on 10 a standby basis, counsel attempted to assist Defendant in the event Defendant’s 11 request was granted. He informed the court that he had prepared voir dire questions 12 and outlines of witnesses that Defendant could use, and he offered to assist Defendant 13 to whatever extent possible. In sum, counsel made extraordinary efforts to consider 14 Defendant’s wishes, while carrying out his own professional responsibilities to 15 provide effective assistance of counsel. 16 {32} The fact that the twelve members of the jury concluded beyond a reasonable 17 doubt that Defendant was guilty of first-degree murder cannot be ascribed to the 18 performance of Defendant’s counsel that is reflected in this record. We therefore

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1 reject Defendant’s ineffective assistance claim and turn to the question whether the 2 evidence supports the verdict. 3 C. Claim of Insufficiency of the Evidence 4 {33} Defendant also argues that there was insufficient evidence on the intent element 5 of the charge of first-degree deliberate murder to support the jury’s guilty verdict. We 6 disagree and hold the evidence was sufficient to support his first-degree murder 7 conviction. 8 {34} Our sufficiency of the evidence review “‘is whether substantial evidence of 9 either a direct or circumstantial nature exists to support a verdict of guilt beyond a 10 reasonable doubt with respect to every element essential to a conviction.’” State v. 11 Rudolfo, 2008-NMSC-036, ¶ 29, 144 N.M. 305, 187 P.3d 170 (quoting State v. 12 Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988)). Evidence is reviewed “in 13 the light most favorable to the guilty verdict, indulging all reasonable inferences and 14 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 15 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “The question before us as a 16 reviewing Court is not whether we would have had a reasonable doubt but whether it 17 would have been impermissibly unreasonable for a jury to have concluded otherwise.” 18 Rudolfo, 2008-NMSC-036, ¶ 29; see State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.

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1 438, 971 P.2d 829 (“[D]etermining the sufficiency of evidence does require appellate 2 court scrutiny of the evidence and supervision of the jury’s fact-finding function to 3 ensure that, indeed, a rational jury could have found beyond a reasonable doubt the 4 essential facts required for a conviction.” (internal quotation marks and citation 5 omitted)). “Contrary evidence supporting acquittal does not provide a basis for 6 reversal because the jury is free to reject Defendant’s version of the facts.” Rojo, 7 1999-NMSC-001, ¶ 19. 8 {35} Defendant argues that the trial evidence supported his claim to neighbor 9 Pasqual Montano, in one of his versions of the events, that he poured water on Toby 10 Peek’s burning body in an attempt to save his life, rather than for the purpose of 11 keeping the fire from spreading. Therefore, he argues, there is insufficient evidence 12 to support the jury’s finding that he had the requisite deliberate intent to kill for a first- 13 degree murder conviction. However, the jury also heard the testimony of Randy 14 Brittain that Defendant admitted to him that same morning that he poured water on 15 Peek to prevent the fire from spreading, rather than to protect Peek from his death. 16 The jury was free to accept or reject either of Defendant’s inconsistent accounts 17 presented in the testimony. In particular, the jury heard evidence of Defendant’s own 18 incriminating statements and actions and the substantial physical corroboration at the

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1 scene. In light of the totality of evidence, the admissions that he made to Brittain of 2 deliberately going out and buying gasoline, setting Peek on fire over a pack of wet 3 cigarettes, and Peek’s disrespectful attitude to Defendant, were much more plausible 4 than the “Peek happened to be on fire when I came home” version he told Montano. 5 {36} We therefore reject Defendant’s argument that there was insufficient evidence 6 to support the finding by the jury that he possessed the requisite deliberate intent to 7 commit first-degree murder. 8 III. CONCLUSION 9 {37} Based on our determinations that the trial court did not err in rejecting 10 Defendant’s request to waive assistance of counsel and represent himself, that he has 11 not established a claim of ineffective assistance of counsel, and that the evidence 12 supports the finding by the jury that he killed Toby Peek with deliberate intent, 13 Defendant’s conviction for first-degree murder is affirmed. 14 {38} IT IS SO ORDERED.

15 ______________________________ 16 CHARLES W. DANIELS, Justice

17 WE CONCUR:

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1 _________________________________ 2 EDWARD L. CHÁVEZ, Chief Justice

3 ______________________________________________ 4 PATRICIO M. SERNA, Justice

5 _________________________________ 6 PETRA JIMENEZ MAES, Justice

7 _________________________________ 8 RICHARD C. BOSSON, Justice