State v. Torrez

2009 NMSC 029, 210 P.3d 228, 146 N.M. 331
New Mexico Supreme Court·Decided May 29, 2009·No. 29,869·Published·Cited by 69 cases

Opinion

OPINION

CHAVEZ, Chief Justice.

{1} Defendant Orlando Torrez directly appeals his convictions of first degree murder, shooting at a dwelling or occupied building resulting in injury, and tampering with evidence; charges arising from the shooting death of Danica Concha at a Halloween party in 2003. Defendant raises four arguments on appeal: (1) the trial court erred in not granting a mistrial after the jury expressed fears of gang retaliation; (2) the trial court erred in admitting the testimony of an expert witness on the subject of gang-related law enforcement and gang culture; (3) his convictions for felony murder and shooting at a dwelling house resulting in injury violated his constitutional protection against double jeopardy; and (4) cumulative error. We hold that the trial court erred in admitting the testimony of the gang expert, vacate Defendant’s convictions, and remand for a new trial.

I. BACKGROUND

{2} On Halloween night in 2003, Defendant, his girlfriend, Samantha Sanchez, his friend, Alfredo Sanchez, and three others went to a house party near Taos, New Mexico. During the party, two unidentified men confronted Defendant and threatened to kill him and his family because Defendant had killed a young man named Jeremy a few years earlier. 1 Defendant and his companions left the house and the two unknown men, armed with guns, approached them as they walked toward Defendant’s vehicle. The men again threatened the lives of Defendant and his family and instructed him and his friends to leave or they would be killed. Defendant and his companions got into his car, and while they were driving away, the two men fired gunshots at Defendant’s vehicle, hitting it at least twice. No one was injured.

{3} Defendant and his companions returned to his house. Defendant testified that he was scared that the assailants would come by his house and shoot at them again because they had told him they knew where he lived. He stated that he wanted to go back to the party and confront the men rather than take the chance that they might come to his house and hurt his pregnant girlfriend or unborn child. Defendant armed himself with a 9 millimeter handgun, and he and Alfredo then gathered five of Defendant’s firearms — a 12-gauge shotgun, a 16-gauge shotgun, a .22 caliber rifle, a .303 caliber rifle, and a .270 caliber rifle — and loaded them into Defendant’s car. Defendant and Alfredo returned to the party in Defendant’s car with the firearms.

{4} At trial, Defendant described the following events after he and Alfredo returned to the party. He parked the car near the edge of the property and, having noticed one of the two men who had threatened him earlier standing outside the house, Defendant approached the man. While talking to him, Defendant was hit on the head from behind, fell to the ground, and was kicked. He reached for the 9 millimeter handgun that he had stuffed in his waistband, but it was missing. After getting back on his feet, Defendant was running to his car when he heard gunshots fired from behind him. Alfredo testified that when he saw Defendant running back toward the car, Defendant was unarmed and there was gunfire coming from the house. However, Alfredo could not state with certainty that Defendant had not been the first to shoot.

{5} Once back at his car, Defendant testified that he grabbed the .303 caliber rifle and fired toward the house where he could see sparks of light that looked like gunfire. He stated that he heard more gunfire from a different area of the yard, grabbed the 12-gauge shotgun from his car, and then fired in the direction of those shots. Alfredo testified that he fired the 12-gauge shotgun, implying that Defendant did not. No one admitted to having fired the .270 caliber rifle, but casings from that gun were found at the scene.

{6} At the time of the shooting, Naarah Holgate and Danica Concha were in a bathroom inside the house. Naarah testified that she heard what she thought were fireworks and then saw Danica collapse in the bathtub. An expert testified that Danica had been shot in the chest and killed with a bullet that was consistent with being fired from a center-fire, high velocity rifle. However, the expert could not say which weapon fired the fatal bullet.

{7} The jury convicted Defendant of first degree murder, shooting at a dwelling resulting in injury, and tampering with evidence. Defendant raises four issues on appeal: (1) jury bias; (2) improper expert testimony; (3) double jeopardy; and (4) cumulative error. Because we grant Defendant’s request for a new trial on the basis that the trial court erred in admitting the expert’s testimony, we do not address Defendant’s other claims of error. Any possible error associated with juror bias will be corrected when a new jury is empaneled at Defendant’s new trial. Because we vacate his convictions, Defendant’s constitutional protection against double jeopardy has not been impaired. Finally, we conclude that his cumulative error argument is without merit. Therefore, we address only the error associated with the admission of the expert’s testimony.

II. DISCUSSION

{8} At trial, the State called Detective Robert Martinez as an expert witness to testify about “gang-related law enforcement and gang culture.” The trial court admitted his testimony over Defendant’s objections. On appeal, Defendant raises four arguments, alleging that the trial court’s admission of Detective Martinez’s expert testimony was in error. First, he argues that Detective Martinez was not qualified to be an expert on the behaviors of Taos gang members. Second, he contends that the expert’s testimony was the equivalent of “junk science,” amounting to nothing more than a prediction of Defendant’s behavior on the basis of his association with a gang. Third, Defendant argues that evidence of Defendant’s association with gangs was impermissible propensity evidence that encouraged the jury to conclude that he acted in conformity with the actions of members of criminal street gangs. Finally, Defendant asserts that the expert’s testimony was irrelevant and unfairly prejudicial because there was no evidence presented at trial that this shooting was gang-related. The State contends that Detective Martinez was qualified to give expert testimony on the subject of the behaviors of gang members and that the evidence of Defendant’s affiliation with gangs was allowable to show Defendant’s motive or intent, which the parties agree was the ultimate issue in this case. The State also argues that the expert’s testimony was neither irrelevant nor unfairly prejudicial because “the record clearly establishes that gang membership and gang affiliation permeated this entire trial.”

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State v. Torrez, 2009 NMSC 029, 210 P.3d 228, 146 N.M. 331 (N.M. 2009).

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