State v. Billie

STATE OF NEW MEXICO, Plaintiff-Appellee, v. LOUISE BILLIE, Defendant-Appellant.

No. A-1-CA-37986

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 28, 2021

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Christina P. Argyres, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Charles J. Gutierrez, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Luz C. Valverde, Assistant Appellate Defender

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

MEDINA, Judge.

{1} Louise Billie (Defendant) appeals her convictions for one count of armed robbery, contrary to NMSA 1978, Section 30-16-2 (1973) and NMSA 1978, Section 31-18-16 (1993, amended 2020), and two counts of conspiracy to commit armed robbery, contrary to NMSA 1978, Section 30-28-2 (1979) and Section 30-16-2. On appeal Defendant argues: (1) the district court abused its discretion in denying her motion for a mistrial; (2) her convictions for conspiracy to commit armed robbery violate double jeopardy; (3) her 2007 conviction could not be used to enhance the sentences for each of her felony convictions under NMSA 1978, Section 31-18-17 (2003) (habitual offender statute), and therefore, her sentence is illegal; or (4) alternatively counsel was ineffective for failing to rebut the evidence the State relied on to enhance her sentence. We accept Defendant's second argument and therefore reverse one of her conspiracy convictions but affirm in all other respects.

BACKGROUND

{2} A grand jury indicted Defendant on a number of charges including two counts of armed robbery and two counts of conspiracy to commit armed robbery related to robberies of a Taco Bell and a Jack in the Box occurring on the same day.¹ Relevant to these charges the State alleged that Defendant drove her husband, Robert Billie, in a black SUV to the Taco Bell where he used a gun to rob the restaurant. After fleeing from the Taco Bell robbery, officers with the Albuquerque Police Department located the black SUV and identified Defendant as the driver. Officers observed Defendant and her husband return to a motel room where they stayed for approximately five hours before leaving again in the black SUV.

{3} After leaving the motel, Defendant and her husband stopped at three separate fast food restaurants before arriving at the Jack in the Box where Defendant's husband robbed the restaurant. Officers followed Defendant as she and her husband fled the robbery in the black SUV but lost track of the vehicle during the pursuit. Officers eventually relocated the black SUV at the motel where officers observed it earlier in the day. Upon locating the SUV, officers secured the area and instructed Defendant and her husband to exit the motel room. Defendant and her husband exited the motel room at which point Defendant's husband raised a weapon toward the officers who then fired non-lethal rounds at him. Defendant's husband fled in the black SUV and officers arrested Defendant.

{4} Defendant's jury trial for armed robbery and conspiracy to commit armed robbery took place over a period of three days during which ten witnesses testified, including employees from each restaurant and officers involved in the investigation and arrest of Defendant. The jury acquitted Defendant on the charge of armed robbery of the Taco Bell but convicted her for armed robbery of the Jack in the Box and both conspiracy charges.

{5} The district court determined that Defendant was a habitual offender for the purpose of sentence enhancement and increased Defendant's sentence for each charge accordingly. This appeal followed.

{6} We reserve discussion of facts relevant to Defendant's claims where appropriate in our analysis.

DISCUSSION

{7} We first address Defendant's assertion that the district court abused its discretion in denying her motion for mistrial. Next, we analyze whether Defendant's conviction on two counts of conspiracy to commit armed robbery violate her right to be free from double jeopardy. Finally, we address the legality of Defendant's sentence.

The District Court Did Not Abuse Its Discretion in Denying Defendant's Motion for Mistrial

{8} We review the district court's denial of a motion for mistrial for abuse of discretion. State v. Ruiz, 2003-NMCA-069, ¶ 6, 133 N.M. 717, 68 P.3d 957. A district court abuses its discretion when it acts "in an obviously erroneous, arbitrary, or unwarranted manner[,]" State v. Fry, 2006-NMSC-001, ¶ 50, 138 N.M. 700, 126 P.3d 516 (internal quotation marks and citation omitted), or "when the decision is clearly against the logic and effect of the facts and circumstances before the court." State v. Hernandez, 2017-NMCA-020, ¶ 14, 388 P.3d 1016 (internal quotation marks and citation omitted).

{9} Defendant argues that a mistrial was necessary because the jury heard testimony regarding an ongoing investigation of robberies occurring prior to those charged, and that testimony violated Rule 11-404(B)(1) NMRA's prohibition against propensity evidence. Defendant asserts that this testimony was uniquely prejudicial because identity was a central issue of this case and contends that the State's reckless questioning should be construed as intentionally eliciting prohibited testimony. The State responds that it did not intentionally elicit prohibited testimony but that even if it had, the district court appropriately denied Defendant's motion for a mistrial because the testimony was not substantially likely to cause a miscarriage of justice or induce the jury's verdict.

{10} Defendant first raised an issue regarding the officers' investigation into prior robberies involving Defendant or her SUV on the morning of trial while the parties were identifying exhibits the State intended to introduce through stipulation and those Defendant objected to. With regard to a photograph showing a fade mark on Defendant's SUV, defense counsel argued that the State might open the door for testimony of prior bad acts, i.e., investigations occurring before the events at issue while laying the foundation for the admission of the exhibit; "if anything we need to wait to see exactly what comes out"; and that the witnesses be instructed not to discuss uncharged crimes. The State acknowledged the risk and stated that it had advised witnesses not to discuss events occurring before the incidents at issue in the case. The State also stated that it believed use of leading questions could avoid testimony that might be prejudicial. The district court did not rule on the issue, stating instead that it would wait to see how the testimony developed. Defendant's arguments on appeal center on comments made during testimony from Detectives Church, Marquez, and Carter.

{11} Defendant asserts that, although Detective Carter is the only witness to specifically reference other crimes, we should consider his testimony in conjunction with comments made by Detectives Church and Marquez regarding a "prior investigation" or an "ongoing investigation." Defendant does not provide any citation to the record that establishes that she presented this argument to the district court. "To preserve error for review, a party must fairly invoke a ruling of the district court on the same grounds as argued in this Court." Crutchfiled v. N.M. Dep't of Tax'n & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273. On the contrary, the record reveals that Defendant's motion for a mistrial was based entirely on Detective Carter's testimony.

{12} Moreover, Defendant's objection to Detective Church's testimony was based on hearsay. And although the district court agreed, upon Defendant's objection, that Detective Marquez's testimony was close to addressing prohibited issues, the district court did not rule on the objection. Instead, the district court granted the State's request to lead the witness and testimony resumed. Significantly, Defendant did not pursue her objection further or invoke a ruling nor did she move to strike the testimony.

{13} Defendant does not argue that the district court erred in its handling of these objections nor does Defendant provide authority supporting her request that in the absence of preservation, we should consider the testimony here in the aggregate rather than focusing on the testimony that precipitated Defendant's motion for a mistrial. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 ("We assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority.").

{14} In the absence of a ruling below or argument on appeal, we are not inclined to second-guess the district court's handling of evidentiary issues, thus, to the extent Defendant invites us to consider Detectives Church's and Marquez's statements as part of a larger error, we decline to do so. See State v. Candelaria, 2019-NMSC-004, ¶ 46, 434 P.3d 297 (declining to consider claims unsupported by argument on appeal). We turn now to Detective Carter's testimony.

{15} During Detective Carter's testimony, the State asked him whether he assisted in an investigation of a black SUV on March 22, 2017, to which Detective Carter responded, "I believe so." The State then asked, "What was your role in the surveillance of the black SUV?" Detective Carter sought clarification of the question asking, "So specifically on that date, is that the first time that we observed the black SUV?" The State responded, "Let's talk about that date" to which Detective Carter responded, "Detectives in our unit . . . we had been looking for a dark colored SUV." Defendant immediately objected to Detective Carter's comments and...