State v. Deangelo Child M.

STATE OF NEW MEXICO, Plaintiff-Appellee, v. DEANGELO M., Child-Appellant.

No. A-1-CA-35466

COURT OF APPEALS OF THE STATE OF NEW MEXICO

December 12, 2018

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY

Drew D. Tatum, District Judge

Hector H. Balderas, Attorney General

Maha Khoury, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender

Tania Shahani, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

KIEHNE, Judge.

{1} DeAngelo M. (Child) appeals from a jury verdict finding that he committed second-degree murder, contrary to NMSA 1978, Section 30-2-1(B) (1994) and NMSA 1978, Section 32A-2-3(A) (2009), aggravated burglary, contrary to NMSA 1978, Section 30-16-4(B) (1963) and Section 32A-2-3(A), larceny (over $250), contrary to NMSA 1978, Section 30-16-1(C) (2006) and Section 32A-2-3(A), and tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003) and Section 32A-2-3(A). The district court committed Child to the custody of the Children, Youth and Families Department until he turned twenty-one (21) years old. Child claims (1) that the evidence was insufficient to support his convictions; (2) that the district court erred by failing to question the jury about a potentially prejudicial newspaper article that was published in a local newspaper during the trial; and (3) that the district court erred in failing to grant Child's motion to dismiss the charges based on the State's alleged failure to disclose exculpatory evidence. We reverse Child's larceny adjudication, and affirm his remaining adjudications.

Background

Procedural History

{2} This is the second time this case is before us on appeal. See State v. DeAngelo M., 2015-NMCA-019, 344 P.3d 1019 (affirmed by State v. DeAngelo M., 2015-NMSC-033, 360 P.3d 1151). Child was first tried in 2011 and found tohave committed second-degree murder, aggravated burglary, two counts of tampering with evidence, and larceny. On appeal, we reversed Child's adjudication because the State did not overcome the rebuttable presumption, set forth in NMSA 1978, Section 32A-2-14(F) (2009), that statements he made to investigating officers were inadmissible against him because he was thirteen years old when he made the statements. DeAngelo M., 2015-NMCA-019, ¶ 2. Our Supreme Court affirmed the decision, but rejected this Court's reasoning and promulgated a new test to determine whether the State has rebutted the presumption that it may not use a statement made by a thirteen-year-old against him at trial. DeAngelo M., 2015-NMSC-033, ¶¶ 3, 16-19. Our Supreme Court remanded the case for a new trial. Id. ¶ 31. The State then pursued the same charges, except that it dropped one count of tampering with evidence.

Facts

{3} Angel Vale (Victim) lived with her boyfriend, Edward Lucero, in a house next door to Child's house. Child often played in the back yards of the homes on the street. He usually played alone.

{4} On the weekend of July 16-18, 2010, Victim and Mr. Lucero went out of town to visit family. When they returned, it was clear that someone had entered their home without their permission. Although nothing of value was taken, Victim and Mr. Lucero noticed a number of irregularities, including that their couchcushions were disheveled; the batteries in their television remote were missing; toilet paper had been spread around the house; a bottle of Smirnoff Ice had been consumed and placed in a trashcan that the couple had emptied before they left for the weekend; a can of Bud Light beer had been opened, sipped from, and placed back in the refrigerator; there was urine and a shredded tampon in the toilet; the couple's bathroom medicine cabinet had been disarranged; tissues had been placed in Victim's underwear drawer; and a new pack of Trident gum that was on a table had been taken, with gum wrappers scattered around and inside the trashcan.

{5} The couple suspected that someone had entered the home through a side door that would not lock properly, and would open if pushed hard enough. They decided to move because their landlord would not fix the door, so they put down a deposit on an apartment that week, and started to clear their belongings from the house. Victim had also told a neighbor that she was afraid of Child because of the break-in.

{6} On July 22, 2010, Victim was loading things into the couple's SUV to start moving from their house to their new apartment. Victim's landlord saw her moving boxes around 2:30 p.m. that day.

{7} Around 3:00 p.m. that day, Randy Chavez, a repair person who was working on one of the houses on the street, heard what sounded like three or four fireworks. Less than a minute later, he saw Child come running around from the back of hishouse. Upon seeing Mr. Chavez, Child slowed to a walk, said "Hi" to Mr. Chavez, and then went to the front of his house.

{8} That evening, one of Victim's co-workers went looking for her after she did not report for work and found her body. Victim had been shot three times, and was found lying unresponsive on the south side of her house, which faced Child's house.

{9} During the investigation into Victim's death, police found a number of items belonging to Victim and Mr. Lucero in the dumpsters behind the houses on the street, including Mr. Lucero's .22 caliber rifle, an Mp3 player, video game discs, .22-caliber ammunition, a pornographic DVD, and other items. An expert determined that the rifle was the firearm used to shoot Victim.

{10} In Victim's back yard and in the shed located in the back yard, investigators found some spent .22 shell casings, a box of .22-caliber ammunition, some Trident gum wrappers, and some plastic cups. Other evidence connected Child to these items. The cups had Child's DNA and fingerprints on them, and the box of ammunition had Child's fingerprints on it. Child also could not be excluded as a source of a partial fingerprint that was taken from the rifle. Additionally, in the shed and in the backyard, there were a number of shoeprints with a distinct, hexagonal pattern. Investigators at the scene noticed that Child's shoes left the same distinct pattern. Investigators also noticed that Child had taken a keen interestin the crime scene—he watched the investigation intently—and they had to prevent him from accessing the dumpsters behind the houses.

Discussion

A. The district court did not err in declining to voir dire the jury after a local newspaper printed an article about the case

{11} Child argues that the district court erred when it refused to voir dire the jurors about whether they were aware of a newspaper article that had run in the Portales News-Tribune during the trial, which was entitled "Psychologist May Testify in [Child's]¹ Trial." The issue arose when the State brought it to the district court's attention that a psychologist on Child's witness list, Dr. Maxann Shwartz, had performed an evaluation of Child that included personality or "profile" testing, and the State had not been made aware of this before trial began. After interviewing Dr. Shwartz following the first day of trial, the State learned that Child had admitted to Dr. Shwartz that he had killed Victim, but that Dr. Shwartz did not believe Child because he did not fit the profile of someone who would commit violence. The parties then discussed whether the confession should be admissible, and the district court reserved ruling on the issue until Dr. Shwartz was available to testify at a hearing. A news reporter, who was apparently present in the courtroom for this argument, wrote an article on it. Ultimately, after a later hearing,the district court excluded Dr. Shwartz from testifying as a discovery sanction because Child's counsel did not disclose discoverable information about her evaluation to the State before trial.

{12} Child did not include a copy of the article in the record, but alleges that the article stated the following:

Deputy District Attorney Brian Stover told Judge Drew Tatum before testimonies began Tuesday morning that there were details about the testimony of Albuquerque Psychologist Maxann Shwartz—who Defense Attorney Chris Christensen plans to call to the stand later this week—which the state was not made aware of, such as an admission of guilt made by [Child] to Shwartz during an October 2010 interview.

Stover clarified later that this afternoon's hearing will be to determine if Shwartz's testimony is admissible and, if so, what can and cannot be used from the testimony. Shwartz is due to testify in the late afternoon.

After the article was published, Child filed a motion to dismiss the case for prosecutorial misconduct, alleging that the prosecutor violated Rules of Professional Conduct 16-304 and 16-305 NMRA when he spoke about information in the case that he should have known would not be admissible while the news media were present. At a hearing on the motion, Child asked in the alternative that the district court question the jurors to determine whether any of them might have read the article. The district court ruled that no prosecutorial misconduct had occurred, and declined to voir dire the jury, noting that it had repeatedly instructed the jury to avoid any news coverage about the case, and that there was no evidencethat it had disregarded this instruction. On appeal, Child abandons his prosecutorial misconduct claim, focusing instead on the district court's denial of his request to voir dire the jurors.

{13} Child argues that the article was prejudicial because it referred to an admission of guilt...