State v. Powell

1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOHN D. POWELL, Defendant-Appellant.

No. S-1-SC-39377

Supreme Court of New Mexico

May 6, 2024

This decision of the Supreme Court of New Mexico 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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY Jason C Lidyard, District Judge

Harrison, Hart & Davis, LLC Daniel Gallegos Nicholas T Hart Albuquerque, NM for Appellant

Raúl Torrez, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

DECISION

DAVID K. THOMSON, CHIEF JUSTICE

I. INTRODUCTION

{¶1} In this capital appeal, John D. Powell (Defendant) challenges his convictions of three counts of first-degree murder and one count of aggravated burglary. See Rule 12-102(A) NMRA; see generally NMSA 1978, § 30-2-1(A)(1) (1994); NMSA 1978, § 30-16-4(A) (1963).

Defendant advances the following reasons his convictions should be reversed: (1) that there was insufficient evidence of specific intent to support the three first-degree murder convictions, (2) that there was insufficient evidence of an "unauthorized entry" into the house where the murders were committed to prove the aggravated burglary charge, and (3) that the prosecutor misstated the law during rebuttal argument, lowering the State's burden in proving the unauthorized entry. Defendant adequately preserved the first and second claims of error but not the third.

{¶2}We conclude that there was overwhelming evidence to support Defendant's first- degree murder convictions, and while the district court misinterpreted New Mexico law on unauthorized entry under false pretense, we hold that the court correctly denied Defendant's directed verdict motion for aggravated burglary. Further, any misstatement made by the prosecutor during rebuttal argument did not rise to the level of fundamental error, the appellate standard for this unpreserved claim of error. New Mexico appellate courts have previously addressed the legal issues underlying this case. Accordingly, the convictions are affirmed by nonprecedential decision. See Rule 12-405(B)(1) NMRA.

II. FACTUAL AND PROCEDURAL BACKGROUND

{¶3} In the early morning hours of May 29, 2018, surveillance cameras implicated Defendant and his brother, Roger Gage ("Brother"), in the murders of Abraham Martinez, Kieren Guillemin, and April Browne. The murders occurred in Ms. Browne's bedroom. Defendant was no stranger to Ms. Browne. In the months just before the murders, Defendant and his girlfriend, Sonya Chavez, lived with Ms. Browne in exchange for work and paying bills. As part of the in-kind rent payments, Defendant acted as security for Ms. Browne's drug operation, which included installing a video surveillance system around the interior and exterior of the home.

{¶4} Six days before her murder, Ms. Browne accused Ms. Chavez of stealing drugs. Ms. Chavez denied the accusation and texted Ms. Browne to inform her she would leave Ms. Browne's home. Later that day, Defendant and Ms. Chavez packed up their belongings and left.

{¶5} Defendant returned with Brother to Ms. Browne's residence in the early morning hours of May 29, ostensibly seeking drugs and other items he left after moving out. Rather than park on the driveway, the two stopped down the hill from the house and walked up an unlit rocky trail in the dark. Once at the house, Defendant entered through the unlocked back door. Inside Ms. Browne's bedroom, the surveillance system Defendant installed captured the entirety of the murders and theft of a safe and laptops.

{¶6} Defendant was indicted on six counts, including three counts of first-degree murder, aggravated burglary, conspiracy to commit first-degree murder, and tampering with evidence. The State amended the indictment to include the alternative theory of felony murder. Following the presentation of the State's evidence, Defendant moved for a directed verdict on all counts. The district court denied the motion in full except for the tampering charge related to the stolen safe and laptops.

{¶7} After a seven-day trial, Defendant was convicted of three counts of first-degree murder, one count of aggravated burglary, and one count of conspiracy to commit first-degree murder. The jury returned special verdict forms for the first-degree murder charges, finding Defendant guilty of both willful and deliberate murder and felony murder. The district court sentenced Defendant to three consecutive life sentences plus eighteen years for the aggravated burglary and conspiracy convictions. Defendant now appeals and requests review of the sufficiency of the evidence supporting the first-degree murder and aggravated burglary convictions and challenges the prosecutor's statements during rebuttal.

III. DISCUSSION

A. Sufficiency of the Evidence - First-Degree Murder

{¶8} Defendant admitted at trial that he killed Ms. Browne and fired the second shot into Mr. Guillemin. However, Defendant claims that the State offered no evidence of premeditation or preplanning and that the murders were "a rash act" resulting from the effects of drug withdrawal. The evidence rebuts this claim.

{¶9} "In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict." State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (quoting State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176). This Court "does not evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence." State v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted).

{¶10} The "jury instructions become the law of the case against which the sufficiency of the evidence is to be measured." Holt, 2016-NMSC-011, ¶ 20 (quoting State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d 517). New Mexico's statutory scheme distinguishes between intentional killings that are "willful, deliberate, and premeditated" and sufficient for first-degree murder, and those committed without such deliberation but with the Defendant's awareness that his "acts create a strong probability of death or great bodily harm." Section 30-2-1(A)(1), (B). As this Court has noted, "[F]irst degree murder is reserved for the most heinous and reprehensible of killings." State v. Tafoya, 2012-NMSC-030, ¶ 38, 285 P.3d 604 (quoting State v. Adonis, 2008-NMSC-059, ¶ 15, 145 N.M. 102, 194 P.3d 717 (internal quotation marks omitted)). The unaltered uniform instruction used at trial here reflected the distinction between first- and second-degree murder, defining a deliberate intent as one that is arrived at after "careful thought . . . for and against the proposed course of action." UJI 14-201 NMRA. The instruction noted that the "state of mind of the defendant" may be "inferred from all of the facts and circumstances of the killing." Id. And while Defendant may have arrived at his decision "in a short period of time[,] [a] mere unconsidered and rash impulse" is not sufficient deliberation. Id. "Although a seemingly straightforward distinction to draw, time has shown that sometimes this is far from the case." Tafoya, 2012-NMSC-030, ¶ 38.

{¶11} In this case, the jury had ample evidence to conclude Defendant's acts were deliberate, and that the distinction described in Tafoya was easy to discern. Id. This includes Defendant's own testimony that he drove with Brother for over an hour to Ms. Browne's house, armed, late at night, purportedly to get his tools and purchase a small quantity of drugs. Once he arrived, he parked at the bottom of the hill, taking the more difficult rocky path to the house that was out of view of the security cameras he had installed.

{¶12} The jury also saw surveillance footage of Defendant's actions inside the house. The camera captured Ms. Browne's bedroom from the foot of her bed. In the video, Ms. Browne rests on the left side of the bed while Mr. Martinez sleeps on the right. On the left side of the frame, Mr. Guillemin sits in a chair by the door Defendant and Brother use to enter the room. Brother begins the attack from outside the room, shooting Mr. Guillemin as he turns to peer through the doorway. Brother quickly enters the room, with Defendant in lockstep behind. Brother then shoots Mr. Martinez from across the bed as Defendant walks directly up to Ms. Browne and, at point-blank range, fires a round into her head. Defendant proceeds directly to a dresser on the far right side of the frame and removes a safe from one of its drawers. On his way out of the room, Defendant pauses to discharge two additional rounds, one each into Mr. Guillemin and Ms. Browne. The entire assault, including removing the safe and laptops, lasted only fifty-two seconds. A juror could reasonably determine that the precisely choreographed actions in the video demonstrate the type of careful thought sufficient for deliberation. See UJI 14-201.

{¶13} Finally, Defendant argues that the killing resulted from a "rash impulse" related to drug withdrawal. However Defendant cites no case law supporting the proposition that drug withdrawal is a defense to deliberation. Compare State v. Fekete, 1995-NMSC-049, ¶ 32, 120 N.M. 290, 901 P.2d 708 (affirming a first-degree murder conviction challenged on sufficiency grounds after a district court refused to include an instruction related to diminished capacity resulting from drug withdrawal), with State v. Brown, 1996-NMSC-073, ¶ 27, 122 N.M. 724, 931 P.2d 69 ("Intoxication may affect mental processes and prevent a person from...