State v. Romero

435 P.3d 1231

STATE of New Mexico, Plaintiff-Appellee,

v.Andrew ROMERO, Defendant-Appellant.

NO. S-1-SC-36229

Supreme Court of New Mexico.

Filing Date: December 27, 2018

Bennett J. Baur, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant

Hector H. Balderas, Attorney General, Martha Anne Kelly, Assistant Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee

CLINGMAN, Justice.

{1} Defendant Andrew Romero appeals his convictions arising from the shooting death of Rio Rancho Police Officer Gregg Nigel Benner during a traffic stop. Defendant was convicted of first-degree murder under NMSA 1978, Section 30-2-1(A)(1) (1994) ; two counts of tampering with evidence under NMSA 1978, Section 30-22-5 (2003) ; shooting at or from a motor vehicle under NMSA 1978, Section 30-3-8(B) (1993) ; conspiracy to commit armed robbery under NMSA 1978, Section 30-28-2 (1979) and NMSA 1978 Section 30-16-2 (1973) ; aggravated fleeing a law enforcement officer under NMSA 1978, Section 30-22-1.1 (2003) ; and concealing identity under NMSA 1978, Section 30-22-3 (1963). The sentencing jury found aggravating circumstances in Defendant’s first-degree murder conviction because Defendant murdered Officer Benner when Officer Benner was acting in the lawful discharge of an official duty and Defendant knew Officer Benner to be a peace officer at the time of the crime. NMSA 1978, § 31-20A-5(B) (1981). For his crimes, the trial court sentenced Defendant to life in prison without the possibility of parole plus sixty years. Defendant appeals directly to this Court. See N.M. Const. art. VI, § 2 ; Rule 12-102(A)(1) NMRA (requiring that appeals from sentences of life imprisonment be taken to the Supreme Court).

{2} Defendant raises eleven issues on appeal: (1) the trial court erred by not transferring venue outside of the Albuquerque metropolitan area; (2) the trial court erred by not excusing for cause those jurors who were exposed to publicity about the case; (3) the presence of excessive security during the trial prejudiced Defendant; (4) the trial court erred in admitting evidence of uncharged robberies; (5) the trial court should have ordered severance of count five, conspiracy to commit armed robbery; (6) the trial court erred in admitting a video recording of Defendant’s nonverbal gestures; (7) the trial court erred in admitting a recording of Defendant’s jail telephone call; (8) cumulative error deprived Defendant of a fair trial; (9) Defendant’s conviction of shooting at or from a motor vehicle constitutes double jeopardy; (10) the State failed to prove the essential elements of aggravated fleeing; and (11) the State failed to prove deliberate intent, an element necessary to maintain Defendant’s first-degree murder conviction. We affirm all of Defendant’s convictions except for his conviction of shooting at or from a motor vehicle, which we vacate on double jeopardy grounds.

I. BACKGROUND

{3} Officer Benner was shot and killed during a routine traffic stop at approximately 8 p.m. on May 25, 2015. Officer Benner had initiated the traffic stop of a Dodge Durango because it had a suspicious license plate. Officer Benner initially pulled the Durango over in a parking lot next to Arby’s on Southern and Pinetree in Rio Rancho. Tabitha Littles drove the Durango, and a passenger in the vehicle identified himself to Officer Benner as Albert Fresquez. Witnesses later identified Defendant as this passenger. Unbeknownst to Officer Benner, approximately seven hours before the traffic stop, Defendant and Ms. Littles had robbed a Taco Bell in Albuquerque. Officer Benner’s traffic stop was unrelated to the Taco Bell robbery.

{4} During this initial traffic stop Officer Benner moved to the rear of the Durango, and, as he began approaching the passenger side, the Durango suddenly accelerated out of the parking lot. While Officer Benner was moving around the Durango, Defendant removed his pistol from under his seat and was holding it between his seat and the center console of the vehicle. Officer Benner pursued the fleeing Durango and caught up to it a short distance away. During the short pursuit, Defendant shoved Ms. Littles out of the Durango, took control of the vehicle, and then brought the vehicle to a stop. As Officer Benner again approached the Durango, this time on the driver side, Defendant fired his pistol four times. All four bullets struck Officer Benner, and he was mortally wounded. Defendant then fled from the scene in the Durango. A multiagency, city-wide manhunt ensued.

{5} At 2:40 a.m. on May 26, 2015, approximately six and a half hours after Defendant shot Officer Benner, Defendant robbed a Shell/Giant gas station. While investigating that robbery, police officers attempted to stop a Chevrolet Impala fleeing from police. During the pursuit, officers observed an object being thrown from the front passenger window. When the chase ended, police found Defendant sitting in the front passenger seat of the Impala and arrested him. Officers recovered the object that was thrown from the front passenger window of the Impala during the chase. It was a nine millimeter Beretta pistol which was later determined to be the pistol used to kill Officer Benner. Defendant’s DNA was found on the pistol. When officers searched Defendant, they found the keys to the Dodge Durango that Officer Benner had pulled over and which had fled the scene of his murder.

{6} On June 11, 2015, a grand jury indicted Defendant on ten counts related to Officer Benner’s murder. On October 3, 2016, a jury found Defendant guilty of seven of those counts. The trial court sentenced Defendant to life in prison without parole plus sixty years. This direct appeal followed Defendant’s sentencing. Additional facts will be provided as necessary in the discussion below.

II. DISCUSSION

A. The Trial Court’s Decision to Change Venue to Valencia County

{7} Media coverage of this case was robust and almost entirely negative toward Defendant. Politicians and the public used Defendant and the murder of Officer Benner as a rallying cry for anticrime legislation. Because of the extensive media coverage, Defendant filed a motion to change venue to Rio Arriba County, McKinley County, or Taos County. The trial court granted Defendant’s motion to change venue but moved the trial to Valencia County. The trial court concluded that Valencia County was an appropriate venue, and cited public excitement in Sandoval County as reason for the move. See NMSA 1978, § 38-3-3(B)(3) (2003) (requiring a change of venue upon motion if, ‘because ... of public excitement ... involved in the case, an impartial jury cannot be obtained in the county to try the case’). Although the trial court’s final ruling on venue did not move the trial to one of the three counties Defendant requested in his written motion, defense counsel suggested during a pretrial hearing on the motion that Valencia County was an acceptable alternative.

{8} The trial court summoned 800 prospective jurors, and 300 of those prospective jurors filled out a special questionnaire. The trial court ultimately assembled 150 people for the venire. At the conclusion of voir dire, Defendant renewed his motion to change venue. The trial court denied Defendant’s renewed motion.

{9} For the reasons that follow, Defendant’s argument that the trial court erred when it initially moved the venue to Valencia County is rendered moot because an impartial jury was actually seated. This Court needs only to address the trial court’s decision to keep the trial in Valencia County following jury selection.

1. Standard of Review

{10} We review the trial court’s venue determination for abuse of discretion. State v. House , 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967. If the trial court denies a motion to change venue based on presumed prejudice and proceeds with voir dire, "we will limit our review to the evidence of actual prejudice." State v. Barrera , 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177. The determination of "[a]ctual prejudice requires a direct investigation into the attitudes of potential jurors." House , 1999-NMSC-014, ¶ 46, 127 N.M. 151, 978 P.2d 967. "A finding of no actual prejudice following voir dire, if supported by substantial evidence, necessarily precludes a finding of presumed prejudice." Barrera , 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177. To prove that reversible error occurred during voir dire, Defendant must show that the trial court abused its discretion by not excusing a juror who demonstrated actual prejudice. See Fuson v. State , 1987-NMSC-034, ¶¶ 8, 11, 105 N.M. 632, 735 P.2d 1138. The trial court’s decision to wait until after voir dire to rule on a motion to change venue is squarely within the trial court’s discretion and will only be reviewed for an abuse of discretion. Barrera, 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177. The party that opposes the trial court’s venue decision bears the burden of proving an abuse of discretion. House , 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967.

2. The Trial Court Did Not Abuse Its Discretion By Holding the Trial in Valencia County Because the Selected Jurors Demonstrated No Actual Prejudice

{11} After voir dire was complete and a jury was selected, the trial court reconsidered venue in Valencia County on Defendant’s renewed motion to change venue. At that time the trial court not only had the evidence Defendant provided concerning media saturation but also the attestations of the jurors who would actually hear the case. Voir dire revealed no actual prejudice in the jury selected.

{12} During voir dire, the attorneys and the judge questioned potential jurors about the publicity surrounding the trial and whether they could be fair and neutral arbiters. Each empaneled juror affirmed the ability to be a neutral finder of fact. Defendant specifically identifies seven jurors who, he argues, should have been excused for cause...