State v. Urioste

2011 -NMCA- 121

267 P.3d 820

STATE of New Mexico, Plaintiff–Appellee,

v.Elias URIOSTE, Defendant–Appellant.

No. 30,110.

Court of Appeals of New Mexico.

Oct. 25, 2011.Certiorari Granted, Dec. 7, 2011, No. 33,287.

Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellee.

Kennedy & Han, P.C., Paul J. Kennedy, Mary Y.C. Han, Darin M. Foster, Arne R. Leonard, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Following a jury trial, Defendant Elias Urioste was convicted of voluntary manslaughter, aggravated battery with a deadly weapon, three counts of tampering with evidence, and two counts of conspiracy to commit tampering with evidence. His victim was Vincent Espinosa (Victim). Defendant was sentenced to a total of forty years imprisonment. We affirm Defendant's convictions of voluntary manslaughter, aggravated battery, and tampering with evidence, and we reverse Defendant's convictions of conspiracy to commit tampering with evidence.

BACKGROUND

{2} Victim was last seen by his family on January 28, 2007. On that date, Victim and his brother were helping their grandmother move. Victim told his brother that he had to “go down to the valley[,]” and later that day he had planned to go to a barbeque. Victim's friends and family never heard from him again.

{3} On January 28, 2007, Fred Barncastle and his family were driving around the Double Eagle Airport watching airplanes. As Barncastle drove east, away from the airport, he noticed a fire to the south that “started up real fast, and then ... died down[.]” He guessed that the fire was on the mesa. Around the same time that he noticed the fire, Barncastle also noticed a “dull gray” Lincoln automobile coming from the south. Barncastle, who was going the speed limit, noticed that the Lincoln passed him “pretty fast.”

{4} On February 19, 2007, Matthew Cordova took his daughters “out riding around” near the Double Eagle Airport. As he drove down a dirt road, he spotted what he described as “a man laying there burn[ed] to death” underneath a burned couch. The body was later identified as that of Victim.

{5} Detective Jennifer Garcia, the lead criminalist in the investigation collected a number of items of evidence from the scene. Among other items near Victim's body, Detective Garcia found five .9 millimeter bullet casings just to the northwest of Victim's head.

{6} Victim's body, having been transported to the office of the medical investigator, was examined by the chief medical investigator, Dr. Ross Zumwalt. Dr. Zumwalt determined that Victim had been shot three times, once in the chest and twice in the head. Two of the three bullets passed through Victim's body and were not recovered. One bullet, however, was recovered from just beneath the skin in the back of Victim's skull. Later analysis of the recovered bullet revealed that it was a. 9 millimeter Luger, the same caliber as casings found near Victim's body.

{7} Dr. Zumwalt could not determine whether the chest wound or the head wounds occurred first. He suspected that Victim was still alive when the chest wound occurred because Victim “certainly bled a lot.” He added that the head wounds, which would have been fatal in and of themselves, “would not necessarily have caused [Victim's] heart and lungs to stop functioning for a little while [,] ... so the chest wound could have been second or it could have been first[.]”

{8} Dr. Zumwalt concluded that the three shots occurred within minutes of one another, and he explained that Victim would not have lived long after either the shots to his head or to his chest. Dr. Zumwalt also concluded that Victim would have been rendered unconscious immediately from the head wounds and within a few seconds from the chest wound. Whether the head wounds or the chest wound came first, however, Victim would have lived for only a short period of time.

{9} Victim's body had been burned. While Victim's body was “badly charred,” Dr. Zumwalt concluded that Victim was probably dead before the fire because there was no evidence in Victim's body of soot or carbon monoxide inhalation. The arson investigator determined that the fire was incendiary or intentionally started.

{10} “[S]ometime before March 2007[,]” for reasons unrelated to the present case, police raided the home of Brandon Neal, a member of the “South Side” gang. Neal began cooperating with the police and decided to “give [the police] everything [he knew]” because he was planning to leave New Mexico. Among other things, Neal knew Defendant and knew details of Victim's murder as they had been related to Neal by Defendant.

{11} According to Neal, Defendant said that he (Defendant), along with Victim and two others, were driving around in Defendant's gray Lincoln Town Car popping “zany bars” (narcotic pills). Defendant and Victim “got into some kind of argument and [Defendant] happened to shoot [Victim,]” and when this happened, Defendant was driving and Victim was in the back seat. After Victim had been shot, at first, they (Defendant and two others) were going to take Victim to the hospital but when they realized he was unconscious, they chose instead to “put him on a couch in the mesa and ... [light] him on fire.”

{12} According to Neal, Defendant also said that he and the two others had burned the vehicle. At some point prior to having burned the Lincoln, however, Defendant “gave it away ... to one of [Neal's] little friends,” but when Neal told his friend what had occurred in the vehicle, “the guy ... dropped it off somewhere.” Defendant claimed, however, that he sold the vehicle to Neal.

{13} Another gang member, who belonged to the “TCK” gang and affiliated with the “South Side” gang, Jason Rubio, also shared information about Victim's death with police. According to Rubio, Defendant told him “[t]hey[, Defendant and two others,] jacked [Victim], took him to the mesa, poured gas down his throat[,] made him drink gas, put the gun to his head, made him drink gas, shot him[,] and lit him on fire.” Rubio also knew that the incident occurred in Defendant's “silver” Lincoln Town Car.

{14} “[A]t some point” during the investigation into Victim's homicide, Detective Garcia learned from the lead homicide detective, Judy Chavez, that a Lincoln Town car that was suspected to have been involved in this case was at a tow yard in Albuquerque. Detective Garcia along with a team of criminalists and homicide detectives examined the vehicle. The interior of the vehicle was “completely burned” from a fire that appeared to have originated in the back seat. The front seat and the steering wheel were melted or charred, and there was much more damage to the back seat. A portion of the back seat was collected because it appeared to have a bullet hole through the metal behind the seat. The detectives also collected a bottle with a white rag or shirt tucked into it called a “molotov cocktail.”

{15} Defendant makes three arguments on appeal. First, he contends that his convictions for kidnapping and aggravated battery violate the prohibition against double jeopardy and argues that they were not supported by substantial evidence. Second, Defendant contends that his convictions for tampering with evidence and conspiracy to tamper with evidence were a violation of the prohibition against double jeopardy and a violation of his due process rights, and he argues that they were the result of cumulative errors at trial. Finally, Defendant argues that the district court erred in admitting evidence both of gang affiliation and of threats against witnesses. We examine each of Defendant's arguments. We affirm all of Defendant's convictions with the exception of the conspiracy to tamper with evidence charges, which we reverse on the basis of a due process violation.

DISCUSSIONProhibition Against Double Jeopardy Was Not Violated by Defendant's Convictions for Kidnapping and Aggravated Battery

{16} Defendant argues that his convictions for kidnapping with an intent to inflict death or physical injury, in violation of NMSA 1978, Section 30–4–1(A)(4) (2003), and for aggravated battery with a deadly weapon, inflicting great bodily harm, in violation of NMSA 1978, Section 30–3–5(C) (1969), when coupled with his conviction for voluntary manslaughter in violation of NMSA 1978, Section 30–2–3(A) (1994), violated his constitutional right to be free from double jeopardy because all three convictions were premised on the unitary conduct of fatally shooting Victim. We review de novo Defendant's claim that his right to be free from double jeopardy was violated. State v. Quick, 2009–NMSC–015, ¶ 6, 146 N.M. 80, 206 P.3d 985.

{17} This case is a double-description, multiple-punishment case. The proper analysis to determine whether a double jeopardy violation has occurred is a two-pronged test known as the Swafford test. State v. Armendariz, 2006–NMSC–036, ¶ 20, 140 N.M. 182, 141 P.3d 526. The Swafford test first requires a determination of whether the conduct underlying the offenses was unitary. Armendariz, 2006–NMSC–036, ¶ 21, 140 N.M. 182, 141 P.3d 526. “If the conduct [was] not unitary, then the inquiry is at an end and there is no double jeopardy violation.” State v. Contreras, 2007–NMCA–045, ¶ 20, 141 N.M. 434, 156 P.3d 725 (internal quotation marks and citation omitted).

{18} “If two events are sufficiently separated by either time or space ..., then it is a fairly simple task to distinguish the acts.” Swafford v. State, 112 N.M. 3, 13–14, 810 P.2d 1223, 1233–34 (1991). “In determining whether [a d]efendant's conduct was unitary, we consider whether [a d]efendant's acts were separated by sufficient indicia of distinctness.” State v. Lopez, 2008–NMCA–002, ¶ 16, 143 N.M. 274, 175 P.3d 942 (internal quotation marks and citation omitted). “Distinctness may ... be established by the existence of an intervening event, the defendant's intent as evinced by his or her conduct and utterances, the number of victims,...