1997 -NMSC- 60, State v. Mora

• Decision Date: 17 November 1997
• Docket Number: No. 23693,23693
• Parties: , 1997 -NMSC- 60 STATE of New Mexico, Plaintiff-Appellee, v. Christopher MORA, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 789

950 P.2d 789

124 N.M. 346, 1997 -NMSC- 60

STATE of New Mexico, Plaintiff-Appellee, v. Christopher MORA, Defendant-Appellant.

No. 23693.

Supreme Court of New Mexico.

Nov. 17, 1997.

[124 N.M. 349] Freedman, Boyd, Daniels, Hollander, Guttman & Goldberg, P.A., Nancy Hollander, Albuquerque, for Defendant-Appellant.

Tom Udall, Attorney General, Elizabeth Blaisdell, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

OPINION

SERNA, Justice.

¶1 Defendant Christopher Mora was convicted of first-degree murder (felony murder, with criminal sexual contact as the underlying felony), criminal sexual contact in the third degree (child under thirteen) and intentional child abuse resulting in great bodily harm or death. The jury found Defendant not guilty of criminal sexual penetration and negligent child abuse. Defendant appeals his convictions and, alternatively, his sentencing for the convictions.

¶2 Defendant raises the following issues on appeal: 1) that his felony murder conviction was unconstitutional because the State did not prove all essential elements of the crime; 2) that his convictions for intentional child abuse resulting in death and criminal sexual contact were unconstitutional because the convictions were not supported by sufficient evidence; 3) that the State's failure to disclose the existence of recorded interviews of two critical prosecution witnesses, until after the defense had cross-examined them, denied Defendant his right to prepare a defense, to confront and cross-examine witnesses and to a fair trial; 4) that the admission of the hearsay testimony of a deceased witness violated Defendant's right to confrontation because the testimony contained no particularized guarantees of trustworthiness, and the testimony was more prejudicial than probative; 5) that two autopsy photographs should not have been admitted because they were irrelevant and because their prejudicial effect substantially outweighed their probative value; 6) that the admission of his guilty plea to possession of stolen property was improper because its prejudicial effect substantially outweighed any probative value of the evidence; 7) that the prosecutor improperly used the prior guilty plea to argue Defendant's guilt in closing argument; 8) that his sentence violated his protection against double jeopardy; and 9) that the above constitute cumulative error that denied Defendant due process and a fair trial. We affirm the trial court on all issues except the sentencing of Defendant for both felony murder and intentional child abuse resulting in death; therefore, we need not address the issue of whether cumulative error deprived Defendant of a fair trial.

FACTS

¶3 This case involves the tragic death of a twenty-three-month-old child, Christina Sierra. Christina was pronounced dead on November 25, 1994. Christina was killed by an intentional blow to her skull, and was apparently the victim of a sexual assault. A jury found Defendant Christopher Mora responsible for Christina's death, and convicted him based on the following facts presented at trial.

¶4 Defendant and Andrea Garcia, the mother of Christina Sierra, began dating in September 1993. In September 1994, Defendant and Garcia moved into an apartment together. Christina lived with Defendant and Garcia. Garcia was attending school during the day and Garcia's mother, Virginia Saavedra, took care of Christina while Garcia attended school.

¶5 Christina had been receiving medical treatment, and was admitted to the hospital, in the weeks prior to her death. Prior to the time Defendant moved in with Garcia, Christina had not had an extensive medical history. Christina died on November 25, 1994; however, the evidence showed, and Defendant does not dispute, that the fatal blow to Christina's skull occurred on November 24, 1994, Thanksgiving day.

¶6 At trial, Defendant and Garcia provided conflicting testimony regarding the events which occurred on November 24. Garcia testified that on Thanksgiving morning, she and Defendant got out of bed at the same time, and she went to attend to Christina. Later, Christina, Garcia and Defendant were watching the Macy's Thanksgiving parade on television. Garcia decided to take a shower and she left Christina, who Garcia testified was awake and alert, in the care of Defendant. Garcia proceeded to take a lengthy shower of approximately twenty to twenty-five minutes. When Garcia emerged from the bathroom, according to Garcia's testimony, Garcia saw Defendant walking down the hall with Christina apparently asleep on his shoulder. Defendant told Garcia he was putting Christina to bed because she had fallen asleep. Garcia testified that she thought it was strange that Christina was asleep, because Christina did not usually take a nap so soon after she woke up in the morning.

¶7 Defendant, on the other hand, testified at trial that Christina had awakened the morning of November 24, crying. According to Defendant, he and Garcia had been having sex early Thanksgiving morning when they were interrupted by the cries of Christina coming from her bedroom. Defendant testified that Garcia did not want to attend to the baby, but that Defendant insisted that she do so. Defendant testified that Garcia slammed the bedroom door as she went to Christina's bedroom to check on her. Defendant testified that when Garcia took Christina from her room into the living room, Christina was "crying real loud ...not just a cry ...screaming" and that "all of a sudden she just stopped crying." Defendant testified that when he emerged from the bedroom into the living room, about twenty minutes later, Christina appeared to be asleep in her stroller. Defendant testified that Garcia tried to feed Christina some cereal but Christina would not eat. Garcia then went to take a shower, leaving Christina in Defendant's care. While Garcia was in the shower, according to Defendant, Defendant went into another room to answer a phone call from Joseph Sena. Upon finishing the call, Defendant testified that he put the sleeping child back into her bed, while Garcia was coming out of the bathroom. Defendant testified that Garcia had a "scared look on her face" when he put Christina in her bed.

¶8 Defendant's testimony at trial appeared to support the defense theory that Garcia may have caused Christina's injuries. The jury, however, heard testimony that Defendant made conflicting statements to the police and to Garcia's cousin Randy Chavez. According to the testimony of Albuquerque Police Detective Vicki Ortiz, in his prior statement to the police made eight days after Thanksgiving, Defendant said that when he got up that Thanksgiving morning, he prepared cereal for Christina, which Christina ate. Defendant also said in his statement "[a]nd then Christina was in her stroller and [Andrea] came and said uh, you wanna to take a shower, Christina, you know, she was talking to her, she couldn't talk back. And she said, no, like she didn't wanna stay in the stroller. She always wanted to stay in the stroller, I don't know." These statements conflicted with Defendant's testimony at trial that Christina had been asleep all morning.

¶9 The jury also heard the testimony of Randy Chavez who testified that Defendant had told him in the hospital waiting room that Christina had fallen asleep on the couch while Andrea was taking a shower, and that Defendant put Christina to bed. Later that day, Randy Chavez heard Defendant say that Christina was falling asleep, so he picked her up, and when Garcia finished her shower, Defendant and Garcia put Christina to bed together. These accounts also differed from Defendant's trial testimony that Christina had been asleep all morning.

¶10 Both Defendant and Garcia testified that they soon realized Christina was unconscious and not breathing. Garcia called 911. The paramedics arrived and transported Christina to the University of New Mexico Hospital. William Chavez, a paramedic who arrived at the scene, questioned Garcia about older bruises on Christina, and he testified that Garcia responded to him that Christina had fallen off the bed a few days earlier. Garcia traveled in the ambulance with Christina, but Defendant stayed behind at the apartment. Defendant arrived at the hospital approximately an hour later. Police detectives investigated the apartment and gathered evidence some time after the Defendant left the apartment.

¶11 Christina was treated by a variety of medical personnel at the hospital. Several members of the emergency room staff and the intensive care staff noted a scratch or tear near Christina's anus, or perineum. No member of the intensive care staff noted any vaginal bruising on Christina. Dr. Robert Katz, the director of the pediatric ICU, testified that he notified a specialist in sexual abuse, Dr. Renee Ornelas. At trial, Dr. Ornelas was recognized as an expert in pediatrics with a specialty in sexual abuse. Dr. Ornelas examined Christina before her death, and Dr. Ornelas testified at trial that the tear near Christina's anus was actually a "large, deep tear." Dr. Ornelas also testified at trial that she discovered perivaginal bruising and blood. In Dr. Ornelas' opinion, Christina had been anally raped within twenty-four hours of her examination.

¶12 Christina was pronounced dead at 11:00 a.m. on November 25, 1994. A CAT scan, surgery, and finally the autopsy revealed recent, severe, soft-tissue injuries to the head, a skull fracture, and blood clots consistent with previous episodes of trauma. There was evidence that on November 14, 1994, doctors took full-body x-rays of Christina which showed that Christina had no skull fractures at that time. Dr. Blaine Hart, an expert in neuroradiology, testified at trial that he reviewed the x-rays of Christina's skull taken on November 14, 1994 and November 24, 1994. Dr. Hart testified that Christina's fracture was similar in degree of severity to those fractures he had seen in...