1998 -NMSC- 37, State v. Brown

Decision Date16 September 1998
Docket Number23748,Nos. 23674,s. 23674
Citation1998 NMSC 37,969 P.2d 313,126 N.M. 338
Parties, 1998 -NMSC- 37 STATE of New Mexico, Plaintiff-Appellee, v. Matt BROWN, Defendant-Appellant. State of New Mexico, Plaintiff-Appellee, v. Tyrone Smith, Defendant-Appellant.
CourtNew Mexico Supreme Court


¶1 A jury convicted co-defendants Tyrone Smith and Matt Brown of first degree murder in violation of NMSA 1978, § 30-2-1(A)(1) (1994), conspiracy to commit first degree murder in violation of NMSA 1978, § 30-28-2(B)(1) (1979), and tampering with evidence in violation of NMSA 1978, § 30-22-5 (1963). They appeal these convictions to this Court claiming the trial court erred in several critical areas.

¶2 Defendants argue that the trial court erred in its refusal to instruct the jury on the lesser included offense of voluntary manslaughter; that this cause should be remanded for a hearing pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); that the trial court erred when it admitted the testimony of three witnesses as evidence of prior consistent statements; that the trial court erred in admitting the testimony of the two main prosecution witnesses, because the immunity agreement with one witness was impermissibly coercive and the trial court lacked authority to immunize the other witness; that the court erred in the admission of stipulated testimony; that the jury should have been cautioned regarding accomplice testimony; and that the testimony of witnesses regarding their fear of Defendants was inadmissible hearsay. Because these arguments overlap, we consolidate the two appeals.

¶3 We conclude the trial court did not commit reversible error in admitting any testimony purported to be hearsay and that the trial court properly admitted the testimony of the two main prosecution witnesses. We also conclude that the trial court did not err in permitting various witnesses to testify regarding their fear of Defendants. We address these and other issues in greater detail in the following opinion. For the reasons stated below, we affirm.


¶4 On September 14, 1992, the body of Jerol Younger, an Air Force sergeant stationed at Kirtland Air Force base, was found in an irrigation ditch in south Albuquerque. He had been strangled and beaten to death. Younger allegedly was a drug dealer in Albuquerque up until the time of his death.

¶5 Denise Spikes and Frank Lucero were the two main prosecution witnesses. The stories they told provided the theory of the State's case. Spikes testified as follows.

¶6 She and Younger had been married at one time and had a son together. Spikes testified that Younger disliked the intimate relationship that had developed between Spikes and Defendant Smith. According to Spikes, Defendant Smith and Spikes decided to resolve the relationship with Younger by going to talk to him. Spikes called Younger from a pay phone in Albuquerque and asked him to come and get her. The two drove to Lucero's house, a small, free-standing room in Albuquerque's South Valley, where Defendants and Lucero were waiting. When Spikes knocked on the door, Younger was grabbed and taken into the house, and Spikes remained outside. She testified she heard Younger scream and she ran to a nearby pay phone. Defendant Smith, however, came to get her, apparently before she was able to phone for help. When she arrived back at Lucero's house, Younger was gone, as was his car. Defendant Smith went into the house for a few minutes, came out, and he and Spikes went to his mother's home. Several weeks later, Spikes asked Defendant Smith if he had killed Younger and he denied it.

¶7 Lucero, who was in the room at the time of the killing, testified as follows. He said that he was at his girlfriend's house when Defendant Smith came to the door and said that he needed to go to Lucero's house because someone was going to pick up a television. Lucero testified that he got into a Blazer belonging to Defendant Smith's mother, in which Spikes and Defendants were seated. They drove to Lucero's house and entered. Lucero testified that Defendant Smith and Spikes left, and Defendant Smith returned alone with a television, which he placed in the closet. Lucero stated that he heard a car drive up, and heard two voices; he recognized one as the voice of Spikes, and the other as male. The man entered, and Defendant Smith told the man that the television was in the closet. When he went to the closet, Defendants attacked the man with hammers. Lucero testified that Spikes was walking in at the time, but that the door must have closed on her. Lucero testified that Defendant Brown retrieved a gun from a bag and held it on the man while Defendant Smith tied him. Defendant Smith then told Lucero to put on gloves, take the man's car keys, and get rid of the car. Lucero did so. Afterwards, Defendant Smith found Lucero and brought him back to his house. The man was still on the floor at Lucero's home. The three men loaded the body into a truck and dumped his body in a ditch.

¶8 Following the murder, Lucero became very anxious around police officers. According to Lucero's cousin, Denise Purcell-Abeyta, and her roommate, Matilda Gonzales, Lucero admitted to killing Younger because he owed Younger money for drugs. Shortly after this, police attempted to search Lucero's home, but it had been burned down. In the remains of the house, however, the police found a hammer head and handle, plastic bags, duct tape, and cords similar to those used to tie up Younger. Around the time of the search, both Lucero and Defendant Smith left the state and traveled to San Diego to visit Spikes.

¶9 In San Diego, Lucero stayed with his aunt, Linda Satomba. When police located Satomba, she initially denied knowing his whereabouts. Later, though, she told police Lucero had related to her a story similar to his trial testimony. According to Satomba, Lucero never admitted to killing Younger. Satomba testified at trial regarding Lucero's statements. Her testimony was admitted under the prior consistent statement rule.

¶10 Lucero was given transactional immunity and Spikes was given use immunity to testify at trial. Defendants were convicted of first degree deliberate intent murder, conspiracy to commit first degree murder, and two counts of evidence tampering. They were sentenced to life imprisonment plus twelve years.

¶11 Defendants argue that the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter and that the State should have been forced to produce evidence of allegedly related crimes. Defendants additionally argue that the trial court erred in admitting Lucero's and Spikes' testimony. They contend that Lucero's out-of-court statements to Salomba, and Spikes' out-of-court statements to Constance O'Grady and Theresa Jimenes were inadmissible hearsay. They also contend that the court should have given the jury a cautionary instruction regarding the testimony of immunized accomplices; that Lucero's immunity agreement violated Defendants' due process rights because it was impermissibly coercive; and that the court did not have the authority to immunize Spikes. We discuss each of these contentions in turn.


¶12 Defendants claim that they were entitled to have the jury instructed on voluntary manslaughter. In order to obtain an instruction on a lesser included offense, "[t]here must be some view of the evidence pursuant to which the lesser offense is the highest degree of crime committed, and that view must be reasonable." State v. Curley, 1997-NMCA-038, p 5, 123 N.M. 295, 939 P.2d 1103.

¶13 In this case, there must be some view of the evidence that Defendants killed after being sufficiently provoked. UJI 14-220 NMRA 1998. Defendants argue that Spikes' and Jimenes' testimony that Spikes had been abused by Younger during their relationship, and Spikes' testimony that Younger was jealous of her relationship with Smith raise an inference that Defendants acted in response to sufficient provocation. Spikes testified that Defendant Smith physically abused her on two occasions shortly before the murder, and she informed Younger of this abuse after he noticed marks on her neck while driving to Lucero's house on the day of the murder. Defendants allege that Spikes' testimony that Younger was upset by the marks on her neck and angry for this reason at Defendant Smith also support an inference of provocation. The evidence does not support such an inference. See UJI 14-222 NMRA 1998 (defining provocation, in part, as "any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions " affecting defendant's "ability to reason" and causing a "loss of self control.") (emphasis added). At most, the testimony on which Defendants rely demonstrates their awareness of Younger's potential for violence; however, the evidence regarding the way in which the attack took place shows absolutely no provocation. Lucero testified that Younger was grabbed and beaten after going to a closet to get a television set. Spikes testified that she saw Younger yanked into Lucero's room. No evidence was adduced at trial to support an inference of sufficient provocation. Defendants were not entitled to an instruction on voluntary manslaughter.


¶14 Defendant Smith claims that the prosecution withheld potentially exculpatory evidence, which should have been disclosed under Brady, 373 U.S. at 87, 83 S.Ct. 1194. Our rule requires that the state disclose any evidence "favorable to the defendant which the...

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