1999 -NMSC- 7, State v. Foster

Decision Date20 January 1999
Docket NumberNo. 24240,24240
Citation974 P.2d 140,126 N.M. 646,1999 NMSC 7
Parties1999 -NMSC- 7 STATE of New Mexico, Plaintiff-Appellee, v. Barry Lee FOSTER, Defendant-Appellant.
CourtNew Mexico Supreme Court

MINZNER, Chief Justice.

¶1 Defendant appeals his convictions for first degree felony murder, second degree murder, aggravated kidnapping, armed robbery, unlawful taking of a vehicle, and resisting, evading, or obstructing an officer. On appeal, Defendant claims that (1) the district court violated his constitutional right to be free from double jeopardy by convicting and sentencing him for first degree felony murder, second degree murder, aggravated kidnapping, and armed robbery; (2) the evidence presented at trial was insufficient to support his conviction for first degree felony murder because the testimony of the State's fingerprint experts did not include a point- by-point comparison between Defendant's palm print and the palm print found on the murder weapon; (3) the district court violated Defendant's constitutional right to due process and a fair trial by allowing the State's fingerprint expert to testify without sufficient notice for the defense to prepare for cross-examination; (4) the district court abused its discretion in admitting evidence of a prior act of Defendant under Rule 11-404(B) NMRA 1998; (5) the charge of first degree felony murder should have been dismissed before the second trial because the district court failed to instruct or poll the jury on lesser included offenses before declaring a mistrial on all charges; (6) all charges should have been dismissed prior to the second trial because the State violated the six-month time limit expressed in Rule 5-604 NMRA 1998; and (7) Defendant was denied a fair trial because of cumulative error.

¶2 The jury instructions in this case provided alternative bases for convicting Defendant of first degree felony murder, aggravated kidnapping, and armed robbery. The jury returned general verdicts that do not indicate which of these alternatives the jurors relied upon to find Defendant guilty. Under these circumstances, we must reverse a conviction if one of the alternative bases for the conviction provided in the jury instructions is legally inadequate because it violates a defendant's constitutional right to be free from double jeopardy. Applying this principle, we reverse Defendant's conviction for armed robbery on double jeopardy grounds. We also reverse Defendant's conviction for second-degree murder as the State concedes on appeal that Defendant cannot be convicted for both first degree murder and second degree murder when there is only one murder victim. Finding no merit to Defendant's other claims, we affirm his convictions for first degree felony murder, aggravated kidnapping, unlawful taking of a vehicle, and resisting, evading, or obstructing an officer.


¶3 On the morning of January 14, 1994, the body of a woman was discovered in her home four blocks south of the University of New Mexico Arena in Albuquerque. The contents of her purse had been dumped out on her bed, and her car was missing from her driveway. There were no signs of a forced entry.

¶4 A neighbor had observed the victim arrive home between 4:00 and 5:00 p.m. on January 13, 1994, and the victim's car was parked in her driveway that evening. According to the victim's relatives, it was routine for someone to drive her to work in her car in the morning, then drive it back to her home and park it in her driveway. She would not loan her car to anyone overnight. On the morning of January 14, however, no one came to drive the victim to work because she had a doctor's appointment that day.

¶5 According to her relatives, the victim was 56 or 57 years old and lived alone. She had iron security bars on her windows and doors. Several witnesses testified that she kept her doors locked and would not open them to strangers. Defendant, however, was not a stranger. He was the victim's nephew, and his father's house was only three houses away from the victim's house.

¶6 On January 13, 1994, Defendant was an inmate at a correctional facility in Los Lunas, New Mexico. That evening, he went on an escorted furlough to attend a basketball game at the University of New Mexico Arena in Albuquerque. Defendant was transported to the game with other inmates in a prison van and was allowed to wear civilian clothes. About three minutes after the second half of the game started, Defendant requested permission to go to the restroom. Defendant had not returned from the restroom when the game ended at 9:15 p.m. When he did not return to the prison van after the game, he was placed on escape status.

¶7 On the same evening as the basketball game, two witnesses saw Defendant in the neighborhood where the victim's home is located. This neighborhood is within walking distance of the basketball arena. One witness testified that she first saw Defendant at her brother's house. At that time, Defendant was wearing a white t-shirt that said "Sox" and had cartoon characters of a bunny and a coyote on it. According to the witness Defendant was "acting normal" when she saw him at her brother's house, and he told her that he was supposed to be in prison. Later that evening, the witness saw the prison van passing through the neighborhood, and someone in the van told her they were looking for Defendant.

¶8 About an hour after she had seen Defendant at her brother's house, the witness saw Defendant again while standing on a corner in the same neighborhood. The witness could no longer see if Defendant was wearing the same t-shirt because he wore a fastened jacket. She testified that she told Defendant the prison van was looking for him, and that "he said he wasn't going to go back." According to the witness, Defendant was acting "panicky, like nervous"; he said he was scared and kept looking back down the street in the direction of the victim's house.

¶9 Another witness also was present on the street corner when this conversation took place. She testified that the conversation occurred around 10:00 p.m., and she confirmed that Defendant was "jittery" at that time; he was "moving back and forth" and "kept looking back up the street." After the conversation on the street corner, Defendant walked down the street away from the witnesses.

¶10 Later that night, at approximately 11:30 p.m., Officer Augustine Sena attempted to make a routine traffic stop after observing a car travel through a four-way stop without stopping. The car he was pursuing made an abrupt turn into an alleyway and crashed into a fence. Officer Sena called for backup and turned on his spotlight and high beams which illuminated the interior of the car. He observed three occupants: a female in the back seat, a male in the front passenger seat, and a tall, black male driver who climbed out the passenger door and "took off running." From the car's license plate, Officer Sena determined that it belonged to the victim. After efforts to contact the victim at her home were unsuccessful, Officer Sena had her car towed at 1:20 a.m.

¶11 Officer Sena did not pursue the driver. The passengers, who remained in the car, were identified as Kenneth Ward and Louann Ortega. Although Ward gave a statement to police, he later claimed that he could not remember the incident or who the driver was. Ortega recalled that the driver was a black male who had given her a ride to purchase liquor, but claimed she did not see his face or know his name.

¶12 On the morning of January 14, 1994, the victim's son went with a friend to the victim's house after receiving a call that she had missed her doctor's appointment. Her car was not in the driveway when they arrived, and the wrought-iron door on the house was open. After entering the house, they looked through the doorway to the den and saw the victim's body lying in a pool of blood. They also discovered that the contents of her purse had been dumped out in the bedroom. The victim's son became upset; he threw down his glasses and a phone book but did not touch the body. His friend called 911 and summoned the police.

¶13 Officer Wade Aubuchon was dispatched to the scene at 11:39 a.m. He saw the two men flagging him down outside the victim's house. They were upset, and Officer Aubuchon instructed them to wait outside on the sidewalk by their car. Officer Aubuchon proceeded into the house and observed a woman lying on the floor, face down on her stomach, with her legs bent up at a ninety-degree angle. An electrical cord was wrapped around her ankles, leading toward her shoulders and neck. A bloody towel covered her head and shoulders. In the room where the body was found, he saw various items scattered on the floor, including a glass ashtray with blood on it. In addition, the bedroom appeared as if it had been ransacked. After paramedics arrived and determined that the victim was dead, Officer Aubuchon secured the area around her house.

¶14 Frank Ciaccio, a senior deputy medical investigator, arrived at the scene to examine the victim's body. He also observed the victim in the den on her stomach with a towel over her head and an electrical extension cord tied around her neck and ankles. The extension cord had blood stains on it. It appeared that there had been a struggle. There was a broken ashtray in front of the body, a bloody shirt on the couch, and the victim's slippers and dentures were scattered on the floor. While examining the body at the scene, he noted a contusion around the victim's eye, several lacerations on her head, and a ligature mark on her neck.

¶15 The victim's body was transported to the Office of the Medical Investigator, where the State's chief medical investigator, Dr. Ross Zumwalt, performed the autopsy on January 15, 1994. Dr. Zumwalt opined that the death was a...

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