State v. Tollardo

• Citation: 275 P.3d 110,2012 -NMSC- 008
• Decision Date: 29 March 2012
• Docket Number: No. 31,241.,31,241.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Steve TOLLARDO, Defendant–Appellant.
• Court: Supreme Court of New Mexico

2012 -NMSC- 008

275 P.3d 110

STATE of New Mexico, Plaintiff–Appellee,

v.Steve TOLLARDO, Defendant–Appellant.

No. 31,241.

Supreme Court of New Mexico.

March 29, 2012.

Jacqueline L. Cooper, Acting Chief Public Defender, William A. O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Gary K. King, Attorney General, Francine Ann Baca–Chavez, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

SERNA, Justice.

{1} Defendant Steve Tollardo was convicted by a jury of first-degree murder (accessory), kidnapping (accessory), conspiracy to commit murder, and conspiracy to commit kidnapping. He was acquitted of aggravated arson (accessory) and conspiracy to commit aggravated arson. This Court has jurisdiction over Defendant's direct appeal pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12–102(A)(1) NMRA.

{2} We address only one of the issues Defendant raises on appeal: whether the district court erred in advising the jury that two other individuals were convicted of conspiracy to commit second-degree murder in connection with the same homicide underlying the charges against Defendant. We conclude that the district court did err in mentioning the co-conspirators' convictions, and that the error was not harmless. Accordingly, we reverse Defendant's convictions and remand to the district court for a new trial. In reaching this holding, we reexamine our harmless error analysis and clarify that a review of the particular circumstances in each case, rather than mechanical application of a multi-factor test, must guide the inquiry into whether a given trial error requires reversal.

I. BACKGROUND

{3} This appeal arises out of the gruesome killing of Juan Alcantar (Victim) in Taos on September 6–7, 2003. The underlying facts of the crime are detailed in the Court's prior opinion in State v. Gallegos, 2011–NMSC–027, ¶¶ 5–14, 149 N.M. 704, 254 P.3d 655, which resolved an appeal filed by Lawrence Gallegos, one of Defendant's co-conspirators. Additional facts are set forth below to provide context for the resolution of the present appeal.

{4} Testimony at Defendant's trial established the following sequence of events. On the night of September 6, 2003, Defendant and Victim visited a sports bar in Taos, where they were denied entry. Ivan Romero, a friend of Defendant, exited the sports bar, approached Defendant and Victim in the bar's parking lot, and punched Victim. Defendant and Victim then left the parking lot together, and Ivan Romero left separately.

{5} Later that night, Defendant and Victim were “kicking back” at Richard Anaya's house with Anaya himself, Gallegos, Luis Trujillo, and Racquel Gonzales, later joined by Ivan Lujan. Apparently without warning, Trujillo and Gallegos began kicking and hitting Victim. Defendant and Trujillo then drove to the house of Elias Romero, the father of Ivan Romero. Elias Romero was in the house along with his girlfriend Michelle Martinez, who would be the State's main witness, and his nephew Jaime Romero. Defendant, who appeared “hyped up,” told the occupants of the house about the altercation between Ivan Romero and Victim and added that Victim was tied up at Anaya's house. Defendant explained that after the incident at the sports bar he had gone to see Ivan Romero, who disliked Victim and suggested that Elias Romero “would know what to do” with Victim. Defendant also told Elias Romero that Victim had a gun and had threatened to kill Ivan Romero. Jaime Romero mentioned that he had “some soldiers” who could “take care of it.” Defendant replied that it was not his “viaje,” meaning not his problem. Elias Romero gave a syringe containing a lethal dose of heroin to Martinez and instructed her to “inject [Victim] and make it look like he overdosed.”

{6} Martinez then traveled with Defendant and Trujillo to Anaya's house. When they arrived, Victim was lying on the kitchen floor with his hands tied and a black eye. Gallegos was standing over Victim with a kitchen knife. Martinez sat on Victim's hand and injected him with the lethal dose of heroin. Victim cried out to Defendant for help and said, “Steve, please help me.” Defendant told Victim that “he shouldn't have fucked with Diablo,” a nickname for Ivan Romero.

{7} After Victim stopped moving and Martinez believed him to be dead, Defendant, Gallegos, and Trujillo moved Victim onto a tablecloth. The other individuals, Anaya, Lujan, and Gonzales, were elsewhere in the house during this time. When Victim was moved onto the tablecloth, he began moaning. Martinez was afraid that Victim might regain consciousness, so she instructed Defendant, Gallegos, and Trujillo to leave Victim alone. A short time later, Defendant and Gallegos carried Victim to Victim's car and placed him on the passenger's seat.

{8} Martinez testified that “the plan” laid out by Elias Romero was for her to drive Victim's car and leave Victim in a secluded place to make it appear as though Victim died of a drug overdose. Martinez drove Victim's car with Gallegos and Victim inside, attempting to follow Defendant and Trujillo who were driving in a separate car. Martinez was unable to follow Defendant and Trujillo, so she drove to a nearby church parking lot. Eventually, Defendant and Trujillo arrived at the parking lot, at which point Martinez and Gallegos got into the car with Defendant and Trujillo, leaving the unconscious Victim in his car.

{9} During the drive back to Elias Romero's house, Gallegos and Defendant discussed burning Victim's car to destroy Gallegos' fingerprints and other evidence that might show that Victim did not die of a drug overdose. At Elias Romero's house, Gallegos obtained lantern fuel and left with Defendant and Trujillo. Some time later, Defendant, Gallegos, and Trujillo returned once again to Elias Romero's house. Defendant told Martinez that he, Gallegos, and Trujillo used the lantern fuel and a cherry bomb to set fire to Victim's car with Victim inside.

{10} Seven individuals were prosecuted in connection with Victim's death: Defendant, Lawrence Gallegos, Luis Trujillo, Elias Romero, Michelle Martinez, Jaime Romero, and Ivan Romero. Gallegos was convicted by a jury of first-degree murder, aggravated arson, kidnapping, and three counts of conspiracy. Id. ¶ 2. Trujillo was convicted by a jury of first-degree murder, aggravated arson, conspiracy to commit first-degree murder, conspiracy to commit kidnapping, and conspiracy to commit aggravated arson. Trujillo, No. 31,500, slip op. at 2 (N.M. Sup.Ct. June 27, 2011). Elias Romero was acquitted of first-degree murder and conspiracy to commit first-degree murder. Martinez pleaded guilty to conspiracy to commit first-degree murder. Jaime Romero and Ivan Romero also resolved the charges against them through pleas, with the former apparently pleading guilty to conspiracy to commit second-degree murder, and the latter pleading no contest to the same charge.¹ This Opinion will refer to these latter two pleas as “the Romeros' pleas” or “the Romeros' convictions.”

{11} At Defendant's trial, defense counsel acknowledged during his opening statement that Defendant was present at the home of Richard Anaya on September 6–7, 2003, where Victim was forcibly held before being killed. Defense counsel asked the jury to “look closely” at Defendant's “real involvement” in Victim's death, explaining that “it's not enough that [Defendant] was there.... There has to be something more by the State to show that [Defendant] actually helped, encouraged or caused this crime to be committed.” Amplifying this point, defense counsel stated that three other individuals who were also present at Anaya's home that night—Anaya himself, Racquel Gonzales, and Ivan Lujan—were not charged in connection with Victim's death. Defense counsel clarified that while Anaya was charged initially, the State dropped charges after further investigation.

{12} Later on in the trial, during direct examination of John Wentz, a detective with the Taos Police Department who investigated Victim's death, the prosecutor asked if Detective Wentz had personal knowledge as to whether Ivan Romero and Jaime Romero had been convicted in connection with Victim's death. Defense counsel objected that the question was irrelevant. Outside the presence of the jury, the State responded that the disposition of the charges against Ivan Romero and Jaime Romero was relevant because

[w]ithout asking that question, we would be left with the jury wondering what happened, if Ivan and Jaime were ever convicted....

For the jury not to have any information as to the particular people who this detective's investigation revealed, their not having been charged and convicted would leave a hole in the evidence for the jury that we believe we could fill this way.

{13} The district court acknowledged that defense counsel's objection “[wa]s somewhat well taken in that this testimony [wa]s being offered to prove the truth of the matter asserted.” Nevertheless, the district court decided that the fact that Ivan Romero and Jaime Romero were convicted through pleas in connection with Victim's death would be presented to the jury, and that the “best route” to doing so would be for the court to take judicial notice of the Romeros' pleas rather than allowing Detective Wentz to testify on that matter.

{14} After the State rested its case (the defense did not call any witnesses), and before closing arguments, the district court informed the jury that

there are certain facts that you must accept as true. You can give them whatever weight you want to give it [sic]. But there was a question asked of Detective Wentz while he was testifying as to whether or not certain people have been convicted. I am going to instruct you, without requiring testimony or otherwise, that the court has taken notice that Jaime and Ivan Romero were convicted of conspiracy to commit second degree murder. Ivan Romero was convicted pursuant to a no contest...