1997 -NMSC- 59, State v. Baca

• Decision Date: 13 November 1997
• Docket Number: No. 23332,23332
• Citation: 1997 NMSC 59,950 P.2d 776,124 N.M. 333
• Parties: , 1997 -NMSC- 59 STATE of New Mexico, Plaintiff-Appellee, v. Mario Arthur BACA, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 776

950 P.2d 776

124 N.M. 333, 1997 -NMSC- 59

STATE of New Mexico, Plaintiff-Appellee, v. Mario Arthur BACA, Defendant-Appellant.

No. 23332.

Supreme Court of New Mexico.

Nov. 13, 1997.

[124 N.M. 334] Phyllis H. Subin, Chief Public Defender, Christopher Bulman, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

Tom Udall, Attorney General, William McEuen, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

OPINION

MINZNER, Justice.

¶1 Defendant Mario Baca appeals from his convictions of aiding and abetting first-degree, depraved-mind murder contrary to NMSA 1978, § 30-2-1(A)(3) (1994) and NMSA 1978, § 30-1-13 (1972), and of conspiracy to commit depraved-mind murder contrary to NMSA 1978, § 30-28-2(B)(1) (1979) and Section 30-2-1(A)(3). We have jurisdiction over the direct appeal pursuant to Rule 12-102(A)(1) NMRA 1997.

¶2 On appeal, Baca argues that: 1) there was insufficient evidence to support either of his convictions; 2) he was denied effective assistance of counsel because his trial attorney concluded there was no basis for an instruction on lesser included offenses; 3) the trial court erred when it read two notes from jurors and communicated with a juror outside Baca's presence; 4) the instruction on conspiracy to commit depraved-mind murder failed to include an essential element of the crime; and (5) prosecutorial misconduct during voir dire and closing argument deprived him of a fair trial. We hold that: 1) there was sufficient evidence to support the conviction for depraved-mind murder; 2) Baca has not made a prima facie showing that his counsel was ineffective; and 3) the trial court did not err in its contacts with jurors. We also hold that 4) the instruction on conspiracy lacked an essential element; but because conspiracy to commit depraved-mind murder is not a valid charge, the conviction for conspiracy must be reversed and the charge dismissed rather than retried. Finally, we hold that 5) the prosecutor's remark during voir dire was proper, and that the remark during closing argument was improper, but Baca has not established reversible error.

¶3 We reverse the conviction for conspiracy to commit depraved-mind murder and we remand with instructions to dismiss that charge. We affirm Baca's conviction for aiding and abetting depraved-mind murder.

I.

¶4 Shortly before midnight on December 13, 1994, Ricky Comingo was driving in an Albuquerque residential area near his home when he was killed by a bullet fired from another car. It is undisputed that Sebastian Eccleston fired the fatal shot, and that Baca was driving the car from which Eccleston fired.

¶5 That night, Baca was driving with three friends, including Eccleston, after an evening of drinking and playing pool. As they approached the intersection of Lomas and Chelwood, Baca was driving about forty to fifty miles per hour. Comingo had stopped at that intersection. His friend, Larry Betancourt, was his only passenger. As the light changed and Comingo began to turn, Baca came up very close behind and followed Comingo's car at a distance of about five feet; his bright lights illuminated the interior of Comingo's car. Although Comingo sped up and drove evasively for several blocks, Baca's car closed quickly to within a quarter of a car length behind Comingo's car. Eccleston fired several shots in rapid succession, hitting Comingo in the head. Betancourt gained control of the car, drove to Comingo's home nearby, and called 911. Comingo died at the hospital.

¶6 Several days later, Eccleston was arrested for the murder. The State also charged Baca with aiding and abetting deliberate-intent, first-degree murder, and conspiracy to commit deliberate-intent murder; and in the alternative, with aiding and abetting depraved-mind murder, and conspiracy to commit depraved-mind murder.

¶7 John Bacon, who had been a passenger in Baca's car that night, testified at trial for the State as a hostile witness. He stated that, while Baca was driving fast and running red lights, Eccleston had his gun in the car, had a bag of ammunition in his lap, and fired his gun out of the car window into the air several times before they reached the intersection. Bacon stated that he knew during the pursuit that Eccleston had his gun out and was going to shoot at the other car. According to Bacon's testimony, which Baca disputes, when Eccleston fired at the car, Baca laughed and said to Eccleston, "I thought you were just shooting for the tires."

¶8 Baca, on the other hand, testified at trial that "all this was like a traffic dispute." He stated that he thought he rear-ended the other car at the intersection, and chased the car to get the driver to stop, exchange insurance information, and assess any damage. According to Baca, Eccleston suddenly pulled out a gun and fired several shots in rapid succession at the other car. Baca wanted to stop, but Eccleston told him to drive on. Baca testified that he did not help Eccleston get in position to shoot and that, although he knew Eccleston had the gun with him, he never actually saw Eccleston fire the gun. He stated that he had not intended for anyone to get shot, and he denied that he laughed or said anything about shooting for tires. He testified that Eccleston "did it all on his own."

¶9 The jury convicted Baca of the alternative charges. He was sentenced to life imprisonment for the crime of aiding and abetting depraved-mind murder, as provided in NMSA 1978, § 31-18-14 (1993), and to nine years for the crime of conspiracy to commit depraved-mind murder, as provided in NMSA 1978, § 31-18-15(A)(3) (1994) and Section 30-28-2(B)(1). The trial court ordered him to serve the sentences consecutively.

II.

¶10 Baca first contends that there was insufficient evidence to support his conviction for aiding and abetting depraved-mind murder. He contends there was no evidence that he shared Eccleston's purpose or intent in shooting into the car Comingo was driving. He argues that Comingo was killed by a shot into the car and that there is no evidence Baca aided and abetted shooting into the car. Cf. State v. Hernandez, 1994 NMSC 043, 117 N.M. 497, 499, 873 P.2d 243, 245 (holding that the State failed to prove depraved-mind murder because the "depraved-mind action of the Defendant did not proximately cause the victim's death" (emphasis added)). Baca reasons on appeal that the evidence only showed that he knew that Eccleston was shooting at the tires of the car. He further reasons that shooting at tires is not an act that shows a "depraved mind." Based on this analysis, he argues that there is insufficient evidence to support either the conviction of depraved-mind murder or the conviction of conspiracy to commit depraved-mind murder.

¶11 Baca also argues that his counsel provided ineffective assistance because the record indicates that he agreed with the prosecutor in advising the trial court judge on lesser included offenses. He suggests that an instruction on aiding and abetting second-degree murder contrary to NMSA 1978, § 30-2-1(B) (1994), or on aiding and abetting the crime of shooting at or from a motor vehicle contrary to NMSA 1978, § 30-3-8(B) (1993), was appropriate, that his counsel erred in concluding otherwise, and that his counsel's error was prejudicial.

¶12 We disagree with both arguments. We hold that sufficient evidence exists to support Baca's conviction as an accomplice based on evidence that he shared Eccleston's purpose in shooting at the driver. See generally State v. Brown, 1996 NMSC 073, pp 15-34, 122 N.M. 724, 727-34, 931 P.2d 69, 72-79 (discussing the mens rea requirement for depraved-mind murder, State v. Ibn Omar-Muhammad, 102 N.M. 274, 277-78, 694 P.2d 922, 925-26 (1985) and State v. Johnson, 103 N.M. 364, 368, 707 P.2d 1174, 1178 (Ct.App.1985)). We also hold that Baca has failed to make a prima facie showing of ineffective assistance.

A. SUFFICIENCY OF THE EVIDENCE TO SUSTAIN CONVICTION FOR AIDING AND ABETTING FIRST-DEGREE, DEPRAVED-MIND MURDER.

¶13 The State must offer sufficient evidence to prove each element of the crime charged, beyond a reasonable doubt. See generally State v. Garcia, 1992 NMSC 046, 114 N.M. 269, 274, 837 P.2d 862, 867 (quoting Jackson v. Virginia, 443 U.S. 307, 317-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). The State's obligation to do so arises from the constitutional requirement of due process. Id. The evidentiary burden imposed on the State as a matter of due process is the production of evidence into the record, from which a rational fact-finder could find the facts necessary to support each element of the crime charged. "This does not involve substituting the appellate court's judgment for that of the jury in deciding the reasonable-doubt question, but it does require appellate court scrutiny of the evidence and supervision of the jury's fact-finding function to ensure that, indeed, a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction." Garcia, 1992 NMSC 046, 114 N.M. at 274, 837 P.2d at 867.

¶14 In reviewing for sufficient evidence to support a conviction, we apply a time-honored, three-part test:

1) that substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) that on appeal, all disputed facts are resolved in favor of the successful party, with all reasonable inferences indulged in support of the verdict, and all evidence and inferences to the contrary discarded; and 3) that although contrary evidence is presented which may have supported a different verdict, the appellate court will not weigh the evidence or foreclose a finding of substantial evidence.

State v. Lujan, 103 N.M. 667, 669, 712 P.2d 13, 15 (Ct.App.1985). The first part of this test paraphrases the evidentiary burden imposed on the State as a matter of constitutional due process. The second and third parts of the test reflect a traditional...