1999 -NMSC- 1, State v. Rojo

• Decision Date: 03 December 1998
• Docket Number: No. 24,319,24,319
• Citation: 1999 NMSC 1,971 P.2d 829,126 N.M. 438
• Parties: , 1999 -NMSC- 1 STATE of New Mexico, Plaintiff-Appellee, v. Valente ROJO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 829

971 P.2d 829

126 N.M. 438, 1999 -NMSC- 1

STATE of New Mexico, Plaintiff-Appellee, v. Valente ROJO, Defendant-Appellant.

No. 24,319.

Supreme Court of New Mexico.

Dec. 3, 1998.

Rehearing Denied Jan. 6, 1999.

Marc H. Robert, P.C., Marc H. Robert, Albuquerque, for Appellant.

Hon. Tom Udall, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellee.

OPINION

MINZNER, J.

¶1 Defendant appeals his convictions for first degree murder, tampering with evidence, and kidnapping. On appeal, Defendant asserts that (1) there was insufficient evidence to support any of his convictions; (2) the district court violated his constitutional right to be free from double jeopardy by convicting and sentencing him for both murder and kidnapping; (3) the district court erred in denying his motion to disclose the identity of a confidential informant or conduct an in camera review under Rule 11-510 NMRA 1998; (4) the district court erred in admitting hearsay testimony and evidence of his alleged prior violent acts toward the victim; (5) he was denied his constitutional right to a speedy trial; (6) he was denied a fair trial due to prosecutorial misconduct; (7) the State violated the discovery requirements of Rule 5-501 NMRA 1998; (8) he received ineffective assistance of counsel; and (9) he was deprived of a fair trial due to the cumulative errors committed at trial. We reverse Defendant's conviction for kidnapping because it is not supported by substantial evidence, and therefore we need not reach Defendant's claim of double jeopardy. Finding no merit in Defendant's claims regarding the remaining issues, we affirm his convictions for first degree murder and tampering with evidence.

I. Background

¶2 Between 10:30 and 11:30 p.m. on the evening of December 20, 1994, a junk collector discovered the body of a seventeen-year-old female in a dumpster in Albuquerque. The victim's body was found nude, duct-taped into a fetal position and wrapped in plastic garbage bags. There was another plastic bag over the victim's head, and a jump rope was tied around her neck. The victim's clothing also was found in the dumpster, but there was no evidence that her clothes were torn from her body. The individual who discovered the body immediately alerted the authorities.

¶3 When police and medical personnel arrived, the victim's skin was still warm, but the rigor mortis process had already begun. The victim's body was taken to the Office of the Medical Investigator between 9:00 and 10:00 a.m. the next morning. The State's chief medical investigator, Dr. Zumwalt, conducted the autopsy. He could not pinpoint the time of death with certainty. Based upon the ambient temperature on the night the body was found, his own observations, and observations of police and medical personnel who first arrived at the scene, Dr. Zumwalt concluded that the victim probably died "within hours" of being found in the dumpster on the evening of December 20, 1994.

¶4 At trial, Dr. Zumwalt opined that the killing was a homicide, and that the cause of death was ligature strangulation. According to Dr. Zumwalt, the strangulation could have caused the victim to become unconscious in less than ten seconds, but the killer would have needed to strangle her for several minutes in order to kill her. Since there were no signs of defensive injuries, Dr. Zumwalt introduced the possibility that the victim had been incapacitated before she was strangled to death. However, he could not point to any conclusive evidence showing whether or by what means she had been incapacitated. There was no evidence of drugs or alcohol in her body.

¶5 Dr. Zumwalt did find evidence that the victim engaged in sexual activity within the twenty-four-hour period before her death. The victim's fiance, Jaime Antillon, testified that he had sexual intercourse with the victim the night before her body was discovered, and this testimony was consistent with the State's DNA analysis. The State's analysis excluded the DNA of Defendant and his friend, Hector Camacho, from the DNA found on the victim's body. Also, the State could not identify the source of several hairs found on the victim's body; they did not match the hair samples taken from Defendant, Camacho, and Antillon. Thus, there was no physical evidence directly linking Defendant to the victim's body.

¶6 There was, however, evidence that Defendant had a relationship with the victim. According to several witnesses, the victim had been dating Defendant, Antillon, or both men in the months prior to her death. Marleen Herrera, who described Defendant as "like a brother" to her, testified that Defendant told the victim he wanted to die if the victim's family did not want her to marry him. A friend of both Defendant and the victim, Mirabel Munoz, testified that one day Defendant said he would kill the victim after he saw her with Antillon. Munoz also testified that the victim once had a swollen mouth and black marks on her arm; the victim told Munoz that Defendant had hit her.

¶7 On the morning of December 20, Defendant called the victim and spoke with her on the telephone at her home. Before noon on that date, two witnesses observed the victim meet with Defendant and get into his car at the South Broadway Cultural Center. These witnesses lived across the street from the Cultural Center. One of them recognized the victim because she worked at the same school the victim attended. The victim appeared happy at the time she got into Defendant's car and left the Center. The witnesses observed that the victim's car remained at the Cultural Center the rest of the day. On the next morning, December 21, the victim's car was found still parked in the same place where the two witnesses had observed her leaving it the day before.

¶8 Defendant's friend, Hector Camacho, testified that he also met with Defendant on December 20, and that Defendant had a few hundred dollars at that time. When he asked Defendant how he came across the unusual amount of cash he had that day, Defendant responded by saying that he did a "job for someone"; he killed some guy, choked him, threw him in the trash, and took the money. Camacho stated that Defendant described the victim's face as bubbling with rolling eyes. This statement was consistent with Dr. Zumwalt's testimony regarding the strangulation process the victim experienced.

¶9 Camacho's testimony regarding the cash in Defendant's possession also was consistent with the accounts given by Antillon and the victim's sister, who each testified that Antillon had given the victim $400 in cash to hold on the night of December 19. Antillon and the victim had planned to use the money to go Christmas shopping together the next evening. There was testimony that the victim also had an uncashed paycheck with her prior to her murder. After her death, police discovered that the check had been cashed by an unidentified person.

¶10 The victim's family was notified of her death at about 4:30 p.m. on December 21. The next morning, Munoz called Defendant to tell him about the victim's death and the discovery of her body. On the evening of December 22, Defendant boarded a plane to Mexico to stay with his extended family. Defendant's brother testified that, at the time Defendant left for Mexico, Defendant was afraid he might get into trouble about the victim's death.

¶11 In January 1995, Defendant left Mexico and went to Chicago, Illinois. Chicago Police Officer William Ruck arrested Defendant in Chicago in November 1995. Ruck testified that when he asked Defendant if he knew why the officers were at his apartment, Defendant replied that it was about something that happened in New Mexico. Ruck then read Defendant his rights and repeated his question about why the officers were at Defendant's apartment. According to Ruck, Defendant replied that it was because he "killed someone." When Ruck asked Defendant to give a written confession, however, Defendant refused. Ruck did not note Defendant's oral confession in his police report; the report only noted that Defendant knew he had a murder warrant out for his arrest.

¶12 Authorities returned Defendant to New Mexico to stand trial, where he testified in his own defense. In his trial testimony, Defendant admitted that he had a sexual relationship with the victim. According to Defendant, he wanted to marry the victim at the beginning of their relationship, but things were "going downhill" after June 1994. The State introduced letters that Defendant had written to the victim during this period, in which Defendant asked for her forgiveness for being violent with her, and wrote that he could not be without her. Defendant admitted that he had hit the victim once, and that it made him upset that their relationship was over. However, he denied that he had threatened to kill the victim.

¶13 Defendant confirmed that he met the victim in the parking lot of the South Broadway Cultural Center on the morning of December 20, 1994. He testified that he called the victim that morning and arranged to meet her there. At the Cultural Center, the victim returned some of Defendant's shirts, and then, according to Defendant, they drove to Tingley Beach to discuss their relationship. Defendant testified that they decided to break up, and then he took the victim back to the Cultural Center. He further testified that he dropped the victim off beside the parking lot at the Cultural Center, and that was the last time he saw her.

¶14 Defendant stated that, after his meeting with the victim, he went to a restaurant to talk to his friend, Veronica Espinosa, who was working there that day. According to Defendant, he was with Espinosa at the restaurant from 11:00 a.m. until 1:30 or 2:00 p.m. that day, and then he went to his mother's house to drop off the shirts the victim had returned to him. After stopping at his mother's house to drop off the shirts, Defendant claimed he picked up his friend Camacho...