State Of N.M. v. Griego

Decision Date28 February 2011
Docket NumberNo. 28, 386,No. 28, 962,28, 386,28, 962
PartiesSTATE OF NEW MEXICO, Plaintiff-Appellee, v. DAVID A. GRIEGO, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
DAVID A. GRIEGO, Defendant-Appellant.

No. 28, 386
No. 28, 962


February 28, 2011

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.


David W. Bonem, District Judge Pro Tempore

Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM
for Appellee

Albright Law & Consulting
Jennifer R. Albright
Albuquerque, NM
for Appellant


SUTIN, Judge.

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In this consolidated appeal, Defendant David Griego appeals his conviction of second degree murder and his sentencing as a habitual offender. He was convicted as an accessory for his involvement in the murder of ten-year-old Carlos Perez (Victim). Defendant primarily claims that he was denied a fair trial. Specifically, he argues that the district court made an improper ruling regarding venue; his trial should have been severed from that of Co-Defendant Demetrio Salas; there were improper rulings by the district court during jury selection; a mistrial was warranted after a State's witness made an inappropriate comment to a juror; improper evidentiary rulings were made by the district court; there was prosecutorial misconduct which warranted a mistrial; and cumulative error warranted a mistrial. He also argues that he was improperly sentenced as a habitual offender because the State failed to meet its burden of proof. After considering each of Defendant's arguments, we affirm. We will discuss the facts of this case in greater detail as they apply to each issue raised in the appeal. The following is a summary of events.

Defendant and Co-Defendant were tried together for Victim's murder. Co-Defendant was convicted of first degree murder. He appealed directly to our Supreme Court. Our Supreme Court has issued an opinion in Co-Defendant's appeal. That opinion is determinative of two of the issues Defendant raises in the present appeal. Witness testimony indicates that Defendant and Co-Defendant went together to

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Victim's home, where Co-Defendant fired a gun nine times into Victim's bedroom as he slept. Victim died from a bullet wound to his temple. The intended target was Victim's older brother who attended high school with Co-Defendant's younger brother.

The State's Second Motion to Reconsider

Defendant argues that the district court abused its discretion by granting the State's second motion to reconsider a change of venue from Curry County, New Mexico, which is within the Ninth Judicial District. The result of this ruling was that the trial was held within the Ninth Judicial District in Roosevelt County. Co-Defendant raised this same issue in his appeal to the Supreme Court. State v. Salas, 2010-NMSC-028, ¶ 1, 148 N.M. 313, 236 P.3d 32. As this matter has already been decided, we hereby decline to examine it any further. See id. ¶¶7-19 (concluding that the district court made a proper ruling regarding venue); Martinez v. Allstate Ins. Co., 1997-NMCA-100, ¶ 15, 124 N.M. 36, 946 P.2d 240 (recognizing as a "settled principle that this Court does not overrule Supreme Court case law").

Defendant's Motion to Sever

Defendant argues that the district court abused its discretion by denying his request to sever his trial from that of Co-Defendant. Among his reasons for requesting severance were that (1) testimony relating to the charge of intimidation of a witness

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would be prejudicial to Defendant, because only Co-Defendant faced that charge; (2) Defendant and Co-Defendant had antagonistic defenses; (3) there was insufficient evidence of a common plan or scheme; and (4) the charges against Defendant and Co-Defendant were so similar that separating them would be difficult for the jury.

"Our standard of review applicable to severance issues is exceedingly narrow. The essence of our review is to determine whether the joint trial resulted in an appreciable risk that the jury convicted for illegitimate reasons." State v. Dominguez, 115 N.M. 445, 453, 853 P.2d 147, 155 (Ct. App. 1993) (citation omitted). "Severance is a matter within the sound discretion of the trial court and will not be reversed on appeal absent a showing of an abuse of discretion." State v. Peters, 1997-NMCA-084, ¶ 10, 123 N.M. 667, 944 P.2d 896.

Under Rule 5-203(B)(3) NMRA, even where a conspiracy is not charged and not all the defendants are charged in each count, two or more defendants may be joined where they "were part of a common scheme or plan; or... were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of others."

A majority of the evidence in this case points to a collaboration between Defendant and Co-Defendant in the plan that resulted in Victim's murder. The

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testimony from various witnesses, when pieced together, points to the fact that Defendant and Co-Defendant were together before, during, and after the murder.

Melissa Sanchez (Melissa) testified that on the night of the crime Defendant joined Co-Defendant, Melissa, and Orlando Salas (Orlando) in the Salas family suburban. Defendant, dressed in dark clothing, joined the group shortly after midnight. The four drove together to the Gatewood Apartments, where Victim lived, and Melissa indicated which of the windows she thought belonged to Victim's family's apartment. The group then drove two blocks from the apartment complex to Eric Gutierrez's house. Eric Gutierrez (Eric) testified that he had known Co-Defendant "probably... all [his] life almost,.... [They] grew up in the same neighborhood." Melissa testified that when the group got to Eric's house, Co-Defendant instructed Orlando and Melissa to get out of the suburban, explaining that he (Co-Defendant) and Defendant had to "go do some business," that they had to "go on a mission." Melissa and Orlando got out of the vehicle and knocked on Eric's window. Eric let them in through the front door. According to Melissa's testimony, Defendant and Co-Defendant were the only two people in the suburban when they left Melissa and Orlando at Eric's house.

Victim's neighbor (Neighbor) heard a car horn and looked out her window to see what was later identified as the Salas family suburban driving slowly down her

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street. Five or ten minutes later, the suburban appeared on Neighbor's street again and was parked in front of her bedroom window under a street light. Neighbor saw "somebody in the front passenger door," who was wearing a dark hat and a dark shirt. The passenger door was open, and the individual had one leg hanging out of the vehicle. Neighbor could not see how many people were in the vehicle. Neighbor then heard "banging noises" and stopped looking out the window. She ran to check on her children. After checking on her children, she looked out a window and the vehicle was gone.

Ashley Garcia (Ashley) testified that she was near Victim's apartment complex when the crime occurred, that she saw the suburban parked, saw two doors open, and saw two people get out. The two individuals joined and shook hands with two other people that had been with Ashley who were also involved in Victim's murder, but who were not tried in the instant case.

Melissa testified that she and Orlando waited at Eric's house for Defendant and Co-Defendant to return, which they did, about five minutes later. When Eric opened the door, Defendant and Co-Defendant ran inside and Co-Defendant said, "I just went in and blasted nine rounds at that sewer rat's house." Melissa testified that both Defendant and Co-Defendant ran inside, and while it appeared that Co-Defendant was

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"hyped up" with adrenalin, she did not pay attention to Defendant after he ran inside.

Eric retrieved his police scanner from a backroom and the group, which included Orlando, Melissa, Eric, Defendant, and Co-Defendant, listened as the police communicated that there was an eleven-year-old with a gunshot wound to the temple, heart rate dropping. The group remained at Eric's house, while Co-Defendant cleaned his gun with pickle juice and hid the suburban in the garage. The group dispersed at approximately 3:30 a.m.

Based on Defendant's involvement in or presence during these events, we determine that there is sufficient evidence of a common plan such that the district court properly denied a motion to sever. This holding is in line with our holding in Dominguez. See 115 N.M. at 453, 853 P.2d at 155. There, this Court upheld the district court's denial of a motion to sever where both defendants were part of a group of persons kicking and hitting the victim while he was being stabbed, and the basis of the defendants' culpability was that they aided and abetted the individual who did the stabbing. Id. Here, the evidence suggests that Defendant played a supportive role in the murder. He uninterruptedly accompanied Co-Defendant throughout the approximated three-hour time span, during which the crime occurred, and was therefore an...

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