State v. Astorga

• Decision Date: 16 February 2015
• Docket Number: 33,684.
• Citation: 2015 NMSC 007,343 P.3d 1245
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Michael ASTORGA, Defendant–Appellant.
• Court: New Mexico Supreme Court

343 P.3d 1245

2015 NMSC 007

STATE of New Mexico, Plaintiff–Appellee

v.Michael ASTORGA, Defendant–Appellant.

33,684.

Supreme Court of New Mexico.

Feb. 16, 2015.

Hector Balderas, Attorney General, Sri Mullis, Assistant Attorney General, Santa Fe, New Mexico, for Plaintiff.

Jorge A. Alvarado, Chief Public Defender, David Henderson, Assistant Appellate Defender, Santa Fe, New Mexico, for Defendant.

OPINION

CHÁVEZ, Justice.

{1} A jury convicted Defendant Michael Astorga (Defendant) of one count of first-degree murder, two counts of tampering with evidence, and one count of being a felon in possession of a firearm. These convictions stemmed from the March 2006 shooting death of Deputy James McGrane during a traffic stop in the East Mountain area of Bernalillo County. Because Deputy McGrane was an on-duty peace officer, and because the shooting occurred prior to July 1, 2009, the effective repeal date of the death penalty, the State opted to seek a sentence of death. See NMSA 1978, § 31–20A–5 (1981) (listing aggravating circumstances for capital felony sentencing determinations, including the victim's identity as “a peace officer who was acting in the lawful discharge of an official duty when he was murdered,” that could support a sentence of death prior to July 1, 2009); 2009 N.M. Laws, ch. 11, §§ 1 to 7 (abolishing the death penalty for all crimes committed on or after July 1, 2009).

{2} At Defendant's request, the district court impaneled a jury under Rule 5–704(D) NMRA (2004) to decide only the question of his guilt. After a full trial on that issue (the guilt phase), the jury returned a guilty verdict on all counts. A separate jury was then impaneled to consider whether Defendant should “be sentenced to death.” Rule 5–704(D). After a second trial, which was limited to determining whether Defendant should receive the death penalty (the penalty phase), the sentencing jury did not unanimously agree that Defendant should be sentenced to death. The district court therefore sentenced Defendant to life imprisonment for the first-degree murder conviction, followed by 13–1/2 years for the remaining convictions.

{3} Defendant advances five grounds for reversal, all limited to purported errors that occurred during the guilt phase of his trial. We consider each argument below and affirm.

BACKGROUND

{4} Deputy McGrane was patrolling the area around Tijeras during the early hours of March 22, 2006, when he radioed the dispatch operator that he was pulling over a silver Dodge pickup truck with New Mexico license plate number 459–CDS. About five minutes later, an area resident called 911 and reported that: (1) he had heard two gunshots; (2) he could see a police vehicle pulled over on the side of the road; and (3) it looked like an officer was lying on the ground about ten feet from the vehicle with his flashlight on. The caller also reported that after he heard the shots, his girlfriend saw a white truck “peel[ ] out of there.”

{5} When officers arrived at the scene, they found Deputy McGrane lying face-up on the road with “an apparent gunshot wound

to the face.” Near Deputy McGrane's body, the officers recovered two spent 10–millimeter casings, both of which had been fired from a Glock handgun. At trial, a pathologist testified that Deputy McGrane had been shot from a distance of “less than 12 inches” and that the bullet had struck him in the chin, severed his spine, and killed him instantly. The pathologist further testified that Deputy McGrane's left leg had multiple abrasions, which “could be” consistent with being run over.

{6} The license plate number given to the dispatch operator by Deputy McGrane was registered to a Dodge truck owned by Defendant. Cash Mart sold the Dodge truck to Defendant, but the title to the truck was still in Cash Mart's name. At the time of the shooting, Defendant was a convicted felon and also had an outstanding warrant for his arrest. Earlier in 2006, Defendant had purchased property in the East Mountains under the name of Donnie Sedillo, looking to make a new life for himself and his family. At about the same time, Defendant had become a regular customer at the Ten Points General Store, where he was known as Donnie Sedillo. Approximately two months before Deputy McGrane's death, Defendant had shown the owner of the general store his 10–millimeter Glock handgun. The 10–millimeter Glock used to kill Deputy McGrane was never recovered. Defendant's truck, however, was found at a residence about 160 yards from Defendant's property.

{7} After the shooting, law enforcement identified Defendant as a potential suspect in Deputy McGrane's death and embarked upon a multiagency investigation. Defendant was eventually apprehended in Mexico and deported back to New Mexico, where he faced charges relating to Deputy McGrane's death.

{8} Defendant was tried for an open count of murder, two counts of tampering with evidence (for hiding the truck and the 10–millimeter Glock handgun), and one count of being a felon in possession of a firearm. In addition to the evidence described above, several witnesses testified during the guilt phase about statements that Defendant had made after the shooting and before his capture in Mexico. One of Defendant's friends testified that Defendant came to the friend's house shortly after the shooting and told him, “[The Sheriff's Office] fucked it up again, and I started to do good again, and they fucked it up.” Another witness testified that she had first met Defendant in Ciudad Juárez, Mexico during a trip to buy marijuana, and that Defendant had volunteered to her, “I'm Michael Astorga, I blasted that cop.” The same witness recounted that, on the same occasion, Defendant had tried to sell her guns, and when she asked him whether any of the guns had been used to kill “the cop,” Defendant answered, “No, I got rid of that one.”

{9} Defendant testified at trial and denied shooting Deputy McGrane. He claimed that he was in Albuquerque at the home of two of his friends at the time of the shooting. When Defendant learned that he was wanted for Deputy McGrane's murder, he fled to Mexico because he was “terrified” that he was “going to be killed by the police.” The jury rejected Defendant's alibi and convicted him on all counts.

{10} The penalty phase of Defendant's trial then was held before a separate jury to decide whether Defendant should receive a death sentence. The penalty-phase jury found that Defendant knew or should have known that Deputy McGrane was a peace officer performing his duties, and that Defendant intended to kill Deputy McGrane or acted with reckless disregard for Deputy McGrane's life. However, the jury did not unanimously agree that Defendant should be sentenced to death. This appeal followed.

{11} This Court has jurisdiction over Defendant's direct appeal under Article VI, Section 2 of the New Mexico Constitution and Rule 12–102(A)(1) NMRA. Defendant advances five grounds for reversal, all limited to purported errors that occurred during the guilt phase of his trial: (1) trial counsel's failure to litigate certain evidence amounted to either fundamental error or ineffective assistance of counsel; (2) the district court improperly excluded a prior inconsistent statement during Defendant's cross-examination of a key witness for the State; (3) the State improperly questioned Defendant's alibi witness about Defendant's alleged involvement in another murder; (4) the State failed to introduce sufficient evidence of deliberation to support a conviction for first-degree murder; and (5) the district court abused its discretion by denying Defendant's motion for a change of venue.

DISCUSSION

I. Failure to Litigate Certain Evidence: The “10–8” Call

{12} Defendant's first argument for reversal hinges on a piece of evidence that defense counsel claims to have overlooked during the guilt phase of the trial. At the beginning of its case-in-chief, the State played a recording for the jury of Deputy McGrane's call to the dispatch operator shortly before his death. In the recording, Deputy McGrane can be heard describing his location and a vehicle:

McGrane: South 14 and 66, New Mexico, 459, Charles–David–Sam, silver Dodge pickup, one inside.

Dispatch: 10–9 you're ... South 14 and what mile marker?

McGrane: Mile marker 29. It's cross with 66.

Dispatch: 10–4.

At the same time as the “10–4,” a voice can be heard stating, “10–8,” the code that means that an officer has cleared the last call and is back in service. Defense counsel claimed during the penalty phase that he “didn't catch” the 10–8 call during the guilt phase of the trial, and therefore failed to argue its significance to the jury. He also argued that if the “10–8” was Deputy McGrane clearing the call involving Defendant's truck, “then [Defendant] should have never been a suspect. He shouldn't have been a target, much less convicted,” because the shooter was someone else.

{13} Defendant now maintains that defense counsel's failure to litigate the 10–8 call during the guilt phase—“whether Deputy McGrane cleared the call ... 4–1/2 minutes before the report of shots fired”—requires reversal for two reasons. First, citing Montoya v. Ulibarri, Defendant argues that the 10–8 call was evidence of his “actual innocence” and that as a result, defense counsel's failure to litigate the call was fundamental error. See 2007–NMSC–035, ¶¶ 14, 23–25, 142 N.M. 89, 163 P.3d 476 (holding that Article II, Sections 13 and 18 of the New Mexico Constitution support an actual innocence claim in a habeas corpus proceeding, absent any other constitutional violation at trial). Second, Defendant maintains that the failure to litigate the 10–8 call violated his right to effective assistance of counsel under the Sixth Amendment of the United States Constitution. We address each argument in turn.

A. Failure to litigate the 10–8 call was not fundamental error

{14} Under the doctrine of fundamental error, an appellate court has the discretion to review an error that was not...