State v. Bahney

• Decision Date: 26 January 2012
• Docket Number: No. 29,817.,29,817.
• Citation: 2012 -NMCA- 039,274 P.3d 134
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Sheila BAHNEY, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

2012 -NMCA- 039

274 P.3d 134

STATE of New Mexico, Plaintiff–Appellee,

v.Sheila BAHNEY, Defendant–Appellant.

No. 29,817.

Court of Appeals of New Mexico.

Jan. 26, 2012.

Gary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jacqueline Cooper, Chief Public Defender, B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

HANISEE, Judge.

{1} Defendant Sheila Bahney appeals from six counts of criminal conviction that are the result of her participation in the kidnapping, killing, and incineration of Barbara Lumsey, as well as the attempted cover-up of those crimes. We reject the bulk of Defendant's arguments and affirm all but one of her convictions, the lone exception being conspiracy to commit aggravated arson. Supported by recent New Mexico case law, we hold that Defendant's separate conspiracy convictions, based on one overarching agreement, violate double jeopardy. Based also on our precedent, we reject Defendant's remaining double jeopardy contentions and hold that the evidence presented at trial was sufficient to support the jury's verdict. We also determine that the trial court did not abuse its discretion by admitting photographs which included images of Lumsey, her injuries, and the crime scene, and conclude Defendant has failed to establish ineffective assistance of trial counsel. We therefore affirm in part, reverse in part, and remand with instructions to vacate Defendant's conviction for conspiracy to commit aggravated arson and re-sentence accordingly.

I. BACKGROUND

{2} On November 4, 2005, at approximately 7:00 p.m., Barbara Lumsey was found dead in the trunk of a still-burning vehicle adjacent to a public elementary school in Belen, New Mexico. Forensic investigators determined that although she was severely beaten—her hyoid bone and the thyroid structure in her throat having been fractured, and a molar dislodged—it was the fire that caused her death. The circumstances of Lumsey's homicide are the subject of Defendant's underlying convictions and this appeal.

{3} The State's evidence showed that at the time of the murder, Defendant lived in her Belen mobile home with three other individuals: her husband, Tom Bahney; her five-year-old grandson, Bobby; and her godson, Angel Esquibel. Esquibel's girlfriend, Jessica Cavasos, frequently stayed at the Bahney residence and was a participant in the crimes against Lumsey. Also involved were Anthony Sanchez and Patricia Sipes, neighbors and friends of Esquibel.

{4} In the early morning hours of November 4, 2005, Defendant and her husband left for work, leaving Esquibel to prepare Bobby for school and ensure that he boarded the school bus at 7:30 a.m. Following Bobby's departure for school, events leading to Lumsey's death began to rapidly unfold: (1) Lumsey drove her car to the Bahney residence and spoke with Esquibel, (2) Esquibel viciously beat Lumsey after an argument, covering her head and upper torso, his hands, and parts of the living room with blood, (3) Esquibel enlisted the assistance of Cavasos and Sanchez following the initial assault and kept Lumsey quiet by threatening her with a knife retrieved by Sanchez, (4) Esquibel force-fed Lumsey a handful of prescription pills located by Cavasos within the Bahney residence, and (5) Esquibel washed Lumsey's blood from his body, dressed, and contacted Defendant, who said she would be home “within five to ten minutes.”

{5} Upon her return at 10:30 a.m., Defendant walked through the front door and encountered a bloodied, beaten, and drugged Lumsey lying and moaning in the hallway, with Esquibel, Cavasos, and Sanchez watching over her. Defendant and Esquibel had a brief, private conversation, and Esquibel helped Defendant carry groceries into the mobile home. Afterward, Defendant sat at a computer in the living room, within close proximity to Lumsey, who was positioned in the hallway immediately adjacent to the living room. Defendant remained seated and silent when Esquibel forced Lumsey to rise and walk into his bedroom, where he duct-taped her hands and tied her to his bed frame with rope.

{6} Esquibel then telephoned Sanchez, who had returned to his own mobile home, and instructed him to come back to the Bahney residence because Defendant wanted to speak with him. When Sanchez returned, Defendant—who remained seated at the living room desk playing computer games—“looked at [Sanchez] and kind of giggled and said, ‘You don't look too good.’ ” Sanchez replied, “No, this is bullshit. I don't belong here.” Defendant then asked Sanchez if he needed “to smoke a bowl.” Sanchez agreed and smoked marijuana with Defendant before again returning to his home across the street.

{7} Tom Bahney arrived home from work at 11:15 a.m. and also spoke privately with Esquibel before entering the front door. Once inside, he sat on the living room couch directly across from Defendant—who remained at the computer—and began to watch television. Esquibel paced back and forth in the hallway between his bedroom where Lumsey lay bound and tied and the living room where the Bahneys sat. He repeatedly muttered “bitch” in Spanish, and expressed agitation regarding an impending civil court hearing in Albuquerque that he was required to attend at 1:30 p.m. that day. At approximately noon, Esquibel declared his intention to take Lumsey “to the state police office and kill her there and turn himself in.” Defendant abruptly spoke in opposition to Esquibel's plan, saying “don't do it, just go to court.” Esquibel agreed, acquired the car keys from Tom Bahney, and he and Cavasos walked to the door to depart for court. On the way out, Esquibel instructed the Bahneys to “watch [Lumsey]” and “make sure she [did not] make any noise.” No conversation ensued, yet when Esquibel and Cavasos returned three hours later the Bahneys remained posted at the house—Defendant at the computer and Tom Bahney stationed in the hallway. Neither had notified the police and, consistent with Esquibel's wishes, Lumsey remained affixed to the bed, helpless and unassisted during Esquibel's lengthy absence.

{8} Once home, Esquibel immediately checked on Lumsey and demanded that Cavasos help her go to the bathroom. When Cavasos refused, Esquibel grabbed her by the throat and asked her whether she wanted to end up like Lumsey. Cavasos broke loose from Esquibel's grip in the hallway and walked toward the living room, but Esquibel again grabbed her violently, this time by the hair. Defendant and Tom Bahney quickly reacted in defense of Cavasos, telling Esquibel, “Don't do it.” Esquibel promptly released Cavasos, who tearfully retreated to the living room sofa.

{9} Shortly following her intervention on behalf of Cavasos, Defendant instructed Esquibel in a demanding tone to “do something or figure something out because Bobby [is] going to be home soon.” Esquibel quickly enlisted the aid of Patricia Sipes, who lived with Sanchez across the street. Sipes followed Esquibel's requests and “wiped ... down” Lumsey's car, which had been parked outside the Bahney residence since her arrival that morning. As well, Esquibel instructed Cavasos to help Sipes gather Lumsey's effects and bring them into the Bahney home.

{10} At approximately 4:00 p.m., Bobby arrived home from school and the Bahneys met him at the front door with toys and instructions to play outside. Even then, Lumsey remained duct-taped and tied to Esquibel's bed. Esquibel resumed pacing the hallway between the bedroom and the living room, checking on Lumsey periodically, until he announced to everyone in the living room, “I'm going to just torch the car.” Shortly thereafter, Defendant stated that she was “going to take Bobby to Walmart.” Esquibel instructed Cavasos to accompany Defendant and Bobby.

{11} Esquibel and Tom Bahney remained at the Bahney home with Lumsey, while the two women and Bobby proceeded to Walmart. There, they walked around for nearly forty-five minutes, including an extended stop to watch lobsters in the store tank, without placing a single item in their shopping cart. At some point, Esquibel called Cavasos's mobile phone to request lighter fluid and asked to speak with Defendant. After Defendant's short conversation with Esquibel, she turned the cart and proceeded directly to the aisle containing charcoal lighter fluid. Cavasos accompanied her, and the women acquired the last two remaining bottles of lighter fluid in the store. They stopped briefly to get Bobby some food for dinner before checking out at the register. Defendant paid for each item purchased, including the lighter fluid. The trial record confirms that Defendant had no typical household need for charcoal lighter fluid, as there existed only a propane-fueled barbeque grill at the Bahney residence.

{12} Shortly after 6:00 p.m., Defendant, Cavasos, and Bobby arrived home. Defendant placed a box containing both bottles of lighter fluid on the kitchen counter and told Esquibel, “It's in the box. It's over there.” Thereafter, Defendant, joined by Bobby, retreated to a bedroom separate from that occupied by Lumsey. By all accounts, Defendant had no further contact with any of the other adults until after Lumsey's car, with Lumsey imprisoned within it, had been successfully set ablaze and abandoned.

{13} Esquibel, Cavasos, Sipes, and Tom Bahney undertook the process of removing Lumsey from the house in order to depart the Bahney residence. Sipes positioned Lumsey's vehicle on the opposing side of a five-foot-tall fence immediately behind the mobile home. Esquibel doused the car with the lighter fluid purchased and supplied by Defendant, and used wire cutters retrieved by Cavasos to disable the release cable normally accessible within the interior trunk. Esquibel and Tom Bahney led Lumsey outside—with her hands still bound—before lifting and dropping her over the fence, head first, into her own open trunk. Sipes then drove Lumsey's...