State v. Bankert

• Decision Date: 02 May 1994
• Docket Number: No. 20933,20933
• Citation: 875 P.2d 370,117 N.M. 614,1994 NMSC 52
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael BANKERT, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 370

875 P.2d 370

117 N.M. 614

STATE of New Mexico, Plaintiff-Appellee, v. Michael BANKERT, Defendant-Appellant.

No. 20933.

Supreme Court of New Mexico.

May 2, 1994.

Rehearing Denied May 24, 1994.

[117 N.M. 616] Sammy J. Quintana, Chief Public Defender, Christopher Bulman, Asst. Appellate Defender, Santa Fe, for appellant.

Tom Udall, Atty. Gen., Joel Jacobsen, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

FROST, Justice.

Defendant-Appellant Michael Bankert drove with his common-law wife Kathy Christison from their home in Cortez, Colorado, to Farmington, New Mexico in order to buy cocaine for resale. Convinced they were not receiving adequate value for their money, Bankert shot and killed Robert Martin, a participant in the transaction. Bankert was convicted of felony murder, trafficking cocaine by possession with intent to distribute, and conspiracy to traffic in cocaine.

Six issues are raised on appeal: (1) Insufficient evidence supported the conviction for constructive possession of cocaine; (2) cocaine cannot be possessed in an unconsummated drug deal since the buyer and seller cannot both simultaneously possess; (3) the offense of trafficking a controlled substance by possession with intent to distribute cannot be the predicate felony to a felony murder conviction because it is not an inherently dangerous crime; (4) since provocation was not an issue in this case, the jury was improperly instructed to address a provocation element for second degree murder; (5) no evidence supported the conviction for conspiracy; and (6) the prosecution prejudicially linked Bankert with an already convicted participant in the crime. We affirm all convictions.

FACTS

Michelle Hall, a reputed drug abuser, left Farmington, New Mexico around 3:00 p.m. on August 8, 1991, on a motorcycle to visit her friends, Bankert and Christison, in Cortez, Colorado. After the three ingested cocaine inside the couple's trailer-home, Bankert stepped outside. The door was open and he was probably able to hear the ensuing conversation between the two women. Christison asked Hall to help find two eight-balls of cocaine for $450. An eight-ball is three-and-one-half grams of cocaine. A single eight-ball is consistent with personal use, but Christison indicated she wanted enough to sell and make her money back. She implied she would give some cocaine to Hall for her efforts.

Later that evening, at the home of a friend in Farmington, Hall asked Bob Martin about obtaining the two eight-balls. He told her to speak to another person who was present, Chester Smith. Smith, an African-American, was a known drug dealer in Farmington. Smith, however, was reluctant to deal with people from out-of-state. Hall offered to act as a go-between.

Later the same evening, after phoning for directions to the home, Bankert and Christison arrived in Bankert's car. Christison gave $450 to Hall who almost immediately passed the money to Smith.

Smith, Hall, and Martin decided to go to the latter's house to make the exchange, leaving Bankert and Christison behind. At Martin's house, Smith revealed he would sell the two eight-balls for $500 rather than $450. He removed some of the cocaine to compensate for the $50 shortfall. Though she knew Christison would be upset, Hall accepted the reduced amount.

About an hour after leaving, Hall returned and gave the cocaine to Christison. The two women examined the drug inside the friend's home and Christison remarked, "This doesn't look like two eight-balls." Hall explained the change in the deal. Eventually Smith, Hall, and Christison were inside using Christison's scales to weigh the drug. Outside, Bankert complained that he could not understand what was taking them so long. Eventually he entered the trailer, saying to Christison, "What the fuck's taking so long? Let's go."

As they left the home, Christison was very upset, almost crying. Bankert said he was pissed and this was bullshit because it was taking so long. Christison told him to go ahead and get mad, there was nothing he could do about it. They then engaged in a private inaudible discussion.

Martin suggested that everyone go to his house to straighten out the matter. Bankert, with Christison driving, and Hall giving directions, left in Bankert's car for Martin's house. On the way Christison and Bankert discussed the drug deal. Bankert complained, "I'm tired of this bullshit already. I'm not gonna be ripped off by a nigger." He went on: "Something better get figured out." Christison said, "We can get this straightened out." They stopped at the drive-up window of a liquor store to buy beer. "I'm not paying for it," said Bankert. "We've shelled out enough money already."

Shortly before midnight, August 8, 1991, the group in the Bankert's car arrived at Martin's house. No one else had yet arrived. While the others sat outside the car, Bankert moved to the driver's seat and sat sideways, with the door open, and his feet outside the car. Unknown to the others, he pulled a .22 caliber automatic pistol from a holster under the driver's seat.

Soon Smith and Martin arrived and everyone went into the house. Inside was a portable bar separating the kitchen from the dining area which in turn seems to have adjoined a living room. Bankert sat on a couch in the living room while Christison weighed the cocaine on her scales. Though the exact sequence is unclear, at various times Smith, Hall and Martin approached the bar to discuss the deal. Christison complained, "It's still only five and three-quarters [grams]. How am I supposed to make any money if I'm paying $100 a gram?"; or she may have said, "How are we supposed to make any money by paying $100 a gram?" (Emphasis added.)

Bankert arose from the couch and entered the dining room, sitting on the edge of a chair near the bar. It was now shortly after midnight. Smith took the $450 and dumped it on the scale as if to offer it back. Martin shouted, "Well, what the fuck do you want? Your money? Your money back?"

Bankert jumped up and grabbed Martin around the neck from behind. "I want it all!" he exclaimed. "I want seven [grams]! There's supposed to be seven! I want seven!" He pulled a gun from his waistband, under his shirt, and held it to Martin's head behind the right ear. Hall ran up to him pleading, "This is Bob's house. Bob's my friend. Leave him alone." Bankert retorted, "Fuck you, Michelle. I'll shoot you." He then shot Martin in the head. When Martin fell, he shot him again in the face.

Amid the screaming and panic Bankert stepped over Martin's body, and approached Smith threatening, "Are you ready to die, nigger?" Smith replied, "I don't want to die, I don't want to die, man." The gun fired as they struggled and Smith eventually wrested it from Bankert's hand. Bankert slumped to the floor where he remained until he was arrested soon thereafter.

Bankert was tried and convicted of felony murder, trafficking in cocaine by possession with intent to distribute, and conspiracy to traffic by possession with intent to distribute. He was given a sentence of life imprisonment plus nine years.

STANDARD OF REVIEW

Our task is to review the record and establish whether the evidence is sufficient to support the criminal conviction of Bankert. In reviewing a claim of insufficient evidence, this Court will "view the evidence in the light most favorable to supporting the verdict and resolve all conflicts and indulge all inferences in favor of upholding the verdict." State v. Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993). We may not weigh the evidence or substitute our judgment for that of the jury. State v. Lankford, 92 N.M. 1, 2, 582 P.2d 378, 379 (1978).

The test is "whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction." State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (citing State v. Montoya, 101 N.M. 424, 425, 684 P.2d 510, 511 (1984)); see also Jackson v. Virginia, 443 U.S. 307, 307, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979) (holding that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"); State v. Garcia, 114 N.M. 269, 837 P.2d 862 (1992) (same). A conviction will be upheld if based upon a logical inference from circumstantial evidence. State v. Baca, 111 N.M. 270, 276, 804 P.2d 1089, 1095 (Ct.App.1990) (citing State v. Brown, 100 N.M. 726, 728, 676 P.2d 253, 255 (1984)), cert. denied, 111 N.M. 164, 803 P.2d 253 (1991). A conclusion based on mere conjecture or surmise will not support a conviction. State v. Tovar, 98 N.M. 655, 657, 651 P.2d 1299, 1301 (1982) (citing State v. Romero, 67 N.M. 82, 84, 352 P.2d 781, 782 (1960)); see also SCRA 1986, 14-6006 (Uniform Jury Instruction stating that "verdict should not be based on speculation, guess or conjecture"). The circumstantial evidence must be incompatible with any rational theory of the defendant's innocence. State v. Vigil, 110 N.M. 254, 256, 794 P.2d 728, 730 (1990). However, we do not dismiss all reasonable inferences supporting the verdict simply because some of the evidence may support a contrary verdict. Id.

ISSUE ONE--POSSESSION

Bankert claims that there is insufficient evidence that he constructively possessed the cocaine and that his conviction for trafficking by possession with intent to distribute, in violation of NMSA 1978, Section 30-31-20(A)(3) (Repl.Pamp.1989), must be reversed. In order to reach a conviction for this offense, the jury must find proof of four elements outlined in the Uniform Jury Instruction, SCRA 1986, 14-3111. There is no controversy that under SCRA 14-3111(2), Bankert reasonably knew cocaine was present, and that under SCRA 14-3111(4), all the acts for which he was convicted took place in New...