State v. Barela
| Decision Date | 28 March 2013 |
| Docket Number | NO. 32,506,32,506 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRANDON BARELA, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM
for Appellant
Gary K. King, Attorney General
Yvonne Marie Chicoine, Assistant Attorney General
Santa Fe, NM
for Appellee
{1} Brandon Barela (Defendant) was convicted of first-degree willful and deliberate murder, kidnapping, armed robbery, and two counts of tampering with evidence. Defendant was sentenced to a term of life imprisonment for first-degree murder and eighteen years for kidnapping, to be served consecutively. Defendant was also sentenced to nine-years for armed robbery and two three-year sentences for tampering with evidence to run concurrently with his eighteen year sentence for kidnapping. Defendant appeals his conviction directly to this Court. This Court exercises appellate jurisdiction where life imprisonment has been imposed. See N.M. Const. art. VI, § 2; see also Rule 12-102(A)(1) NMRA ().
{2} Defendant raises the following issues on appeal: (1) Whether the district court erred in granting the State's Batson challenge and denying Defendant the right to exercise a peremptory challenge excluding Dr. Kathryn Winters from the jury; (2) Whether the district court violated Defendant's right to confrontation by allowing the State's fingerprint expert to testify about tests which she neither performed nor supervised; (3) Whether the district court erred in denying Defendant's request for a mistrial; (4) Whether the district court improperly instructed the jury on the elementsof willful and deliberate murder; (5) Whether the district court erred by denying Defendant's motions for continuances; (6) Whether the district court erred in allowing the State to present a "non-crime" scene photo of Victim during its opening statements; (7) Whether there was sufficient evidence to support Defendant's convictions; (8) Whether the district court erred in allowing Defendant's custodial statements to be introduced into evidence without Defendant having been advised of his Miranda rights; (9) Whether, taken together as a whole, the district court's errors amounted to cumulative error.
{3} Defendant, a supervisor with Double K Testing, and three company employees, Manual Vargas (Vargas), Jose Rodriguez (Rodriguez), and Lazaro Soto (Soto), traveled in a company truck from Roswell to Clovis to test milk at three local dairies. After finishing their work for the day, the men had dinner at a local Pizza Hut where they shared four pitchers of beer before heading back to their hotel.
{4} After dinner, and before checking into their hotel, the men stopped and purchased beer from a gas station. After the men checked into their hotel, Defendant, Vargas and Soto went to Webb's Watering Hole (Webb's) to drink and play pool. While playing pool at Webb's the three men met Ron Hittson (Victim). The four menplayed pool together until closing time at which point Defendant suggested that the men go to another bar to continue drinking. Soto did not want to go to another bar and had the other men take him back to the hotel. After dropping Soto off at the hotel, Vargas drove Defendant and Victim to City Limits Bar where the three men continued to drink and play pool. At the bar Defendant and Victim smoked marijuana in the restroom. When Victim and Defendant returned to the pool tables, the bar owner asked the three men to leave the bar.
{5} The three men left the City Limits Bar and got back in the company truck to take Victim back to Webb's to get his vehicle. While in the truck on the way back to Webb's, Victim told Defendant and Vargas that he wanted to keep partying and inquired as to whether the other men knew where he could get some marijuana and cocaine. Defendant asked Victim if he had any money, and Victim showed Defendant that he had approximately $400 in cash.
{6} Defendant then pulled out his cell phone, pretended to place a few calls looking for drugs, and drove in the direction of the dairies. Vargas sensed something was amiss and told Defendant he wanted to call it a night. Defendant said "no" and told Vargas that he wanted to "score some." Defendant again pretended to place calls looking for drugs and quoted Victim a price for "the score." Victim complained thatthe price was too high and Defendant became aggravated.
{7} Defendant and Victim exchanged words, and Victim told Defendant to stop the truck, and that he would walk back to "his rig." When Defendant stopped the truck, Victim exited and began walking towards town.
{8} As Victim walked away from the truck, Defendant told Vargas "let's get him . . . I'm gonna get him." Defendant then jumped out of the truck, told Vargas to slide over to the driver's seat, grabbed something from the back of the truck, and proceeded in Victim's direction. Vargas moved to the driver's seat of the truck, rolled the window down, and drove in the direction of Victim and Defendant. Vargas heard the sound of someone "taking a hit," stopped the car, and walked toward Defendant and Victim. Vargas witnessed Defendant hit Victim over the head approximately four times with a cinder block.
{9} When Vargas tried to stop Defendant, Defendant turned, hit Vargas in the face, and told him that he knew what he was doing, "[i]t's not like [he'd] never done this before, [and that he] need[ed] to do it." Vargas then went back to the truck. Defendant followed, tossed the cinderblock in the back, jumped in the passenger side of the truck, and instructed Vargas to take off.
{10} When Vargas and Defendant arrived back at the hotel Defendant ran to Vargasand Rodriguez's hotel room, woke Rodriguez up, and told him he needed help getting rid of a body. Vargas told Rodriguez what happened, and Rodriguez told him that he did not want anything to do with the situation.
{11} Defendant then went to his hotel room, woke Soto up, and told him he needed help. After talking with Soto, Defendant called another Double K employee, A.J. Perales (Perales), and asked him to drive Defendant's personal vehicle to Clovis. Defendant returned to Vargas and Rodriguez's room holding a crowbar and told Vargas that they needed to go back and make sure that Victim was dead. Vargas and Defendant drove back to the location where they had left Victim. Vargas dropped Defendant off near the location where they had left Victim's body. Vargas then drove down the road a bit further, did a u-turn, and returned to the spot where he had dropped Defendant off. Defendant jumped into the truck, tossed a crowbar onto the middle of the front seat and told Vargas to clean the crowbar off and put it back where it belonged. The two men then returned to the hotel for the night.
{12} The next morning Defendant drove Vargas, Soto, and Rodriguez to the job site. Perales arrived at the job site with Defendant's personal truck, and Defendant made up an excuse to leave early and left Clovis with Soto. After the others had completed the day's work, Vargas drove everyone back to Roswell in the company truck,dropped everyone off at their respective homes, and drove the company truck to Defendant's house.
{13} Victim's body was found without any identification and his injuries rendered him unrecognizable. Police found Victim's truck in the parking lot of Webb's and based on Webb's surveillance video were able to connect Defendant, Soto, and Vargas to the Victim.
{14} Victim suffered a minimum of four "high energy injuries" to his head and face and a postmortem injury to his chest. Victim's body had no defensive wounds.
{15} Defendant was charged with first-degree murder contrary to NMSA 1978, Section 30-2-1(A)(1) (1994), or in the alternative felony murder contrary to NMSA 1978, Section 30-2-1(A)(2) (1994); kidnapping in the first-degree contrary to NMSA 1978, Section 30-4-1 (2003); armed robbery contrary to NMSA 1978, Section 30-16-2 (1973); two counts of tampering with evidence contrary to NMSA 1978, Section 30-22-5 (2003), and battery contrary to NMSA 1978, Section 30-3-4 (1963). The State later withdrew the battery charge.
{16} The first issue on appeal concerns Defendant's exercise of a peremptorychallenge to exclude Dr. Kathryn Winters from the jury. The following additional facts are relevant to this issue.
{17} The State raised its first Batson challenge after Defendant used four of his peremptory challenges to exclude four white females from the jury panel: Ms. Ware, Ms. Rogers, Ms. Gann, and Ms. Perkins. Defendant asserted that the Batson challenge only applied to Ms. Perkins and noted that he had already accepted two white female jurors. The State argued that nothing in Batson suggests that such a challenge only applies to the last juror, and explained that in order to raise a Batson challenge the objecting party need only establish a pattern of discrimination. The district court reviewed Defendant's peremptory challenges and Defendant asserted that there was no pattern of discrimination, that there was no protected class, and that his decision to strike was random. The district court inquired as to whether Batson applied to gender issues as well as "ethnic issues." The State explained that Batson applies to both gender and race issues, and that in order for Batson to apply a pattern of discrimination must have been established. The...
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