State v. Barr

• Court: New Mexico Supreme Court
• Writing for the Court: Serna
• Citation: State v. Barr, 210 P.3d 198, 2009 NMSC 24, 146 N.M. 301 (N.M. 2009)
• Decision Date: 22 May 2009
• Docket Number: No. 30,191.,30,191.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joshua BARR, Defendant-Appellant.

210 P.3d 198

2009 NMSC 024

STATE of New Mexico, Plaintiff-Appellee, v. Joshua BARR, Defendant-Appellant.

No. 30,191.

Supreme Court of New Mexico.

May 22, 2009.

Hugh W. Dangler, Chief Public Defender, William A. O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Gary K. King, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

SERNA, Justice.

{1} Pursuant to Rule 12-102(A)(1) NMRA, Joshua Barr (Defendant) appeals his convictions for first degree murder and tampering with evidence, contrary to NMSA 1978, Section 30-2-1(A) (1963, as amended through 1994) and Section 30-22-5(A) (1963, as amended through 2003), in the shooting death of Robert Lustig (Victim). Defendant argues that his confession was involuntary and should have been suppressed and that the introduction of a videotaped statement by Mark Varkevisser at trial was reversible error. We affirm.

I. FACTS AND PROCEEDINGS BELOW

A. Factual Background

{2} On April 17, 2005, a body wrapped in trashbags and tape was found in a refrigerator near an abandoned house fifteen miles south of Deming. An autopsy revealed that the individual had been killed by a gunshot wound to the head. After investigation, police determined that the body was that of Victim, who had disappeared from the area approximately one year previously.

{3} An investigation into Victim's background led a group of five law enforcement officers to visit the Columbus Police Department where Victim had worked as an auxiliary police officer. Defendant was also an auxiliary officer with the Columbus Police Department and happened to be present when the officers visited the station looking for information about Victim. Defendant gave the officers a two and a half page handwritten statement summarizing his knowledge of Victim. He wrote that he, Victim, and Varkevisser had all lived together in Victim's home, that Victim had had problems with Varkevisser, that Defendant had been evicted from the shared home, and that Defendant and Varkevisser had subsequently rented another home together. Defendant's statement did not include the dates of when the incidents he described occurred.

{4} The five officers sat down with Defendant and reviewed his statement in an effort to ascertain a timeline of the end of Victim's life. However, Defendant was unable to provide the officers with the dates that they wanted, explaining that he was "bad with dates." One of the officers testified that Defendant appeared "very nervous" during this interview and was rocking his chair back and forth and sweating profusely. A second officer testified that Defendant was "uneasy" and "nervous," though he did not recall seeing him sweat. The officers concluded the interview and advised Defendant that they might need to speak with him again.

{5} In the ensuing days, the officers investigated the leads that Defendant had provided in his statement. They learned that Victim's landlord and another friend had gone to Victim's home to communicate with him once he had fallen behind on his rent and had noticed that Victim's computer and CDs were missing. When they checked the records of a pawn shop near Victim's home, the officers learned that Varkevisser had pawned approximately 100 CDs and 25 DVDs at about the time that Victim disappeared. However, the officers were unable to locate Varkevisser at that time.

{6} Approximately three days after Defendant's initial interview, two of the officers went to the Columbus police station and asked whether Defendant would be willing to come with them to the Deming sheriff's office for another interview. They wanted Defendant to try again to assist them in composing a timeline of the end of Victim's life. One of the officers testified that Defendant was not a suspect at the time; rather, it was Varkevisser who was of most interest. The officers chose to interview Defendant in Deming because there was no appropriate space at the Columbus police station; at the initial interview, there had been people coming in and out of the room and the room was too small for Defendant and all of the officers to comfortably fit. Defendant agreed to come with the officers and accompanied them in their car from Columbus to Deming, about thirty miles.

{7} Defendant was interviewed in a room normally used for eating and taking breaks. There were four law enforcement officers in the room with Defendant. He was given his Miranda warnings and signed a waiver of Miranda rights form. One of the officers testified that Defendant was mirandized before the interview began, while Defendant testified that he was mirandized at some point during the interview.

{8} The accounts given by the two testifying officers and Defendant differ in some minor respects with regard to what occurred at the interview, but the essential facts are relatively clear.

{9} The interview began with a review of the statement that Defendant had provided the officers at the initial interview. The tone at this point was relatively "easygoing," "cooperative," and "smooth[]."

{10} Gradually, the interview grew more intense as the officers began to press Defendant. One of the officers sensed that Defendant was nervous because his hands twitched, he avoided eye contact, and he was evasive. One or more of the officers told Defendant that they felt he was holding something back. One of the officers asked Defendant what should happen to the person who killed Victim, to which Defendant responded that the perpetrator should get the death penalty. Both officers and Defendant testified that this was the first mention of the death penalty. Then one of the officers told Defendant something to the effect of "[t]hat's what you could get." There was some discussion of the penalties for the varying degrees of murder. At about this time, Defendant said "[y]ou son a bitches think I did it." After some further discussion, Defendant asked "[w]hat kind of deal can I get?" or "[w]hat can I get?" The officers told Defendant that they could not offer him a deal; however, they may have offered to speak to the district attorney on his behalf, if he made a statement. Defendant told them that he did not want to get the death penalty because he was afraid of dying. Defendant then confessed to the murder.

{11} Defendant told the officers that he and Victim were at Victim's home playing computer games in Victim's bedroom and that he had shot Victim in the back of the head at close range while Victim was facing the screen. He said that he then shot Victim in front of the head "to put him out of his misery."¹ Defendant did not reveal any motive for killing Victim; he told the officers that he wanted to keep it to himself.

{12} Defendant corroborated what the officers knew from the physical evidence about the manner in which Victim's body had been disposed. He said that he had wrapped the body with trashbags and tape and had taken it to the refrigerator near the abandoned house where the body had been discovered.

{13} Though Defendant made no mention of Varkevisser's involvement or presence at Victim's home that night, the officers nonetheless wanted to speak with him. They located and interviewed Varkevisser about one week after Defendant's confession and arrest. Varkevisser's entire statement was videotaped. Varkevisser told the officers that, on the night of Victim's death, he was also at Victim's home playing computer games with Victim and Defendant. He corroborated Defendant's version of events and told the officers that Defendant had shot Victim in the back of the head for no apparent reason while Victim was playing a computer game. Varkevisser told the officers that Defendant had threatened him in such a manner that he was forced to help wrap and dispose of Victim's body. He said that he had not reported the murder for fear that he would be charged with accessory.

{14} In addition to the substantive information about the night of Victim's murder, Varkevisser's videotaped statement also contained numerous extraneous utterances by both him and the officers that may have been improper if made on the witness stand. For example, the officers prompted Varkevisser to speculate about any possible motive Defendant may have had. Some of the speculation impugned Defendant's character, such as Varkevisser's statements that Defendant "is a drinker" and "has a bad history." The officers asked Varkevisser whether Defendant was "all there." Varkevisser also stated that he was "still scared of [Defendant]." One of the officers responded "I can understand that" and another said "[w]ell, he's in jail."

{15} Varkevisser's videotaped statement also included discussion of Defendant's prior bad acts. For example, the officers asked Varkevisser how many burglaries he and Defendant had committed and Varkevisser told the officers that Defendant put a knife or sword to Varkevisser's head sometime after the death of Victim.

{16} Finally, there were also statements in the video that may have had the potential to bolster Varkevisser in the eyes of the jury. To that effect, Varkevisser states that he would "even take a lie detector test." The video also shows one of the officers telling Varkevisser that he would tell the district attorney that Varkevisser had cooperated and told the truth and that Varkevisser could tell his parents that he cooperated.

B. Proceedings Below

{17} At trial, Varkevisser testified on behalf of the State. During cross-examination, defense counsel attempted to impeach Varkevisser with the relatively minor inconsistencies between his in-court testimony and his videotaped statement. Defense counsel confronted Varkevisser with discrepancies having to do with whether Varkevisser saw blood on Victim's head when Victim was shot, the color of clothes that Victim was wearing when he died, what time Varkevisser picked Defendant up to go to Victim's home on the night of the murder, and when Varkevisser first saw...