State v. Barrera

• Decision Date: 19 April 2001
• Docket Number: No. 25,347.,25,347.
• Citation: 130 N.M. 227,22 P.3d 1177,2001 NMSC 14
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Mario Perez BARRERA, Defendant-Appellant.
• Court: New Mexico Supreme Court

22 P.3d 1177

130 N.M. 227

2001 NMSC 14

STATE of New Mexico, Plaintiff-Appellee, v. Mario Perez BARRERA, Defendant-Appellant.

No. 25,347.

Supreme Court of New Mexico.

April 19, 2001.

Law Office of John McCall, John A. McCall, Albuquerque, NM, for Appellant.

Patricia A. Madrid, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

SERNA, Chief Justice.

{1} Defendant Mario Perez Barrera appeals his convictions for first degree murder, armed robbery, shooting at an occupied vehicle, and felon in possession of a firearm. See Rule 12-102(A)(1) NMRA 2001 (appeals from sentence of life imprisonment taken to the Supreme Court). Defendant asserts four errors on appeal: (1) whether the trial court abused its discretion by denying his motion to grant a change in venue based on pretrial publicity; (2) whether the trial court erred in allowing Defendant's statement into evidence; (3) whether the trial court erred by admitting evidence which the prosecution did not produce until trial; and (4) whether sentencing for both murder and armed robbery constituted a double jeopardy violation. We affirm Defendant's convictions.

I. Facts and Background

{2} On the morning of July 28, 1997, Wendy Wagner, the victim, drove to the Glorieta exit of Interstate 25 near Santa Fe, and got out of her red Dodge Ram pickup truck to remove a sign. Defendant had been situated at the exit for a period of time after hitchhiking from Albuquerque. Initially, he had traveled from his home in Colorado to Albuquerque with two individuals, Brian Martinez and Angela Aguilar, but they had a disagreement, and he parted ways with them in Albuquerque. When Defendant saw the victim leave her vehicle, he decided to steal her truck and tried to get to the vehicle before she could return to it. She reached the truck before he did, but Defendant approached the driver's side door and held it open; he asked, and then insisted, that she give him a ride. The victim began to scream, so Defendant shot her three times with his .22 caliber Jennings automatic pistol. The medical examiner testified that a shot to the victim's head instantly killed her.

{3} Defendant then got into the truck, pushed the victim's body down onto the floorboards, and drove out of New Mexico. Defendant eventually stopped in Oklahoma, pulled the victim out of the truck, and attempted to clean the blood off of the interior. Defendant removed some of the victim's possessions which were later found by the police in his dresser drawer. Defendant placed a WD-40-soaked cloth over the victim's head and set it on fire.

{4} Gilberto Velasquez, a coworker of Defendant's, testified that Defendant asked for his assistance to move a truck, explaining that he wanted to deliver it to a friend in La Junta. Velasquez testified that he followed Defendant as Defendant drove a red truck to La Junta; Defendant did not find the individual he described as his friend and abandoned the truck. The police located the truck in La Junta, Colorado, on August 6.

{5} Martinez and Aguilar went to the police with information regarding the murder on August 7, the day they heard that investigators found a red truck in Colorado. On August 11, Defendant was arrested. Police found a .22 caliber Jennings automatic weapon in the back seat of a police car in which Defendant was conveyed after his arrest. Police had not transported anyone else in that car since it had last been inspected. Defendant had two partially loaded clips for a Jennings .22 caliber automatic gun in his possession when he was arrested. Ballistic tests indicated that Defendant's .22 automatic was used to discharge the .22 caliber casings found at the Glorieta exit and the casing found in the truck following the murder. An expert witness testified that the victim was killed with a bullet fired from a .22 caliber gun, but could not establish that the bullets recovered from her body were fired from Defendant's .22 caliber gun.

{6} Pursuant to a search warrant, authorities recovered the victim's earrings, pendant, inscribed ring, and watch at Defendant's residence in his dresser. Investigators found a blanket which the victim regularly carried in her truck at Defendant's residence, placed under his mattress. A flashlight identical to one the victim also kept in her truck was found in Defendant's garage; DNA tests from blood on the flashlight were consistent with the victim's DNA. Defendant's fingerprints were found on a beer bottle located in the victim's truck following the murder.

{7} Defendant gave a detailed statement to FBI Special Agent Neil Hoener on August 11 following his arrest. Defendant stated that he saw a woman get out of a truck to remove a sign from a post at the Glorieta exit of I-25. He said that he thought he could get into the truck before she did, but that she got to it first. He admitted that he wanted the truck and that he shot her. Defendant said that she screamed and he shot her a second time, and that she kept screaming, so Defendant shot her again in the head. He got into her truck and drove away; Defendant described disposing of her body, cleaning the truck, and taking some of her possessions.

{8} Martinez testified that Defendant gave him an onyx and diamond ring which was identified as belonging to the victim. Martinez testified that, on August 6, Defendant admitted to him that he had shot a woman he saw taking down a sign and had taken her red truck with a New Mexico license plate, eventually leaving the truck in La Junta. Aguilar testified that she was present at the time Defendant admitted to Martinez that he had shot a woman and that she also heard Defendant's admission.

{9} The jury convicted Defendant, by general verdict, of first degree murder, as well as armed robbery, shooting at an occupied motor vehicle, and felon in possession of a firearm. The trial court sentenced Defendant to life imprisonment plus twenty-two and one-half years.

II. Discussion

A. Venue

{10} Defendant argues that the trial court erred by denying his motion to change venue. He contends that he could not receive a fair trial in Santa Fe County due to the publicity regarding the murder and the prominence of the victim, a fire fighter and member of an emergency medical team. Defendant notes that he preserved this issue through his motion to change venue, as well as during voir dire.

{11} This Court reviews a grant or denial of a motion for change of venue under an abuse of discretion standard. State v. House, 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967, cert. denied, 528 U.S. 894, 120 S.Ct. 222, 145 L.Ed.2d 186 (1999). "The trial court's discretion in this matter is broad and will not be disturbed on appeal unless a clear abuse of that discretion can be demonstrated." Id. "The burden of establishing an abuse of discretion is borne by the party that opposes the trial court's venue decision." Id. As the party opposing the trial court's venue decision, it is Defendant's burden to establish an abuse of discretion.

{12} "The standard of review required in assessing most abuse-of-discretion claims is whether the trial court's venue determination is supported by substantial evidence in the record." Id. ¶ 32. Substantial evidence consists of relevant evidence that might be accepted by a reasonable mind as adequate to support a conclusion. Id. This Court resolves all disputed facts and draws all reasonable inferences in favor of the successful party and disregards all evidence and inferences to the contrary, viewing the evidence in the light most favorable to the trial court's decision. Id. "We must be mindful that it is the role of the trial court, and not the appellate court, to weigh the evidence and determine the credibility of witnesses." Id. ¶ 33. We do not substitute our own judgment for a determination of the trial court supported by substantial evidence. Id.

{13} The standard for change of venue, found in NMSA 1978, § 38-3-3(A)(2) (1965), provides:

The venue in all civil and criminal cases shall be changed, upon motion, to some county free from exception:

when the party moving for a change files in the case an affidavit of himself [or herself], his [or her] agent or attorney, that he [or she] believes he [or she] cannot obtain a fair trial in the county in which the case is pending because:

...

(b) the inhabitants of the county are prejudiced against the party; or

(c) because of public excitement or local prejudice in the county in regard to the case or the questions involved therein, an impartial jury cannot be obtained in the county to try the case....

In House, we discussed the distinctions between actual prejudice and presumed prejudice regarding prospective jurors.

Actual prejudice requires a direct investigation into the attitudes of potential jurors. Under this inquiry, the court will conduct a voir dire of prospective jurors to establish whether there is such widespread and fixed prejudice within the jury pool that a fair trial in that venue would be impossible. Presumed prejudice, on the other hand, addresses the effect of publicity about a crime upon the entire community where the trial takes place. Under this inquiry, a change of venue should be granted if evidence shows that the community is so saturated with inflammatory publicity about the crime that it must be presumed that the trial proceedings are tainted.

House, 1999-NMSC-014, ¶ 46, 127 N.M. 151, 978 P.2d 967 (citation omitted). As noted by this Court, "[h]owever, the same standard of review applies to the trial court's decision—a determination based upon substantial evidence in the record—whether a venue change is based upon presumed or actual prejudice." Id.

{14} Defendant argues that he presented substantial evidence to the trial court regarding prejudice of the jury venire in Santa Fe County which demonstrated that an impartial jury could not be obtained; thus, he believes that he met the standard articulated in House....