State v. Dominguez
| Decision Date | 19 March 1993 |
| Docket Number | 13294,Nos. 13251,s. 13251 |
| Citation | 115 N.M. 445,1993 NMCA 42,853 P.2d 147 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Aaron DOMINGUEZ, and Robert Ortega, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Defendant Ortega's motion for rehearing having been granted, our original opinion filed November 23, 1992, is withdrawn and the following substituted for it.
Defendants have separately appealed their respective convictions for aggravated battery with great bodily harm. Because the appeals raise several common issues, we have consolidated them on this Court's own motion. See SCRA 1986, 12-202(F)(2) (Repl.1992). The common issues are whether the trial court erred in: (1) not requiring the state to provide racially neutral explanations for its exercise of peremptory challenges against Hispanic jurors; (2) denying defendants' motion to sever their trials from that of one of their codefendants; and (3) refusing defendants' requested jury instruction. Although defendants have taken different approaches in arguing these issues, their basic contentions are virtually identical and we shall so treat them in our discussion.
Dominguez raises the following additional issues: whether (1) sufficient evidence supported his conviction and (2) the trial court erred in denying his motion to dismiss the grand jury indictment. Another issue listed by Dominguez in the docketing statement but not briefed is deemed abandoned. See State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). Dominguez also expressly abandoned another issue in his reply brief. Ortega also raises the issue of the legality of his sentence. Because we are unpersuaded by defendants' arguments with respect to each issue, except for Ortega's sentencing issue, we affirm both defendants' convictions. We remand for further sentencing proceedings in Ortega's appeal. Dominguez filed a motion for designation of non-documentary exhibit, which motion was held in abeyance pending submission of his appeal to a panel for disposition. We deem the exhibit unnecessary to our disposition and therefore deny the motion.
On the night of June 29, 1989, Paul Mascarenas, Jr., and his younger brother, Eric Mascarenas, were cruising and drinking beer in Penasco, Taos, and Rodarte. Eric testified that they bought three or four quarts of beer in Taos between 8 and 9 p.m., and went to the Rodarte Tavern to buy more beer at about midnight. While Paul went into the bar, Eric and a female companion waited in the car. When Paul returned, he was not wearing a shirt and had scratches on his body. Paul and Victor Cordova, one of a total of seven codefendants (including defendants in this appeal), had engaged in a "friendly" wrestling match in the parking lot of the bar. Paul and Cordova hugged and shook hands after the match. Eric became upset when he saw his brother's condition, although Paul told him the fight was "nothing" and "stupid." Eric got out of the car and challenged some of the assembled crowd to fight. Several witnesses testified that Eric was throwing "karate kicks," none of which landed on any person.
Eric testified that, following the argument, he and Cordova began fighting in one location, and everyone else rushed Paul. Eric, a state wrestling champion, was getting the better of Cordova until he was pulled off by Dominguez and hit by Alex Valdez with a jack. Eric ran to his car to get a baseball bat. At the same time, he saw a group of men, including defendants, "hitting and kicking" at Paul. Before the fight, two witnesses saw George Lopez, another of the codefendants, with a knife. One of them testified that Lopez, apparently referring to one of the Mascarenas brothers, said: "If he comes at me, I'll fuck him up." Other codefendants were seen with a jack or pipe that night.
After the fight involving Paul broke up, he, Eric, and their female companion drove off. Paul lost control of the car less than 400 yards away, but Eric was able to stop it to prevent an accident. Paul had been stabbed eight times and was bleeding profusely. He died as a result of the stab wounds before help could arrive. While they were stopped on the side of the road, a car containing Dominguez, Cordova, Alex Martinez, and Alfred Garcia drove by. Dominguez reportedly said: "That's what they get." The occupants of the car understood Dominguez to mean that the Mascarenas brothers were having car trouble for having caused the fight. Eric also testified that, before the fight, Dominguez yelled something in Spanish, which Eric did not understand, in a tone that sounded like cursing.
Dr. Zumwalt, the pathologist who performed the autopsy on Paul's body, testified that either of two stab wounds could have caused death. Paul also suffered numerous bruises and contusions, one of which was a "pattern" injury on his forearm, which was consistent with having been hit by a tire iron or pipe. Dr. Zumwalt said Paul did not suffer any great bodily harm apart from the stab wounds.
Defendants and the five codefendants were jointly indicted for aggravated battery and conspiracy to commit aggravated battery. George Lopez was also indicted for Paul's murder. Defendants were jointly tried with George Lopez, Herbert Lopez, and Victor Cordova. The state argued for the guilt of all defendants other than George Lopez on an aiding and abetting theory, and the jury was so instructed. Ortega and Dominguez were convicted of aggravated battery.
The jury venire consisted of seventy-four persons. The trial court excused twenty potential jurors for cause. Of the fifty-four remaining jurors, forty were Hispanic and fourteen were Anglo. The judge's memorandum of petit jury selection indicated there were at least twenty-two Hispanic males on the panel of fifty-four. The first juror called, Adelina Marquez, was excused by defendants. The next juror, Manuel Mares, was peremptorily challenged by the state. Two Hispanic men, one Hispanic woman, and one Anglo woman were selected before the state used its second peremptory challenge to strike Jake Ortega. Defendants objected and asked for a racially neutral explanation for the strike. The prosecutor explained that his office had previously prosecuted Ortega and that he had failed to disclose this fact during voir dire.
Maysel Hernandez, Lawrence Fawcett, Samuel Gallegos, Raymond Trujillo, and Terry Sanchez were chosen before the state used three more peremptory challenges against Adelaido Romero, Trinidad Martinez, and Ronald Vigil. Defendants again objected and asked that the state be required to give racially neutral explanations for these challenges. The prosecutor refused, and the trial court upheld this refusal. The trial court commented that it saw no pattern of racial discrimination because the state had already accepted many Hispanics for service. None of the challenged jurors were asked any questions by the prosecutor during voir dire.
Loretta Gonzales and Ernestina Ortega were selected before the state exercised its sixth peremptory challenge against Francis Chacon.1 Defendants renewed their objection, which was again denied by the trial court. Vincent Archuleta was chosen as the twelfth juror. Crucita Mondragon and Robert Jacobs were selected as alternates. The jury ultimately seated consisted of six Hispanic men, four Hispanic women, and two Anglos. The alternate jurors were an Hispanic woman and an Anglo man.
In all, the state exercised six of its available seventeen peremptory strikes. Five of the six challenges were used against Hispanic men; the sixth was used against an Hispanic woman. Defendants argue that they established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), based on the state's pattern of strikes against Hispanic men. They assert that the trial court erred in not requiring the prosecutor to rebut the prima facie showing. The state, on the other hand, contends defendants did not establish a prima facie case.
The state's power to use peremptory challenges is limited by the Equal Protection Clause of the federal constitution. Id. at 84, 106 S.Ct. at 1716; State v. Goode, 107 N.M. 298, 300, 756 P.2d 578, 580 (Ct.App.), cert. denied, 107 N.M. 308, 756 P.2d 1203 (1988). A defendant may challenge the constitutionality of the state's selection of members of the petit jury when he shows he is a member of a cognizable racial group and establishes a prima facie case that potential jurors were excluded from the jury for racial reasons. Goode, 107 N.M. at 301, 756 P.2d at 581. Additionally, a potential juror may not be excluded on the basis of gender. State v. Gonzales, 111 N.M. 590, 599, 808 P.2d 40, 49 (Ct.App.), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991).
This Court has stated that:
To establish a prima facie case, [a] defendant must show that: (1) he is a member of a cognizable racial group; (2) the state has exercised its peremptory challenges to remove members of that group from the jury panel; [and] (3) these facts and any other relevant circumstances raise an inference that the state used its challenges to exclude members from the panel solely on account of their race.
Goode, 107 N.M. at 301, 756 P.2d at 581. Once a defendant makes a prima facie showing that the state used its peremptory challenges improperly, the burden then shifts to the state to come forward with a racially-neutral explanation for its strikes. Id.
It is undisputed that defendants met the first two Batson criteria. Batson, 476 U.S. at 96, 106 S.Ct. at 1722-23. Our focus thus turns to the...
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