State v. Dominguez

• Decision Date: 26 October 2007
• Docket Number: No. 29,652.,29,652.
• Citation: 171 P.3d 750,2007 NMSC 060
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Isidro DOMINGUEZ, Defendant-Appellant.
• Court: New Mexico Supreme Court

171 P.3d 750

2007 NMSC 060

STATE of New Mexico, Plaintiff-Appellee, v. Isidro DOMINGUEZ, Defendant-Appellant.

No. 29,652.

Supreme Court of New Mexico.

October 26, 2007.

Liane E. Kerr, LLC, Liane E. Kerr, Albuquerque, NM, for Appellant.

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

OPINION

BOSSON, Justice.

{1} Defendant Isidro Dominguez appeals his convictions for first-degree murder, conspiracy to commit a felony, kidnaping, armed robbery, tampering with evidence, and felon in possession of a firearm. We affirm all of Defendant's convictions.

BACKGROUND

{2} On November 6, 2004, a sheriff received a radio dispatch to proceed to a Shell station on Airport Road in Santa Fe, where a dead body identified as Panfilo Valencia-Soto ("Victim") had been found in the trunk of an abandoned car on County Road 56. The car, a purple Dodge Stratus, was in an arroyo, approximately one mile from the gas station, which is opposite a trailer park where Defendant and his wife, Annette Dominguez ("Co-Defendant" or "Annette"), resided. Defendant and Annette were customers of Victim, who sold heroin for a living. Jose Carrasco-Rodriguez ("Carrasco") lived with Victim and Victim's girlfriend, Lisa Cano ("Lisa"), and helped with their drug trade.

{3} Lisa testified at trial that she last saw Victim on the evening of November 5, 2004, when he left with Carrasco in Lisa's car to go to Defendant's home. Carrasco testified that when he and Victim arrived at Defendant's trailer, they were invited inside. As Carrasco entered the home, someone hit him on the back of his head, knocking him to the floor. After he fell to the floor, his hands and feet were tied. Carrasco testified that Annette was holding a shotgun in front of him and Victim. Carrasco further testified that he could hear Victim being struck and somebody asking for the "money and drugs" in Spanish. Someone took Carrasco's wallet, which contained approximately $160.00. After several minutes, Carrasco heard a gunshot, but he did not see who fired the gun.

{4} Carrasco testified that Defendant then untied the knot binding Carrasco's feet, took him outside, and put him in the back seat of the purple Dodge Stratus that Carrasco and Victim had driven to Defendant's home. When Defendant returned to the house, Carrasco untied his hands, crawled into the driver's seat, and drove away. After driving for a while, Carrasco pulled the car to the side of the road, looked in the trunk, and saw Victim's body. He then drove the car back to Airport Road, left the car on the side of the road, walked to the Shell Station, and called Lisa.

{5} Lisa testified that when she arrived to pick up Carrasco, she noticed blood on his shirt and marks on his wrists. She asked where the car was, and Carrasco replied that Defendant and Annette had kidnapped Victim and that Lisa should not call the police because Defendant would kill Victim, even though Carrasco already knew Victim was dead. Two days later, Lisa and Carrasco returned to the apartment they shared with Victim and found the police there. The police searched the apartment and later informed Lisa that they had discovered Victim's body in the trunk of her car. Lisa told the police about Defendant and Annette and took them to their home.

{6} After standing trial along with his wife, Annette, Defendant was convicted of all charges, from which he now appeals directly to this Court. See N.M. Const. art VI, § 2; Rule 12-102(A)(1) NMRA (direct appeal to Supreme Court from conviction of first degree murder).

DISCUSSION

{7} Defendant raises three issues on appeal. First, Defendant argues that he was unfairly prejudiced when the trial court denied his motion to sever the felon in possession of a firearm charge from his other charges. Second, Defendant claims error when the trial court allowed the State to impeach its own witness by reading into evidence prior statements of that witness, rather than asking questions and then using the transcript to impeach. Third, Defendant argues that the trial court erred in admitting the testimony of three State rebuttal witnesses.

Severance

{8} Prior to trial, Defendant filed a motion to sever his felon in possession of a firearm charge from his other charges, which the trial court denied. On the morning of trial, Defendant renewed his motion to sever, and the court again denied the motion. Unsuccessful in his attempts at severance, Defendant then pled guilty to the felon in possession of a firearm charge, and proceeded to trial on all remaining charges. Defendant contends that the trial court's refusal to sever resulted in a denial of his due process rights, including his right to a fair trial, his right to remain silent, and his right to fully confront and cross-examine the witnesses against him. Under the circumstances of this case, we disagree.

{9} Initial joinder of charges under Rule 5-203(A) NMRA was appropriate for these offenses "based on the same conduct." State v. Duffy, 1998-NMSC-014, ¶ 43, 126 N.M. 132, 967 P.2d 807. Recently, in State v. Gallegos, we recognized that "Rule 5-203(A) is not a discretionary or permissive rule; it demands that the State join certain charges." 2007-NMSC-007, ¶ 10, 141 N.M. 185, 152 P.3d 828. However, we emphasized in Gallegos, 2007-NMSC-007, ¶ 16, 141 N.M. 185, 152 P.3d 828 that Rule 5-203(C) provides for severance when "it appears that a defendant . . . is prejudiced by a joinder of offenses or of defendants by the filing of a statement of joinder for trial." We stated that we will not reverse a trial court's decision not to sever, even if erroneous, "unless the error actually prejudiced the defendant." Gallegos, 2007-NMSC-007, ¶ 18, 141 N.M. 185, 152 P.3d 828 (emphasis added). As we will explain, Defendant experienced no actual prejudice at trial because he pled guilty to the felon in possession charge before trial. Therefore no evidence of his criminal past ever reached the jury.

{10} Traditionally, a trial court's decision whether to grant a motion for severance has been discretionary, "and one test for abuse of discretion is whether prejudicial testimony, inadmissible in a separate trial, is admitted in a joint trial." State v. Jones, 120 N.M. 185, 186, 899 P.2d 1139, 1140 (Ct.App. 1995); see also State v. Ruiz, 2001-NMCA-097, ¶ 11, 131 N.M. 241, 34 P.3d 630 ("A defendant is unfairly prejudiced when joinder allows the jury to consider evidence that would not otherwise be admissible under Rule 11-404(B) NMRA 2001, if the trials were severed."). The question then is whether the evidence of each crime would be admissible in a separate trial of the other. Jones, 120 N.M. at 186, 899 P.2d at 1140. As our Court of Appeals aptly noted, "proof of other crimes has a tendency to prejudice the minds of the triers of fact and to predispose them to a belief in the accused's guilt." State v. Roybal, 115 N.M. 27, 31, 846 P.2d 333, 337 (Ct.App.1992).

{11} Evidence of Defendant's prior unrelated crime most certainly would not have been admissible in a separate trial of Defendant's remaining charges, unless Defendant elected to waive his Fifth Amendment right to silence and testified in his own defense. This is true in most cases involving evidence of a criminal history-an especially virulent form of bad acts evidence that is usually inadmissible under Rule 11-404(B) NMRA and Rule 11-403 NMRA. Those accused of crimes have a constitutional right to remain silent, which is often exercised for the very purpose of keeping evidence of unrelated crimes from the jury. A felon in possession of a firearm charge puts the otherwise irrelevant fact of a prior crime before the jury, putting pressure on the accused to testify so as to explain his past, and thereby compromising his constitutional right to silence. Fundamental constitutional rights should not be so easily undermined.

{12} Therefore, courts must realize that they risk committing error any time they fail to sever a felon in possession charge from the principal crimes. This does not necessarily mean an independent jury trial for the felon in possession charge is required. There is no reason such a straightforward crime could not be tried directly to the court, with the defendant's consent, based primarily on public documents or even stipulations, much as with habitual offender proceedings. Bifurcation is another possibility.

{13} As we have stated, judicial error by itself is not necessarily grounds for reversal in the absence of actual prejudice. However, our job differs from that of the trial court. As we made clear in Gallegos, in determining whether a defendant suffered actual prejudice, "we have the luxury of conducting a hindsight review." 2007-NMSC-007, ¶ 46, 141 N.M. 185, 152 P.3d 828; see also State v. Gonzales, 113 N.M. 221, 230-31, 824 P.2d 1023, 1032-33 (1992) (declining to reverse for ineffective assistance of counsel when counsel failed to move to sever felon in possession charge because on hindsight review court found no actual prejudice). The trial court, on the other hand, views the matter prospectively as to whether its error creates an "appreciable risk" of reversal on appeal. Gallegos, 2007-NMSC-007, ¶ 46, 141 N.M. 185, 152 P.3d 828. We emphasized in Gallegos that if the evidence pertaining to each charge would not be cross-admissible at separate trials-and evidence of previous crimes would rarely be cross-admissible-then "the trial court abuses its discretion when it fails to sever." Id. Absent an affirmative finding of cross-admissibility, the better practice is for the trial court to sever a felon in possession charge to avoid both error and the "appreciable risk" of reversal on appeal. See Susan W. Callan, Inherent Prejudice of a "Felon-in-Possession" of a Firearm Trial: Bifurcation, Stipulation, and Jury Instruction as Effective but Judicially Rejected Remedies, 28 Rutgers L.J. 201, 218 (Autumn 1996) (advocating either judicial determination...