State v. Foster

• Decision Date: 10 March 2020
• Docket Number: No. A-1-CA-37034,No. A-1-CA-37166,A-1-CA-37166,A-1-CA-37034
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. RENEE HASTINGS FOSTER, Defendant-Appellant. and STATE OF NEW MEXICO, Plaintiff-Appellee, v. RONALD SHANE FOSTER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee, v. RENEE HASTINGS FOSTER, Defendant-Appellant.andSTATE OF NEW MEXICO, Plaintiff-Appellee, v. RONALD SHANE FOSTER, Defendant-Appellant.

No. A-1-CA-37166

No. A-1-CA-37034

COURT OF APPEALS OF THE STATE OF NEW MEXICO

March 10, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

Cindy M. Mercer, District Judge

Hector H. Balderas, Attorney General

Emily C. Tyson-Jorgenson, Assistant Attorney General

Maris Veidemanis, Assistant Attorney General

Santa Fe, NM

for Appellee Stalter Law LLC

Kenneth H. Stalter

Albuquerque, NM

for Appellant Renee Hastings Foster

Bennett J. Baur, Chief Public Defender

Caitlin C.M. Smith, Assistant Appellate Defender

Santa Fe, NM

for Appellant Ronald Shane Foster

MEMORANDUM OPINION

B. ZAMORA, Judge.

{1} The opinion filed February 12, 2020, is hereby withdrawn, and this opinion is substituted in its place. Co-defendants Ronald Foster (Husband) and Renee Hastings Foster (Wife) (collectively, Defendants) separately appeal their convictions. Because both appeals raise several identical issues, we consolidate the appeals for decision. See Rule 12-317(B) NMRA.

{2} Husband appeals his convictions for second-degree murder (NMSA 1978, § 30-2-1(B) (1994)), tampering with evidence (NMSA 1978, § 30-22-5 (2003)), and conspiracy to commit tampering with evidence (Section 30-22-5 and NMSA 1978, § 30-28-2 (1979)). Wife appeals her convictions for tampering with evidence (Section 30-22-5)) and conspiracy to commit tampering with evidence (Sections 30-22-5 and 30-28-2)). Defendants' appeals raise the following issues: (1) the propriety of the jury instructions; (2) the State's characterization of the law during closing arguments; (3) cumulative error; (4) the sufficiency of the evidence; and (5) ineffective assistance of counsel. We hold insufficient evidence exists to support Wife's conviction for conspiracy to commit tampering with evidence, but otherwise affirm.

BACKGROUND

{3} The following facts were elicited through witness testimony at the jury trial in this matter. Husband, Wife, and their friend Timothy Yost were inside Defendants' house when Victim, who had kidnapped and released Wife a week earlier, drove to their house. Husband testified that after he went outside and told Victim to come inside the house, Husband came back inside, sat on the couch, and played video games while waiting for Victim to come inside. Husband testified that Victim entered the house and shot a gun at him, at which point Husband shot and killed Victim. This testimony was contradicted by the State's expert witness in trajectory analysis, who testified that he was unable to recover spent rounds that would have been fired by Victim or any evidence that a "projectile had perforated" the wall located behind Husband at the time of the shooting.

{4} Both during and after the shooting, Wife stayed in her bedroom, she heard several gunshots, was panicking and in fear. After hearing gunshots, Husband entered her room, apologized and said he loved her. Wife testified she was unsure why Husband was apologizing. Husband and Yost placed Victim's body in the trunk of a car and Husband left the house on what he described as a long drive, during which he disposed of Victim's body. The following day, while Husband was still away, Wife cleaned the house, which she described as a "mess," including cleaning blood by the front door. Following a police investigation, Defendants were charged and later convicted. They now appeal.

DISCUSSION

I. Jury Instructions

{5} Defendants both argue (1) the jury instructions on self-defense were deficient, (2) instructions on defense of another should have been given, and (3) instructions on defense of habitation should have been given.¹ Husband separately argues the unlawfulness instruction was "unnecessary." And Wife separately argues the jury was not properly instructed on Wife's tampering with evidence count.² We review Defendants' arguments de novo. See State v. Candelaria, 2019-NMSC-004, ¶ 31, 434 P.3d 297 ("The propriety of the jury instructions given by the district court is a mixed question of law and fact requiring de novo review."). As Defendants did not object to the instructions provided to the jury, we review only for fundamental error. See State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (holding that we review for fundamental error when an error with the jury instructions was not preserved). "The doctrine of fundamental error applies only under exceptional circumstances[,]" State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633, and the party "alleging fundamental error must demonstrate the existence of circumstances that shock the conscience or implicate a fundamental unfairness within the system that would undermine judicial integrity if left unchecked." State v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (internal quotation marks omitted); see Barber, 2004-NMSC-019, ¶ 17 ("This 'shock the conscience' language has been used both to describe cases with defendants who are indisputably innocent, and cases in which a mistake in the process makes a conviction fundamentally unfair notwithstanding the apparent guilt of the accused.").

{6} In reviewing for fundamental error, we first determine "whether a reasonable juror would have been confused or misdirected by the jury instruction." Benally, 2001-NMSC-033, ¶ 12 (internal quotation marks and citation omitted). "[J]uror confusion or misdirection may stem not only from instructions that are facially contradictory or ambiguous, but from instructions which, through omission or misstatement, fail to provide the juror with an accurate rendition of the relevant law." Id. "If we conclude that a reasonable juror would have been confused or misdirected, then we review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case, to determine whether the defendant's conviction was the result of a plain miscarriage of justice." State v. Sandoval, 2011-NMSC-022, ¶ 20, 150 N.M. 224, 258 P.3d 1016 (alteration, internal quotation marks, and citation omitted).

A. No Fundamental Error in Self-Defense Jury Instructions

{7} Defendants argue the district court erred in (1) limiting Husband's self-defense jury instruction to a finding of whether Victim shot a gun at Husband, and (2) failing to provide the jury with a no-retreat instruction alongside the self-defense instruction. We address both arguments in turn.

{8} First, the district court, without objection, instructed the jury that Husband's killing of Victim was in self-defense if: (1) "[t]here was an appearance of immediate danger of death or great bodily harm to [Husband] as a result of [Victim] shooting a gun at [Husband];" (2) "[Husband] was in fact put in fear by the apparent danger of immediate death or great bodily harm and killed [Victim] because of that fear;" and (3) "[a] reasonable person in the same circumstances as [Husband] would have acted as [Husband] did." (Emphasis added.) Defendants argue the first element, requiring a finding that there was appearance of immediate danger of death or great bodily harm to Husband because Victim shot at Husband, was too narrow. Husband argues instead that the jury should have been provided with an instruction akin to: "There was an appearance of an immediate danger of death [or] great bodily harm to [Husband] as a result of [Victim's] menacing conduct, including brandishing and/or shooting a gun at [Husband]."

{9} The Use Notes for the Uniform Jury Instructions on self-defense clarify that the cause of the appearance of immediate danger of death or great bodily harm to the defendant is to be described with "at least enough detail to put the [unlawful act, felony, or act which would result in death or some great bodily harm] in the context of the evidence." UJI 14-5171 NMRA, use note 3 (justifiable homicide; self-defense). Yost testified that as Husband was walking toward the front room, Victim "dr[ew] his weapon." Yost further explained, "And that's when I heard a shot go off and [Husband] yelled something and pulled out his weapon and fired. He fired a few shots, like quite a few shots, and [Victim] was down after that[.]" Husband similarly testified that Victim came into the home and shot at him before Husband shot Victim. This testimony supports the theory that Husband fired in response to Victim's shooting at Husband, not in response to Victim brandishing a gun. Defense counsel's closing argument likewise focused Husband's theory of self-defense on Victim's shooting at Husband. Husband relies exclusively on Yost's brief account of the shooting to support his brandishing theory, but as relayed by Yost at trial, Victim reached into his pants, drew a weapon and fired almost immediately upon seeing Husband return from the back of the house. This testimony, however, failed to establish that Husband saw Victim brandish a weapon, or that brandishing occurred as a distinct act apart from Victim's drawing a gun and shooting at Husband. In light of the foregoing, Defendants' self-defense instruction, as now requested on appeal, does not appear supported by the evidence adduced at trial.³ See Candelaria, 2019-NMSC-004, ¶¶ 37-39 (concluding that the defendant failed to identify evidence that supported his theory, and thus, the district court's failure to give a jury instruction was not considered fundamental error).

{10} Second, Defendants argue the jury may have mistakenly believed that Husband had a duty to retreat, and that the failure to instruct the jury to the contrary may have resulted in a conclusion that Husband was...