State v. Gage

• Decision Date: 22 May 2023
• Docket Number: S-1-SC-39142
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROGER L. GAGE, Defendant-Appellant.
• Court: Supreme Court of New Mexico

1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROGER L. GAGE, Defendant-Appellant.

No. S-1-SC-39142

Supreme Court of New Mexico

May 22, 2023

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY Jason Lidyard District Judge

Bennett J. Baur, Chief Public Defender Kimberly Chavez Cook Appellate Defender Joelle N. Gonzales, Assistant Appellate Defender Santa Fe, NM for Appellant

Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

DECISION

MICHAEL E. VIGIL, JUSTICE

{¶1} A jury found Defendant Roger Gage guilty of three counts of first-degree murder and one count each of aggravated burglary, conspiracy to commit murder, and tampering with evidence. For each death, the jury returned general guilty verdicts for first-degree murder and special verdict forms finding Defendant guilty of both willful and deliberate murder and felony murder. Defendant was sentenced to three terms of life imprisonment and twenty-one years for the remaining convictions, all to run consecutively.

{¶2} Pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA, Defendant appeals directly to this Court making four arguments: (1) that the district court erred in refusing to recuse itself, (2) that the district court erred in denying Defendant's motion to suppress his incriminating statements, (3) that Defendant's two capital sentences for acting as an accomplice to first-degree murder are unconstitutional, and (4) that Defendant's convictions for both willful and deliberate murder and felony murder violate double jeopardy. Because New Mexico precedent sufficiently addresses these issues, we exercise our discretion to resolve this case by way of a nonprecedential decision under Rule 12-405(B)(1) NMRA.

{¶3} We agree with Defendant's double jeopardy argument and order that Defendant's three convictions for felony murder be vacated. We reject Defendant's remaining arguments and otherwise affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶4} In 2018, Defendant and his brother entered into a home where drugs were sold. The home's video surveillance system clearly captured the brothers' entry and the ensuing killings. The brothers shot the home's three occupants at point-blank range, took a safe and a laptop from the bedroom, again shot each of the three occupants, and exited. After discovering the victims, the police reviewed the home's surveillance footage, recognized Defendant and his brother, and arrested them.

{¶5} District Judge Lidyard presided over Defendant's case. Before Judge Lidyard assumed the bench, he served as an assistant district attorney (A.D.A.). In one case, A.D.A. Lidyard prosecuted a person represented by Mr. Thomas Clark, who was Defendant's attorney in this case. In that case, the district attorney's office filed a complaint against A.D.A. Lidyard, alleging that he failed to disclose exculpatory evidence to Mr. Clark. Given his firsthand knowledge of the alleged violations, Mr. Clark was to serve as a witness in the disciplinary proceeding brought against A.D.A. Lidyard. However, before the disciplinary proceeding began, Judge Lidyard assumed the bench and was presiding over Defendant's case. The record is silent on whether the disciplinary proceeding occurred before the date of Defendant's trial.

{¶6} Defendant entered into a proposed plea agreement with the State. Under the proposed plea agreement, Defendant agreed to plead guilty to three counts of first-degree murder and one count of aggravated burglary in exchange for a sentence of life imprisonment plus nine years. However, Judge Lidyard rejected the proposed agreement, concluding that a trial would better serve the interests of justice. Defendant and the State filed a joint motion to reconsider, which Judge Lidyard denied.

{¶7} Defendant and the State then attempted to recuse Judge Lidyard. Because the period for recusal as a matter of right had expired, Mr. Clark asked Judge Lidyard to voluntarily recuse himself. To this, the judge responded, "There is no reason to question my ability to fairly and impartially preside over this case" Later, Mr. Clark again voiced his concern about Judge Lidyard's impartiality due to his role as a witness against Judge Lidyard in the pending disciplinary proceeding. Judge Lidyard dismissed these concerns, reasoning,

There is no rule that requires a judge to recuse or disqualify himself from proceedings in which a party . . . is represented by a lawyer who has assisted or cooperated in [a complaint against a judge] .... There is nothing about Mr. Clark's involvement in the process involving myself that would cause me to retaliate against him . . . and there is further nothing about his involvement that would generate within me a bias or prejudice against him ....

{¶8} Subsequently, Defendant and the State filed a joint motion to reconsider recusal, articulating the parties' shared concern regarding the judge's appearance of impropriety. Judge Lidyard denied this motion as well.

{¶9} Defendant filed a motion to suppress incriminating statements he made to Sergeant Joey Gallegos during an interrogation following his arrest. In support of this motion, Defendant contended that his statements were not voluntarily made because he was incoherent and uncomfortable while speaking with Sergeant Gallegos. He also asserted that the statements were coerced due to implied promises of leniency made by the police officers conducting the interrogation. We detail and discuss these allegations further in our analysis of this argument. After considering Defendant's arguments, Judge Lidyard denied the motion to suppress, and Defendant's incriminating statements were admitted into evidence.

{¶10} As already noted, the jury convicted Defendant of three counts of first-degree murder. However, the jury found Defendant guilty of both willful and deliberate murder and felony murder for each death. None of the alternate convictions were vacated, and as matters stand, Defendant remains convicted of both willful and deliberate murder and felony murder for each of the three killings.

II. DISCUSSION

A. Recusal

{¶11} Defendant argues that Judge Lidyard abused his discretion in denying the parties' joint motion to recuse. Defendant suggests that a reasonable appearance of impropriety-stemming from Mr. Clark's role as a prospective witness in the disciplinary proceeding and the parties' agreement that Judge Lidyard could not preside over Defendant's case without bias-required Judge Lidyard to disqualify himself. Defendant also points to Judge Lidyard's adverse rulings against Defendant as evidence of bias. We reject these arguments.

{¶12} "[R]ecusal rests within the discretion of the trial judge, and will only be reversed upon a showing of an abuse of that discretion." State v. Riordan, 2009-NMSC-022, ¶ 6, 146 N.M. 281, 209 P.3d 773. "'An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case . . . [or when the ruling is] clearly untenable or not justified by reason.'" Id. (quoting State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829).

{¶13} "Voluntary recusal is reserved for compelling . . . ethical reasons because a judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified." State v. Hernandez, 1993-NMSC-007, ¶ 43, 115 N.M. 6, 846 P.2d 312 (brackets, internal quotation marks, and citation omitted). Judges shall therefore only disqualify themselves when "the judge's impartiality might reasonably be questioned, including [circumstances when the] judge has a personal bias or prejudice concerning a . . . party's lawyer." Rule 21-211(A)(1) NMRA. Impartiality is reasonably questioned when "an objective, disinterested observer, fully informed of the underlying facts, would entertain significant doubt that justice would be done absent recusal." Riordan, 2009-NMSC-022, ¶ 11 (brackets, internal quotation marks, and citation omitted).

{¶14} An attorney's involvement in a complaint against a judge does not automatically necessitate recusal. Rule 21-216 NMRA provides that a judge "shall not retaliate" against anyone who has filed a complaint against a judge, but does not require disqualification when the judge can impartially preside. In such cases, "bias or prejudice towards an attorney is insufficient to disqualify a judge unless the bias rises to such a degree as to adversely affect the interests of the client." State v. Case, 1984-NMSC-012, ¶ 6, 100 N.M. 714, 676 P.2d 241. Therefore, absent evidence of bias that adversely affected the interests of Defendant-which Defendant does not present-the mere fact that Mr. Clark intended to testify in Judge Lidyard's pending disciplinary proceeding was insufficient to require recusal. See id.

{¶15} Second, the parties' consensus on the motion to recuse did not require Judge Lidyard's disqualification. Rule 21-211 lists the circumstances under which judges "shall disqualify" themselves because their "impartiality might reasonably be questioned," but this enumeration does not include joint motions to recuse. Regardless of the parties' consensus on the motion, absent a showing of bias adversely affecting the interests of the client, recusal was not required.

{¶16} We also note that the parties' joint involvement in Judge Lidyard's pending disciplinary proceeding makes allegations of bias seem particularly unreasonable. Both the State and Mr. Clark were involved in the pending action-the State as the complainant and Mr. Clark as the witness. We therefore consider Defendant's suggestion of bias in combination with the judge's coequal potential for bias against the State. In light of this coequal...