State v. Gallegos

CourtSupreme Court of New Mexico
Citation2011 -NMSC- 027,254 P.3d 655,149 N.M. 704
Docket NumberNo. 31,204.,31,204.
PartiesSTATE of New Mexico, Plaintiff–Appellee,v.Lawrence GALLEGOS, Defendant–Appellant.
Decision Date15 June 2011

149 N.M. 704
254 P.3d 655
2011 -NMSC- 027

STATE of New Mexico, Plaintiff–Appellee,
Lawrence GALLEGOS, Defendant–Appellant.

No. 31,204.

Supreme Court of New Mexico.

June 15, 2011.

[254 P.3d 656]

Law Office of Craig C. Kling, Craig Charles Kling, San Diego, CA, for Appellant.Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Appellee.

BOSSON, Justice.

{1} In this first-degree murder case, we affirm the convictions for murder, aggravated arson, and conspiracy to commit murder. We find, however, that Defendant's convictions for two other conspiracies violate constitutional principles against double jeopardy. In so doing, we apply for the first time our unit of prosecution analysis from double jeopardy jurisprudence to multiple conspiracy

[254 P.3d 657]

convictions. In the course of that analysis, we clarify existing case law and set a new course for the future application of double jeopardy principles to multiple conspiracy convictions.


{2} A jury convicted Defendant of one count of first-degree murder in violation of NMSA 1978, Section 30–2–1(A) (1994); one count of kidnapping in violation of NMSA 1978, Section 30–4–1 (2003); one count of aggravated arson in violation of NMSA 1978, Section 30–17–6 (1963); and three counts of conspiracy in violation of NMSA 1978, Section 30–28–2 (1979). The trial court vacated Defendant's kidnapping conviction because it was subsumed within the first-degree murder conviction. Defendant was sentenced to life imprisonment for first-degree murder, he was given a fifteen-year concurrent sentence for conspiracy to commit first-degree murder, a nine-year consecutive sentence for aggravated arson, a three-year consecutive sentence for conspiracy to commit aggravated arson, and a nine-year consecutive sentence for conspiracy to commit kidnapping.

{3} Defendant raises numerous issues on appeal. Defendant contends (1) there is insufficient evidence of deliberate first-degree murder, (2) there is insufficient evidence to support a conspiracy to commit murder, (3) his convictions on multiple counts of conspiracy violate prohibitions against double jeopardy, (4) the trial court improperly denied Defendant's request for a continuance, (5) all convictions rest on testimony that is inherently improbable as a matter of law, and (6) the trial court improperly denied Defendant's motion for new trial based on newly discovered evidence.

{4} We have jurisdiction to review Defendant's direct appeal pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12–102(A)(1) NMRA. See State v. Smallwood, 2007–NMSC–005, ¶ 6, 141 N.M. 178, 152 P.3d 821 (“[O]ur appellate jurisdiction extends to appeals from district court judgments imposing a sentence of life imprisonment or death.”). We first conclude that substantial evidence supports these verdicts. We dispose of issues 4–6 with only brief discussion. The third issue, multiple counts of conspiracy and double jeopardy, occupies most of our attention in this Opinion. We reverse all but one conspiracy conviction and remand to the district court for further, appropriate action.

{5} The record at trial supports the following factual summary. On September 6, 2003, at approximately 11 p.m., Juan Alcantar (“Victim”) was socializing at Richard “Red” Anaya's home in Taos when someone at the residence placed a phone call to the cell phone of Ivan Romero, also known as “Diablo.” A little after midnight, September 7, 2003, Victim and Steve Tollardo arrived at a local Taos bar, where security denied them entry. Before leaving the premises, Victim got into a fight with Ivan Romero after Tollardo “called out” Romero, who was inside that bar. Before security broke up the fight, Ivan Romero struck Victim. Victim's girlfriend testified at trial that Victim, at the time, owed Ivan Romero money for drugs.

{6} After leaving the bar, Victim and Tollardo returned to Anaya's home. At approximately 1:15 a.m., someone placed another phone call from Anaya's home to Ivan Romero's cell phone. At approximately 1:45 a.m., Victim went to Allsup's, during which time someone placed an additional phone call from Anaya's home to Ivan Romero's cell phone. Around the same time, Defendant, along with Luis “Tablas” Trujillo and Raquel “Quela” Gonzales, Defendant's girlfriend or wife at the time, stopped by Anaya's home after the bars were closed. After Defendant, Trujillo, and Gonzales arrived at Anaya's home, one or two phone calls were placed between Ivan Romero's cell phone and Anaya's home.

{7} Soon after these phone calls, “out of nowhere,” Defendant and Trujillo attacked Victim. After the assault began, Defendant instructed Gonzales, Anaya, and another individual to wait in the back bedroom. Thirty to forty-five minutes later, Defendant came to the back room and instructed Gonzales to clean up Victim's blood from the floor. The only people in the living room and kitchen area at that time were Defendant and Victim. Defendant remained at Anaya's home in charge of Victim, who was still alive.

[254 P.3d 658]

{8} At approximately 3:00 a.m. on September 7, Tollardo and Trujillo arrived at Elias Romero's shack. Tollardo and Trujillo told Elias Romero that Victim was tied up at Anaya's home and was threatening to kill Ivan Romero, Elias Romero's son. Elias Romero loaded a syringe with heroin and instructed Michelle Martinez, his girlfriend at the time, “[t]o go take care of it.” Ultimately, Martinez testified for the State, and much of this evidentiary recitation comes from her testimony. As a long time drug user, Martinez knew that the amount of heroin she was given was a lethal dose and that Elias Romero was asking her to kill Victim. When Tollardo and Trujillo returned to Anaya's home with Martinez, Victim was on the floor with his hands tied behind his back, and Defendant was standing over him with a knife.

{9} When Victim saw Michelle Martinez come into the house, he began to ask for her help. Martinez, who was wearing gloves, immediately pulled out the heroin-filled syringe. When Victim saw the syringe, he began crying in fear for his life. Martinez attempted to grab Victim's arm, but he managed to kick her away. As Defendant continued to stand over him with a knife, Victim eventually stopped resisting, and Martinez was able to inject the full dose of heroin. Following injection, Victim continued crying and asking for help. Tollardo responded by telling Victim that “he shouldn't have fucked with Diablo.” Defendant told Victim to ask for forgiveness.

{10} Once the heroin had taken effect, Defendant, Tollardo, and Trujillo moved Victim onto a tablecloth, at which point Victim began to moan and toss about. Michelle Martinez was of the opinion that sudden movements can potentially jolt an individual out of a heroin overdose, and therefore she instructed Defendant and the others to prevent Victim from moving. Several phone calls were again placed from Anaya's home to Ivan Romero's cell phone.

{11} Defendant, Martinez, and Tollardo eventually carried Victim, who at this point was unconscious, to Victim's car, where he was placed in the fully-reclined passenger seat. Defendant sat on top of Victim, and Martinez drove Victim's car to the parking lot of a remote, local church. Once there, Victim again started making noises. In response, Defendant and Martinez tried to kill Victim with other means. Specifically, Defendant tried to snap Victim's neck at least three times, and Martinez tried to suffocate Victim with a plastic shopping bag. When these methods proved ineffective, Defendant removed the shoelace he had been using as a belt and attempted to strangle Victim. This also proved ineffective. Just as Defendant and Martinez were preparing to throw Victim into nearby brush, Tollardo and Trujillo arrived in a separate car. Defendant and Martinez got into Trujillo's car and the group drove off, leaving Victim alone and unconscious, or barely conscious, in the passenger seat of his car.

{12} After stopping at Allsup's, Defendant, Martinez, Tollardo, and Trujillo returned to Elias Romero's shack. As they were driving, Defendant mentioned that fingerprints had been left at the scene and suggested returning to the church to set Victim on fire. When the group arrived at the shack, Elias Romero asked if they had done it, to which they responded in the affirmative. After someone again mentioned burning Victim, Elias Romero instructed Martinez to get some lantern fuel, which she retrieved and placed on a table. Defendant took the fuel and left the shack with Tollardo and Trujillo.

{13} After some time, the three returned to the shack bragging about setting Victim on fire. Tollardo said that he had started the blaze with a cherry bomb. They also mentioned driving to the house of Ivan Romero, who paid Defendant, Tollardo, and Trujillo $50 each. Shortly thereafter, all three men left the shack in Trujillo's car. Several hours later, a series of phone calls was placed from Trujillo's residence to Ivan Romero's cell phone and then from Ivan Romero's cell phone to the same house.

{14} At trial, Victim's cause of death was attributed to both the drug overdose and the church parking lot fire. Victim's lungs contained residue of smoke and soot, indicating that Victim was still alive when he was set ablaze.

[254 P.3d 659]

DISCUSSIONSufficient Evidence of Deliberation to Support First–Degree Murder

{15} Defendant claims the record is insufficient to support a first-degree murder conviction. In applying our standard of review, we first “ ‘view the evidence in the light most favorable to the state, resolving all conflicts ... and indulging all permissible inferences ... in favor of the verdict.’ ” State v. Graham, 2005–NMSC–004, ¶ 6, 137 N.M. 197, 109 P.3d 285 (quoting State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988)). We then “ ‘determine[ ] whether the evidence, [when] viewed in this manner, could justify a finding by an...

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