State v. Gallegos

• Decision Date: 21 April 2009
• Docket Number: No. 30,453.,30,453.
• Citation: 206 P.3d 993,2009 NMSC 017
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ernest Jose GALLEGOS, Defendant-Appellant.
• Court: New Mexico Supreme Court

206 P.3d 993

2009 NMSC 017

STATE of New Mexico, Plaintiff-Appellee, v. Ernest Jose GALLEGOS, Defendant-Appellant.

No. 30,453.

Supreme Court of New Mexico.

April 21, 2009.

Hugh W. Dangler, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

BOSSON, Justice.

{1} The decision filed on March 23, 2009, in this case is withdrawn and the following substituted therefor.

{2} Jim Hogan was brutally killed by an armed burglar in the garage of his home on a Tuesday night in August, 2004. His wife, Carole Hogan, sat bound and blindfolded inside the home after succumbing to the intruder and waited helplessly while her husband was beaten to death in their garage. Nine months later, Defendant was indicted for various crimes in connection with the attack on the Hogans and later convicted on all counts.

{3} Defendant raises several claims of error on direct appeal and requests various remedies. For the reasons stated, we conclude that Defendant's claims are without merit and affirm the district court on all counts.

BACKGROUND

{4} Jim and Carole Hogan spent the summer of 2004 remodeling their home located in a gated community in northeast Albuquerque. Defendant worked as a contractor in the Hogan's home and installed new bathroom mirrors and shower doors. During the construction, Jim could not find his wristwatch and confronted Defendant and his partner about it, asking if they had been in his bedroom drawers. Jim later found the watch and called Defendant's employer to apologize for the misunderstanding. However, Defendant and his partner refused to return to the house after the accusation.

{5} Work on the house was completed in mid-August 2004, about six weeks after Defendant last worked in the home. On August 24, 2004, after returning home from dinner, Jim and Carole were enjoying a quiet evening when Carole was suddenly confronted by a masked man in a hallway inside the home. The intruder held a gun in one hand and a table leg in the other.

{6} Jim and Carole submitted to the intruder and the man bound their wrists and ankles with zip ties, blindfolded them with duct tape, and taped their mouths shut. The man stated that he was there to kill Jim and demanded access to the safe in the garage where the Hogans kept guns, papers, and jewelry. Carole did not know the combination so Jim gave it to him. When the man could not open the safe on his own, he picked Jim up and hauled him into the garage so that Jim could open the safe. Carole heard the safe open, and then listened as the man beat her husband to death.

{7} The man returned to Carole and asked where her jewelry was. After collecting the jewelry from a drawer upstairs, he took Carole to a closet in the bathroom, closed the door, and threatened to kill her if she tried to escape. Once Carole believed that the intruder had left the home, she broke her wrist restraints and called 911. Police arrived quickly on the scene and saw a man climbing over the wall around the Hogan's neighborhood. The police saw the man jog over to a truck parked nearby and stopped him as he tried to drive away. When police confronted him, he was sweating profusely and was bleeding from a fresh cut on his cheek. The man produced a driver's license with the name "Jose Gallegos." Four police officers who observed Defendant at the scene later testified at trial and identified Defendant as the man they saw in the pickup.

{8} After initially cooperating, the man ran from the truck when the police tried to handcuff him and climbed back over the wall into the gated community, escaping arrest. Two duffel bags were found on top of the wall around the neighborhood in the location where the man was first seen by officers, which contained personal items belonging to the Hogans and items used in the attack and robbery. Defendant was apprehended nine months later in Mexico and turned over to U.S. custody. Following an eight-day trial, Defendant was sentenced to life imprisonment plus sixty-three and one half years for first-degree murder, kidnapping, aggravated burglary, armed robbery, aggravated battery, and tampering with evidence.

DISCUSSION

Grand Jury Evidence and Indictment

A. Hearsay Evidence

{9} Defendant contends that the indictment issued against him was based wholly upon hearsay evidence presented by the lead detective in the case to the grand jury, and should therefore be dismissed. NMSA 1978, Section 31-6-11(A) (2003) states that "[e]vidence before the grand jury upon which it may find an indictment is that which is lawful, competent and relevant" and that "[t]he Rules of Evidence shall not apply."

{10} While Defendant's case was pending, the Court of Appeals addressed the issue of whether hearsay evidence could provide the foundation for a lawful indictment in State v. Romero, 2006-NMCA-105, 140 N.M. 281, 142 P.3d 362. In Romero, the Court of Appeals stated that "the Legislature has not authorized judicial review of the evidence presented to a grand jury except for its sufficiency and then only upon a showing of prosecutorial bad faith." Id. ¶ 5; see also § 31-6-11(A) ("The sufficiency of the evidence upon which an indictment is returned shall not be subject to review absent a showing of bad faith on the part of the prosecuting attorney assisting the grand jury."); Jones v. Murdoch, 2009-NMSC-002, ¶ 19, 145 N.M.473, 200 P.3d 523 ("[A] request for post-indictment relief would necessarily challenge the sufficiency of the evidence upon which the grand jury's indictment is based. As such, the target-turned-defendant must establish bad faith on the part of the prosecutor as a prerequisite to obtaining a dismissal of the indictment."); Buzbee v. Donnelly, 96 N.M. 692, 706-07, 634 P.2d 1244, 1258-59 (1981) (stating under former law that appellate courts will not review challenges to the kind and degree of evidence presented to a grand jury without an allegation of prosecutorial misconduct).

{11} Like the defendant in Romero, Defendant has not argued that his indictment was the result of prosecutorial bad faith. Accordingly, we follow Romero and hold that "[i]n the absence of prosecutorial bad faith, there is no clear statutory authority for judicial review ... [and] in the absence of clear statutory authority for judicial review, ... the grand jury's determination of probable cause is conclusive." Romero, 2006-NMCA-105, ¶ 8, 140 N.M. 281, 142 P.3d 362.

B. Instruction on first-degree kidnapping

{12} Defendant also contends that the prosecutor did not properly instruct the grand jury on the necessary elements of first-degree kidnapping and argues that the resulting charge should be dismissed. It is undisputed that a prosecutor has a duty to advise the grand jury of the essential elements of the charges presented. See State v. Augustin M., 2003-NMCA-065, ¶ 52, 133 N.M. 636, 68 P.3d 182. At issue in this appeal is what elements are "essential" and must be presented to the grand jury when the State seeks an indictment for first-degree kidnapping.

{13} Kidnapping is defined by NMSA 1978, Section 30-4-1(A) and (B) (2003).¹ The elements of Section 30-4-1(A) are set forth in UJI 14-403 NMRA and establish the offense of second-degree kidnapping. See UJI 14-403 committee commentary ("This instruction is for the crime of second degree felony kidnapping where the victim is freed without great bodily harm having been inflicted."). In a criminal trial, if the petit jury finds a defendant guilty of kidnapping based on the elements in Subsection (A) as contained in UJI 14-403, the jurors are then directed to use a special verdict form which asks them to consider the elements contained in Subsection (B): (1) whether the Defendant voluntarily freed the victim in a safe place, and (2) whether the defendant released the victim without physical injury. See UJI 14-6018 NMRA. If the State meets its burden with regard to both Subsections (A) and (B), then the accused may be convicted of first-degree kidnapping. If the State meets its burden with regard to Subsection (A) but fails to establish the elements contained in Subsection (B), then the accused may only be convicted of second-degree kidnapping.

{14} In this case, the prosecutor's instructions to the grand jury conformed with UJI 14-403 and contained the elements found in Subsection (A). However, Defendant argues that the prosecutor, in addition to presenting the essential elements of kidnapping found in UJI 14-403, was also required to present the special verdict form which contains the elements in Subsection (B) in order to indict Defendant for first-degree kidnapping. UJI 14-6018. Thus, Defendant suggests that the instructions found in the special verdict form are essential elements that must be presented to the grand jury.

{15} The State raises two points in support of its position that the questions contained in the special verdict form are not "essential elements" of first-degree kidnapping. First, the State contends that the inquiries set forth in the special verdict form are merely mitigating, rather than essential, factors that reduce a charge of first-degree kidnapping to second-degree kidnapping. We are inclined to disagree with this assessment.

{16} The elements in Subsection (A), found in UJI 14-403, if established, only support a charge of second-degree kidnapping. If the State wishes to convict an accused of first-degree kidnapping, it must also establish the elements in Subsection (B), contained in the special verdict form. It follows that a prosecutor seeking to indict an accused for first-degree kidnapping should also be required to present both the primary elements found in UJI 14-403 as well as the additional elements found in the special verdict form to the grand jury.

{17} The State's second argument is that the special verdict form is used only if...