State v. Garcia, 30,782.

CourtSupreme Court of New Mexico
Citation2011 -NMSC- 003,149 N.M. 185,246 P.3d 1057
Docket NumberNo. 30,782.,30,782.
PartiesSTATE of New Mexico, Plaintiff–Appellee,v.Jose Pedro GARCIA, Defendant–Appellant.
Decision Date12 January 2011

149 N.M. 185
246 P.3d 1057
2011 -NMSC- 003

STATE of New Mexico, Plaintiff–Appellee,
Jose Pedro GARCIA, Defendant–Appellant.

No. 30,782.

Supreme Court of New Mexico.

Jan. 12, 2011.

[246 P.3d 1060]

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

CHÁVEZ, Justice.

{1} This case involves the conviction of Defendant Jose Pedro Garcia for multiple charges arising from the Memorial Day 2005 murder of Jeff Armstrong. Defendant attended a party that day at the apartment of Armstrong's neighbor, Sarita Duran. According to eyewitnesses, Defendant went to Armstrong's apartment to steal marijuana for use at the party, a struggle ensued, and Garcia shot and killed Armstrong.


{2} The jury convicted Defendant of one count of first degree felony murder, contrary to NMSA 1978, Section 30–2–1(A) (1994); one count of armed robbery, contrary to NMSA 1978, Section 30–16–2 (1973); one count of possession of a firearm or destructive device by a felon, contrary to NMSA 1978, Section 30–7–16 (2001); and one count of tampering with evidence, contrary to NMSA 1978, Section 30–22–5 (2003). The district court merged the armed robbery count into the first degree felony murder count.

[246 P.3d 1061]

{3} In his appeal, Defendant presents six issues. He contends that (1) insufficient evidence was presented to support the tampering with evidence and felony murder convictions; (2) the district court improperly rejected Defendant's motion to proceed pro se; (3) the district court erred by refusing to sever Defendant's felon in possession of a firearm charge; (4) Defendant's statement to Rio Rancho police was improperly admitted; (5) defense counsel rendered ineffective assistance; and (6) the district court improperly failed to vacate Defendant's armed robbery conviction, the predicate offense for felony murder. We affirm Defendant's convictions for felony murder, felon in possession of a firearm, and tampering with evidence, and hold that (1) sufficient evidence was adduced at trial to support the felony murder and tampering with evidence convictions; (2) the district court properly denied Defendant's belated pro se motion; (3) the district court's failure to sever the felon in possession of a firearm count did not prejudice Defendant; (4) Defendant's statement to Rio Rancho police was admissible; and (5) defense counsel provided Defendant with adequate representation at trial. We vacate the armed robbery conviction, holding that the district court erred by only merging that conviction with the felony murder conviction without also vacating the armed robbery conviction, as required under New Mexico law. Because the district court imposed a life sentence on Defendant, we review Defendant's appeal directly from the district court, 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.”).

II. DISCUSSIONA. Sufficient Evidence Was Presented at Trial to Support the Jury's Felony Murder and Tampering with Evidence Verdicts.

{4} Defendant contends that the felony murder and tampering with evidence convictions fail for lack of evidence. Regarding the felony murder count, he argues that the relevant witness testimony at trial was not credible and cannot support the conviction. As for the tampering count, Defendant challenges the conviction on the basis that his repeated attempts to have others conceal evidence (the murder weapon) failed, and therefore only a charge of “attempted” tampering with evidence is viable.

{5} Because an appellate tribunal does not enjoy the same exposure to the evidence and witnesses as the jury at trial, our review for sufficiency of the evidence is deferential to the jury's findings. See State ex rel. Moreno v. Floyd, 85 N.M. 699, 703, 516 P.2d 670, 674 (1973). We review “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Duran, 2006–NMSC–035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). Evidence is viewed “in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” Id. (internal quotation marks and citation omitted). In particular, New Mexico appellate courts will not invade the jury's province as fact-finder by “second-guess[ing] the jury's decision concerning the credibility of witnesses, reweigh[ing] the evidence, or substitut[ing] its judgment for that of the jury.” State v. Lucero, 118 N.M. 696, 699, 884 P.2d 1175, 1178 (Ct.App.1994). So long as “ ‘a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction,’ ” we will not upset a jury's conclusions. Duran, 2006–NMSC–035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (quoting State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992)).

i. The non-conflicting testimony of multiple witnesses provided the jury with a reasonable basis to find Defendant guilty of felony murder.

{6} Defendant urges this Court to reject the eyewitness testimony pertinent to the felony murder charge as “inherently unbelievable.”

[246 P.3d 1062]

Defendant contends that each witness harbored reasons to provide false or misleading testimony, and therefore the testimony fails to “meet a minimal standard of truthfulness.” Defendant argues that New Mexico law permits this Court to override a jury's witness credibility determinations when multiple witnesses “fail to meet any test of truth.” See State v. Armijo, 35 N.M. 533, 543, 2 P.2d 1075, 1080 (1931) (holding that the inherently improbable, uncorroborated testimony of an accomplice was insufficient to support a conspiracy conviction). We disagree and hold that the jury was presented with substantial evidence of the “essential facts required for [the felony murder] conviction.” Duran, 2006–NMSC–035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted).

{7} To prove felony murder, the State must establish that a predicate, inherently dangerous felony was committed; the defendant caused the death while committing the predicate felony; and the defendant either intended to kill the victim or knew his actions “created a strong probability of death or great bodily harm.” UJI 14–202 NMRA. At Defendant's trial, the jury was instructed on the felony murder count as follows:

1. The defendant, Jose P. Garcia, committed the crime of Armed Robbery;

2. Jose P. Garcia caused the death of Jeff Armstrong during the commission of or the attempt to commit armed robbery;

3. Jose P. Garcia intended to kill or knew that his acts created a strong probability of death or great bodily harm;

4. This happened in Sandoval County, New Mexico on or about the 30th day of May, 2005.

{8} At trial, a great deal of direct and circumstantial evidence was presented to support the felony murder charge. Despite Defendant's claims to the contrary, numerous witnesses testified that Defendant was present at the party. Multiple witnesses also testified that Defendant visited Armstrong's apartment on at least two occasions while the party was underway. The party's host, Sarita Duran, testified that she and Defendant made an initial visit to Armstrong's where the two successfully obtained a small amount of marijuana. When that supply of marijuana was exhausted, Henry Yerena and Louis Ramirez who were at the party, testified that Defendant gestured to a screwdriver tucked in his waistband, stated that he was going to “jack the fool,” and returned to Armstrong's apartment.

{9} Edgardo Collins also went to Armstrong's apartment to obtain marijuana. Duran testified that the two men went to Armstrong's apartment together, while Collins contended that he followed Defendant there after Defendant left the party. Upon entering the apartment, Collins testified that he saw Defendant punching Armstrong and holding the screwdriver against Armstrong's neck. Collins watched as Armstrong attempted to reach for a gun concealed under the cushions of the couch where he was seated, but Defendant retrieved the gun first. Collins testified that Defendant put the gun to Armstrong's head and pulled the trigger. When the weapon failed to fire, Defendant pulled the trigger a second time and shot and killed Armstrong.

{10} After the shot was fired, Duran, Yerena, and Collins testified that Defendant and Collins ran back into Duran's apartment. Duran and Yerena testified that Defendant entered the apartment with the gun in his hand. According to testimony from Duran and Collins, Defendant twice asked Duran to hide the gun, but she refused. Louis Ramirez testified that later, while at the home of Gabriel Moreno, Defendant was showing off the gun and stated that he had taken the gun from Armstrong and “blasted him.” Defendant then tried unsuccessfully to sell the gun to Ramirez and separately to Moreno.

{11} Sufficient evidence was presented to permit a reasonable jury to find all the elements of a felony murder conviction beyond a reasonable doubt. Multiple witnesses provided testimony regarding events before, during, and after the Armstrong murder that supported the jury's verdicts. This testimony was only controverted by Defendant's statements to police taken soon after Armstrong's murder. Collins provided direct evidence of the murder and armed robbery. While the defense attempted to establish

[246 P.3d 1063]

Collins' motive to lie, the testimony of other witnesses supported and was consistent with his account of events. Most compelling in this respect was the testimony proffered...

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