State v. Herrera

• Decision Date: 22 January 1985
• Docket Number: No. 15231,15231
• Citation: 1985 NMSC 5,694 P.2d 510,102 N.M. 254
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ruben Robert HERRERA, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 510

694 P.2d 510

102 N.M. 254

STATE of New Mexico, Plaintiff-Appellee, v. Ruben Robert HERRERA, Defendant-Appellant.

No. 15231.

Supreme Court of New Mexico.

Jan. 22, 1985.

Paul Bardacke, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee

Martha A. Daly, Rothstein, Bailey, Bennett & Daly, Santa Fe, for defendant-appellant.

OPINION

RIORDAN, Justice.

Defendant Ruben Robert Herrera (Herrera) was charged with the first-degree murder of Leroy Lovato (Lovato) and with aggravated assault with a firearm on Phillip Arellanes (Arellanes). Upon Herrera's motion, a change of venue from San Miguel County to Santa Fe County was granted. Herrera was subsequently tried and convicted of both crimes and was sentenced to life imprisonment for the murder, eighteen months imprisonment for the aggravated assault (to run concurrently with the life sentence), and one year imprisonment for the firearm enhancement. The trial court ordered that Herrera first serve the one year firearm enhancement and that the other two sentences would run consecutive to it. Herrera appeals. We affirm the convictions but remand for resentencing.

The issues on appeal are:

I. Whether the search warrant under which Herrera's residence was searched and certain evidence seized was based upon insufficient probable cause, and if so, whether the trial court erred in admitting such evidence at trial.

II. Whether the trial court abused its discretion in excluding evidence of prior bad acts by two State witnesses.

III. Whether Herrera was denied his common law right of allocution at sentencing.

FACTS.

On November 5, 1982, Herrera, Lovato, and Arellanes were all present at the El Nido Nightclub. During the course of the evening, Herrera and Lovato had a slight altercation regarding Lovato's cousin. The incident was brief, and Herrera left the nightclub shortly thereafter. Later that night, Lovato and Arellanes were leaving the nightclub with two women. The women were a few steps ahead of Arellanes, who was in front of Lovato. Arellanes testified that he called out to the women to wait and then noticed Herrera approaching the group. Lovato, who was standing with his hands in his pockets, made a gesture as if to shake Herrera's hand. Herrera pulled up his jacket, pulled out a gun, and shot Lovato in the throat. Lovato fell to the ground, blood spraying from the wound. Herrera then turned the gun on Arellanes, who believed he would be the next person shot. Arellanes looked down and did not look up again until the two women informed him that Herrera had gone. When the police arrived to investigate, they found one nine-millimeter spent casing on the ground, but found no weapon. Arellanes (the only eyewitness to the actual shooting) later identified Herrera from a photographic array. Various other witnesses (including the two women) identified Herrera as being at the crime scene. Herrera was later apprehended by police while driving a car from the general direction of his home.

I. Search Warrant.

Based upon the above, police officers prepared an affidavit for the search of Herrera's home. A warrant was issued, and the search disclosed one nine-millimeter clip, one nine-millimeter casing, and one live nine-millimeter round.

The law in New Mexico is that before a valid search warrant may issue, substantial evidence in the affidavit must show: (1) that the items sought to be seized are evidence of a crime; and (2) that the criminal evidence sought is located at the place to be searched. State v. Baca, 97 N.M. 379, 379-80, 640 P.2d 485, 485-86 (1982). Furthermore, the existence of probable cause to believe that a suspect has committed murder is ordinarily sufficient to justify a search of the suspect's home, the surrounding area, and his business. State v. Ferrari, 80 N.M. 714, 718, 460 P.2d 244, 248 (1969).

The affidavit in the instant case recited sufficient information to establish probable cause to believe that Herrera had committed the murder of Lovato. However, the affidavit did not contain any facts stating why police officers believed that the residence to be searched was Herrera's home, or alternatively, any information as to why police officers believed that the evidence sought would be located at the place to be searched. A thorough description of the residence to be searched was stated in the affidavit. The affidavit further stated in pertinent part:

[A]t approximately 4:00 A.M. on November 5, 1982, Defendant Robert Herrera was apprehended driving an automobile, heading east and coming from the general direction of his residence, above described; that at approximately 6:40 A.M., on November 5, 1982, Affiant drove to Defendant's residence, above described, and while the ground and some tire tracks directly in front of defendant's residence were frozen, Affiant also noticed fresh tire marks, which were not frozen, on the alley way directly in front of the Defendant's residence. (Emphasis added.)

The affidavit merely concludes that the described residence was Herrera's home. No basis for such conclusion appears on the face of the affidavit.

The State concedes that the affidavit lacked any descriptive facts showing that the described residence was indeed Herrera's home. However, the State asserts that the affidavit provided the issuing magistrate with sufficient information to infer and conclude that the residence to be searched was Herrera's home. In support of this assertion, the State cites State v. Snedeker, 99 N.M. 286, 657 P.2d 613 (1982). Snedeker involved a situation where the affidavit in support of the search warrant failed to state specific reasons for believing that the stolen property would be located in the defendant's home. This Court held that where the stolen property was not inherently incriminating and probable cause existed to believe that the defendant had committed the theft, the magistrate could assume that the property could be found at the defendant's residence. Id. at 293, 657 P.2d at 620. However, unlike the situation in the instant case, the affiant in Snedeker stated that he had personal knowledge of where the defendant resided. Thus, the magistrate in Snedeker was given at least some facts from which the inference could be made that the defendant resided at the residence to be searched. Thus, although Snedeker would allow a magistrate to assume that certain stolen property might be located at a suspect's residence, the case does not do away with the basic requirement that the residence to be searched must be established to be that of the suspect, or alternatively, that the items sought to be seized are located at that residence. Snedeker stated:

A material fact need not be proved by direct evidence. It is sufficient if there is evidence from which the fact can properly be inferred.

Id. at 290, 657 P.2d at 617 (citation omitted).

The State argues that a proper inference that Herrera resided at the described residence can be drawn from the following evidence presented in the affidavit: (1) that the residence was described in substantial detail; (2) that Herrera was apprehended while driving away from the "general direction" of the described residence; and (3) that the affiant observed unfrozen, fresh tire tracks at the described residence. However, merely because a residence is described in even minute detail does not provide a magistrate with the necessary evidence to infer that a suspect makes such residence his home nor does the fact that a suspect is within the vicinity of a certain residence provide the necessary information to the magistrate to infer that the suspect resides at that residence. Cf., State v. Baca, 97 N.M. at 380, 640 P.2d at 486 (1982) (fact that getaway car was found abandoned within a five mile radius of the described premises could not aid in establishing that items sought would be found at those premises). Such information might be enough to lead a magistrate to infer that a suspect resides in the vicinity, but it is insufficient to create the inference that a suspect resides at a certain described residence in that general area. Finally, the tire tracks do not provide any evidence upon which a magistrate could reasonably infer that Herrera lived at the residence or even that Herrera was driving the vehicle that made the tracks. There was virtually no evidence presented in the affidavit from which a magistrate could properly infer that the place to be searched was Herrera's residence. The affidavit merely stated the conclusion that the described residence was Herrera's home.

There were insufficient facts to show probable cause to search the premises described for evidence of Lovato's murder; therefore, the search was illegal under both state and federal guarantees against unreasonable searches and seizures. U.S. Const. amend. IV; N.M. Const. art. II, Sec. 10.¹ However, we conclude that the admission of the illegally seized items was harmless error because the evidence seized could only have had an insignificant effect on the verdict in light of the eyewitness accounts of the shooting and events immediately thereafter.

For trial court error to be considered harmless, there must be:

(1) substantial evidence to support the conviction without reference to the improperly admitted evidence, (2) such a disproportionate volume of permissible evidence that, in comparison, the amount of improper evidence will appear so miniscule that it could not have contributed to the conviction, and (3) no substantial conflicting evidence to discredit the State's testimony.

State v. Moore, 94 N.M. 503, 504, 612 P.2d 1314, 1315 (1980) (citations omitted).

In the instant case, there is testimony of five State witnesses regarding the shooting and the events immediately thereafter. The first of these was the eyewitness testimony of Phillip Arellanes. He directly witnessed the shooting of Lovato and was himself threatened at gunpoint by Herrera.

The next four witnesses did not...