State v. Kersey

Decision Date14 August 1995
Docket NumberNo. 21051,21051
Citation1995 NMSC 54,120 N.M. 517,903 P.2d 828
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Jerry Alvin KERSEY, Defendant-Appellant.
CourtNew Mexico Supreme Court

BACA, Chief Justice.

1. Defendant-Appellant, Jerry Kersey, appeals from his convictions of first-degree murder under NMSA 1978, Section 30-2-1(A)(1) or (2) (Repl.Pamp.1984) ("willful, deliberate, and premeditated killing" or "in the commission or an attempt to commit a felony"); kidnapping under NMSA 1978, Section 30-4-1 (Repl.Pamp.1984) ("unlawful taking, restraining or confining of a person, by force or deception, with intent that the victim: ... be held for ransom ... or ... be held to service against the victim's will"); conspiracy to commit first-degree murder and/or kidnapping under NMSA 1978, Sections 30-28-2(A) (Repl.Pamp.1984) ("knowingly combining with another for the purpose of committing a [kidnapping and/or murder]"); and tampering with evidence under NMSA 1978, Section 30-22-5 (Repl.Pamp.1984) ("destroying, changing, hiding, placing or fabricating any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another"). The crimes for which Kersey was convicted stemmed from the kidnapping and murder of Robert Steven Farley on September 27, 1991. Kersey was sentenced to life imprisonment plus eighteen years for his offenses. On appeal, we address two issues: (1) Whether Kersey's kidnapping conviction was supported by substantial evidence establishing guilt beyond a reasonable doubt and (2) whether Kersey's convictions of felony murder and kidnapping should merge under the double jeopardy clauses of the state and federal constitutions. We review this case pursuant to SCRA 1986, 12-102(A)(2) (Repl.Pamp.1992), and affirm.


2. The following facts were adduced at trial and are viewed on appeal in the light most favorable to sustaining Kersey's convictions, with all conflicts resolved and permissible inferences indulged in favor of upholding the verdict. See State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). In 1991, Tracy Jarvis, a high school student in Roswell, New Mexico, met Michael Clark. At the time, Jarvis was engaged to Steven Farley, who was also a high school student in Roswell. Farley's family had moved to Los Alamos and Farley was living with the Coleman family until he finished high school. Shortly after Jarvis met Clark, Clark began to attend her church and to telephone her frequently in an attempt to pursue a romantic relationship with her. Jarvis was friendly to Clark, but made it clear to him that she was engaged to Farley. By June, however Clark's obsessiveness with Jarvis made her uncomfortable and she ended her friendship with him. After Jarvis asked Clark to stay away from her, Clark began to harass Jarvis and Farley. He broke a window in Jarvis's car and made crank telephone calls to the Jarvis home as well as to the Coleman home. Clark also sent a letter to Jarvis's father and to Ms. Coleman on letterhead purporting to be from the Drug Enforcement Agency ("the DEA"), alleging that the DEA was investigating Farley for drug-related activity.

3. On September 26, 1991, Clark picked up his half-brother, Kersey, in Albuquerque and they drove to Roswell in Clark's light blue station wagon. Clark dropped off Kersey at a motel and later purchased an ice pick, pliers, and a package containing two steak knives from a convenience store. Around 2:00 a.m., Clark returned to the motel to pick up Kersey and they went to eat. Later that morning, Kersey purchased a pair of handcuffs and a security guard badge. Shortly after 10:00 a.m., Kersey went to the Roswell High School administrative office, claiming he was a police detective, and asked to speak with Farley. School officials told him that Farley was in a school assembly and could not be located, and asked him to come back later in the morning. At about 10:30 a.m., Kersey returned to the school, again indicating that he was a police officer. He was not wearing a uniform and did not offer any identification. When Farley arrived at the office, Kersey stated that he wanted to question Farley regarding a fight that had occurred the previous night at the mall. The assistant principal telephoned Ms. Coleman and Kersey told her to meet them at the police station in twenty to thirty minutes because he had to pick up someone else. Kersey walked out with Farley, frisked him, handcuffed him, and put him in the back seat of Clark's station wagon.

4. When Ms. Coleman arrived at the Roswell police station, she asked to speak with Detective John Fuller, the name Kersey had given her. The department had no employee by that name and initiated an investigation into Farley's disappearance. Clark became the main suspect after Ms. Coleman related to the police that he had been making crank calls to their home and harassing Farley and Jarvis. The police obtained a description of the car and of Kersey by interviewing school employees. Jarvis, who had met Kersey on two prior occasions, identified the composite drawing as Kersey.

5. Kersey and Clark pulled into a gas station later that day in Artesia, presumably with Farley in the back seat. The gas station attendant testified that he was told not to clean the windshield and to stay away from the car. A witness testified that he passed the abandoned Cedar Lake Lounge, 30 miles east of Artesia, at about 12:40 p.m. and saw a light blue station wagon parked behind it. At 2:22 that afternoon, Ms. Kendrick, Farley's mother, received a telephone call demanding a ransom of $50,000 for her son.

6. At 4:30 that afternoon, Clark contacted the police department and agreed to turn himself in. He drove to the police station in the station wagon, which was identified as the car Kersey had been driving when he went to the high school. Police searched the vehicle and found Farley's palm print on the roof and his shoe print against the window. They also found and seized pliers and a police scanner. After being interrogated for close to ten hours, Clark agreed to show the police where Farley's body was. Clark took the police to the Cedar Lake Lounge, where they found Farley's body in a small room. Farley had been strangled with an electrical cord and stabbed eleven times with an ice pick. Both the strangulation and the stabbing occurred while Farley was still alive, and either could have caused his death.

7. At 3:00 the next morning, two Roswell police officers went to Hobbs to talk to Kersey, who had turned himself in to the local police. The police took Kersey to Roswell, where he gave a second statement. He told police that while eating breakfast the previous morning, Clark told him that Farley had raped one of Clark's friends and asked Kersey if he would help beat up Farley. He admitted that he bought handcuffs and a badge and that he posed as a policeman at the high school in order to get Farley into the car. He stated that after taking Farley from the school, he picked up Clark and Clark drove to the Cedar Lake Lounge. He further stated that he never thought Clark intended to kill Farley and thought that Clark was only going to beat up Farley and then let him go.

8. Kersey told police that once they arrived at the Cedar Lake Lounge, Farley and Clark went inside and he stayed outside. After hearing Farley scream, however, he ran inside and told Clark to stop the fight. According to Kersey, Clark stabbed Farley several times with the ice pick and then asked Kersey to hand him a piece of electrical cord. Kersey said he thought Clark was going to use it to tie up Farley and not to strangle him. Kersey watched Clark tie the cord around Farley's neck and then walked out of the building. After Clark came outside, Kersey drove them to Hobbs where Kersey phoned Farley's mother demanding the $50,000. Kersey stated that Clark suggested they make the call and that Clark supplied the phone number. He also said that they never intended to try and collect any ransom; rather, they were only trying to divert suspicion.

9. Clark entered a guilty plea in his case and Kersey proceeded to trial, where he was convicted of the above-described crimes. Kersey appeals from these convictions.


10. We first address whether Kersey's kidnapping conviction was supported by evidence that could establish each element of the crime beyond a reasonable doubt. The jury was instructed to consider kidnapping in the alternative: that Farley was held for service or that Farley was taken for ransom. Kersey contends that the State failed to prove that Farley was "held for service against his will" and, in the alternative, failed to prove that Farley was taken with the intent to hold him for ransom.

11. We test sufficiency of the evidence in a criminal case under the standard set by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Applying Jackson, we recently stated that it is "an appellate court's duty on review of a criminal conviction to determine whether any rational jury could have found each element of the crime to be established beyond a reasonable doubt." State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992). The application of this standard, however, "does not involve substituting the appellate court's judgment for that of the jury in deciding the reasonable-doubt question." Id. The court must still view the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of a verdict of conviction, but must "ensure that, indeed, a rational jury could have found beyond a...

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