State v. Lopez, 28,483.

• Decision Date: 14 October 2005
• Docket Number: No. 28,483.,28,483.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Phillip David LOPEZ, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 754

123 P.3d 754

2005 NMSC 036

STATE of New Mexico, Plaintiff-Appellee, v. Phillip David LOPEZ, Defendant-Appellant.

No. 28,483.

Supreme Court of New Mexico.

October 14, 2005.

COPYRIGHT MATERIAL OMITTED

John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Patricia A. Madrid, Attorney General, Martha Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

OPINION

MINZNER, Justice.

{1} Defendant appeals from a judgment and sentence entered following a jury trial and a bench trial. Defendant was convicted on a total of seven counts, of which six were by the jury and the other by the trial judge. The jury convicted him on six counts: robbery, contrary to NMSA 1978, § 30-16-2 (1973); burglary, contrary to NMSA 1978, § 30-16-3 (1971); felony murder, contrary to NMSA 1978, § 30-2-1(A)(2) (1994); conspiracy to commit first degree (felony) murder and conspiracy to commit robbery, contrary to NMSA 1978, § 30-28-2 (1979); and tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963, prior to 2003 amendment). The court convicted him of the seventh count: possession of a firearm by a felon, contrary to NMSA 1978, § 30-7-16 (1987, prior to 2001 amendment). The Court aggravated the sentence for conspiracy to commit first degree murder by one-third. See NMSA 1978, § 31-18-15.1 (1993). We have jurisdiction pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA 2005.

{2} Defendant has made two arguments on appeal. Defendant contends that the Sixth Amendment to the United States Constitution, which guarantees his right to a trial by jury, precludes the aggravation of his sentence for conspiracy to commit first degree murder. Defendant also argues that there was insufficient evidence to support some of his convictions. Relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), he argued that in aggravating his sentence for conspiracy pursuant to Section 31-18-15.1, the trial court exceeded its authority, because under the Sixth Amendment the maximum sentence a judge may impose is "the maximum he may impose without any additional findings." Id. at 2537. Defendant argued that the "aggravating circumstances surrounding the offense or concerning the offender" to which Section 31-18-15.1 refers are "additional findings" under Blakely and that a jury rather than a judge must determine whether the State has proved the necessary facts to support these findings beyond a reasonable doubt.

{3} After Defendant's appeal was submitted, following oral argument, the Court of Appeals held Section 31-18-15.1 unconstitutional in reliance on Blakely. See State v. Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, cert. granted, 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74. While his appeal was pending, the United States Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the United States Supreme Court concluded that the federal sentencing guidelines violated the Sixth Amendment. A majority of the Court concluded that the Sixth Amendment as construed in Blakely required that result. 125 S.Ct. at 755-56. In adopting a remedy, however, a different majority of the Court decided that only a portion of the guidelines needed to be severed and excised. Id. at 756-57. So modified, the Court construed them as advisory, requiring a sentencing court to "take them into account when sentencing." Id. at 767. We scheduled additional oral argument in order to consider the combined effect of Booker and Blakely. We now affirm.

I

{4} Defendant and Ed Sedler worked at a Salvation Army location in Albuquerque. On Saturday, September 7, 1996, they borrowed a pickup truck from co-workers and went camping. The victim, Gilbert Bruce Stark, was over 70 years old and lived alone at his rural residence in Catron County, New Mexico. Sedler knew him. On Monday, September 9, Defendant and Sedler visited Stark, as they had done a day or two earlier. On the 9th, however, they intended to rob him. According to Defendant's statement Sedler broke Stark's neck and removed five hundred dollars from his pockets, splitting the money with Defendant. Then the two took Stark to a well on his property and threw him into it. Sedler and Defendant covered the well, replaced the lid, and locked it.

{5} The well was about 20 feet deep and three or four feet in diameter. A pipe extended about two feet above and below the bottom of the well, in roughly the center. The pipe was capped with a tin can. A ladder ran from the bottom of the well to the ground surface. Stark had stacked lumber over the opening to the well, enclosed the well in a box, chained the lid shut, and locked it with a padlock.

{6} Defendant and Sedler then entered Stark's residence and took two pistols and at least three long firearms. After driving away from the residence, they stopped and Defendant threw the long firearms into the woods a few miles from the residence. Either that night or the night of the 10th they returned to Albuquerque. On September 11 Sedler sold one of the pistols at a pawnshop. Defendant traded the other pistol for crack. The men were supposed to have returned the borrowed pickup truck on Sunday the 8th. When they did not, the truck was reported as embezzled. Later that week the truck was found undamaged in a church parking lot, and the police did not pursue a charge of embezzlement.

{7} On Wednesday, September 11, Robert Nelson, a neighbor and retired law enforcement officer, stopped by Stark's residence. He became alarmed when he saw Stark's Leatherman tool, a spotting scope, and numerous beer cans on the ground. Nelson looked for Stark that day, and he eventually asked another neighbor for help, who found Stark's broken glasses on the ground. Nelson contacted the State Police but continued his search. The State Police contacted Stark's family, and on Wednesday, September 11, Nelson and Stark's son found him dead at the bottom of the well. The box over the well was chained and locked from the outside, and planks of wood covered the well.

{8} Dr. Patricia McFeely conducted an autopsy and later testified at trial. She stated that the cause of death was blunt trauma to the chest, abdomen, and extremities, with thickening of the arteries as a contributing factor. Stark's neck was not broken. He had three broken ribs, a broken hip, an eight-inch cut on his hip, lacerations and bruising to his head, and a number of other bruises and abrasions. McFeely stated that Stark was alive when these injuries were inflicted because bruising and bleeding around the injuries indicated that blood circulated after infliction.

{9} McFeely said that the head injuries were consistent with striking by a blunt object, such as a fist or spotting telescope, but were not fatal. She said that the hip injuries and broken ribs were consistent with being thrown down the well and landing on the pipe topped with a can. When Stark was found, his left hip was adjacent to the pipe and can. Although she could not be precise, McFeely stated that he had likely been dead for a couple or several days before being found. Thus, he might have been alive in the well, and he might have survived his injuries had he received prompt care. In sum, Stark's injuries were consistent with the State's theory at trial that Sedler and Defendant inflicted the head wounds, threw Stark into the well while alive, that the wounds to the hip and ribs occurred when he fell, and that he survived for some time in the well.

{10} McFeely could not rule out several other possibilities. Stark might have died before he was thrown into the well, and all of the injuries might have been inflicted before he was thrown into the well. The spotting scope could have inflicted the cut to the hip, and something other than the fall down the well could have caused the hip fracture. Stark had a history of heart disease, and narrowing of the arteries was a contributing factor in his death. He could have suffered a heart attack, because if he died within an hour of such an attack there would be no discernable evidence of damage to the heart. A heart attack could have occurred before or after he was thrown into the well, although the observable injuries had to have been inflicted before the heart attack because there was bleeding and bruising around the injuries.

{11} The criminal investigation stalled until the spring of 1999, when the case was assigned to an inter-departmental unit that investigated old, unsolved crimes. Stark had kept a list of his firearms, including the serial numbers. Using this list, Jeff Campbell of the Attorney General's Office determined that Sedler had sold one of the firearms at a pawnshop in Albuquerque on September 11, 1996. Campbell contacted the police in Albuquerque, who informed him that Sedler and Defendant appeared on a report about the embezzled pickup truck. Campbell brought Defendant to the Valencia County Sheriff's Office for questioning. Campbell made a recording of the interrogation, which was later introduced into evidence.

{12} The recording begins with Campbell questioning Defendant after advising him of his rights. Campbell's questions focused on Defendant's involvement in embezzling the pickup truck. Defendant was evasive, and he accused Campbell of tricking him. Defendant repeatedly denied any knowledge or recollection of the stolen vehicle or his employment by the Salvation Army in Albuquerque.

{13} The interview continued as Sargent Kindig of the State Police took over the questioning and Campbell observed. Kindig insisted that Defendant had worked at the Salvation Army and had borrowed the truck with Sedler. Kindig told Defendant that his fingerprints were found at the crime scene, although that was not true. Kindig repeatedly stated or implied that he thought Defendant was scared for his own life and that...