State v. Lovett, 30,470.

CourtSupreme Court of New Mexico
Citation286 P.3d 265
Docket NumberNo. 30,470.,30,470.
PartiesSTATE of New Mexico, Plaintiff–Appellee, v. Paul LOVETT, Defendant–Appellant.
Decision Date24 August 2012

286 P.3d 265

STATE of New Mexico, Plaintiff–Appellee,
Paul LOVETT, Defendant–Appellant.

No. 30,470.

Supreme Court of New Mexico.

Aug. 24, 2012.

[286 P.3d 268]

Law Offices of Nancy L. Simmons, P.C., Nancy L. Simmons, Albuquerque, NM, for Appellant.

Gary K. King, Attorney General, Margaret E. McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.


BOSSON, Justice.

{1} Defendant Paul Wayne Lovett was charged with murdering two women in two separate, unrelated incidents as well as criminal sexual penetration with respect to one of the victims. Pursuant to Rule 5–203(A) NMRA the two murder charges were joined in one complaint, indictment or information with the intent to try the two murder charges together in one trial. Pursuant to Rule 5–203(C) NMRA Defendant moved to sever the two murder charges into two separate trials. After a hearing, the trial court denied the motion to sever, and Defendant was subsequently convicted of both counts of first-degree murder in one joint trial. We conclude that the trial court committed error when it failed to sever the murder charges into separate trials. Because the error constituted reversible, non-harmless error in relation to one of the murder convictions, we vacate that conviction while upholding the other first-degree murder conviction as well as the conviction for criminal sexual penetration.


{2} On January 16, 2002, a young mother named Elizabeth Garcia worked a late shift at a gas station in Hobbs, New Mexico. Under circumstances that are still unknown, Garcia left her workplace sometime before 2:30 in the morning. That afternoon, a local resident found Garcia dead in a vacant field near a dirt road.

{3} Approximately sixteen months later, on May 14, 2003, workers found another young woman, Patty Simon, dead in a caliche pit on the outskirts of Hobbs. On the same day, a delivery man found Defendant, lying on the side of a road outside of Hobbs, shirtless.

{4} The delivery man's coworker took Defendant into town. Defendant explained to the coworker that he had been talking to a girl named Patty at the bowling alley the night before. According to Defendant, a few guys tried to rough her up and Defendant jumped in. The next thing he remembered was waking up on the side of the road. Defendant said he had a knot on his head, he

[286 P.3d 269]

was scratched, and he seemed shaken, so the coworker asked Defendant if he wanted to seek medical attention, but Defendant refused. After the coworker dropped Defendant off at his apartment, he reported Defendant's story to the police.

{5} The police had already started investigating Simon's death. After hearing about Defendant's story, police officers went to his home, arriving before he had changed clothes or bathed. Defendant was still shirtless and had scratches on his arms and shoulders. He agreed to an interview with the police, and police obtained a search warrant to take certain samples from Defendant, including blood, hair, and a penile swab.

{6} Initially, the police only investigated Defendant in relation to the Simon murder; they did not suspect that he might also be Garcia's murderer. In fact, when Simon was killed, the police had no suspects in the Garcia murder. Among others, they had investigated Stephen DeMoss, who was Defendant's brother-in-law at the time Garcia was killed. Police began to investigate Defendant for the Garcia murder only after he began talking about it during an interview concerning the Simon murder.

{7} Eventually, the State charged Defendant with two counts of first-degree murder, one count of kidnaping in relation to the Garcia murder, and one count of criminal sexual penetration in relation to the Simon murder. The indictments were joined under Supreme Court Rule 5–203 NMRA.

{8} Defendant moved to sever, and the trial court held a hearing on the matter. After the hearing, the trial court denied Defendant's motion to sever in a written order, but without explaining the basis for its ruling. The case proceeded to a joint trial, and a death-eligible jury convicted Defendant of two counts of first-degree murder and one count of first-degree criminal sexual penetration.1

{9} Because Defendant received life sentences for each murder, he appeals directly to this Court. See N.M. Const. art. VI, § 2 (“Appeals from a judgment of the [trial] court imposing a sentence of death or life imprisonment shall be taken directly to the supreme court.”); accordRule 12–102(A)(1) NMRA. On appeal, Defendant argues that his motion for severance was improperly rejected and that the trial court's failure to sever actually prejudiced his case. He also argues that the fact that a death-eligible jury reviewed a non-death eligible murder prejudiced his case. Holding that the trial court's failure to sever constituted reversible error, we do not reach Defendant's second argument.


{10} We have previously stated that we review a trial court's denial of a severance motion for an abuse of discretion. State v. Dominguez, 2007–NMSC–060, ¶ 10, 142 N.M. 811, 171 P.3d 750. Under certain circumstances like this case, however, the decision to sever may become mandatory, not discretionary, as we explain in this opinion. Although the trial court in this case held a hearing on the matter, and apparently reviewed briefing and case law on the issue, it never explained its decision to deny Defendant's motion, which makes our task all the more challenging.

{11} “[O]ne test for abuse of discretion [in a failure to sever case] is whether prejudicial testimony, inadmissible in a separate trial, is admitted in a joint trial.” Id. (internal citations and quotation marks omitted). In this case, the State was allowed to introduce in one trial all the evidence of each separate murder plus the criminal sexual penetration. That evidence included background testimony by the victims' family members and friends, numerous photographs of the respective victims' crime scenes and mutilated bodies, autopsy reports, bloody clothing samples, testimony by forensic scientists, and testimony by other experts. For better understanding, we first review this

[286 P.3d 270]

evidence in greater detail.2 Then, we consider if the evidence would have been cross-admissible if the State had tried Defendant separately for the two murders. In other words, in a separate trial of the Garcia murder, would the State have been able to present evidence going to the Simon murder, and vice versa? If not, the court committed error in refusing to sever, and we then determine whether the trial court's error was harmless. See generally State v. Tollardo, 2012–NMSC–008, 275 P.3d 110.

Evidence Presented by the StateThe Garcia Murder

{12} In addition to the basic information about where and when Garcia's body was found mentioned above, the State introduced testimony and photographic evidence that Garcia was brutally murdered. Testimony and photographs documented that Garcia's killer stabbed her fifty-six times and slit her throat. Her killer stabbed her chest, abdomen, back, and hip, and she had other injuries on her hands and arms. Her killer stabbed her with such force that it broke her bones.

{13} Garcia was clothed when she was stabbed and when she was found. Police found tire tracks and footprints at the scene. Blood and scrapes on the ground indicated that Garcia had been dragged from the passenger side of a car.

{14} Several experts testified about the significance of physical evidence found at the Garcia murder scene. One testified that, to a reasonable degree of scientific certainty, Defendant's semen was found in Garcia's panties. By contrast, four other suspects, including Defendant's former brother-in-law, DeMoss, were excluded as semen contributors. The tire tracks were consistent with tires on the car that Defendant drove at the time of Garcia's murder, and the shoe prints were consistent with the soles of shoes that Defendant owned at that time.

The Simon Murder

{15} In addition to testimony about where Simon was found and Defendant's predicament that morning—claiming to have been with Simon the night before, the State introduced testimony and photographic evidence documenting the fact that Simon was also brutally murdered. For example, the State introduced testimony and photographs documenting that Simon suffered severe, blunt-force trauma to her head and neck. She had a broken nose and radiating skull fractures. One of her eyes was ruptured, and there were numerous lacerations, bruises, and other injuries to her arms, hands, and the rest of her body, consistent with “defensive wounds.” There was a “large, gaping, incised wound or slash across the upper part of her throat” and obvious injuries to her legs and genitalia. Either the cut to her throat or the blunt-force injuries caused Simon's death.

{16} Unlike Garcia, police found Simon nude from her bra line down. Her shirt was pulled up over her head. Her legs were spread, and her underwear was around her ankles. Simon's injuries were consistent with, but not necessarily conclusive of, a sexual penetration. No semen was found at the scene.

{17} Simon's car was parked at the scene, with a lot of blood found in and around it, including in the trunk. A cigarette butt was found sitting in the opening to the gas tank, and police collected cigarette butts found on the ground in the area. Only one type of footprint was found near Simon's body.

{18} Much of the physical evidence tied Defendant to the Simon murder. Investigators found Defendant's shirt, which was bloody, under a pile of rocks near Simon's body. DNA on cigarette butts found all around the Simon scene matched Defendant's DNA. Simon's blood was on Defendant's shoes and underwear. The numerous

[286 P.3d 271]

shoe prints around Simon's body were consistent with the shoes Defendant wore that day. A fiber found on Simon's hand was consistent with jeans, and Defendant was wearing jeans the day Simon was killed. Defendant's underwear...

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