State v. Ortega

• Decision Date: 09 June 2014
• Docket Number: No. 33,864.,33,864.
• Citation: 327 P.3d 1076
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Nieves Sonny ORTEGA, Defendant–Appellant.
• Court: New Mexico Supreme Court

327 P.3d 1076

STATE of New Mexico, Plaintiff–Appellee,

v.Nieves Sonny ORTEGA, Defendant–Appellant.

No. 33,864.

Supreme Court of New Mexico.

June 9, 2014.

Jorge A. Alvarado, Chief Public Defender, Steven James Forsberg, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

Gary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

VIGIL, Chief Justice.

{1} Nieves Sonny Ortega (Defendant) appeals directly to this Court from a life sentence stemming from a conviction of first-degree murder. Defendant was convicted of one count of willful and deliberate murder, contrary to NMSA 1978, Section 30–2–1(A)(1) (1994). Defendant was also convicted of conspiracy to commit first-degree murder, attempted first-degree kidnapping, attempted armed robbery, conspiracy to commit robbery, and conspiracy to commit first-degree kidnapping. On appeal, Defendant presents the following arguments: (1) the record establishes a case of ineffective assistance of counsel, (2) the district court improperly denied an important defense witness use immunity, (3) the testimony of the State's medical expert violated Defendant's confrontation rights, (4) Defendant's multiple conspiracy convictions violate double jeopardy, (5) the jury was improperly instructed, (6) the State violated its duty to disclose, and (7) cumulative error. We affirm Defendant's convictions for first-degree murder, conspiracy to commit first-degree murder, attempted first-degree kidnapping, and attempted armed robbery. We vacate Defendant's convictions for conspiracy to commit robbery and conspiracy to commit first-degree kidnapping on double jeopardy grounds.

FACTS

{2} On the night of January 29, 2010, Adam Laureles (Laureles) drove to the residence of a friend in Hobbs, New Mexico to pick up his brother, Chris Laureles (Victim.) Victim was listening to music and drinking beer with a small group of people. At around midnight, a member of the group left and returned with Defendant and Mark Ruiz (Co-defendant).

{3} Co-defendant threatened Victim over money Victim allegedly owed to him and directed Victim to leave with him. Victim refused. Co-defendant pulled out a handgun, and Defendant placed his hand in his pocket making it appear that he also had a gun. Co-defendant told Victim to take off his jewelry, but Victim refused. Co-defendant wanted the jewelry or Victim's car as collateral for the debt allegedly owed to him. Defendant walked outside the house, and was followed by Laureles, Victim, and Co-defendant.

{4} Upon going outside, Laureles noticed a car parked on the street behind Victim's car, which he believed to be Defendant's car. Victim and Co-defendant walked over to Victim's car and Victim asked Co-defendant to get in the car with him. Victim got into the driver's seat while Co-defendant remained standing outside the car, next to the driver's side. Co-defendant reached into Victim's car, grabbed a flashlight, and hit Victim on the head with it. Victim started the car, put it in reverse, and hit the gas. Victim backed into Defendant's car but before he could take off, Defendant and Co-defendant opened fire. Once the shooting stopped, Victim jumped out of the passenger side door, took several steps, collapsed, and died on the scene. The Office of the Medical Investigator (OMI) determined that Victim died from gunshot wounds to the chest, abdomen, and left arm, and ruled the death a homicide.

DISCUSSIONI. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENSE WITNESS CO–DEFENDANT USE IMMUNITY

{5} During its case in chief, defense counsel informed the district court that he intended to call Co-defendant as a witness, but that defense counsel expected him to refuse to testify on Fifth Amendment grounds. In chambers, Co-defendant confirmed that he would assert his constitutional right against self-incrimination if called to testify, but asserted that he would testify if he was granted use immunity. Defense counsel requested that the district court grant Co-defendant use immunity to testify under Rule 5–116 NMRA, arguing that Co-defendant was important to Defendant's defense because he was an eyewitness to the events that had transpired. The State opposed use immunity for Co-defendant, citing its concurrent prosecution of Co-defendant and arguing that if Co-defendant were granted use immunity, his case would have to be conflicted out to another judicial district. After asking defense counsel about the “significant financial resources” that had been devoted to Co-defendant's case and noting that Co-defendant's case was “ripe for trial,” the district court denied Defendant's motion to grant use immunity to Co-defendant.

{6} Defendant argues that the district court erred in denying his motion to grant Co-defendant use immunity. Defendant argues that the district court failed to conduct a balancing test as required under State v. Belanger, 2009–NMSC–025, ¶ 38, 146 N.M. 357, 210 P.3d 783. Defendant also argues that the district court erred because it appeared to make its decision based on the State's concerns about conflicting out Co-defendant's case to another judicial district. According to Defendant, these concerns should not have outweighed his right to present a defense. While we agree with Defendant that the district court's apparent reasoning for denying witness use immunity was not appropriate, we affirm the district court's decision on other grounds.

{7} We review a district court's decision to grant witness use immunity for an abuse of discretion. See id. ¶ 38. “[W]e will affirm the trial court's decision if it was right for any reason so long as it is not unfair to the appellant.” See State v. Gallegos, 2007–NMSC–007, ¶ 26, 141 N.M. 185, 152 P.3d 828.

{8} Under a grant of use immunity, the State promises to refrain from using a witness's testimony, and any evidence derived from that testimony, in any future prosecution of the witness. Belanger, 2009–NMSC–025, ¶ 11, 146 N.M. 357, 210 P.3d 783; see alsoRule 11–413 NMRA (“Testimony or evidence compelled under an order of immunity, or any information derived from such testimony or evidence, may not be used against the person compelled to testify or to produce evidence in any criminal case.”). In other words, “the prosecution may still proceed with charges against the witness so long as it does not use or rely on the witness's testimony or its fruits.” Belanger, 2009–NMSC–025, ¶ 11, 146 N.M. 357, 210 P.3d 783. “The State, if it wishes to prosecute, retains the ability to use other, independently obtained evidence such as material it already had, or material it developed independently of the witness's testimony.” Id. ¶ 12.

{9} Under Rule 5–116(A) NMRA, the defense is permitted to request witness use immunity. In deciding whether to grant a defense witness use immunity over the opposition of the State, the district court must perform a balancing test. The balancing test

places the initial burden on the accused. The defendant must show that the proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree. If the defendant meets this initial burden, the district court must then balance the defendant's need for the testimony against the government's interest in opposing immunity.

Belanger, 2009–NMSC–025, ¶ 38, 146 N.M. 357, 210 P.3d 783.

{10} We hold that the district court did not abuse its discretion in denying Defendant's motion to grant Co-defendant witness use immunity because Defendant failed to meet his burden under Belanger. Under Belanger, Defendant was required to make a proffer as to what testimony Co-defendant would give. See id. (stating that the defendant must demonstrate that “the proffered testimony” is material to his or her defense). Although defense counsel pointed out discrepancies and credibility problems with different prosecution witnesses, he did not make a proffer as to what testimony Co-defendant would give. The district court asked defense counsel if he would like to “address all legs of the test,” but he declined, instead deferring to the State's objection. At this point, defense counsel should have made a proffer or could have requested immunity limited to an in camera hearing, which would have allowed the district court to hear Co-defendant's testimony and gauge its importance. See id. ¶ 39 (stating that an in camera interview “for the purpose of understanding what the witness's testimony at trial will be” does not bind the district court at trial). Defense counsel failed to do so.

{11} Defendant argues that defense counsel may have felt that a proffer was unnecessary, given that the district court appeared to make its decision on the cost and inconvenience to the State. This argument is unpersuasive. The district court gave defense counsel a clear opportunity to address the relevant prongs of Belanger and counsel demurred. Under Belanger, Defendant bears the initial burden of proof. Id. ¶ 38.

{12} Belanger also requires the district court to make a finding that the witness's “proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree.” Id. At trial, defense counsel only stated that Co-defendant's testimony could help the jury resolve alleged discrepancies in the testimony of the State's witnesses. This argument is speculative and fails to address how Defendant's defense would have been prejudiced without Co-defendant's testimony.

{13} Although we affirm the district court's ultimate decision to deny Co-defendant witness immunity, we disagree with its apparent reasoning. As noted by Defendant, the district court appeared to make its decision based on the cost and inconvenience to the State. Under Belanger, “the [s]tate must demonstrate a persuasive reason that immunity would...