State v. Ortega

Citation817 P.2d 1196,1991 NMSC 84,112 N.M. 554
Decision Date03 September 1991
Docket NumberNo. 18225,18225
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Richard Michael ORTEGA, Defendant-Appellant.
CourtSupreme Court of New Mexico
OPINION

MONTGOMERY, Justice.

In this case we rekindle the debate over one of the most controversial doctrines from the common law: the felony-murder rule. The rule in New Mexico is now statutory; and defendant Ortega, convicted below of two felony murders, attacks the statute as unconstitutional. He argues that the rule establishes a presumption of mens rea in violation of the Due Process Clause in the fourteenth amendment to the United States Constitution. Alternatively, he argues that the rule creates a strict-liability crime in violation of an asserted due-process requirement that serious, non-regulatory crimes for which substantial punishment can be imposed contain an element of culpability, typically embodied in a mens rea or criminal-intent requirement. In this opinion we review the statute and the felony-murder rule against defendant's assertions of unconstitutionality; and, in light of the generally disfavored status of the rule and constitutional strictures against presumptions which may shift the burden of proof to the defendant in a criminal trial, we determine that our rule should be construed as necessitating proof of an intent to kill (which we define more fully below). We conclude that the legislature has validly determined that a killing in the course of a felony is an especially serious form of homicide, meriting punishment equal to that imposed for other forms of first degree murder.

In addition to his two felony-murder convictions, Ortega was convicted of two counts of first degree kidnapping, one count of armed robbery, one count of attempted armed robbery, and several counts of conspiracy to commit murder, kidnapping, and robbery. He was sentenced to two consecutive terms of life imprisonment for the murders and to various other concurrent and consecutive terms for the other felonies, for a total term of imprisonment of eighty-seven years.

Defendant challenges his convictions on numerous grounds apart from the challenge to the murder convictions on constitutional grounds. Most of his issues do not warrant extended analysis, although we shall consider in somewhat greater detail his attacks on the kidnapping convictions. We affirm the convictions in their entirety.

I.

On December 30, 1987, a sheriff's deputy found the bodies of two young women near Westgate Heights in an area of Albuquerque, New Mexico, called the "West Mesa." Katherine (Kathy) Chavez, age twenty-one, and Toby Grogg, age fourteen, had died as a result of multiple stab wounds. About one month later, a grand jury indicted defendant Richard M. Ortega and his co-defendant Raymond L. Gonzales and charged them with first degree murder and several other felonies, including kidnapping (great bodily harm) and armed robbery. The State tried the two defendants separately, and Gonzales testified in Ortega's trial on behalf of the State under a grant of use and derivative use immunity.1

The evidence presented to the jury in Ortega's trial, viewed in the light most favorable to sustain the verdicts, established the following: Ortega and Gonzales, accompanied by Tony Casaus and other friends, went to drink beer in San Gabriel Park in Albuquerque on the afternoon of December 29, 1987, where they met Chavez and Grogg for the first time. The two girls "looked rich," because they had a brand new car and were wearing jewelry and Chavez was wearing a fur coat. Ortega told Casaus he wanted to "rob the girls and take their car." The group decided to try to obtain some cocaine, and Ortega and Gonzales left the park with Chavez and Grogg in Chavez's new Renault, which she drove.

The foursome, along with Casaus and others in another vehicle, went first to Susan Chavez's house in Westgate Heights, where Gonzales was staying. At the house, Casaus saw Gonzales remove a knife from a kitchen drawer and place it in his poncho shortly after talking with Ortega. Gonzales and Ortega then left the house with Kathy Chavez and Grogg in the Renault to obtain some cocaine, Gonzales seated in the right rear seat behind Grogg and Ortega in the left rear seat behind Kathy, who was still driving.

Ortega first directed Chavez to drive to a nearby house, where he purportedly made arrangements for some cocaine; then he directed her to drive to a vacant lot to wait for the expected cocaine delivery. While they were parked and waiting, Ortega (according to Gonzales' testimony) suddenly reached into his sock and drew a knife, grabbed Chavez by the hair, and pulled the knife across her throat. Then, with a backhanded motion, he stabbed Grogg. As Ortega repeatedly stabbed the two girls, Gonzales (again, according to his testimony) asked Ortega what he was doing and told him he wanted nothing to do with it. Ortega pulled Chavez into the back seat, leaving blood stains on Gonzales' clothing, and then drove the Renault out of the vacant lot. Gonzales disembarked at the first opportunity and walked back to Susan Chavez's house.

A witness driving in the area of the vacant lot on the afternoon of December 29 testified he had seen the Renault leaving the area. The car was occupied by two Hispanic males; the witness identified Ortega as a passenger in the vehicle. Another witness was a neighbor who lived near the vacant lot and had observed the Renault parked in the lot on that afternoon; she testified she had seen a struggle taking place in the back seat. A man with a dark complexion moved from the back seat to the front seat, the struggle continued, and the man returned to the back seat. Then the movement in the back seat stopped and the man returned to the front seat and drove out of the lot. As the car passed her house, she observed an Hispanic male sitting in the back seat and apparently holding something down.

When Gonzales reached Susan Chavez's house, he observed Ortega making arrangements to sell the girls' jewelry in order to obtain cocaine. Kathy Chavez's car was parked in the street, and there were numerous blood stains in the car. In the days following December 29, various witnesses observed Ortega using the Renault; several of these witnesses said that the back seat appeared to be blood-stained or was covered with a sheet or a blanket. Another witness testified that Ortega came to the witness's motel on the night of December 29 with blood on his hands and clothes, and told the witness that he and another person had stabbed two girls whom they had intended to rob.

A forensic pathologist testified that Chavez had twenty-eight stab wounds on the left side of her face and neck and ten to her left breast. Her face was bruised, indicating she had been beaten; and her left hand and wrist had sustained numerous cuts and bruises, which the pathologist described as typical of defensive injuries. Grogg had forty-two stab wounds on the right side of her face, neck, and upper chest; several on the back of her neck; and three on her right upper back. She had cuts on her forearm and right hand, which were described as typical of defensive injuries. There had been an attempt to remove the ring finger on her right hand after her death. All stab wounds were consistent with the knife found at the scene and identified as belonging to Susan Chavez.

At trial, Ortega testified in his own defense. He denied participating in the murders, stating that he had been dropped off at his father's house after he, Gonzales and the two girls had left San Gabriel Park and that he had spent the night there. He and Gonzales had arranged for Gonzales to steal the girls' car, after which Ortega was to pick it up and sell it. He testified he had in fact retrieved the car and had driven it, while making plans to sell it, until he heard about the murders. He had then abandoned the car and left for California, where he was later arrested.

At the conclusion of the guilt-determination phase of the trial,2 the jury returned a special verdict, in which it found Ortega not guilty of the willful and deliberate murder of either Kathy Chavez or Toby Grogg, but guilty of the felony murder of each. The predicate felonies defendant was found to have committed during the murder of Chavez were kidnapping and robbery; the predicate felonies in Grogg's case were kidnapping and attempted robbery. The jury also returned verdicts of kidnapping (great bodily harm), two counts; armed robbery; attempted armed robbery; conspiracy to commit murder (willful and deliberate), two counts; conspiracy to commit kidnapping (great bodily harm), two counts; conspiracy to commit armed robbery, two counts; and conspiracy to commit robbery.

As indicated previously, Ortega challenges his convictions of felony murder on constitutional grounds. He also challenges both convictions of kidnapping on the ground that there was no evidence that he held either victim for service against her will. Additionally, he attacks his convictions of kidnapping Grogg on the basis that the kidnapping merged with the killing and on the further basis that there was no evidence that he used force to restrain Grogg against her will. Finally, he raises fifteen other asserted grounds of error, including an attack on the trial court's refusal to give any of his eight requested jury instructions.

We shall review these assertions of error in turn. We take up first the constitutionality of the New Mexico felony-murder statute.

II.
A.

Few legal doctrines have been as maligned and yet have shown as great a resiliency as the felony-murder rule. Criticism of the rule constitutes a lexicon of everything that...

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