State v. Padilla
| Decision Date | 12 May 1994 |
| Docket Number | Nos. 14642,14488 and 14683,s. 14642 |
| Citation | 1994 NMCA 67,879 P.2d 1208,118 N.M. 189 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Teresa PADILLA and William Soper, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Teresa Padilla and William Soper appeal their convictions for armed robbery and conspiracy to commit armed robbery, both of which were enhanced by the finding of the use of a firearm. Soper also appeals from an additional conviction for tampering with evidence. Because the appeals raise several common issues, we have consolidated them on this Court's own motion. See SCRA 1986, 12-202(F)(2) (Supp.1993). Case no. 14,488, which involved the denial of Padilla's motion for review of a bond order, was earlier consolidated with case no. 14,642. To the extent Defendant's contentions regarding the common issues are identical, we shall so treat them in our discussion.
We will address the common and separate issues in the following sequence: sufficiency of the evidence with respect to Padilla's convictions for armed robbery and conspiracy; sufficiency of the evidence to support a determination that Defendants used a firearm in the commission of conspiracy to commit armed robbery; failure of the trial court to determine whether Soper was competent to stand trial; refusal to give an instruction limiting the jury's consideration of testimony that a syringe was found on Padilla's person; the State's alleged misconduct during closing argument as well as refusal to allow Padilla's counsel to make contemporaneous objections to that argument; refusal to allow impeachment of a police witness with questions about pending criminal charges; denial of Padilla's motion to sever; reading of witnesses' written statements; and denial of Defendants' motion for continuance or to reopen the evidence.
We reverse the enhancement of Defendants' conspiracy convictions and deny Defendants' challenges to the remaining issues.
The evidence viewed in the light most favorable to the verdicts is as follows. See State v. Sutphin, 107 N.M. 126, 130-31, 753 P.2d 1314, 1318-19 (1988) (standard of review). Soper entered a gas station while wearing a red bandanna over the lower part of his face. Two employees, Victoria Morgan and Miqui Ramirez, were present. Soper pointed a gun at Morgan and demanded money. Morgan gave Soper about $76, and Soper ran out the door. Ramirez ran after Soper and Morgan followed. Padilla was in the driver's seat of a red and white car, and she was wearing her hair in a bun. Padilla backed the vehicle out of a driveway as Soper approached, and Soper got into the car. The tires squealed, and the vehicle almost stalled before it took off down the street.
Ramirez pointed out the vehicle to Officer Ljunggren who happened to be in a nearby police car. Ljunggren pursued the car, and at first only Padilla was visible to him. After about a minute, Soper's head popped up on the passenger side. Ljunggren engaged his vehicle's emergency lights and siren, and Padilla's vehicle made a turn and continued through one more intersection before stopping. Soper was wearing a bandanna around his neck. Deputy Rohlfs found a box of .22 caliber ammunition and a wad of $78 on the floor of the passenger side of the car. After observing Soper squirm around while seated in the rear of the police vehicle, Rohlfs also found a .22 caliber pistol on the floor of his patrol car. While Padilla was transported back to the gas station she moved around a lot and tried to shake her hair loose.
Padilla testified that she had stopped at a cocktail lounge after work and that Soper had asked her for a ride to the neighborhood where the gas station was located so that he could see a boss or friend. Padilla drove with Soper to Willow Road, pulled off the street, and waited for Soper in her car. She did not see where Soper went, and, when he returned, they drove away. Padilla denied making any agreement with Soper to commit an armed robbery.
Padilla correctly points out that the only evidence that she aided and abetted the robbery or conspired with Soper to commit the robbery is evidence of her post-crime behavior. However, we are not persuaded that there is no logical connection between her conduct and the jury's determination of guilt. See State v. Lujan, 103 N.M. 667, 674, 712 P.2d 13, 20 (Ct.App.1985) (), cert. denied, 103 N.M. 740, 713 P.2d 556 (1986). Several reasonable inculpatory inferences can be deduced from the evidence outlined above. See Dull v. Tellez, 83 N.M. 126, 128, 489 P.2d 406, 408 (Ct.App.1971) (reasonable inference defined).
It is rational and logical to conclude from evidence that Padilla parked randomly, started backing the car up before Soper arrived, and that the tires squealed as she drove away, that Padilla knowingly helped Soper commit the crime of armed robbery by delivering him to the scene and by driving the "getaway" car. See, e.g., United States v. Wilkins, 659 F.2d 769, 773 (7th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981); Williams v. State, 271 Ind. 656, 395 N.E.2d. 239, 245 (1979). It is also reasonable to infer from her failure to stop the vehicle immediately when the police lights and siren were engaged that she sought to delay her capture and the seizure of evidence. Cf. State v. Kenny, 112 N.M. 642, 646, 818 P.2d 420, 424 (Ct.App.) (flight is relevant to show a consciousness of guilt), cert. denied, 112 N.M. 499, 816 P.2d 1121 (1991). One could further reasonably conclude that Padilla's efforts to shake her hair loose were an attempt to change her appearance and to make it more difficult for any witness to identify her as the person who drove away from the crime scene with Soper. In sum, the jury could have reasonably inferred that Padilla agreed with Soper to commit armed robbery with a firearm and helped him in the commission of that crime. See NMSA 1978, Secs. 30-16-2 (Repl.Pamp.1984); 30-28-2(B)(2) (Repl.Pamp.1984); 31-18-16(A) (Repl.Pamp.1990).
Section 31-18-16 provides for a one-year increase in the basic sentence provided for a non-capital felony if there is a finding that a firearm was used in the commission of that felony. The State contends that the same evidence which leads to the inferences that Defendants planned and agreed for a gun to be used in the robbery and that a gun was used in the commission of the armed robbery also constitutes proof of the use of the firearm "in the conspiracy." The question of whether a conviction for conspiracy is subject to a firearm enhancement appears to be one of first impression. Cf. State v. Jackson, 116 N.M. 130, 135-36, 860 P.2d 772, 776-77 (Ct.App.) (enhancement for completed offenses other than conspiracy), cert. denied, 115 N.M. 795, 858 P.2d 1274, State v. Johnston, 98 N.M. 92, 98, 645 P.2d 448, 454 (Ct.App.) (same), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982). In our view, the initiatory crime of conspiracy is not susceptible to a firearm enhancement under Section 31-18-16.
An agreement is the gist of the crime of conspiracy; "an overt act is not required, [and] the crime is complete when the felonious agreement is reached." State v. Leyba, 93 N.M. 366, 367, 600 P.2d 312, 313 (Ct.App.1979). Since the overt act of armed robbery, which constituted the object of Defendants' conspiracy, is not part of the crime of conspiracy, the use of a firearm in the commission of the robbery is not proof of such use in the conspiracy. See id. In other words, while evidence that Soper used a gun may support a finding that Defendants agreed to use a firearm to commit their unlawful objective, that same evidence does not tend to prove the circumstances under which the agreement was reached. Moreover, since conspiracy is an initiatory crime which involves no physical act other than communication, it is not conceivable to us how a firearm could be used in the commission of that offense. Accordingly, we reverse the enhancement of Defendants' conspiracy convictions.
The thrust of Soper's claim is that the trial court did not sufficiently investigate the question of his competence even though the trial court was apprised on several occasions of Soper's intoxication during the trial. Since neither Soper nor his attorney asked the trial court to investigate, the issue suggested is whether the trial court abused its discretion in not pursuing the matter further on its own motion. In our view, no further action was required.
"The competency issue is whether a defendant understands the nature and significance of the proceedings, has a factual understanding of the charges, and is able to assist his attorney in his defense." State v. Najar, 104 N.M. 540, 542, 724 P.2d 249, 251 (Ct.App.), cert. denied, 104 N.M. 460, 722 P.2d 1182 (1986). When an issue of competency to stand trial arises the judge is required to make an initial determination as to whether there is a reasonable doubt regarding the matter. SCRA 1986, 5-602(B)(2) (Repl.1992); State v. Noble, 90 N.M. 360, 363, 563 P.2d 1153, 1156 (1977). That initial determination is only subject to review for abuse of discretion. Noble, 90 N.M. at 363, 563 P.2d at 1156.
A question of Soper's competency may first have been precipitated by the prosecutor's report that an assistant district attorney not connected with the case had told her that Soper had the smell of alcohol about him and appeared to be under the influence...
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