State v. Stampley, 24,184.

Docket NºNo. 24,184.
Citation127 N.M. 426, 982 P.2d 477, 1999 NMSC 27
Case DateMay 19, 1999
CourtSupreme Court of New Mexico

Phyllis H. Subin, Chief Public Defender, Susan Gibbs, Assistant Appellate Defender, Santa Fe, for Appellant.

Hon. Patricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for Appellee.


BACA, Justice.

{1} Pursuant to Rule 12-102(A)(1) NMRA1999, Appellant Ramone Stampley ("Stampley") seeks review of his conviction for first degree murder, attempted first degree murder, drug trafficking, and aggravated assault. On appeal, we examine the following issues: 1) whether the trial court should have suppressed both in-court and out-of-court identifications as impermissibly suggestive; 2) whether the trial court erred in allowing the State to present hearsay evidence; 3) whether substantial evidence exists to support Stampley's drug trafficking conviction and 4) whether Stampley may have been convicted of a nonexistent crime—attempted depraved mind murder. We affirm in regard to the first three issues but reverse Stampley's conviction for attempted first degree murder and remand for a new trial on the charge of attempted first degree murder by deliberate killing, with the lesser included offense of attempted second degree murder by intentional killing and voluntary manslaughter.


{2} On the evening of September 22, 1995, after drinking alcohol and smoking marijuana and crack cocaine, nine young people drove a Chevy Blazer from Los Lunas to Albuquerque. Marie Martinez, age thirteen, was driving. When the group reached the area of Broadway and Dan in Southeast Albuquerque, Gary Call and Alberto LeChuga exited the vehicle and purchased some crack cocaine while Marie drove around the block. After the group finished smoking the crack cocaine, they drove back to the same corner to purchase more.

{3} Gary exited the vehicle, talked to a woman and she handed him three rocks that appeared to be crack cocaine. In exchange, Gary handed the woman five one-dollar bills trying to pass them off as five ten-dollar bills. Gary then came running back to the vehicle with an African-American man chasing him. The African-American man began shooting and before he reached the vehicle, he shot out the right middle, window on the passenger's side. He fired several more shots while standing at the window until Marie was finally able to drive away. When the shooting ended, two passengers in the vehicle, Alberto LeChuga and George Ibuado, were dead, and Gary was injured.

{4} Shortly after the shooting, Carmelita Brisco, another passenger in the vehicle who was sitting next to one of the victims, described the assailant to the police and worked with a computer artist to develop a sketch. Carmelita also viewed video tape of the same location as the shooting taped several days prior to the incident by an area resident. From the tape, she identified Miranda Lowry as the drug dealer who had sold Gary the crack cocaine. Another woman, Albeni Walker, also appeared on that tape.

{5} On September 27, 1995, detectives showed Carmelita and Marie a photographic array. The array did not contain the Defendant Stampley's picture. Marie tentatively identified number four as the assailant, and Carmelita did not identify anyone.

{6} On October 19, 1995, detectives showed Carmelita, Marie, and Gary another photographic array in which Stampley's photograph appeared in the second position. Detectives showed Carmelita and Marie the array at the police station and showed Gary the array while he was still in the hospital.

{7} When Carmelita viewed the pictures, she tentatively identified number two, Stampley, as resembling the shooter. She then signed the identification form indicating that she was unsure, but then appeared noticeably upset. Detectives asked her why she was upset. She testified that she then told detectives that she was upset because she had lied when she said she was unsure and was actually positive that number two was the shooter. Carmelita also testified that she did not feel pressured to pick anybody out of the array.

{8} When Marie first looked at the second photographic array she did not immediately recognize anyone. Detectives asked her if she was sure and if she wanted to take her time to look again. Marie then indicated that number two, Stampley, resembled the shooter but that she was not positive.

{9} A detective showed Gary the photographic array twice on the same day. The first time he saw the array, Gary immediately pointed to Stampley's photograph. However, the detective did not have Gary fill out a photographic identification form at that time, but returned to the hospital a couple of hours later and asked Gary if he remembered her visit and choosing a photograph. He said that he did and filled out a form indicating that photo number two, Stampley, resembled the shooter, but that he was not positive.

{10} On February 23, 1996, Stampley was charged with first degree murder, attempted first degree murder, and two counts of aggravated assault. Stampley turned himself in to authorities in California, waived extradition, and returned to New Mexico to face charges stemming from the shooting incident.

{11} On August 21, 1996, Stampley moved to suppress any testimony regarding the photographic array identifications by Gary, Carmelita, and Marie. Stampley also moved to suppress any in-court identification of him, arguing that any such identification would be tainted. The court denied Stampley's motion and set the matter for trial on September 3, 1996. At trial, Gary was the only witness to provide an in-court identification of Stampley as the assailant.

{12} On September 17, 1996, a jury found Stampley guilty of one count of first degree depraved mind murder, one count of first degree intentional and deliberate murder, one count of attempted first degree murder, one count of drug trafficking, and two counts of aggravated assault with a deadly weapon. The court sentenced Stampley to a term of life imprisonment for each murder conviction, nine years for attempted murder, plus one year for a firearm enhancement, nine years for trafficking, and eighteen months enhanced by one year for each assault with a deadly weapon conviction, for an overall sentence totaling eighty-four years in prison. Pursuant to Rule 12-102(A)(1), Stampley appealed his conviction to this Court.


{13} We first address Stampley's argument that the trial court should have suppressed both the out-of-court and in-court identifications. Stampley argues that the pretrial identification procedures were impermissibly suggestive and gave rise to a substantial likelihood of misidentification. Likewise, he argues that the in-court identification was tainted because it was dependent on those suggestive pretrial identification procedures. After careful review, we agree with the district court's finding that the photographic identifications were not impermissibly suggestive.


{14} In determining whether an identification is impermissible, "[w]e must analyze whether the photo array was `so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification' and, if so, `under the totality of the circumstances,' whether the identification was nonetheless reliable." State v. McGruder, 1997-NMSC-023, ¶ 34, 123 N.M. 302, 940 P.2d 150 (quoting State v. Clark, 104 N.M. 434, 439, 722 P.2d 685, 690 (Ct.App. 1986)).

{15} Stampley claims that differences among the photographs in the array and circumstances surrounding the presentation of the array render it suggestive. He bases his argument on the following factors: 1) race—Stampley is African-American and none of the witnesses were African-American; 2) posture—Stampley was the only person in the array with his head tilted back in the photograph; 3) clothing—Stampley was the only person in the array with only a T-shirt showing in the photograph; and 4) body build—Stampley and the person in photograph number four seemed heavier or stockier in build than the others. We do not find anything in the record to indicate that these differences in the photographs or the presentation of the array render it impermissibly suggestive.

{16} In Clark, a male Caucasian defendant claimed that a photographic array was impermissibly suggestive because he was the oldest of the nine subjects depicted and he was the only person smiling. Clark, 104 N.M. at 439, 722 P.2d at 690. He also pointed out that two photographs were taken horizontally, one photograph was out of focus, and each subject depicted had distinguishing characteristics such as looking up or having a dimple, a mole, or a menacing look. See id. The defendant claimed that these differences rendered the photographic array impermissibly suggestive. The Court of Appeals disagreed and held that defendant's argument lacked merit because all the photographs were of male Caucasians around the same age of the defendant and like the defendant, lacked any facial hair. Id.

{17} All of the subjects in the photographic array in which Stampley's photograph appeared were of the same race, age, and stature. Each photograph in the array depicted a young African-American male with short hair and very little facial hair. Nothing exists in the record to suggest that the differences in posture, clothing, and body build were impermissibly suggestive. See id.104 N.M. at 439,722 P.2d at 690; see also State v. Vaughn, 199 Conn. 557, 508 A.2d 430, 433 (1986) ("Any array composed of different individuals must necessarily contain certain differences."), quoted in State v. Austin, 244 Conn. 226, 710 A.2d 732, 745 (1998)


{18} Finally, we find no basis for and do not accept Stampley's argument that because he is of a different race than the witnesses who identified him that the identifications were impermissibly suggestive. Stampley has not...

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