State v. Yepez

• Decision Date: 28 September 2018
• Docket Number: NO. A-1-CA-35330,A-1-CA-35330
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Anthony Blas YEPEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

428 P.3d 301

STATE of New Mexico, Plaintiff-Appellee,

v.Anthony Blas YEPEZ, Defendant-Appellant.

NO. A-1-CA-35330

Court of Appeals of New Mexico.

Filing Date: July 24, 2018

Certiorari Granted, September 28, 2018, No. S-1-SC-37217 consolidated with No. S-1- SC-27316

Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee.

L. Helen Bennett, P.C., L. Helen Bennett, Albuquerque, NM, for Appellant.

GALLEGOS, Judge.

{1} Defendant Anthony Blas Yepez was convicted by a jury for second-degree murder, contrary to NMSA 1978, Section 30-2-1(B) (1994) ; tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003) ; and unlawful taking of a motor vehicle, contrary to NMSA 1978, Section 30-16D-1(A) (2009). On appeal, Defendant maintains that the district court improperly excluded expert opinion testimony related to his ability to form deliberate intent and as a result, his conviction for second-degree murder should be reversed and remanded for a new trial. We conclude that the district court erred in excluding the expert testimony, but that such error was harmless. We therefore affirm Defendant's second-degree murder conviction.

FACTUAL BACKGROUND

{2} Jeannie "Anna" Sandoval was raised by George Ortiz (Victim), her adoptive mother's boyfriend. In 2012, Sandoval and her boyfriend, Defendant, were living with Victim. According to Sandoval's testimony at trial, Victim was often angry and would fight with her. The tension between Sandoval and Victim would escalate when they were drinking alcohol, and although the anger was mostly verbal, Victim had previously pushed her, pulled her hair, and slapped her a few times.

{3} On October 29, 2012, Victim, Sandoval, and Defendant were alone in Victim's apartment. Defendant was reading to Sandoval, and all three were drinking alcohol. Sandoval starting arguing with Victim and the argument escalated until Victim pushed Sandoval and hit her in the face. Defendant became upset and stopped reading. Between one and ten minutes later, Defendant went to Victim and they began to struggle. Sandoval testified that Victim and Defendant "tussled" and fell into the hallway, and that Victim's recliner "ended up going with them." Defendant restrained Victim with a hand and arm across his neck and chest area. Sandoval ran to her room. She testified that Victim "hit pretty hard when he landed[,]" and that she did not see Defendant hit Victim.

{4} Defendant called to Sandoval, and when she came out of her room, there was blood on the floor. Sandoval believed Victim was dead. He was motionless, his eyes were open, and he was not breathing. Defendant tried to calm Sandoval down and told her they "had to get rid of the evidence and the body." Defendant went to the kitchen, returned with a bottle of cooking oil, and handed it to Sandoval. She took the bottle and dumped the oil around Victim's body. Sandoval saw Defendant light a piece of paper with a lighter but did not see him set fire to Victim's body. Sandoval took Victim's car keys and left with Defendant.

{5} Rachel Piatt, Sandoval's cousin, testified that Sandoval and Defendant came to her home. According to Rachel, Sandoval and Defendant were intoxicated and did not "seem themselves." Rachel testified that Sandoval told her, "My dad's dead." Rachel asked if Sandoval was sure, and Sandoval responded, "Yes, he's dead." Rachel asked how she knew and she testified that Sandoval said, "Because [we] burned him." The next day, after going to Victim's apartment and looking inside, Rachel called 911. Sandoval and Defendant were taken into custody later that day.

{6} An autopsy concluded that the cause of Victim's death was "homicidal violence" and "thermal injuries," and the manner of death was "homicide." Consequently, Defendant was charged¹ with first-degree murder, conspiracy, tampering, and unlawful taking of a motor vehicle.

PROCEDURAL BACKGROUND

{7} As the case proceeded toward trial, Defendant filed a motion in limine that requested either judicial notice of the admissibility of proposed expert testimony with respect to the results of a neuropsychological evaluation by Dr. James Walker or a hearing on the admissibility of the expert testimony. Specifically, Defendant's motion explained that his proposed experts would testify that he had "the low[-]activity [monoamine oxidase A (MAOA) ] gene" and that such condition is "statistically associated with the occurrence of maladaptive, or violent, behavior in individuals who have experienced maltreatment in childhood." This expert testimony, Defendant asserted, would "serve as almost the entire basis of [his] defense in his capital trial on charges of first-degree murder, among others." Soon thereafter, Defendant filed a "[n]otice of [i]ncapacity to [f]orm [s]pecific [i]ntent" indicating that he intended to present expert testimony about whether he was capable of forming the specific intent for the crime.

{8} In turn, the State filed a motion in limine to exclude Defendant's proposed expert testimony pursuant to Rule 11-702 NMRA, Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Alberico , 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192. The State argued that the evidence was not reliable, not relevant, and so complicated it would confuse and mislead the jury. While the State did not contest the experts' qualifications, it maintained that current literature does not establish a "direct[ ] link[ ]" between a low-activity MAOA variant and increased violent behavior. The State additionally argued that the studies had not been reliably reproduced, the "maltreatment" factor was not sufficiently identifiable, and Defendant's reports of childhood maltreatment were suspect.

A. The January 29, 2015 Daubert/Alberico Hearing

{9} The district court held a Daubert / Alberico hearing on January 29, 2015. At the hearing, Dr. Adrian Raine testified that approximately 50 percent of variations in human antisocial and aggressive behavior are due to genetic influences and 50 percent to environment. A wide array of biological risk factors are associated with increased violent behaviors, including poor frontal brain functioning, birth complications, poor nutrition, low resting heart rate, and low IQ. Dr. Raine testified that the scientific research demonstrates that individuals with a genotype that confers low levels of MAOA, combined with a history of child abuse, are more likely to be antisocial and aggressive in adulthood. This research includes several studies that were attached to Defendant's motion in limine, including a study titled Avshalom Caspi, et al., Role of Genotype in the Cycle of Violence in Maltreated Children , Science, Aug. 2, 2002, 297 at 851. The Caspi study refers to connections between the low-activity MAOA gene and aggressive and antisocial behaviors.

{10} According to Dr. Raine, 30 percent of humans have a low-functioning MAOA gene. Dr. Raine testified that this relationship between low-activity MAOA and a history of child abuse has been validated, scientists in the field concur that this is a replicable finding, and the relationship has statistical significance.

{11} Dr. Raine further explained that the low-activity MAOA condition "can" also contribute to poor impulse control and "doing things without thinking about them ahead of time." He concluded that the gene-environment interaction produces reliable conclusions and also noted that "a number of people think it's especially with respect to impulsive behavior."

{12} Dr. Walker, a forensic neuropsychologist, also testified at the hearing. Dr. Walker performed a forensic neuropsychological evaluation of Defendant in order to identify any relevant neuropsychological information. As part of the evaluation, Dr. Walker reviewed police reports, educational records, witness statements, autopsy reports, and crime scene reports. He also interviewed Defendant, administered neuropsychological tests, and made behavioral observations. According to Dr. Walker, Defendant described having a "pretty horrific childhood." Defendant demonstrated a low-average IQ, no signs of brain injury

, and adequate problem-solving skills.

{13} In the course of his evaluation, Dr. Walker requested that Dr. David Lightfoot perform genotyping

on Defendant to determine whether he had a low- or high-activity MAOA gene. Dr. Walker testified that the results of Dr. Lightfoot's testing demonstrated that Defendant exhibited "extremely low function of the gene," which would make him "particularly more likely than the average person to do violent things." When the district court asked what Dr. Walker's opinion would be at trial, he stated, "the fact that [Defendant] has a history of childhood abuse [and] a low MAOA activity gene [that] made him exceptionally predisposed to committing violent behavior."

{14} On cross-examination, Dr. Walker confirmed that he is not a medical doctor or a molecular biologist, he does not do genetics research or genotyping

on his own, and he does not conduct independent research on the issue. Dr. Walker also testified that even if Defendant were prone to violence because of the low-activity MAOA gene, Defendant could still have had sufficient presence of mind to know what he was doing. According to Dr. Walker, it was possible that Defendant could have intended to take Victim's life and such intent would have been "perfectly consistent" with the low-activity MAOA variant.

{15} At the conclusion of the hearing, the district court determined that Dr. Walker's opinion that Defendant "has a history of child abuse [and] a low MAOA activity gene [that] made him exceptionally predisposed to committing violent behavior" sufficiently satisfied the Daubert - Alberico factors. Nevertheless, the district court noted that Dr. Walker could not testify about Dr. Lightfoot's genetic testing and did not testify that Dr. Lightfoot's report meant that Defendant had the low MAOA variant....