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State v. Lucero

Supreme Court of New Mexico

December 22, 2016

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JADRIAN LUCERO, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY Camille Martinez-Olguin, District Judge

          Bennett J. Baur, Chief Public Defender William A. O'Connell, Assistant Appellate Defender Santa Fe, NM for Appellant

          Hector H. Balderas, Attorney General Sri Mullis, Assistant Attorney General Santa Fe, NM for Appellee

          OPINION

          BARBARA J. VIGIL, Justice

         {1} Laticia May Lucero (Baby) died on June 9th, 2010, just 47 days after she was born to Mother and Jadrian "Jay" Lucero[1] (Defendant). Baby's autopsy revealed that she died as a result of "devastating brain injuries, " the type of injuries one might expect after being ejected from a vehicle in a high-speed collision or falling from a third-story window and landing on one's head. During the investigation into Baby's death, Defendant told law enforcement that Baby was under his care on the afternoon of June 9th, and that he had found her "not breathing" when he went to check on her in her crib. Defendant was indicted on a single count of intentional child abuse resulting in Baby's death, and a jury convicted him of intentional child abuse resulting in the death of a child less than twelve years of age under NMSA 1978, Section 30-6-1(D), (H) (2009). The district court sentenced him to life in prison.

         {2} Defendant raises two issues in this direct appeal. First, he contends that the jury instructions improperly defined the intent element for the crime of intentional child abuse by endangerment and, therefore, resulted in fundamental error. Second, Defendant contends that the district court abused its discretion when it refused to hold an evidentiary hearing on Defendant's motion for a new trial. We exercise jurisdiction under Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA. We affirm Defendant's conviction.

         I. BACKGROUND

         A. Factual History

         {3} A few days after giving birth to Baby, Mother, who was fifteen years old at the time, took the newborn home from the hospital to live with Baby's Grandmother. Defendant also moved into Grandmother's house to help Mother. In the weeks that followed, the young parents lived together and shared the responsibility of caring for Baby. Defendant would help feed and bathe Baby, though Mother was the primary caregiver.

         {4} After about two weeks, Grandmother asked Defendant to move out because Mother had "adjusted to taking care of the baby" and because Grandmother would be there if Mother needed anything. Defendant complied and moved back to his house, also in Grants, where he had been living before Baby was born. Mother believed that it was important for Baby to have a relationship with Defendant, so she and Defendant agreed that Baby would alternate where she slept every three nights, between Grandmother's and Defendant's houses. When Baby was staying overnight at Defendant's house, he would care for her alone because Mother was under a curfew and was not allowed to spend the night away from home.

         {5} During the first month of Baby's life, Mother took her to the doctor's office for several check ups, and everything appeared normal. On June 3, 2010, just six days before Baby's death, Mother took Baby to an appointment to get certified for public assistance. At the appointment, Mother undressed Baby so that the nutritionist could weigh and measure her. The nutritionist later testified at Defendant's trial that Baby's height and weight were normal that day and that she did not observe "any bruising . . . [or] any abnormalities whatsoever."

         {6} Around the same time as the June 3rd appointment, Mother and Defendant agreed to let Baby spend the night with Defendant's mother, step-father, and younger brother and sister, who were visiting from Rio Rancho and staying at a Holiday Inn. The next day Mother noticed that Baby had a swollen lip and a bruised eyelid. Mother asked Defendant what had happened, and Defendant responded that "nothing was wrong with her, she looked fine." Mother testified that Baby was fussy and did not eat as much as usual while her lip was swollen.

         {7} Baby slept at Grandmother's house from June 6th through June 8th, and she woke up there on June 9th at about 7:00 a.m. Mother noticed that morning that Baby was fussy and was eating less, sleeping more, and requiring diaper changes less frequently than usual. Believing Baby may have been constipated, Mother added corn syrup to her formula and asked Grandmother to feed her so that Mother could get ready for a court appointment. Grandmother testified that Baby did not drink very much but that "[s]he was good that morning" and that "[s]he got her to smile" and to "cuddle."

         {8} A short time later, Mother dropped off Baby at Defendant's house on her way to her court appointment, which was scheduled to begin at 8:30 a.m. When Mother left Defendant's house, Defendant was holding Baby and watching television, and Defendant's friend, George King, was asleep on the couch. Mother finished with her appointment at approximately 9:00 a.m. She returned to Defendant's house, checked on Baby, who was asleep in her crib, and sat down to watch television.

         {9} According to Mother, Baby woke up crying sometime in the early afternoon, and Mother picked her up and made a bottle. Baby ate less than normal and was looking at Mother without moving much. Mother then changed Baby's diaper and laid her back in her crib. Baby was still hungry and awake but Mother thought that everything was okay and went back to the living room to watch television. At around 3:35 or 3:40 p.m., Mother again left Defendant's house to go to a counseling appointment that was scheduled to begin at 4:00 p.m. Before leaving, Mother checked on Baby and found her sleeping. She gave Baby a kiss, heard her breathing, and thought that everything appeared to be okay. Mother arrived early for her appointment and was waiting outside when she received a call from Defendant who told her that Baby was not breathing. Once Mother confirmed that Defendant was serious, she began running back to his house. Around the same time, King called 911.

         {10} At 3:50 p.m., Lieutenant Maxine Spidle of the Grants Police Department responded to a report of a child not breathing at Defendant's address. She arrived at Defendant's house about two minutes later and got out of her car, ran past King who was standing outside, and found Defendant inside the house holding Baby limp in his arms. Lieutenant Spidle grabbed Baby and ran outside to give her to Emergency Medical Services (EMS) personnel who had just arrived. Lieutenant Spidle noticed that Baby's lips were discolored and handed her off to an EMS responder who began Cardiopulmonary Resuscitation (CPR). The Emergency Medical Technician truck then left with Baby to take her to the hospital. Mother and Defendant arrived at the hospital as medical personnel were trying to resuscitate Baby. The young parents eventually learned that Baby was going to be flown to the University of New Mexico Hospital (UNMH) because "they couldn't keep her stable." Defendant, Mother, Grandmother, and Grandmother's husband started on their way to Albuquerque to meet the helicopter at UNMH, but about 20 minutes later they were called back to the hospital in Grants and notified that Baby had died. When Mother left the hospital with Defendant she was under the impression that Baby had died from sudden infant death syndrome (SIDS).

         {11} About a week later, however, Mother learned that SIDS had not caused Baby's death. Baby's autopsy revealed that her death was the result of "devastating brain injuries" caused by blunt force trauma. The State's two medical experts testified that Baby had a "complex radiating fracture" on the left side of her head with multiple fractures that crossed suture lines and extended to other bones in her skull. Both experts explained that a typical skull fracture for an infant who has been dropped or who has fallen off of a counter is linear and consists of a single crack that does not travel across a suture line to another bone. A complex radiating fracture, by contrast, usually results from "major trauma situations that . . . have a lot of force generated, " such as being ejected from a vehicle in a high-speed collision or falling from a third-story window and landing on one's head.

         {12} The autopsy revealed extensive injuries to Baby's brain that also were consistent with major trauma, including pooled blood within her brain's protective coverings and tearing of the brain tissue itself. The State's experts testified that these injuries could not have been caused by normal, or even rough, handling of a child, such as dropping her to the floor or allowing her to hit her head on "the edge of something." The State's experts further testified that after receiving her injuries Baby "immediately" would have been "visibly not well": she would not have made eye contact; she would not have been interactive; she might have been unconscious; her breathing might have been impaired; and "her whole body would not have . . . looked normal."

         {13} In addition, Baby's autopsy revealed a number of other non-fatal injuries that were in various stages of healing. The infant had several broken bones, including a broken clavicle (collar bone) that showed no signs of healing and two fractured ribs that showed from "a few" to fourteen days of healing. She also had a torn upper frenulum, the small piece of tissue that connects the upper lip to the gum above the teeth, that showed signs of at least one day to possibly a few weeks of healing. The medical investigator testified that a baby with a torn frenulum "could have cried excessively and even refused the bottle" because of the pain caused by puckering the injured area.

         {14} Defendant did not testify at trial, but Lieutenant Spidle and Detective Kevin Dobbs of the Grants Police Department recounted their interview of Defendant that had taken place two days after Baby's death. At Mother's request, Defendant had gone to the police station, waived his Miranda rights, and agreed to speak with law enforcement about the events leading up to Baby's death. The officers interviewed Defendant for three-and-a-half to four hours.

         {15} Defendant repeatedly told Lieutenant Spidle that Baby was "fine" and "happy" when she and Mother arrived at his house on June 9th at around 8:00 a.m. He recalled that after Mother left for her court appointment that morning, he watched television with Baby for "a bit" and then put her down for a nap. Defendant said that Baby continued to sleep after Mother returned, and that he changed her diaper around noon and gave her a bottle around 2:00 p.m. He also said that throughout the day Baby showed no signs of illness.

         {16} Defendant told the officers that when Mother was getting ready to leave for her counseling appointment that afternoon, he saw her go to Baby's crib in the bedroom and bend down and kiss her. Lieutenant Spidle asked if Defendant knew whether Baby was breathing at that time, and Defendant said that he could tell that she was asleep because "she makes a little sound so he knew that she was okay when [Mother] left." Defendant then recalled that, after Mother left, "he went outside for a minute, . . . then went to check on [Baby], [and] found that she was not breathing." According to Detective Dobbs, Defendant said that "he tried to give [Baby] CPR for about five minutes and yelled to [King] to help. Then [King] called 911, [and] went across the street and got help."

         {17} The officers also recounted Defendant's explanations for Baby's injuries. According to Lieutenant Spidle, when they first asked Defendant if Baby had ever been bruised or harmed in any way, he replied that "the [B]aby had never fallen, slipped, no one has ever fallen or slipped with the baby, [and she never] rolled off the couch, nothing of that sort." According to Detective Dobbs, Defendant also said that Baby had "gone to the hotel [one] night to stay with his parents, [and that] when she got back he noticed that there was swelling and bruising around her nose and eyes area." Defendant told the officers that "he believed his brother had kicked her while they were sleeping in the [same] bed."

         {18} The officers similarly described Defendant's responses to questions about whether he knew of any injuries to Baby's skull. Defendant denied for the first half of the interview that he knew anything about such an injury, but after approximately two-and-a-half hours of questioning, he recalled that about a week before Baby died she had bumped her head on the side of the bathtub while he was bathing her. Defendant said that Baby had cried for about an hour after she hit her head, until he was able to calm her down. Later in the interview, Defendant also said that "he might have squeezed her."

         {19} During Lieutenant Spidle's testimony, the State played a video excerpt of Defendant's interview for the jury. In the video, Defendant denied having hurt Baby, but he told Lieutenant Spidle, "[I]f you charge, don't charge [Mother] and my mom. . . . You can charge me, don't charge them. . . . I didn't do it, but don't charge them. . . . [b]ecause they didn't do it." The video ended with Defendant saying, "I could have accidentally did something. It's probably my fault."

         B. Procedural History

         {20} On July 9, 2010, a Cibola County grand jury indicted Defendant on one count of "Child Abuse - Intentional (Resulting in Death)" for allegedly "caus[ing] [Baby], a child under the age of eighteen years, to be tortured, cruelly confined[, ] or cruelly punished, to wit: a fractured skull and other injuries, which resulted in [her] death . . . a first degree felony, contrary to Section 30-6-1(D)." At trial, the State alleged that Defendant committed the acts by either slamming Baby's head into something, slamming something into her head, or punching Baby's head with his fist. Defendant's theory was that Baby had already sustained her injuries and "started to crash before she ever got to [his] house" on the morning of June 9th.

         {21} At the close of the evidence, the parties and the district court agreed that the jury would be instructed using UJI 14-602 NMRA (2000), the elements instruction that was in effect at the time for intentional child abuse resulting in death.[2] The agreed-upon instruction included two of the three actus reus alternatives set forth under Section 30-6-1(D): abuse by torture, cruel confinement, or cruel punishment, and abuse by endangerment.[3] The parties and the district court also agreed, consistent with UJI 14-602, to use UJI 14-610 NMRA (1993) to define the term "intentionally." See UJI 14-602 use note 3 ("If this alternative is given, the definition of 'intentionally[, ]'[] Instruction 14-610, must also be given.").

         {22} When the district court and the parties were reviewing the instructions, the State was careful to remind the district court that UJI 14-602 and -610 had to be modified under State v. Cabezuela to omit all references to a "failure to act" because the State was pursuing a conviction based only on a theory of intentional abuse. See2011-NMSC-041, ¶¶ 36-37, 150 N.M. 654, 265 P.3d 705 (holding that a failure to act is inconsistent with a theory of intentional child ...


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