December 29, 2016
STATE OF NEW MEXICO, Plaintiff-Appellee,
JOSEPH MONTOYA, aka JOSEPH E. MONTOYA, aka JOSEPH EMETERIO MONTOYA, aka JOSE MONTOYA, Defendant-Appellant.
FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY Gerald E. Baca,
H. Balderas, Attorney General Santa Fe, NM Elizabeth Ashton,
Assistant Attorney General Albuquerque, NM for Appellee
Helen Bennett Albuquerque, NM for Appellant
JONATHAN B. SUTIN, Judge
This case turns on whether Defendant's conviction for his
robbery of the victim he earlier robbed and killed can stand
given that the victim was already dead at the time of the
second robbery. The question presented to us is one of
"personhood, " Defendant contends. He asserts that
just as one cannot kill a person already dead, one cannot rob
a person already dead. We hold that under the facts of this
case, the robbery statute was properly applied, and Defendant
was properly convicted of robbery despite the posthumous-by
several hours-nature of the second robbery.
Defendant Joseph Montoya, with the assistance of others,
robbed and then killed Angel Arroyo. Defendant then left the
scene of these crimes. Returning a few hours later,
Defendant, again with the aid of others, emptied Arroyo's
pocket of any remaining cash, poured gasoline throughout the
residence and on Arroyo's body, then set the residence on
fire. Convicted of multiple crimes and sentenced to 104.5
years of incarceration, Defendant challenges the application
of the robbery statute when the robbery commenced and
concluded on a person dead for several hours. He also raises
ineffective assistance of counsel because his attorney did
not request an instruction on theft as a lesser included
offense of robbery.
We start with whether Defendant's conviction for the
second robbery was lawful. We review this issue de novo,
since it involves statutory interpretation. State
v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466,
122 P.3d 50; see State v. Almanzar, 2014-NMSC-001,
¶ 9, 316 P.3d 183.
NMSA 1978, Section 30-16-2 (1973), reads: "Robbery
consists of the theft of anything of value from the person of
another or from the immediate control of another, by use or
threatened use of force or violence." The jury was
instructed that in order to find Defendant guilty of robbery,
the State was required to prove Defendant took cash from
Arroyo's pocket by force or violence, intending to
deprive Arroyo of the cash. See UJI 14-1620 NMRA.
"[R]obbery is distinct from larceny because it requires,
and is designed to punish, the element of force."
State v. Bernal, 2006-NMSC-050, ¶ 28, 140 N.M.
644, 146 P.3d 289.
Defendant contends that there was insufficient evidence to
convict him of robbery after he returned to the scene of the
killing because "a robbery conviction is improper when
the robbery both commences and concludes on a dead
person." He relies on language in Stephenson v.
State, 29 N.E.3d 111, 116 (Ind. 2015), that states,
"[w]hile a robbery conviction may not be proper when a
robbery both commences and concludes on a dead person, the
crime is committed when part of the robbery occurs before the
victim's death and the other part occurs after the
death." Defendant argues that just as attempting to kill
someone who is already dead is a legal impossibility,
"one cannot rob a corpse." He further argues that
Arroyo did not have immediate control over the cash in his
pocket when Arroyo was already dead, as required under
Section 30-16-2. And he argues that the Legislature did not
intend the robbery statute to apply to circumstances, such as
those here, in which the victim was no longer a
"person." Defendant asserts that "[t]he
temporal and relational gap between the first robbery and
shooting and killing of Arroyo, and the subsequent, second
theft of money from Arroyo's body before the arson is
simply too large, and was broken by [Defendant's] flight
from the scene intending to go elsewhere." The bottom
line, according to Defendant, "[p]ersonhood ceases upon
the death of the individual." He cites articles that
medically and philosophically wax on life as fundamental to
the term "person, " as a term that ceases to apply
upon death. See, e.g., John D. Arras, The
Severely Demented, Minimally Functional Patient: An Ethical
Analysis, 36 JAGS 938, 940 (1988) (arguing that patients
who lack all fundamental human capacities have ceased to be
persons in any meaningful sense); Amir Halevy & Baruch
Brody, Brain Death: Reconciling Definitions, Criteria,
and Tests, 119 Annals of Internal Med. 519, 523 (1993)
(noting that while there are many different views of
personhood, all, except those that identify personhood with
simple biologic functioning, require cortical activity).
The application of a robbery statute to theft from a dead
person has been addressed in several cases. Our Supreme Court
in State v. Barela, No. 32, 506, 2013 WL 1279111, at
*19-20, dec. (N.M. Sup. Ct. Mar. 28, 2013)
(non-precedential), upheld a robbery conviction "where
the killing and the taking of the property are part of the
same transaction of events" and adopted the following
view, quoted from James v. State, 618 S.E.2d 133,
138 (Ga.Ct.App. 2005).
Although, as an abstract principle of law, one ordinarily
cannot be guilty of robbery if the victim is a deceased
person, this principle does not apply where a robbery and
homicide are a part of the same transaction and are so
interwoven with each other as to be inseparable. If the
taking was made possible by an antecedent assault, the
offense is robbery regardless of whether the victim died
before or after the taking of the property.
Barela, 2013 WL 1279111, at *20 (alteration,
internal quotation marks, and citation omitted).
Barela also relied on People v. Navarette,
66 P.3d 1182, 1207 (Cal. 2003), for the similarly stated view
that "while it may be true that one cannot rob a person
who is already dead when one first arrives on the scene, one
can certainly rob a living person by killing that person and
then taking his or her property[.]" Barela,
2013 WL 1279111, at *20 (alteration, internal quotation
marks, and citation omitted).
At least two less-recent cases came to the same or similar
conclusion. See, e.g., Smothers v.
United States, 403 A.2d 306, 313 n.6 (D.C. 1979)
("It is settled law in this jurisdiction that a dead
person can be a robbery victim, at least where the taking and
the death occur in close proximity."); State v.
Coe, 208 P.2d 863, 866 (Wash. 1949) (holding that a
robbery conviction was appropriate when the defendant killed
the victim in a vehicle, then took the body from the vehicle,
and "conveyed it a distance from the road and took the
property from the clothing" of the victim, and stating
that it was "not a case where the only act was the
taking of property from the person of one deceased" but
rather "[t]he robbery commenced with the first overt act
on the part of [the co-defendant]").
We interpret Section 30-16-2 to apply to the circumstances
here and hold that Defendant was properly convicted under
Section 30-16-2 for the second robbery that occurred after
the killing. It is reasonable to conclude that the second
robbery and the subsequent arson were "clean-up"
activities directly connected with the original robbery and
killing, and therefore the second robbery can rationally be
linked to the murder that enabled the robbery.
"Normally, a claim of ineffective assistance of counsel
is established by a showing of error by counsel and prejudice
resulting from the error." State v. Grogan,
2007-NMSC-039, ¶ 11, 142 N.M. 107, 163 P.3d 494. An
error is found if the "attorney's conduct fell below
that of a reasonably competent attorney." State v.
Baca, 1997-NMSC-059, ¶ 24, 124 N.M. 333, 950 P.2d
776. The defendant has the burden to show both incompetence
and prejudice. See id.
Defendant contends that his counsel was ineffective for
failing to request the district court to give a lesser
included offense instruction on "theft." Defendant
does not refer to the particular statute, but presumably
intends application of NMSA 1978, Section 30-16-1 (2006)
(defining "larceny"). We cannot agree. Counsel may
have consciously determined that the better strategy was to
defeat the second robbery conviction leaving no step-down
charge. See Bernal, 2006-NMSC-050, ¶ 35
(stating that the defendant's claimed errors "may
implicate tactical decisions made by counsel . . . and are
best evaluated during habeas corpus"). Further,
Defendant has not shown prejudice. See Grogan,
2007-NMSC-039, ¶ 11; State v. Herrera,
2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (requiring,
for a prima facie case, proof of both lack of reasonable
competence and prejudice).
Even assuming that the lesser included offense had been
requested, we do not hold that there existed a reasonable
probability that, but for counsel's error, the result
would have been different. See Bernal,
2006-NMSC-050, ¶ 32 ("With regard to the prejudice
prong, generalized prejudice is insufficient. Instead, a
defendant must demonstrate that counsel's errors were so
serious, such a failure of the adversarial process, that such
errors undermine judicial confidence in the accuracy and
reliability of the outcome." (alteration, internal
quotation marks, and citations omitted)). "A defendant
must show a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." Id.
(internal quotation marks and citation omitted).
Defendant is free to pursue his ineffective assistance claim
in a habeas corpus proceeding. See Grogan,
2007-NMSC-039, ¶ 9; Herrera, 2001-NMCA-073,
We affirm Defendant's second robbery conviction.
IT IS SO ORDERED.
CONCUR: M. MONICA ZAMORA, Judge, J. MILES HANISEE, Judge