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State v. Carrillo

Supreme Court of New Mexico

June 30, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
CARLOS CARRILLO, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Brett R. Loveless, District Judge

          Robert E. Tangora, L.L.C. Robert E. Tangora 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} This is a capital appeal from the Second Judicial District Court following Defendant Carlos Carrillo's convictions of the murders of Christopher Kinney (Kinney) and Lyndsey Frost (Frost), tampering with evidence, and breaking and entering. Defendant appeals his convictions, arguing that: (1) the district court erred in allowing lay witnesses to testify to cell phone-related evidence with respect to the murder convictions, which, in Defendant's view, required a qualified expert; (2) there was insufficient evidence to support Defendant's convictions of murder, tampering with evidence, and breaking and entering; (3) the State committed prosecutorial misconduct when it repeatedly attempted to admit statements that the district court had ruled inadmissible prior to trial; and (4) cumulative error renders the guilty verdict unreliable. While we agree with Defendant with respect to the first issue, in part, we find that it was harmless error. We affirm Defendant's convictions.

         I. BACKGROUND

         {2} At around 8:00 a.m. on December 4, 2011, Albuquerque Police Department (APD) officers were dispatched to Tiguex Park in the Old Town area of Albuquerque. There, an APD officer spoke with a witness who had called 911 after noticing a blue Chevy Silverado pickup truck parked on the street with a man slumped over the driver's seat.

         {3} After consulting with the witness, an APD officer approached the truck, which had the driver's side window rolled down, and saw a man, later identified as Kinney, in the driver's seat with what appeared to be a gunshot wound behind his left ear. The APD officer also noticed a woman in the passenger seat who was later identified as Kinney's girlfriend, Frost. Both were unconscious and unresponsive.

         {4} As part of their investigation, the APD officers canvassed the neighborhood and asked nearby residents whether they had heard or seen anything. Some neighbors reported hearing cars driving down the street and a loud noise sometime between midnight and 4:00 a.m. Physical evidence collected from the crime scene included a red cell phone belonging to Kinney, seven shell casings, and two projectiles. Four additional projectiles were recovered during the autopsy of Frost.

         {5} Based on the injuries to the victims and the trajectory of the bullets, the APD officers concluded that the shooter was standing at the driver's side of the truck and shot through the open window or possibly with the gun held inside the truck, since some of the ejected shell casings were found inside the vehicle. The APD officers also concluded that the victims did not have an opportunity to defend themselves as there was no evidence of a struggle, and Kinney's injury was from a shot fired at very close range. Frost had injuries that went through her hands and the top of her head, indicating that she was trying to protect herself by covering her head with her hands, and likely had her head down during the shooting. These conclusions regarding the victims' injuries were supported by the information provided by Dr. Ross Zumwalt from the Office of the Medical Investigator after the autopsies of the victims.

         {6} Later that morning, the APD officers responded to a call that a male suspect was attempting to break into a car parked at the Golden Pride Restaurant on Old Coors and Central. The witness who called 911 reported that it looked like the suspect was using the butt of a gun to break the window of the car. The suspect then fled on foot.

         {7} While en route to the restaurant, an APD officer made contact with a person who fit the description of the suspect. Shortly after, another APD officer arrived and assisted in arresting the suspect, who identified himself as Carlos Carrillo. Defendant told the APD officers that the car belonged to his girlfriend, Shantell Montoya (Montoya), who was at work at the restaurant, and that he broke the car window with his hands to retrieve his cell phone from inside the vehicle. The APD officers did not notice any injuries on Defendant's hands, and did not find a firearm on Defendant or along his possible routes from the restaurant parking lot to the intersection where he was arrested. Defendant did have $413 in cash, a cell phone, a bottle of cologne, and a plastic bag containing a brown substance, which Defendant admitted was heroin but which he claimed did not belong to him.

         {8} The APD officers discovered that Defendant's cell phone number was saved in Kinney's cell phone under the name "Los" (presumably short for "Carlos"). There were multiple text messages on Kinney's cell phone that were sent to "Los" in the early morning hours of December 4, 2011. These text messages included:

2:28 a.m. - "This is f[***]ed up, bro[.] no joke[. W]hy you doing me like this?"
3:31 a.m. - "Dude[, ] are you [f***]ing kidding me[? I] trusted you[. I] waited forever[. L]et me know what the [f***]ing deal is[. I] can[']t believe you[. You're] just as bad as [JJ, ] but at least we got some [s***] from him[. T]his is [f***]ing bull[s***. I] seriously can[']t believe you[.]"

         After retrieving Defendant's cell phone number from Kinney's cell phone, the APD officers obtained Defendant's cell phone records. The cell phone records showed that between 11:34 p.m. on December 3, 2011 and 4:03 a.m. on December 4, 2011, there were seventy-five cell phone calls from Kinney to Defendant and eight from Defendant to Kinney. Based on the text messages and calls, Detective Hollie Anderson believed that there was a disagreement and a possible confrontation between Kinney and Defendant.

          {9} Detective Anderson interviewed Defendant in the early morning hours of December 5, 2011. Defendant initially told Detective Anderson that he went to bed around 1:00 a.m. or 2:00 a.m. on the night of December 3 into December 4, and stayed home the entire day of December 4. When Detective Anderson asked how he could have been arrested if he stayed home all day, Defendant explained that Montoya picked him up and took him to the restaurant where she worked. Initially, Defendant said that he and his girlfriend were pulled over and that the APD officers found drugs on his side of the car, so he was arrested. In response to further questioning, however, Defendant changed his story and explained that he was walking away from the restaurant when an APD officer stopped him in response to a 911 caller reporting that he had tried to break into Montoya's car. He said that the APD officers found the heroin at that time, but he was not sure where they found it.

          {10} Detective Anderson asked Defendant whether he knew either Kinney or Frost. Defendant claimed that he did not know anyone by those names. However, when Detective Anderson showed him a picture of Kinney, he responded that he and Kinney had gotten high together and that he sometimes helped Kinney "score" drugs. Defendant alleged that Kinney had tried to call him to get drugs the night before he was arrested. Defendant said that he was not able to find drugs for Kinney that night, and that since Kinney eventually stopped calling, he assumed that Kinney had found some drugs on his own. Detective Anderson told Defendant that Kinney and Frost had been found murdered that morning. Defendant denied knowing about the murders.

         {11} On December 20, 2011, Defendant was charged by grand jury indictment with two counts of first-degree murder (willful and deliberate), two counts of first-degree felony murder, two counts of shooting at or from a motor vehicle causing great bodily harm, tampering with evidence, possession of a firearm by a felon, auto burglary, and possession of a controlled substance (heroin). During November 2013, Defendant was tried on all charges except the felon in possession of a firearm charge, which was severed.

         {12} The pretrial scheduling order mandated that the parties produce and exchange final witness lists no later than ten days prior to the first day of trial. The State provided a final witness list in accordance with the pretrial scheduling order, but it did not identify any expert witnesses. Defendant filed a motion in limine to restrict Abraham Cabrera (Cabrera) and Amy Tan (Tan) from testifying because they lacked personal knowledge, their testimony was irrelevant, and neither one was disclosed as an expert witness. See Rule 11-602 NMRA (A lay witness "may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."); Rule 11-401 NMRA (Evidence is relevant if it tends to make a fact in issue "more or less probable" and "the fact is of consequence in determining the action."); and Rule 11-702 NMRA ("A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.").

         {13} At the hearing on the motion in limine, Defendant argued that he anticipated Cabrera and Tan's testimony would interpret cell phone-related records, which he believed required a qualified expert. The district court did not rule on the motion in limine, but instead took it under advisement and told the parties it would decide the motion during trial based on the foundation laid and the exhibits offered.

         {14} Both Cabrera and Tan testified at trial. Cabrera explained that as an employee in Cricket's legal compliance division, his job was to "pull the raw data for telephone calls for Cricket [C]ommunications and format it so law enforcement can read the records." The State introduced two exhibits through Cabrera: a call detail report record for Defendant's cell phone number listing all incoming and outgoing calls made between November 18, 2011 and December 5, 2011 (call detail report record), and a cell tower report listing all Albuquerque cell towers and the longitude and latitude coordinates for each cell tower (cell tower report). After Cabrera briefly explained what each exhibit was, Defendant objected, explaining that the State had not "established that . . . Cabrera [was] anything other than the custodian of records" and that it appeared that the State was beginning to ask Cabrera "to interpret the meaning of the records." Defendant contended that such testimony was "technical" and had to be introduced "through an expert witness and not through a lay witness." The State responded that Cabrera was only going to testify that the cell tower report "shows the locations of the cell towers around town, " about which Cabrera had personal knowledge "[f]rom the records." The district court sustained the objection, instructing the State to lay a foundation, and explained that if Cabrera could testify about the contents of the records "based on his experience, " the testimony would be allowed.

         {15} The State then elicited testimony from Cabrera establishing that he had seen cell tower report before and knew how to read them. He explained that the records give the latitude and longitude for each cell tower, and that it did not take any scientific expertise to map the location of the cell tower from those coordinates because a simple Google search "will map it for you." Cabrera then described how a cell phone connects with a cell tower when a wireless customer places a cell phone call. Cabrera explained that each cell tower provides a signal to three separate sectors, each covering 120 degrees of the area around the cell tower, which might provide a general indication of where a cell phone is located when it connects to the cell tower. Cabrera testified that a cell phone will connect to the cell tower with the strongest signal and that the radius of a cell tower's range depends on the terrain and other factors, but the range is generally about one mile in an urban area like Albuquerque. Defense counsel did not object again during Cabrera's testimony, and only asked two questions on cross examination: whether Cabrera knew about the accuracy of the longitude and latitude data provided for the cell towers, and whether there was any way to determine ...


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