FROM THE DISTRICT COURT OF CURRY COUNTY Drew D. Tatum,
McGarry Law Office Kathleen McGarry Glorieta, NM for
H. Balderas, Attorney General Charles J. Gutierrez, Assistant
Attorney General Albuquerque, NM for Appellee
CHARLES W. DANIELS, Justice
Defendant Noe Torres appeals his convictions of multiple
offenses arising from a shooting into a home that missed the
intended victim but resulted in the killing of a young boy.
Among other questions he raises are several issues regarding
the scope of constitutional double jeopardy protections
against multiple punishments for the same offense. With
regard to those double jeopardy issues, we hold that:
(1) Conviction and punishment for both
attempted murder of an intended victim and a resulting murder
of a different but unintended victim when the two crimes
causing harm to the separate victims arise from the same act
does not violate the double jeopardy clause;
(2) The double jeopardy clause does protect
against multiple punishments for causing death or great
bodily harm to a victim by shooting at a dwelling and for
first-degree murder of the same victim when the same shooting
caused the great bodily harm and the resulting death; and
(3) The double jeopardy clause also protects
against multiple conspiracy convictions for entering into a
single criminal conspiracy with objectives to commit more
than one criminal offense.
We reject Defendant's other claims relating to alleged
In the early hours of September 15, 2005, nine shots were
fired through a bedroom window of an apartment in Clovis,
killing ten-year-old Carlos Perez. Carlos had been sleeping
in the bedroom he shared with his older brother, the intended
victim, seventeen-year-old Ruben Perez.
That night there were two distinct groups of actors involved
in the shooting: one group in a Suburban and the other in a
Camry. The two groups converged at the apartment complex
where the shooting took place. The Suburban group included
Orlando Salas, Demetrio Salas, David Griego, and Melissa
Sanchez. The Camry group included Defendant, Edward Salas,
Krystal Anson, and Ashley Garcia.
The day before the shooting, an altercation between Orlando
Salas and Ruben Perez took place at their high school. Later
that night, in the early hours of September 15, Orlando and
his older brother Demetrio picked up two friends, Melissa
Sanchez and David Griego, in the Salas's blue and white
Suburban. They pulled into an alleyway near the Gatewood
Apartments where Ruben lived. Orlando and Demetrio said they
wanted to get that "sewer rat, " referring to
Demetrio then drove to the house of a friend, Eric Gutierrez,
that was near the Gatewood Apartments and dropped off Melissa
and Orlando. Demetrio said he and David were "going to
go do a mission" and left. About five minutes later
Demetrio and David returned to Eric's house. Demetrio was
described as "on an adrenaline rush" and holding a
gun. Demetrio said, "We just went and blasted nine
rounds into that sewer rat's house, pow, pow, pow,
pow." Demetrio told Melissa not to touch him because he
had gunpowder residue on him. Eric turned on his police
scanner, and they heard that a child had been shot and that
police were looking for a blue and white Suburban. Eric heard
someone say, "Oh we got the wrong . . . guy."
On September 14, 2005, Defendant was with Krystal Anson,
Ashley Garcia, and Edward Salas, the older brother of
Demetrio and Orlando. Later, in the early hours of September
15, Defendant, Krystal, Ashley, and Edward drove to the
Gatewood Apartments in Krystal's white Camry. They parked
the Camry on the street near the apartments. Defendant and
Edward got out and ordered Krystal and Ashley to stay in the
The Salas Suburban was parked down the street from the Camry.
Two people got out of the Suburban and met Defendant and
Edward at the apartment complex. Defendant, Edward, and the
two from the Suburban shook hands and then disappeared from
the sight of the Camry occupants.
Krystal and Ashley got out of the Camry and walked to a
nearby park. The girls were talking and smoking cigarettes at
the park when they heard gunshots and ran back to the Camry.
Defendant and Edward were also running to the Camry. When
Defendant got to the car he was described as excited and
smelling like "burned matches." Defendant got into
the driver's seat of the Camry, Edward got into the front
passenger seat, the girls got into the back seat, and they
"took off." When Edward received a phone call,
Defendant turned up the radio volume. Krystal heard Edward
say to Defendant, "We didn't get him. We got the
little boy, " and then heard Defendant reply, "Are
you sure it was the little boy?"
The next day, Defendant went to the house of a girl he was
dating. They packed bags and hurriedly left for Mexico. Two
days after the murder, police obtained an arrest warrant for
Defendant. Defendant was arrested more than six years later
in Chihuahua, Mexico, and after another six months was
brought back to New Mexico for trial.
At Defendant's March 2015 trial, a crime scene expert
testified that a shooter fired nine rounds into the bedroom
window of the Perez residence and estimated that the
shooter's position was two to three feet from the window.
Additionally, a ballistics expert testified that the smell of
gunpowder is similar to the smell of burned matches.
(12} The jury found Defendant guilty of
shooting at a dwelling resulting in death or great bodily
harm to Carlos, first-degree murder of Carlos, attempted
first-degree murder of Ruben, conspiracy to commit
first-degree murder, conspiracy to shoot at a dwelling,
transportation of a firearm by a felon, and intimidation of a
witness. At sentencing, the district court found Defendant to
be a habitual offender and increased his sentence by three
years. Defendant was sentenced to a total penitentiary term
of life imprisonment plus thirty-one and one-half years.
Defendant appealed his convictions to this Court.
See N.M. Const. art VI, § 2 ("Appeals from
a judgment of the district court imposing a sentence of death
or life imprisonment shall be taken directly to the supreme
court."). He challenges his convictions on four grounds:
(1) several of the convictions violated constitutional
protections against double jeopardy, (2) the convictions were
not supported by sufficient evidence, (3) the district court
erred in not allowing him to cross-examine a witness
regarding a prior bad act, and (4) his constitutional rights
were violated when the district court did not allow him to
attend sidebar conferences with his counsel and because he
was shackled to the table during trial. Defendant also
contends that a time-barred prior felony was unlawfully used
to impose a habitual offender sentence enhancement.
Double Jeopardy Challenges
We first address Defendant's arguments that the following
combinations of convictions constitute impermissible double
jeopardy: (1) first-degree murder of Carlos and shooting at a
dwelling resulting in death or great bodily harm to Carlos,
(2) first-degree murder of Carlos and attempted first-degree
murder of Ruben, and (3) conspiracy to commit first-degree
murder and conspiracy to commit shooting at a dwelling.
The double jeopardy protections of the United States
Constitution and the New Mexico Constitution guarantee that a
state may not compel a person to be "twice put in
jeopardy" for the same criminal offense. U.S. Const.
amend. V; see N.M. Const. art. II, § 15;
Benton v. Maryland, 395 U.S. 784, 787, 793-94 (1969)
(holding that the Fourteenth Amendment secures to defendants
in state prosecutions the protections of the Double Jeopardy
Clause of the Fifth Amendment, overruling Palko v.
Connecticut, 302 U.S. 319 (1937)). Double jeopardy
may result from (1) "a second prosecution for the same
offense after acquittal, " (2) "a second
prosecution for the same offense after conviction, " and
(3) "multiple punishments for the same offense."
State v. Gallegos, 2011-NMSC-027, ¶ 30, 149
N.M. 704, 254 P.3d 655 (internal quotation marks and citation
omitted) (explaining that both the state and federal
constitutions provide these three levels of protection).
As to the third of those categories, there are two ways in
which double jeopardy protections can be violated by multiple
punishments. State v. Bernal, 2006-NMSC-050, ¶
7, 140 N.M. 644, 146 P.3d 289. One is where a defendant
suffers multiple punishments under the same statute for the
same conduct, which presents a unit-of-prosecution issue.
Id. The other is where a defendant is convicted
under different statutes but the same criminal conduct is the
basis underlying the multiple charges. Id.
¶¶ 7, 10. This latter category, termed a
double-description violation, id., is relevant to
the issues we address in this case.
A double jeopardy challenge presents a question of
constitutional law, which we review de novo.
Gallegos, 2011-NMSC-027, ¶ 51.
The Double Jeopardy Clause Prohibits Multiple
Punishments for Both Causing Death or Great Bodily Harm by
Shooting into a Dwelling and First-Degree Murder for the Same
In reviewing a double-description double jeopardy challenge,
where a defendant's conduct violates more than one
statute, we must first determine whether the defendant's
conduct was unitary, requiring an analysis of whether or not
a defendant's acts are separated by sufficient
"indicia of distinctness." State v.
DeGraff, 2006-NMSC-011, ¶¶ 26-27, 139 N.M.
211, 131 P.3d 61. If the conduct is not unitary, then there
is no double jeopardy violation. State v. Silvas,
2015-NMSC-006, ¶ 9, 343 ...