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State v. Torres

Supreme Court of New Mexico

February 8, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
NOE TORRES, Defendant-Appellant.


          McGarry Law Office Kathleen McGarry Glorieta, NM for Appellant

          Hector H. Balderas, Attorney General Charles J. Gutierrez, Assistant Attorney General Albuquerque, NM for Appellee


          CHARLES W. DANIELS, Justice

         {¶1} 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.

         {¶2} We reject Defendant's other claims relating to alleged trial errors.

          I. BACKGROUND

         {¶3} 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.

         {¶4} 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.

         {¶5} 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 Ruben.

         {¶6} 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."

         {¶7} 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 car.

         {¶8} 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.

         {¶9} 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?"

         {¶10} 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.

         {¶11} 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.

         {¶13} 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.

          II. DISCUSSION

         A. Double Jeopardy Challenges

         {¶14} 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.

         {¶15} 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).

         {¶16} 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.

         {¶17} A double jeopardy challenge presents a question of constitutional law, which we review de novo. Gallegos, 2011-NMSC-027, ¶ 51.

         1. 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 Death

         {¶18} 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 ...

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