FROM THE DISTRICT COURT OF SANTA FE COUNTY Mary L. Marlowe,
H. Balderas, Attorney General Maris Veidemanis, Assistant
Attorney General Santa Fe, NM for Appellee
Helen Bennett, P.C. L. Helen Bennett Albuquerque, NM for
J. GALLEGOS, Judge
Defendant Anthony Blas Yepez was convicted by a jury for
second-degree murder, contrary to NMSA 1978, Section
30-2-1(B) (1994); tampering with evidence, contrary to NMSA
1978, Section 30-22-5 (2003); and unlawful taking of a motor
vehicle, contrary to NMSA 1978, Section 30-16D-1(A) (2009).
On appeal, Defendant maintains that the district court
improperly excluded expert opinion testimony related to his
ability to form deliberate intent and as a result, his
conviction for second-degree murder should be reversed and
remanded for a new trial. We conclude that the district court
erred in excluding the expert testimony, but that such error
was harmless. We therefore affirm Defendant's
second-degree murder conviction.
Jeannie "Anna" Sandoval was raised by George Ortiz
(Victim), her adoptive mother's boyfriend. In 2012,
Sandoval and her boyfriend, Defendant, were living with
Victim. According to Sandoval's testimony at trial,
Victim was often angry and would fight with her. The tension
between Sandoval and Victim would escalate when they were
drinking alcohol, and although the anger was mostly verbal,
Victim had previously pushed her, pulled her hair, and
slapped her a few times.
On October 29, 2012, Victim, Sandoval, and Defendant were
alone in Victim's apartment. Defendant was reading to
Sandoval, and all three were drinking alcohol. Sandoval
starting arguing with Victim and the argument escalated until
Victim pushed Sandoval and hit her in the face. Defendant
became upset and stopped reading. Between one and ten minutes
later, Defendant went to Victim and they began to struggle.
Sandoval testified that Victim and Defendant
"tussled" and fell into the hallway, and that
Victim's recliner "ended up going with them."
Defendant restrained Victim with a hand and arm across his
neck and chest area. Sandoval ran to her room. She testified
that Victim "hit pretty hard when he landed[, ]"
and that she did not see Defendant hit Victim.
Defendant called to Sandoval, and when she came out of her
room, there was blood on the floor. Sandoval believed Victim
was dead. He was motionless, his eyes were open, and he was
not breathing. Defendant tried to calm Sandoval down and told
her they "had to get rid of the evidence and the
body." Defendant went to the kitchen, returned with a
bottle of cooking oil, and handed it to Sandoval. She took
the bottle and dumped the oil around Victim's body.
Sandoval saw Defendant light a piece of paper with a lighter
but did not see him set fire to Victim's body. Sandoval
took Victim's car keys and left with Defendant.
Rachel Piatt, Sandoval's cousin, testified that Sandoval
and Defendant came to her home. According to Rachel, Sandoval
and Defendant were intoxicated and did not "seem
themselves." Rachel testified that Sandoval told her,
"My dad's dead." Rachel asked if Sandoval was
sure, and Sandoval responded, "Yes, he's dead."
Rachel asked how she knew and she testified that Sandoval
said, "Because [we] burned him." The next day,
after going to Victim's apartment and looking inside,
Rachel called 911. Sandoval and Defendant were taken into
custody later that day.
An autopsy concluded that the cause of Victim's death was
"homicidal violence" and "thermal
injuries," and the manner of death was
"homicide." Consequently, Defendant was
charged with first-degree murder, conspiracy,
tampering, and unlawful taking of a motor vehicle.
As the case proceeded toward trial, Defendant filed a motion
in limine that requested either judicial notice of the
admissibility of proposed expert testimony with respect to
the results of a neuropsychological evaluation by Dr. James
Walker or a hearing on the admissibility of the expert
testimony. Specifically, Defendant's motion explained
that his proposed experts would testify that he had "the
low[-]activity [monoamine oxidase A (MAOA)] gene" and
that such condition is "statistically associated with
the occurrence of maladaptive, or violent, behavior in
individuals who have experienced maltreatment in
childhood." This expert testimony, Defendant asserted,
would "serve as almost the entire basis of [his] defense
in his capital trial on charges of first-degree murder, among
others." Soon thereafter, Defendant filed a
"[n]otice of [i]ncapacity to [f]orm [s]pecific
[i]ntent" indicating that he intended to present expert
testimony about whether he was capable of forming the
specific intent for the crime.
In turn, the State filed a motion in limine to exclude
Defendant's proposed expert testimony pursuant to Rule
11-702 NMRA, Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), and State v.
Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d 192. The
State argued that the evidence was not reliable, not
relevant, and so complicated it would confuse and mislead the
jury. While the State did not contest the experts'
qualifications, it maintained that current literature does
not establish a "direct link" between a
low-activity MAOA variant and increased violent behavior. The
State additionally argued that the studies had not been
reliably reproduced, the "maltreatment" factor was
not sufficiently identifiable, and Defendant's reports of
childhood maltreatment were suspect.
The January 29, 2015 Daubert/Alberico
The district court held a Daubert/Alberico hearing
on January 29, 2015. At the hearing, Dr. Adrian Raine
testified that approximately 50 percent of variations in
human antisocial and aggressive behavior are due to genetic
influences and 50 percent to environment. A wide array of
biological risk factors are associated with increased violent
behaviors, including poor frontal brain functioning, birth
complications, poor nutrition, low resting heart rate, and
low IQ. Dr. Raine testified that the scientific research
demonstrates that individuals with a genotype that confers
low levels of MAOA, combined with a history of child abuse,
are more likely to be antisocial and aggressive in adulthood.
This research includes several studies that were attached to
Defendant's motion in limine, including a study titled
Avshalom Caspi, et al., Role of Genotype in the Cycle of
Violence in Maltreated Children, Science, Aug. 2, 2002,
297 at 851. The Caspi study refers to connections
between the low-activity MAOA gene and aggressive and
According to Dr. Raine, 30 percent of humans have a
low-functioning MAOA gene. Dr. Raine testified that this
relationship between low-activity MAOA and a history of child
abuse has been validated, scientists in the field concur that
this is a replicable finding, and the relationship has
Dr. Raine further explained that the low-activity MAOA
condition "can" also contribute to poor impulse
control and "doing things without thinking about them
ahead of time." He concluded that the gene-environment
interaction produces reliable conclusions and also noted that
"a number of people think it's especially with
respect to impulsive behavior."
Dr. Walker, a forensic neuropsychologist, also testified at
the hearing. Dr. Walker performed a forensic
neuropsychological evaluation of Defendant in order to
identify any relevant neuropsychological information. As part
of the evaluation, Dr. Walker reviewed police reports,
educational records, witness statements, autopsy reports, and
crime scene reports. He also interviewed Defendant,
administered neuropsychological tests, and made behavioral
observations. According to Dr. Walker, Defendant described
having a "pretty horrific childhood." Defendant
demonstrated a low-average IQ, no signs of brain injury, and
adequate problem-solving skills.
In the course of his evaluation, Dr. Walker requested that
Dr. David Lightfoot perform genotyping on Defendant to
determine whether he had a low- or high-activity MAOA gene.
Dr. Walker testified that the results of Dr. Lightfoot's
testing demonstrated that Defendant exhibited "extremely
low function of the gene," which would make him
"particularly more likely than the average person to do
violent things." When the district court asked what Dr.
Walker's opinion would be at trial, he stated, "the
fact that [Defendant] has a history ...