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State v. Comitz

Supreme Court of New Mexico

May 23, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
Jason Comitz, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Cristina Jaramillo, District Judge

          Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant

          Hector H. Balderas, Attorney General M. Victoria Wilson, Assistant Attorney General Santa Fe, NM for Appellee

          OPINION

          MICHAEL E. VIGIL, JUSTICE

         {¶ 1} Defendant Jason Comitz appeals from his convictions of first-degree felony murder (by shooting at a dwelling) and second-degree murder for the death of the same person, four counts of aggravated battery of two other victims, two counts of aggravated assault of the same two victims, two counts of conspiracy to commit aggravated battery of the same two victims, and one count each of conspiracy to commit aggravated assault, shooting at a dwelling, conspiracy to shoot at the same dwelling, and child abuse. We discuss (1) whether the State's evidence was sufficient to prove the crime of shooting at a dwelling and conspiracy to shoot at a dwelling, (2) whether multiple convictions violate Defendant's right under the United States Constitution to be free from double jeopardy, and (3) whether the district court erred in failing to declare a mistrial on grounds that the State allegedly elicited bad-act evidence in violation of its pretrial ruling. We affirm in part and reverse in part.

         I. BACKGROUND

         {¶ 2} On January 28, 2015, Defendant went to the home of his friend Paul Randy Rael (Randy) to pick up $30 that Randy owed him for drugs. When Defendant arrived at the Raels' home, he came into contact with Randy's stepson, Manuel Ramirez (Manuel)-who was just getting home-in front of the house. They argued about the $30 Defendant claimed Randy owed him, which escalated into a fist fight after Manuel saw Defendant reaching for what looked to him like a gun. Manuel punched Defendant multiple times and knocked him to the ground. Randy, his wife Sita Rael (Sita), and their sons Paul Rael Junior (Paul) and Andrew Rael intervened and stopped the fight. Defendant collected the belongings that he had dropped during the fight and left. As Defendant drove off, he held his fingers like a gun and made a shooting gesture at the family.

         {¶ 3} Four days later, on February 1, 2015, Defendant and two companions, each armed with a hand gun, returned to the Raels' home. Defendant parked his truck across the street from the house, and the three men jumped out of Defendant's truck and started toward the Raels' home. Randy, Sita, Manuel, Paul, and Paul's ten-year-old daughter were at the house.

         {¶ 4} Paul saw that Defendant and his companions were walking toward the front door, that Defendant had an angry look on his face, and that Defendant was "fidgeting" with something that appeared to be metal. Paul alerted Manuel that Defendant was outside. Paul and Manuel also alerted Sita that Defendant was outside and told Paul's daughter to go into Sita's bedroom.

         {¶ 5} From the sidewalk in front of the Raels' home, Defendant began calling for Manuel to come outside. Paul and Manuel came out and stood in the doorway on the porch steps in front of the house, with Randy standing next to Paul and Manuel.

         {¶ 6} While in their respective positions, the two groups argued and exchanged insults. During the argument, Manuel called Defendant a "bitch" for showing up with two men to try to hurt his family. Defendant and his companions responded by drawing their pistols and pointing them at the Raels. One of Defendant's companions moved forward onto the Raels' porch and hit Paul on the head with the handle of his pistol, causing the gun to fire and shoot Paul. This prompted Manuel to reach for his shotgun, which was located inside the front door of the house, whereupon Defendant and his companions started shooting at the Raels. Manuel fired a single shotgun round at Defendant and his companions.

         {¶ 7} After Manuel fired the shotgun, Defendant and his companions stopped shooting and "disappeared." Manuel testified that he fired the shotgun at Defendant and his companions after they started firing at him and his family. Defendant testified in his own defense and acknowledged that he and his companions shot at the Raels but insisted that it was only after Manuel shot at them first.

         {¶ 8} As a result of the gunfight, Randy was shot in the neck and died from his injuries. Paul was shot in the head and lived. Manuel was shot in the leg and lived. Sita and Paul's daughter were unharmed. The ballistic evidence presented at trial indicated that the bullet that killed Randy was not fired from Defendant's gun.

         {¶ 9} The State charged Defendant with committing twenty offenses, together with enhancements, in an eleven-count indictment as follows:

• Count 1, first-degree murder (willful and deliberate) of Randy or the lesser included offenses of second-degree murder (firearm enhancement) or voluntary manslaughter (firearm enhancement), or alternatively, felony murder,
• Count 2, conspiracy to commit first-degree murder, or alternatively, to commit felony murder,
• Count 3, attempt to commit first-degree murder of Paul (willful and deliberate) (firearm enhancement), or alternatively, either aggravated battery (great bodily harm) (firearm enhancement) or aggravated battery (deadly weapon) (firearm enhancement),
• Count 4, attempt to commit first-degree murder of Manuel (willful and deliberate) (firearm enhancement), or alternatively, either aggravated battery (great bodily harm) (firearm enhancement) or aggravated battery (deadly weapon) (firearm enhancement),
• Count 5, conspiracy to commit aggravated battery (great bodily harm), or alternatively, conspiracy to commit aggravated battery (deadly weapon),
• Count 6, aggravated assault (deadly weapon) (firearm enhancement) of Paul,
• Count 7, aggravated assault (deadly weapon) (firearm enhancement) of Manuel,
• Count 8, conspiracy to commit aggravated assault (deadly weapon),
• Count 9, child abuse (no death or great bodily harm) (firearm enhancement),
• Count 10, shooting at a dwelling or occupied building resulting in injury, and
• Count 11, conspiracy to commit shooting at a dwelling or ...

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