State v. Gamble

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 32,180
5 JOHN GAMBLE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
8 JANE SHULER GRAY, District Judge
9 Gary King, Attorney General
10 William Lazar, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Law Offices of Nancy L Simmons, P.C.
14 Nancy L. Simmons
15 Albuquerque, NM
16 for Appellant
1 DECISION
2 SERNA, Justice.
3 {1} Defendant John Gamble (Child), a sixteen-year-old, confessed to killing
4 fifteen-year-old Joseph Garcia (Victim) near Carlsbad, New Mexico. Child was
5 charged as a serious youthful offender and convicted by jury of first-degree
6 murder, first-degree kidnapping, and bribery of a witness. Prior to trial, Child
7 pleaded guilty to one count of tampering with evidence. Child was sentenced to a
8 total term of 60 years imprisonment.
9 {2} Child appeals his convictions to this Court pursuant to Rule 12-102(A)(1)
10 NMRA and Article VI, Section 2 of the New Mexico Constitution, which allow for
11 the direct appeal of a conviction resulting in a sentence of life imprisonment. He
12 raises the following issues: (1) whether the trial court erred in denying Child’s
13 motion to suppress his confession as well as (2) his motion for a change of venue;
14 (3) whether there was sufficient evidence of premeditation to support the first-
15 degree murder conviction; (4) whether the trial court’s admonishment of Child’s
16 counsel for untimely filings and the subsequent “threats of sanctions” warrant a
17 new trial; and (5) whether cumulative error warrants a new trial. For the reasons
18 stated below, we affirm Child’s convictions.
2
1 I. BACKGROUND
2 {3} Not long before Victim’s death, Child and Victim broke into a local school
3 together. Victim was caught outside of the school, and Child believed that Victim
4 had “ratted” him out when he was questioned about the incident. The two had
5 been close friends before the burglary, but Child’s feeling of betrayal and belief
6 that “[f]riends don’t rat on other friends” soured the friendship.
7 {4} Roughly two weeks after the burglary, on October 12, 2008, Victim’s body
8 was discovered off of a dirt road outside of Carlsbad. Child quickly became a
9 suspect, and a warrant was obtained to search his home. During the search,
10 officers seized several items from Child’s room implicating him in the murder and
11 learned that Child had not been home for a couple of days—a violation of his
12 conditions of probation for an unrelated incident. Child’s probation officer
13 subsequently obtained a warrant for his arrest on the probation violation. While at
14 the police station after his arrest, Child was questioned about Victim’s death and
15 ultimately confessed to Victim’s murder.
16 {5} Child provided the following account of the night of Victim’s death during
17 his confession and his subsequent trial testimony. The night of Victim’s death,
18 Child received a ride from a friend to a party. He had also arranged to borrow the
3
1 same friend’s car later that evening in order to pick up another friend. Although he
2 had originally planned to pick up someone else, Child ultimately called Victim and
3 asked him to go to the party.
4 {6} When his friend first picked him up that evening to go to the party, Child
5 placed a two-gallon gas can and a rifle wrapped in a sweatshirt into the trunk of the
6 car. Child brought the gas because he had promised his friend he would put gas in
7 the car, and did so after arriving at the party. Child brought the rifle because he
8 had been jumped earlier that year, and as a result would typically bring a weapon
9 to gatherings just in case he ended up needing one.
10 {7} After inviting Victim to the party, Child left the party and met Victim at a
11 nearby church in order to pick him up. Victim did not live far from the location of
12 the party, but agreed to meet Child at a nearby church anyway. After picking
13 Victim up and stopping at a gas station to say hello to a friend, Child, instead of
14 returning to the party, drove to a secluded area outside of town where local youth
15 would regularly go to drink and do drugs. Child and Victim sat on the hood of the
16 car to smoke marijuana, and Child confronted Victim about the burglary incident.
17 Child asked Victim why he had “ratted.” Victim denied that he had given the
18 officers Child’s name, and a fight ensued between the two.
4
1 {8} At some point after the fighting began, Child knocked Victim to the ground.
2 While on the ground, Child continued to punch Victim and knee him in the head.
3 Child then retrieved the rifle from the car and hit Victim on the head with the rifle.
4 He “panicked” after Victim stopped moving, and then retrieved the remaining
5 gasoline from the car. Child then proceeded to pour gasoline on Victim’s body and
6 set it on fire. Child had also tried to shoot Victim after hitting him with the rifle
7 and before lighting him on fire, but he could not get the gun to fire. Child then
8 returned to the party. Friends at the party noticed that upon his return Child had
9 visible scrapes and other minor injuries, and Child said he had been in a fight with
10 Victim. Further factual development will be provided as necessary for the legal
11 analysis below.
12 II. DISCUSSION
13 A. Child Knowingly, Voluntarily, and Intelligently Waived His Miranda
14 Rights
15 {9} Lieutenant Bryan Burns, the officer who arrested Child and conducted the
16 subsequent interview leading to Child’s confession, testified at the suppression
17 hearing that when he arrived at Child’s home to execute the arrest warrant, Child
18 was sitting out front with his father. Lt. Burns informed both Child and his father
19 that he needed to speak with Child about what had happened during the prior
5
1 weekend. Child’s father asked if he needed to be present for questioning, to which
2 Lt. Burns replied that Child was sixteen and it was up to him whether or not to
3 have anyone present. Child’s father said he would likely stop by the police station
4 after a while.
5 {10} At the station, Lt. Burns took Child into an interview room and reviewed a
6 form with Child used by the Carlsbad Police Department to advise juvenile
7 suspects of their Miranda rights. The form listed the following information and
8 provided a space for initials after each statement:
9 Before we ask you any questions you must understand your rights.
10 You have the right to remain silent.
11 Anything you say can be used against you in court.
12 You have the right to call your parent(s), guardian, or custodian[.]
13 You have the right to have your parent, guardian or custodian or a
14 lawyer present during any questioning.
15 You have the right to call a lawyer and if you cannot afford a lawyer,
16 one will be appointed for you before any question if you wish.
17 If you decide to answer questions now without a lawyer present, you
18 will still have the right to stop answering questions at anytime [sic].
19 You also have the right to stop answering questions at anytime [sic]
20 until you talk to a lawyer.
21 I have [r]ead my rights and understand what my rights are.
6
1 Lt. Burns went over each statement slowly with Child, and Child initialed each
2 statement on the form, never asking to have his father or anyone else present.
3 Child also signed an additional statement, which Lt. Burns read and explained to
4 Child, acknowledging that he understood what he was doing by waiving his rights
5 and that he had not been threatened or coerced in order to do so. After Child
6 signed the form and acknowledgment, Lt. Burns told the Child that he wanted to
7 speak with Child about something other than the probation violation, and
8 confirmed with Child the understanding that they were speaking about what
9 happened to Victim. Child then proceeded to confess to Victim’s murder.
10 {11} Child moved to suppress his confession on the grounds that (1) he was in
11 police custody under the pretext of an arrest for a probation violation; (2) his father
12 was not present during the interview; and (3) he was high on drugs when
13 questioned by Lt. Burns. When reviewing a trial court’s denial of a motion to
14 suppress a defendant’s statements, “we accept the factual findings of the district
15 court unless they are clearly erroneous, and view the evidence in the light most
16 favorable to the district court’s ruling.” State v. Martinez, 1999-NMSC-018, ¶ 15,
17 127 N.M. 207, 979 P.2d 718 (quoting United States v. Toro–Pelaez, 107 F.3d 819,
18 826 (10th Cir.1997)). We review de novo, however, the ultimate legal
7
1 determination that a defendant made a knowing, voluntary, and intelligent waiver
2 of his Miranda rights. Martinez, 1999-NMSC-018, ¶ 15.
3 {12} As with adults, when determining whether a child has made a knowing,
4 voluntary, and intelligent waiver of Miranda rights, this Court assesses the totality
5 of the circumstances surrounding the waiver. Id. ¶ 18. In analyzing the totality of
6 the circumstances, we bear in mind that the waiver inquiry has two dimensions.
7 See State v. Gutierrez, 2011-NMSC-024, ¶ 9, 150 N.M. 232, 258 P.3d 1024.
8 “First, the relinquishment of the right must have been voluntary in the sense that it
9 was the product of a free and deliberate choice rather than intimidation, coercion,
10 or deception. Second, the waiver must have been made with a full awareness of
11 both the nature of the right being abandoned and the consequences of the decision
12 to abandon it.” Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).
13 {13} The New Mexico Legislature has codified the relevant factors in assessing
14 the totality of the circumstances in juvenile waiver cases. See State v. Setser,
15 1997-NMSC-004, ¶ 13, 122 N.M. 794, 932 P.2d 484 (identifying that no rebuttable
16 presumption exists regarding the admissibility of a sixteen-year-olds confession).
17 The eight totality of the circumstances factors are: (1) the age and education of the
18 child; (2) whether the child was in custody; (3) the manner in which the child was
8
1 advised of his or her rights; (4) the circumstances under which the child was
2 questioned, including the length of time of the questioning; (5) the condition of the
3 location where the questioning occurred; (6) the time of day and treatment of the
4 child during questioning; (7) the mental and physical condition of the child during
5 questioning; and (8) whether the child had the counsel of an attorney, friends, or
6 relatives during the questioning. NMSA 1978, § 32A-2-14(E) (2009).
7 {14} Child’s argument against making a knowing, voluntary, and intelligent
8 waiver of his rights focuses on factors seven and eight of Section 32A-2-14(E),
9 which concern the physical and mental condition of the child during questioning,
10 and whether the child had the counsel of an attorney, friends, or relatives during
11 the questioning, respectively. We discuss each contention separately below.
12 1. Child’s Mental and Physical Condition During Questioning
13 {15} Child claims that before Lt. Burns arrested him and took him to the station,
14 he had taken Seroquel, a drug commonly used to treat insomnia and depression,
15 which “render[ed] both his mental and physical conditions suspect at best.” In the
16 trial court’s order denying the motion to suppress, the court as part of its findings
17 noted that Child stated under oath in front of the jury that he was not impaired
18 during questioning. Child specifically testified during trial that the medication had
9
1 no effect on him that day. In addition, after having reviewed Child’s taped
2 confession during the suppression hearing, the court made the oral finding that
3 Child appeared perfectly alert and normal, and further expressed concern regarding
4 the credibility of Child’s claim that he had taken any drugs before the confession.
5 {16} This Court has held that, in assessing a child’s cognitive abilities, when there
6 “is no evidence that [a child] lacks sufficient intelligence to understand her rights
7 and the repercussion of waiving those rights,” the child makes a knowing and
8 voluntary waiver. Setser, 1997-NMSC-004, ¶ 14 (holding that a sixteen-year-old
9 with cognitive disabilities made a knowing and voluntary waiver); see also
10 Gutierrez, 2011-NMSC-024 ¶¶ 15-16 (holding that sixteen-year-old native
11 Spanish-speaking child with ADHD possessed sufficient intelligence to waive his
12 rights when no evidence was presented to support a lack of sufficient intelligence
13 to have understood his rights and the consequences of a waiver).
14 {17} We conclude that although Child claims to have taken the medication before
15 his confession, he openly admitted the drug had no effect on him, the trial court
16 reviewed the confession and found Child’s behavior to be normal, and there is no
17 evidence in the record to suggest that he lacked sufficient intelligence to
18 understand his rights and the repercussions of waiving those rights.
10
1 2. Allegations of Pretext and the Absence of Counsel, Friends, and
2 Relatives During Questioning
3 {18} Lt. Burns testified that when he arrested Child for the probation violation, he
4 told Child’s father that he needed to talk to Child “about what had happened over
5 the weekend.” Lt. Burns told Child’s father that he did not need to be present, but
6 that his son could ask for him to be there. Before any questioning occurred at the
7 station, Child was advised that he could request for his father to be present, he
8 could request an attorney, and he could stop the questioning at any time. Child,
9 being advised of these rights, did not request for anyone to be present and
10 proceeded to initial the form indicating he understood his waiver.
11 {19} The trial court, as noted in its order denying the suppression motion, found
12 that the Child was sixteen, did not need a parent present, and was not coerced into
13 waiving his rights. See State v. Jonathan M., 109 N.M. 789, 791, 791 P.2d 64, 66
14 (1990) (“[A] child over age fifteen is unlikely to make an involuntary statement in
15 a noncustodial, noncoercive atmosphere or after receiving Miranda warnings.”).
16 During the suppression hearing, the court noted in its oral findings that the
17 evidence presented did not suggest that there was any trickery involved when Child
18 was arrested; he knew why he was there and what the questioning would be about.
19 The trial court also noted that Child and his parents were aware that Victim had
11
1 been missing since the prior weekend, that Victim’s mother had come to their
2 house looking for Victim, and that Child’s father testified that he figured his son
3 would be questioned about the murder and was aware that a search warrant had
4 been executed for Child’s room in connection to Victim’s disappearance.
5 {20} In Martinez, we held a seventeen-year-old’s waiver of rights to be knowing,
6 voluntary, and intelligent where officers took the juvenile defendant into custody
7 to question him concerning a murder, but told his mother that he needed to be
8 questioned about a shoplifting incident. 1999-NMSC-018, ¶¶ 3, 12. As officers
9 drove the juvenile to the police station, they informed him of their actual intent to
10 ask him questions that did not concern the shoplifting incident. Id. ¶ 13. Martinez
11 held that a juvenile’s parents need not be notified of the custodial interrogation of
12 their child, that there is no due process guarantee for such notification, and that
13 although certainly relevant to the analysis, such lack of notification is only one
14 factor of many to be considered in the totality of the circumstances analysis. Id. ¶
15 20. In analyzing the other factors surrounding the confession, Martinez noted that
16 while the officers misled his mother, the misinformation did not have the effect of
17 tricking the juvenile into confessing because after being advised of his rights, the
18 officers immediately informed the juvenile of why they were questioning him. Id.
12
1 ¶ 24. Additional considerations we noted in holding the confession to be valid
2 were the juvenile’s age (seventeen-and-a-half), the interview only lasting about an
3 hour, and the interview occurring at a time when the juvenile could be expected to
4 be alert. Id. ¶ 22-23.
5 {21} In the present case, Lt. Burns specifically told both Child and his father that
6 he wanted to talk to Child about the prior weekend. After thoroughly reviewing
7 Child’s rights with him at the station, Lt. Burns clarified the understanding that he
8 wanted to talk to Child about Victim’s death. Child admitted that he was not
9 surprised when Lt. Burns asked him about Victim’s death. In considering other
10 factors surrounding the confession below, the trial court found that although Child
11 was handcuffed to the chair initially, the conditions in the interrogation room
12 appeared comfortable. Lt. Burns additionally testified that Child was questioned
13 for less than an hour in a room that did not have locks on the doors, and contained
14 a large table with chairs. The court also found that Lt. Burns reviewed the
15 Miranda rights clearly, and that Child read the rights on his own and signed the
16 form.
17 {22} We additionally note that English is Child’s primary language, he could read
18 and write, the questioning occurred at around three o’clock in the afternoon, and
13
1 Child admitted that the interviewing officer, Lt. Burns, was polite and did not
2 threaten him or make any promises. Considering the totality of the circumstances,
3 we hold that Child knowingly, intelligently, and voluntarily waived his Miranda
4 rights.
5 B. The Trial Court Did Not Abuse Its Discretion in Denying Child’s
6 Motion for a Change of Venue
7 {23} This Court reviews a trial court’s change of venue decision “keeping in mind
8 that its ‘discretion in this matter is broad and will not be disturbed on appeal unless
9 a clear abuse of that discretion can be demonstrated.’” Gutierrez, 2011-NMSC-
10 024, ¶ 39 (quoting State v. House, 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d
11 967). We also bear in mind that under this level of review “the question for this
12 Court is whether the trial court abused its discretion by denying Defendant’s
13 motion to change venue, not whether Defendant presented substantial evidence
14 regarding prejudice to the trial court.” State v. Barrera, 2001-NMSC-014, ¶ 14,
15 130 N.M. 227, 22 P.3d 1177. A party requesting a change of venue must show “a
16 reasonable probability that a fair trial cannot be obtained in a particular venue.”
17 House, 1999-NMSC-014, ¶ 57.
18 {24} Two types of prejudice are considered in determining whether or not a
19 change of venue is warranted: presumed prejudice and actual prejudice. See id. ¶
14
1 46. Presumed prejudice “addresses the effect of publicity about a crime upon the
2 entire community,” and a change of venue is necessary when “evidence shows that
3 the community is so saturated with inflammatory publicity about the crime that it
4 must be presumed that the trial proceedings are tainted.” Id. Non-exclusive
5 factors to consider in looking for presumed prejudice are (a) the neutrality and
6 timing of the publicity, (b) the type and form of the publicity, (c) the size and
7 nature of the community, (d) demonstrated actual prejudice by potential jurors, and
8 (e) statements made about the case by politicians. Id. ¶¶ 59-72. When a trial court
9 does not find presumed prejudice, however, and proceeds with voir dire, this Court
10 will limit review only to evidence of actual prejudice. See Gutierrez, 2011-NMSC-
11 024, ¶ 43. “Actual prejudice requires a direct investigation into the attitudes of
12 potential jurors. . . . to establish whether there is such widespread and fixed
13 prejudice within the jury pool that a fair trial in that venue would be impossible.”
14 House, 1999-NMSC-014, ¶ 46.
15 {25} In support of his motion for change of venue, Child submitted a packet of
16 several articles from the local newspapers, as well as online reader comments
17 posted in response to the articles, that he argued demonstrated that the case had
18 received considerable media attention and compromised his chances of being tried
15
1 before an impartial jury.
2 {26} The trial court, in its written order denying the motion for change of venue,
3 found that the publicity did not rise to the level necessary for a finding of presumed
4 prejudice. During the motions hearing, the court noted in its oral findings that, of
5 the publications submitted, the majority were remote in time as they were
6 published over a year before the trial setting, and none were unduly inflammatory.
7 The court also noted that the “community” for purposes of the jury pool would
8 include not only Carlsbad, where both Child and Victim resided, but also the
9 separate city of Artesia, New Mexico.
10 {27} The court also found that at Child’s trial on another charge held less than
11 two weeks before the hearing on the motion to change venue in the present case,
12 the voir dire of the jury panel revealed that of the four people who knew of Child,
13 three knew him personally through their children or other family connections, and
14 one was an on-call responder to the crime scene. The court also found that of that
15 pool of prospective jurors, “nearly all” were unable to remember any details of the
16 murder or the relation of Child to the murder.
17 {28} Although this Court has in the past cautioned against the use of general
18 personal experience and impressions of a community in determining whether or
16
1 not a successful showing has been made for change of venue purposes, here the
2 observations were in addition to the court’s findings related to the evidence
3 presented regarding actual media attention, and the observations made regarding
4 the voir dire were specific examples of actual community commentary on the
5 upcoming trial and Child’s connection to the murder that the judge experienced
6 while presiding over the trial. See House, 1999-NMSC-014, ¶ 69 (admonishing
7 against the use of a trial judge’s own general impressions and understanding of
8 local conditions and the community’s citizens in determining that the defendant
9 made an insufficient showing of presumed prejudice but determining “this
10 indiscretion [to be] inconsequential”).
11 {29} Finding no presumed prejudice, the trial court noted that it would allow
12 ample time for thorough questioning during voir dire, and that Child’s counsel was
13 encouraged to carefully assess the jury pool and identify actual prejudice at that
14 time. When the case went to trial, the greater part of a day was dedicated to
15 extensive questioning concerning the case’s publicity in order to determine
16 whether actual prejudice existed. This process included counsels’ questioning of
17 individual prospective jurors who said that they read newspapers or were otherwise
18 affected by the facts of the case. The court in its order denying the motion for
17
1 change of venue found that “there was extensive and rigorous questioning of
2 prospective jurors” during voir dire regarding their reading of local newspapers
3 and exposure to internet commentary on the case, and that the jurors selected were
4 not affected by media attention in this case.
5 {30} The extensive discussion and questioning during voir dire assured Child an
6 impartial jury, and Child does not further articulate how the ultimate seating of the
7 jurors resulted in actual prejudice. See Gutierrez, 2011-NMSC-024, ¶ 47
8 (affirming denial of motion to change venue when “Child . . . offered neither
9 evidence nor testimony to prove that any of the jurors who tried the case were
10 actually prejudiced in any way . . . .”). Child fails to demonstrate an abuse of
11 discretion on the part of the trial court in empaneling the jury for his trial.
12 C. The Evidence Was Sufficient to Support a Finding of Deliberate Intent
13 {31} In determining whether sufficient evidence exists to support a conviction for
14 premeditated murder, we look to “whether substantial evidence of either a direct or
15 circumstantial nature exists to support a verdict of guilty beyond a reasonable
16 doubt with respect to every element essential to a conviction.” State v. Riley,
17 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (quoting State v. Duran,
18 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515). This Court will affirm the
18
1 conviction if, in viewing the evidence in the light most favorable to the verdict, any
2 rational jury could have found beyond a reasonable doubt evidence supporting
3 each element of the crime charged. Riley, 2010-NMSC-005, ¶ 12.
4 {32} First-degree murder consists of the “willful, deliberate and premeditated
5 killing” of another person. NMSA 1978, § 30-2-1(A)(1) (1994). “Deliberate
6 intention” is that “arrived at or determined upon as a result of careful thought and
7 the weighing of the consideration for and against the proposed course of action.”
8 State v. Flores, 2010-NMSC-002, ¶ 19, 147 N.M. 542, 226 P.3d 641 (quoting State
9 v. Cunningham, 2000-NMSC-009, ¶ 25, 128 N.M. 711, 998 P.2d 176).
10 Circumstantial evidence alone can support a finding of deliberation. See
11 Cunningham, 2000-NMSC-009, ¶ 29; see also State v. Duran, 2006-NMSC-035, ¶
12 7 (“Intent is subjective and is almost always inferred from other facts in the case,
13 as it is rarely established by direct evidence.” (quoting State v. Sosa, 2000-NMSC-
14 036, ¶ 9, 129 N.M. 767, 14 P.3d 32)). “Deliberate intent may [also] be inferred
15 from the particular circumstances of the killing as proved by the State through the
16 presentation of physical evidence.” Duran, 2006-NMSC-035, ¶ 8.
17 {33} Child argues that the evidence presented against him by the State to show
18 premeditation is equally consistent with his assertion that he meant to confront
19
1 Victim, maybe even beat him up, but never planned to kill him. Child looks to
2 State v. Garcia, 114 N.M. 269, 837 P.2d 862 (1992) as support for his argument
3 that because the evidence presented in this case equally supports Child’s version of
4 the events it cannot support a jury finding of premeditation. However, the facts
5 presented to the jury in Garcia, unlike the facts presented in this case, were held by
6 this Court to be altogether insufficient to support a reasonable jury’s finding of
7 premeditation and deliberation. Id. at 274-75, 837 P.2d at 867-68.
8 {34} The possibility that other inferences could be made from the presented
9 evidence does not require this Court to reverse when sufficient evidence was
10 presented for a reasonable jury to conclude beyond a reasonable doubt that Child’s
11 actions satisfied the elements of first-degree murder. See Riley, 2010-NMSC-005,
12 ¶ 12 (“[C]ontrary evidence supporting acquittal does not provide a basis for
13 reversal because the jury is free to reject the defendant’s version of the facts. Nor
14 will this Court evaluate the evidence to determine whether some hypothesis could
15 be designed which is consistent with a finding of innocence.” (internal quotation
16 marks, citation, and alterations omitted)).
17 {35} In Riley, we held that sufficient evidence to convict the defendant of first-
18 degree murder was presented to the jury when such evidence included testimony
20
1 regarding the defendant’s actions in the days leading up to the killing, the
2 defendant’s actions immediately before the killing, and the physical evidence
3 recovered from the victim’s body. Id. ¶ 21. The State in Riley presented evidence
4 that the defendant was upset about his recent break up and his ex-girlfriend’s
5 relationship with the victim. Id. ¶ 19. The defendant had also mentioned the
6 victim “in a threatening tone” in a letter he wrote to his ex-girlfriend prior to the
7 murder, and the defendant and victim had been fighting about the ex-girlfriend
8 immediately before the shooting occurred. Id. Before the defendant in Riley shot
9 the victim, he ran into his house and came out with a gun. Id. ¶ 5. The defendant
10 ran at the victim repeating “I’ll kill you” and firing the gun at the victim. Id.
11 Physical evidence showed that the first shots were fired from over thirty-eight feet
12 away, and the final shots were fired from less than four inches away. Id. ¶ 20.
13 This continuous shooting from varying distances after the defendant went inside to
14 retrieve the gun further supported a finding of deliberate intent. Id.
15 {36} In this case, evidence of Child’s actions leading up to Victim’s death,
16 combined with the physical evidence presented, support the jury’s finding of
17 deliberate intent. Child admitted during his confession that he had been angry with
18 Victim since the burglary because “[f]riends don’t rat on other friends,” and Child
21
1 further indicated that he may have talked to someone at school about his intentions
2 to confront and harm victim. A friend testified at trial that prior to Victim’s death
3 Child was still upset with Victim for snitching. The night of the murder, Child
4 arranged to borrow a friend’s car, and brought along a rifle wrapped in a sweatshirt
5 and a can of gasoline. Child arranged to pick Victim up at a location away from
6 his home and then drove him to a remote location outside of Carlsbad. Child then
7 beat Victim until he was on the ground, and continued to beat him as he lay on the
8 ground defenseless. Child then returned to the car to get the rifle. Physical
9 evidence presented at trial indicates that Victim endured at least a half a dozen
10 blows to the head with a sharp-edged manufactured object. Child also confessed to
11 trying to shoot Victim after hitting him with the rifle, and evidence was presented
12 that blood and hair was found around the action of the rifle. Victim’s skull and jaw
13 were severely fractured and Victim’s brain was bruised and swollen, indicating he
14 was unconscious for some time before he died. Physical evidence was also
15 presented that Victim may have contracted early-stage pneumonia, indicating that
16 Victim had been breathing for an hour or two before he died. After beating Victim
17 with the rifle and attempting to shoot him, Child returned to the car to get the can
18 of gasoline. Physical evidence suggests that Victim was set on fire one to two
22
1 hours after the beating began, likely after he had already died. See State v. Rojo,
2 1999-NMSC-001, ¶ 24, 126 N.M. 438, 971 P.2d 829 (noting that evidence from
3 medical investigator that fatal strangulation would take at least several minutes,
4 combined with evidence of motive, supported first-degree murder conviction). On
5 the basis of this evidence, a rational jury could find sufficient evidence to support
6 the elements of first-degree murder. We therefore affirm Child’s first-degree
7 murder conviction.
8 D. The Trial Court’s Threats of Sanctions Against Defense Counsel Did
9 Not Violate Child’s Due Process Rights or the Right to Effective
10 Assistance of Counsel
11 {37} Child argues that the trial court’s admonition of counsel after missing filing
12 and disclosure deadlines, in addition to the court’s advisement that such failures
13 would potentially lead to attorney sanctions, warrants a new trial. Child contends
14 that the threat of sanctions led to a chilling effect on counsel’s ability to raise
15 issues in good faith due to timeliness concerns. Child does not advance any
16 argument on this issue, such as discussing motions that should have been filed and
17 were not, nor does he point to any prejudice suffered as a result of the threat of
18 sanctions. As no plausible argument has been advanced on this point, we will not
19 review the issue. See State v. Clifford, 117 N.M. 508, 513, 873 P.2d 254, 259
23
1 (1994) (“When a criminal conviction is being challenged, counsel should properly
2 present this court with the issues, arguments, and proper authority.”)
3 III. CONCLUSION
4 {38} Because the findings of the lower court and jury challenged here did not
5 result in error, Child’s cumulative error claim is rejected. See State v. Salas,
6 2010-NMSC-028, ¶ 40, 148 N.M. 313, 236 P.3d 32. For the reasons stated herein,
7 we affirm Child’s convictions.
8 {39} IT IS SO ORDERED.
9
10 PATRICIO M. SERNA, Justice
11 WE CONCUR:
12
13 CHARLES W. DANIELS, Chief Justice
14
15 PETRA JIMENEZ MAES, Justice
16
17 RICHARD C. BOSSON, Justice
24
1
2 EDWARD L. CHÁVEZ, Justice
25