State v. Gage

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Filing Date: May 22, 2023
3 STATE OF NEW MEXICO,
4 Plaintiff-Appellee,
5 v. NO. S-1-SC-39142
6 ROGER L. GAGE,
7 Defendant-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
9 Jason Lidyard, District Judge
10 Bennett J. Baur, Chief Public Defender
11 Kimberly Chavez Cook, Appellate Defender
12 Joelle N. Gonzales, Assistant Appellate Defender
13 Santa Fe, NM
14 for Appellant
15 Hector H. Balderas, Attorney General
16 Maris Veidemanis, Assistant Attorney General
17 Santa Fe, NM
18 for Appellee
19 DECISION
20 VIGIL, Justice.
21 {1} A jury found Defendant Roger Gage guilty of three counts of first-degree
22 murder and one count each of aggravated burglary, conspiracy to commit murder,
1 and tampering with evidence. For each death, the jury returned general guilty
2 verdicts for first-degree murder and special verdict forms finding Defendant guilty
3 of both willful and deliberate murder and felony murder. Defendant was sentenced
4 to three terms of life imprisonment and twenty-one years for the remaining
5 convictions, all to run consecutively.
6 {2} Pursuant to Article VI, Section 2 of the New Mexico Constitution and Rule
7 12-102(A)(1) NMRA, Defendant appeals directly to this Court making four
8 arguments: (1) that the district court erred in refusing to recuse itself, (2) that the
9 district court erred in denying Defendant’s motion to suppress his incriminating
10 statements, (3) that Defendant’s two capital sentences for acting as an accomplice to
11 first-degree murder are unconstitutional, and (4) that Defendant’s convictions for
12 both willful and deliberate murder and felony murder violate double jeopardy.
13 Because New Mexico precedent sufficiently addresses these issues, we exercise our
14 discretion to resolve this case by way of a nonprecedential decision under Rule 12-
15 405(B)(1) NMRA.
16 {3} We agree with Defendant’s double jeopardy argument and order that
17 Defendant’s three convictions for felony murder be vacated. We reject Defendant’s
18 remaining arguments and otherwise affirm.
2
1 I. FACTUAL AND PROCEDURAL BACKGROUND
2 {4} In 2018, Defendant and his brother entered into a home where drugs were
3 sold. The home’s video surveillance system clearly captured the brothers’ entry and
4 the ensuing killings. The brothers shot the home’s three occupants at point-blank
5 range, took a safe and a laptop from the bedroom, again shot each of the three
6 occupants, and exited. After discovering the victims, the police reviewed the home’s
7 surveillance footage, recognized Defendant and his brother, and arrested them.
8 {5} District Judge Lidyard presided over Defendant’s case. Before Judge Lidyard
9 assumed the bench, he served as an assistant district attorney (A.D.A.). In one case,
10 A.D.A. Lidyard prosecuted a person represented by Mr. Thomas Clark, who was
11 Defendant’s attorney in this case. In that case, the district attorney’s office filed a
12 complaint against A.D.A. Lidyard, alleging that he failed to disclose exculpatory
13 evidence to Mr. Clark. Given his firsthand knowledge of the alleged violations, Mr.
14 Clark was to serve as a witness in the disciplinary proceeding brought against A.D.A.
15 Lidyard. However, before the disciplinary proceeding began, Judge Lidyard
16 assumed the bench and was presiding over Defendant’s case. The record is silent on
17 whether the disciplinary proceeding occurred before the date of Defendant’s trial.
18 {6} Defendant entered into a proposed plea agreement with the State. Under the
19 proposed plea agreement, Defendant agreed to plead guilty to three counts of first-
3
1 degree murder and one count of aggravated burglary in exchange for a sentence of
2 life imprisonment plus nine years. However, Judge Lidyard rejected the proposed
3 agreement, concluding that a trial would better serve the interests of justice.
4 Defendant and the State filed a joint motion to reconsider, which Judge Lidyard
5 denied.
6 {7} Defendant and the State then attempted to recuse Judge Lidyard. Because the
7 period for recusal as a matter of right had expired, Mr. Clark asked Judge Lidyard
8 to voluntarily recuse himself. To this, the judge responded, “There is no reason to
9 question my ability to fairly and impartially preside over this case . . . .” Later, Mr.
10 Clark again voiced his concern about Judge Lidyard’s impartiality due to his role as
11 a witness against Judge Lidyard in the pending disciplinary proceeding. Judge
12 Lidyard dismissed these concerns, reasoning,
13 There is no rule that requires a judge to recuse or disqualify himself
14 from proceedings in which a party . . . is represented by a lawyer who
15 has assisted or cooperated in [a complaint against a judge] . . . . There
16 is nothing about Mr. Clark’s involvement in the process involving
17 myself that would cause me to retaliate against him . . . and there is
18 further nothing about his involvement that would generate within me a
19 bias or prejudice against him . . . .
20 {8} Subsequently, Defendant and the State filed a joint motion to reconsider
21 recusal, articulating the parties’ shared concern regarding the judge’s appearance of
22 impropriety. Judge Lidyard denied this motion as well.
4
1 {9} Defendant filed a motion to suppress incriminating statements he made to
2 Sergeant Joey Gallegos during an interrogation following his arrest. In support of
3 this motion, Defendant contended that his statements were not voluntarily made
4 because he was incoherent and uncomfortable while speaking with Sergeant
5 Gallegos. He also asserted that the statements were coerced due to implied promises
6 of leniency made by the police officers conducting the interrogation. We detail and
7 discuss these allegations further in our analysis of this argument. After considering
8 Defendant’s arguments, Judge Lidyard denied the motion to suppress, and
9 Defendant’s incriminating statements were admitted into evidence.
10 {10} As already noted, the jury convicted Defendant of three counts of first-degree
11 murder. However, the jury found Defendant guilty of both willful and deliberate
12 murder and felony murder for each death. None of the alternate convictions were
13 vacated, and as matters stand, Defendant remains convicted of both willful and
14 deliberate murder and felony murder for each of the three killings.
15 II. DISCUSSION
16 A. Recusal
17 {11} Defendant argues that Judge Lidyard abused his discretion in denying the
18 parties’ joint motion to recuse. Defendant suggests that a reasonable appearance of
19 impropriety—stemming from Mr. Clark’s role as a prospective witness in the
5
1 disciplinary proceeding and the parties’ agreement that Judge Lidyard could not
2 preside over Defendant’s case without bias—required Judge Lidyard to disqualify
3 himself. Defendant also points to Judge Lidyard’s adverse rulings against Defendant
4 as evidence of bias. We reject these arguments.
5 {12} “[R]ecusal rests within the discretion of the trial judge, and will only be
6 reversed upon a showing of an abuse of that discretion.” State v. Riordan, 2009-
7 NMSC-022, ¶ 6, 146 N.M. 281, 209 P.3d 773. “‘An abuse of discretion occurs when
8 the ruling is clearly against the logic and effect of the facts and circumstances of the
9 case . . . [or when the ruling is] clearly untenable or not justified by reason.’” Id.
10 (quoting State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829).
11 {13} “Voluntary recusal is reserved for compelling . . . ethical reasons because a
12 judge has a duty to sit where not disqualified which is equally as strong as the duty
13 to not sit where disqualified.” State v. Hernandez, 1993-NMSC-007, ¶ 43, 115 N.M.
14 6, 846 P.2d 312 (brackets, internal quotation marks, and citation omitted). Judges
15 shall therefore only disqualify themselves when “the judge’s impartiality might
16 reasonably be questioned, including [circumstances when the] judge has a personal
17 bias or prejudice concerning a . . . party’s lawyer.” Rule 21-211(A)(1) NMRA.
18 Impartiality is reasonably questioned when “an objective, disinterested observer,
19 fully informed of the underlying facts, would entertain significant doubt that justice
6
1 would be done absent recusal.” Riordan, 2009-NMSC-022, ¶ 11 (brackets, internal
2 quotation marks, and citation omitted).
3 {14} An attorney’s involvement in a complaint against a judge does not
4 automatically necessitate recusal. Rule 21-216 NMRA provides that a judge “shall
5 not retaliate” against anyone who has filed a complaint against a judge, but does not
6 require disqualification when the judge can impartially preside. In such cases, “bias
7 or prejudice towards an attorney is insufficient to disqualify a judge unless the bias
8 rises to such a degree as to adversely affect the interests of the client.” State v. Case,
9 1984-NMSC-012, ¶ 6, 100 N.M. 714, 676 P.2d 241. Therefore, absent evidence of
10 bias that adversely affected the interests of Defendant—which Defendant does not
11 present—the mere fact that Mr. Clark intended to testify in Judge Lidyard’s pending
12 disciplinary proceeding was insufficient to require recusal. See id.13 {15} Second, the parties’ consensus on the motion to recuse did not require Judge
14 Lidyard’s disqualification. Rule 21-211 lists the circumstances under which judges
15 “shall disqualify” themselves because their “impartiality might reasonably be
16 questioned,” but this enumeration does not include joint motions to recuse.
17 Regardless of the parties’ consensus on the motion, absent a showing of bias
18 adversely affecting the interests of the client, recusal was not required.
7
1 {16} We also note that the parties’ joint involvement in Judge Lidyard’s pending
2 disciplinary proceeding makes allegations of bias seem particularly unreasonable.
3 Both the State and Mr. Clark were involved in the pending action—the State as the
4 complainant and Mr. Clark as the witness. We therefore consider Defendant’s
5 suggestion of bias in combination with the judge’s coequal potential for bias against
6 the State. In light of this coequal potential for bias against the State, we cannot
7 conclude that Judge Lidyard’s impartiality could be reasonably questioned under the
8 circumstances.
9 {17} Third, adverse rulings against a party, without more, do not support a
10 conclusion that a district court judge is biased, requiring recusal. Case, 1984-NMSC-
11 012, ¶ 7. Here, Judge Lidyard rejected the proposed plea deal between Defendant
12 and the State, which featured a more lenient sentence than the term imposed after
13 trial. However, “a [district] court has broad discretion to accept or reject a plea
14 agreement.” State v. Mares, 1994-NMSC-123, ¶ 10, 119 N.M. 48, 888 P.2d 930; see
15 also State v. Neal, 2007-NMCA-086, ¶ 25, 142 N.M. 487, 167 P.3d 935 (“[C]ourts
16 are afforded broad discretion in fashioning sentences appropriate to the offense and
17 the offender.” (internal quotation marks and citation omitted)). We conclude that an
18 objective observer would not reasonably question whether Judge Lidyard’s decision
8
1 to reference the jury’s verdict in formulating the appropriate sentence was affected
2 by his bias against Defendant.
3 {18} Because the facts of this case did not necessitate recusal, Judge Lidyard was
4 required to exercise his judicial duty so long as his continued involvement did not
5 adversely affect Defendant’s interests. See Case, 1984-NMSC-012, ¶ 6. And, as
6 discussed in Section B below, Defendant fails to identify any instance in which he
7 was unfairly affected by Judge Lidyard’s supervision of the case. Therefore, we hold
8 that Judge Lidyard properly exercised his duty to preside, and he did not abuse his
9 discretion in denying the parties’ joint efforts for recusal.
10 B. Suppression
11 {19} There is no dispute that Defendant was given Miranda warnings and that he
12 waived his Miranda rights before he was interrogated. On appeal, Defendant does
13 not challenge the adequacy of those warnings or whether the waiver of his Miranda
14 rights was voluntary. Defendant instead argues that his statements were involuntary
15 due to mental incapacity and coercion. Defendant argues reversible error resulted
16 when his motion to suppress was denied, and his incriminating statements were
17 admitted into evidence. We disagree.
18 {20} This Court reviews the voluntariness of confessions de novo. State v. Evans,
19 2009-NMSC-027, ¶ 32, 146 N.M. 319, 210 P.3d 216. In so doing, the Court
9
1 “examine[s] the entire record and the circumstances under which the confession was
2 made, and . . . make[s] an independent determination of the ultimate question of
3 voluntariness.” Aguilar v. State, 1988-NMSC-004, ¶ 7, 106 N.M. 798, 751 P.2d 1784 (emphasis in original). Put another way, the Court “examine[s] the ‘totality of the
5 circumstances’ surrounding the confession . . . .” State v. Fekete, 1995-NMSC-049,
6 ¶ 34, 120 N.M. 290, 901 P.2d 708 (citation omitted).
7 {21} Presented with a claim that a confession is involuntary, “[the State] has the
8 burden of proving the voluntariness of a defendant’s statement by a preponderance
9 of the evidence.” Fekete, 1995-NMSC-049, ¶ 34. “If the [S]tate fails to prove
10 voluntariness by a preponderance of the evidence, the [district] court must rule that
11 the confession was involuntary as a matter of law.” Aguilar, 1988-NMSC-004, ¶ 11.
12 “Consequently, if the [S]tate only adduces evidence proving an equal likelihood that
13 the confession was either voluntary or involuntary, the [S]tate has not satisfied its
14 burden.” Id.15 {22} Relevant evidence of voluntariness includes evidence of the confessor’s
16 personal characteristics. See State v. Gutierrez, 2011-NMSC-024, ¶ 23, 150 N.M.
17 232, 258 P.3d 1024 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).
18 As applicable here, relevant characteristics include the confessor’s intelligence,
19 whether the confessor was deprived of food or sleep before the interrogation, and
10
1 whether the confessor was impaired or suffering from mental illness. Id.; State v.
2 Montano, 2019-NMCA-019, ¶ 17, 458 P.3d 512.
3 {23} However, the confessor’s troubled state of mind or impairment levels are
4 independently “insufficient to render a confession involuntary without
5 accompanying police misconduct or overreaching.” Montano, 2019-NMCA-019, ¶
6 17. The State must have seized upon and exploited the confessor’s vulnerable
7 characteristics or conditions to render the confession involuntary. See Evans, 2009-
8 NMSC-027, ¶ 38. Moreover, “[c]ase law makes it clear that when interrogators are
9 unaware of, and therefore cannot exploit, the mental or emotional vulnerabilities of
10 a suspect, the crucial link between the confession and official action is missing.” Id.11 {24} We can only conclude that a confession is involuntary when “official
12 coercion” occurs such that “a defendant’s will has been overborne and his capacity
13 for self-determination has been critically impaired.” Id. ¶ 33 (brackets, internal
14 quotation marks, and citation omitted). That is to say, an “essential link” between
15 the official coercion and the resulting confession is critical to a determination that
16 the confession is involuntary. Id. (internal quotation marks and citation omitted).
17 {25} The essential link between the State’s coercive activity and an involuntary
18 confession exists when the State explicitly promises leniency in exchange for the
19 defendant’s admission. See State v. Tindle, 1986-NMCA-035, ¶ 28, 104 N.M. 195,
11
1 718 P.2d 705. “If the accused confesses because he was induced by the promise that
2 his punishment will not be so severe as it otherwise might be, the confession is not
3 admissible because it was not voluntary.” State v. Watson, 1971-NMCA-104, ¶ 11,
4 82 N.M. 769, 487 P.2d 197. However, “where promises [of lenity] are merely
5 implied, they are only one factor to be considered in the overall totality of
6 circumstances.” Evans, 2009-NMSC-027, ¶ 42. Similarly, “threats that merely
7 highlight potential real consequences, or are adjurations to tell the truth, are not
8 characterized as impermissibly coercive” for the purpose of determining
9 voluntariness. Id. ¶ 43 (internal quotation marks and citation omitted).
10 {26} The record contains a number of circumstances that are relevant to the issue
11 of voluntariness, which we consider in concert. Fekete, 1995-NMSC-049, ¶ 34. At
12 the outset, we note Defendant’s uncontroverted personal characteristics. Defendant
13 attended special education classes in high school, suffered from depression, and
14 suffered from drug addiction. When he was arrested and gave his incriminating
15 statements, Defendant was thirty-three years old.
16 {27} However, none of these characteristics make Defendant’s statement
17 involuntary. Although Defendant attended special education classes, a learning
18 disability does not necessarily render a confession involuntary. Cf. Gutierrez, 2011-
19 NMSC-024, ¶ 15 (holding that despite the defendant’s ADHD diagnosis, he
12
1 knowingly waived his Miranda rights). Furthermore, we consider Defendant’s
2 learning disability in tandem with his successful graduation from high school, which
3 weighs in favor of a conclusion that Defendant was mentally equipped to understand
4 the significance and consequences of the interrogation. See Munoz, 1998-NMSC-
5 048, ¶ 27, 126 N.M. 535, 972 P.2d 847. Similarly, Defendant’s history of depression
6 does not itself demonstrate a lack of voluntariness, see State v. Cooper, 1997-
7 NMSC-058, ¶¶ 47, 50, 124 N.M. 277, 949 P.2d 660 (holding that the defendant’s
8 confession was voluntary despite his “weakened mental state”), nor does
9 Defendant’s history of drug use, see Munoz, 1998-NMSC-048, ¶¶ 9, 25 (holding that
10 testimony regarding the defendant’s history of drug abuse did not trump the state’s
11 testimony regarding the defendant’s apparent lucidity during the interrogation).
12 Defendant’s age, too, weighs in favor of voluntariness. See id. ¶ 27 (noting that the
13 confessor, two months shy of turning nineteen years old, qualified as an adult, which
14 weighed in favor of voluntariness). Moreover, Defendant provides no evidence that
15 Sergeant Gallegos was aware of these characteristics such that he could seize upon
16 them to coerce Defendant. See Evans, 2009-NMSC-027, ¶ 38.
17 {28} We also consider a number of conditions imposed upon or experienced by
18 Defendant at the time of interrogation as part of the totality of the circumstances
19 analysis. Defendant asserted that he was uncomfortable due to an hour-long car ride
13
1 with his hands cuffed behind his back, he was tired from waiting in a holding cell
2 and being in custody for four hours, and he was not given water or access to the
3 restroom. Defendant also alleges that on the morning of his arrest, he smoked
4 methamphetamine and that he used heroin shortly before his arrest, meaning that he
5 was under the influence during the interrogation. Countering, the State provides that
6 Defendant never expressed any discomfort and did not ask for food, rest, access to
7 the restroom, or medical treatment. Regarding Defendant’s alleged impairment, the
8 State notes that Defendant never told Sergeant Gallegos that he was under the
9 influence; in fact, Defendant appeared lucid and in control of his faculties throughout
10 the interview. We agree with the State’s description. Our review of the record reveals
11 that Defendant conducted himself in a calm, coherent, and even affable manner
12 throughout the forty-seven minute interview, evidencing no signs of fatigue, hunger,
13 discomfort, or impairment.
14 {29} The totality of the foregoing circumstances does not support a determination
15 of involuntariness. Aside from his own testimony, Defendant fails to produce any
16 evidence of his discomfort or impairment. See Evans, 2009-NMSC-027, ¶ 37
17 (rejecting an involuntary confession claim when “there is little in the record, apart
18 from [the d]efendant’s own words” suggesting the defendant was impaired).
19 Furthermore, even if Defendant was in fact uncomfortable due to his
14
1 preinterrogation detention, this does not make his statements involuntary. See State
2 v. Lobato, 2006-NMCA-051, ¶ 11, 139 N.M. 431, 134 P.3d 122 (“Absent evidence
3 that the officers deprived [the defendant] of food and rest as a means of physical
4 punishment, the fact that [the defendant] happened to be hungry and tired does not
5 support a conclusion that his statements were involuntary.” (internal quotation marks
6 and citation omitted)). The same is true regarding Defendant’s alleged impairment;
7 even if he was under the influence of narcotics, he was still capable of making a
8 voluntary confession. See Lobato, 2006-NMCA-051, ¶ 11 (“[A] claim that a
9 defendant was . . . suffering from the effects of alcohol is not, in the absence of
10 coercive law enforcement activity, sufficient to characterize his confession as
11 involuntary.” (internal quotation marks and citation omitted)). Therefore, the
12 conditions surrounding Defendant’s interrogation do not contribute to a
13 determination of involuntariness.
14 {30} Lastly, Defendant contends that the State coerced his statements through a
15 series of implied threats and implied promises of leniency. Defendant highlights four
16 of the sergeant’s statements: (1) “I don’t want your brother to have to go through a
17 lot of this stuff for you,” (2) “I don’t want to see you or your brother have to deal
18 with a lot of this stuff,” (3) “I don’t want to have to throw a bunch of charges on
19 [your brother], for whatever reason,” and (4) “I don’t want to have to drag all these
15
1 other people in.” Defendant argues that the third statement impliedly threatened
2 Defendant’s brother, the second statement implied leniency for Defendant himself,
3 and all four statements impliedly promised leniency for Defendant’s brother.
4 {31} We agree with the State that statements (1) and (2) are not implied promises
5 or threats because nothing was promised or threatened. At best, Sergeant Gallegos
6 suggests, in statements (1) and (2) that he does not want to see Defendant’s brother
7 take responsibility for Defendant’s acts. The third statement is likewise not
8 threatening. Sergeant Gallegos is merely stating that he did not want unnecessary
9 charges brought against Defendant’s brother. Sergeant Gallegos did not say that no
10 charges, or lesser charges, would be brought against Defendant’s brother if
11 Defendant confessed. Even if they were construed as such, “threats that merely
12 highlight potential real consequences . . . are not characterized as impermissibly
13 coercive.” Evans, 2009-NMSC-027, ¶ 43. Finally, statement (4) is so vague, it is
14 impossible to give it a connotation of coercion.
15 {32} Defendant’s argument that the four statements contained implied promises of
16 leniency is even less persuasive. The totality of the circumstances do not even
17 suggest that Defendant could have reasonably inferred that he or his brother would
18 be free from prosecution—or enjoy a more lenient prosecution—in exchange for
19 Defendant’s statements. See Munoz, 1998-NMSC-048, ¶ 34 (considering whether
16
1 the defendant “could reasonably have inferred a promise going to the punishment
2 for the crime to be confessed” (internal quotation marks and citation omitted)).
3 {33} Defendant himself notes that he never outright admitted guilt in his statement.
4 Rather, he purposefully and explicitly reined in his testimony, indicating that he did
5 not want to incriminate himself. Defendant also refused to directly incriminate his
6 brother, responding, “you gotta talk to him” when asked about his involvement in
7 the killings. Defendant’s hesitancy to incriminate himself or his brother indicates
8 that he did not reasonably infer express or implied coercion or leniency in securing
9 his incriminating statements. The district court also observed:
10 Defendant’s outward appearance appeared the same throughout the
11 entire interrogation. Defendant also appeared to have the ability to
12 control the interrogation, making the comment at one point that he
13 didn’t want to further incriminate himself. These reactions indicate an
14 ability to continue the interrogation while remaining in control of his
15 will and [faculties].
16 {34} For the foregoing reasons, we reject Defendant’s arguments under this point.
17 C. Constitutionality of the Sentence
18 {35} Defendant argues that because the surveillance video, which recorded the
19 murders, shows that Defendant shot one of the victims while his brother shot the
20 other two victims, his three life sentences constitute cruel and unusual punishment
21 in violation of the New Mexico and United States Constitutions. This argument is
22 not developed, and rightly so. As Defendant acknowledges, “[a] person who is an
17
1 accessory to a crime is equally culpable . . . as the principal.” State v. Torres, 2018-
2 NMSC-013, ¶ 44, 413 P.3d 467; NMSA 1978, § 30-1-13 (1972) (“A person may be
3 charged with and convicted of the crime as an accessory if he procures, counsels,
4 aids or abets in its commission . . . .”).We also reject this argument.
5 D. Double Jeopardy
6 {36} Defendant argues—and the State concedes—that Defendant’s six convictions
7 for first-degree murder violate double jeopardy. While this consensus is not binding
8 on the Court, we also agree. See State v. Comitz, 2019-NMSC-011, ¶ 25, 443 P.3d
9 1130 (noting that the Court independently assesses a party’s claim despite
10 concessions from the opposition).
11 {37} Stemming from the killings of the three victims, the jury convicted Defendant
12 of three counts of first-degree, willful and deliberate murder and three counts of
13 felony murder. While only one capital sentence was imposed for each murder, under
14 the judgment and sentence, Defendant stands convicted of six first-degree murder
15 convictions for three killings. However, “Under New Mexico precedent, it [is] a
16 violation of double jeopardy to impose more than one homicide conviction for one
17 death.” State v. Saiz, 2008-NMSC-048, ¶ 36, 144 N.M. 663, 191 P.3d 521, abrogated
18 on other grounds by State v. Belanger, 2009-NMSC-025, ¶ 26, 146 N.M. 357, 210
18
1 P.3d 783. Defendant’s three felony murder convictions must be vacated on double
2 jeopardy grounds.
3 III. CONCLUSION
4 {38} We remand to the district court to vacate Defendant’s three convictions for
5 felony murder, and otherwise affirm.
6 {39} IT IS SO ORDERED.
7
8 MICHAEL E. VIGIL, Justice
9 WE CONCUR:
10
11 C. SHANNON BACON, Chief Justice
12
13 DAVID K. THOMSON, Justice
14
15 JULIE J. VARGAS, Justice
16
17 BRIANA H. ZAMORA, Justice
19