State v. Savage

1 This decision was not selected for publication in the New Mexico Reports. Please see Rule 12-405
2 NMRA for restrictions on the citation of unpublished decisions. Please also note that this
3 electronic decision may contain computer-generated errors or other deviations from the official
4 paper version filed by the Supreme Court and does not include the filing date.

5 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

6 Opinion Number:
7
8 Filing Date: September 20, 2011

9 NO. 32,236

10 STATE OF NEW MEXICO,

11 Plaintiff-Appellee,

12 v.

13 AUBREY SAVAGE,

14 Defendant-Appellant.

15 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
16 William G W. Shoobridge, District Judge

17 McGarry Law Office
18 Kathleen McGarry
19 Glorieta, NM

20 for Appellant

21 Gary K. King, Attorney General
1 William H. Lazar, Assistant Attorney General
2 Santa Fe, NM
3
4 for Appellee
5 DECISION

6 MAES, Justice.

7 Aubrey Savage (Defendant) was charged with first degree murder, contrary

8 to NMSA 1978, Section 30-2-1(A)(1) (1994), and possession of a firearm by a

9 felon, contrary to NMSA 1978, Section 30-7-16 (2001), in connection with the

10 shooting death of Yurhonnd DeLoach (Victim) at the Elks Club in Hobbs, N.M.

11 Defendant pled guilty to the felon in possession charge, and he was convicted of

12 first degree murder following a jury trial. Defendant appeals directly to this

13 Court pursuant to Rule 12-102(A)(1) NMRA, claiming that (1) there was

14 insufficient evidence to convict him of first degree murder; (2) the district court

15 improperly refused his requested instructions on voluntary and involuntary

16 manslaughter; and (3) the district court improperly admitted testimony by the

17 supervising pathologist, as opposed to the pathologist who conducted Victim’s

18 autopsy, in violation of the Confrontation Clause. We affirm Defendant’s

19 convictions.

20 I. FACTUAL AND PROCEDURAL BACKGROUND
1 On the night of January 18, 2009, Defendant was at the Elks Club (the

2 club) in Hobbs, N.M. Defendant, a local, was at the club with several friends,

3 including Marshall “Taz” Jackson. Also at the club that evening were several

4 men from Mississippi who came to New Mexico to work on a construction

5 project in Eunice. Among the group of co-workers was Yurhonnd DeLoach

6 (Victim) and his fiancée Arteca Heckard.

7 Tensions rose between Defendant, his friend Jackson, and Recordo Owens,

8 one of the Mississippi co-workers, in the restroom of the club. Owens was using

9 the restroom when Jackson told him to hurry up. Owens responded that he would

10 not be rushed. Jackson said that he had “too many heats” and pulled a gun from

11 his waistband and handed it to Defendant, who placed it in his own waistband. It

12 was a large caliber firearm, either a .45 or a .40.

13 Following the altercation in the restroom, the club operator turned on the

14 lights and announced that patrons should leave. Owens and his cousin left the

15 club together. As they were approaching the cousin’s truck, Defendant walked

16 up to them with the gun at his waist and said, “Say something else, nigger. Say

17 something else.” Owens and his cousin continued toward the truck.

2
1 Defendant then walked up behind another of the Mississippi co-workers,

2 Dewatrick Tate, who was exiting the club with a friend. According to Tate,

3 Defendant “asked us, ‘Did we have a problem?’” Tate and his friend replied that

4 they did not. Defendant tried to force himself between Tate and his friend,

5 brandished the gun and asked, “Which one of y’all’s saying something?” Tate

6 and his friend continued toward their vehicle.

7 Victim then exited the club with Heckard. Heckard testified that Victim

8 wanted to walk toward the argument occurring between Defendant and the

9 Mississippi co-workers, but Heckard urged that he go the other way. Victim did

10 not heed her and walked toward the argument. Victim was pushed by someone in

11 the crowd, and he exclaimed, “Get your hands off me, I ain’t in with this.”

12 Someone in the crowd responded, “Aren’t you from Mississippi?” He replied,

13 “Yeah, I’m from Mississippi.” The person in the crowd responded, “Well, you in

14 it.” Defendant fired once into the air, then he cocked his gun and shot at Victim

15 multiple times.

16 Victim was struck at least five times, once in the chest and four times in

17 the back. Two large caliber bullets and one small caliber bullet were recovered

18 during the autopsy. Two wounds did not produce projectiles, as the bullets both

3
1 entered and exited Victim’s body. Five of the gunshot wounds Victim sustained

2 were potentially fatal; a sixth wound, a graze wound on Victim’s neck, was not

3 potentially fatal.

4 Following a jury trial, Defendant was sentenced to a term of eighteen

5 months for the felon in possession charge and to a term of life for the first degree

6 murder charge, to be served consecutively. He appeals his convictions directly to

7 this Court. We exercise appellate jurisdiction where life imprisonment has been

8 imposed. N.M. Const. art. VI, § 2; see Rule 12-102(A)(1) (appeal from sentence

9 of life imprisonment taken directly to Supreme Court).

10 II. DISCUSSION

11 A. There was sufficient evidence of deliberate intent to support a
12 conviction of first degree murder.

13 Defendant contends that there was insufficient evidence to convict him of

14 first degree murder, claiming that the evidence supports a “rash and impulsive

15 crime,” and no planning went into the killing. He argues that there was

16 insufficient evidence to prove beyond a reasonable doubt that he harbored a

17 deliberate intent to kill Victim, and thus his conviction for first degree murder

18 should be reversed.

4
1 In response, the State claims that there was sufficient evidence to support

2 Defendant’s deliberate intent to kill. To support deliberate intent, the State relies

3 upon the fact that Defendant threatened Owens, Owens’s cousin, Tate, and Tate’s

4 friend immediately before the shooting. The State also relies on the manner of

5 the shooting to support deliberate intent. Defendant shot Victim multiple times in

6 the back, and according to the State, this “leave[s] little doubt as to his deliberate

7 intent.”

8 “The test for sufficiency of the evidence is whether substantial evidence of

9 either a direct or circumstantial nature exists to support a verdict of guilty beyond

10 a reasonable doubt with respect to every element essential to a conviction.” State

11 v. Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation

12 marks and citation omitted). This Court views “the evidence in the light most

13 favorable to the guilty verdict, indulging all reasonable inferences and resolving

14 all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-

15 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

16 The requisite state of mind for first degree murder is a “willful, deliberate

17 and premeditated” intention to kill. Section 30-2-1(A)(1); see also State v.

18 Adonis, 2008-NMSC-059, ¶ 14, 145 N.M. 102, 194 P. 3d 717; State v. Garcia,

5
1 114 N.M. 269, 271; 837 P.2d, 862, 864 (1992). “The word deliberate means

2 arrived at or determined upon as a result of careful thought and the weighing of

3 the consideration for and against the proposed course of action.” UJI 14-201

4 NMRA. Though deliberate intent requires a “calculated judgment” to kill, the

5 weighing required for deliberate intent “may be arrived at in a short period of

6 time.” Id. In determining whether a defendant made a calculated judgment to

7 kill, the jury may infer intent from circumstantial evidence; direct evidence of a

8 defendant’s state of mind is not required. State v. Duran, 2006-NMSC-035, ¶ 7,

9 140 N.M. 94, 140 P.3d 515.

10 Viewing the evidence in a light most favorable to the verdict, there was

11 sufficient evidence of Defendant’s deliberate intent to kill Victim. Here,

12 deliberate intent may be inferred from Defendant’s aggressive posturing outside

13 the club. Defendant approached two of the Mississippi co-workers, Owens and

14 Tate, and challenged them to say something to him. The large caliber gun was

15 visible in Defendant’s waistband when he attempted to provoke Owen and

16 Owen’s cousin. When he approached Tate and his friend, Defendant brandished

17 the firearm and tried to force himself between the two. Defendant’s aggressive

18 behavior toward the Mississippi co-workers suggests that he acted pursuant to a

6
1 deliberate intent, rather than an “unconsidered and rash impulse” in shooting

2 Victim. UJI 14-201.

3 In addition to Defendant’s aggressive behavior toward the Mississippi co-

4 workers, the manner of the shooting showed that Defendant harbored a deliberate

5 intent to kill Victim. See, e.g., Riley, 2010-NMSC-005, ¶ 20 (relying on, inter

6 alia, multiple gunshots fired by the defendant to demonstrate deliberate intent);

7 Duran, 2006-NMSC-035, ¶ 8 (relying on, inter alia, multiple stab wounds in the

8 victim’s back); State v. Coffin, 1999-NMSC-038, ¶ 76, 128 N.M. 192, 991 P.2d

9 477 (relying on, inter alia, the fact that the victim suffered multiple gunshot

10 wounds in the back). Here, Owens testified that he heard multiple gunshots, and

11 the autopsy revealed that Victim was shot at least five times. Four wounds had a

12 back-to-front trajectory, which would be consistent with Defendant’s continued

13 aggression even though Victim either fell or tried to back away.

14 Viewing the evidence in a light most favorable to the verdict, we conclude

15 that a reasonable jury could infer from Defendant’s aggressive posturing and the

16 manner in which the shooting was conducted that Defendant formed his intent to

17 kill Victim after weighing the considerations for and against the killing.

7
1 Accordingly, there was sufficient evidence to support Defendant’s first degree

2 murder conviction.

3 B. The district court did not commit error in refusing Defendant’s
4 requested instructions on voluntary and involuntary manslaughter.

5 The jury was instructed on first and second degree murder. The Defendant

6 requested instructions of voluntary and involuntary manslaughter. Both

7 manslaughter instructions were denied. Defendant contends there was sufficient

8 evidence to require giving both manslaughter instructions, and it was error for

9 the district court to deny his requested manslaughter instructions.

10 The question of whether the jury was properly instructed is a mixed

11 question of fact and law which this Court reviews de novo. State v. Henley,

12 2010-NMSC-039, ¶ 12, 148 N.M. 359, 237 P.3d 103. “A defendant is entitled to

13 an instruction on a lesser included offense when there is some view of the

14 evidence pursuant to which the lesser offense is the highest degree of crime

15 committed, and that view [is] reasonable.” State v. Gaitan, 2002-NMSC-007, ¶

16 11, 131 N.M. 758, 42. P.3d 1207 (alteration in original) (internal quotation marks

17 and citation omitted). This Court reviews the evidence in the light most

18 favorable to giving the requested instruction. Henley, 2010-NMSC-039, ¶ 25.

19 “When evidence at trial supports the giving of an instruction on a defendant’s

8
1 theory of the case, failure to so instruct is reversible error.” Id. (internal

2 quotation marks and citation omitted).

3 1. Voluntary Manslaughter

4 Generally, manslaughter is the “unlawful killing of a human being without

5 malice.” NMSA 1978, § 30-2-3 (1994). Voluntary manslaughter is a killing

6 “committed upon a sudden quarrel or in the heat of passion.” Section 30-2-3(A).

7 However, upon sufficient provocation, second degree murder may be mitigated to

8 manslaughter. See Gaitan, 2002-NMSC-007, ¶ 11; UJI 14-220 NMRA (“The

9 difference between second degree murder and voluntary manslaughter is

10 sufficient provocation.”). Sufficient provocation is “any action, conduct or

11 circumstances which arouse anger, rage, fear, sudden resentment, terror or other

12 extreme emotions.” UJI 14-222 NMRA. Sufficient provocation causes a loss of

13 the “ability to reason” and a “temporary loss of self control in an ordinary person

14 of average disposition.” Id. However, if “an ordinary person would have cooled

15 off before acting,” the provocation is not sufficient. Id. Moreover, there also

16 must be evidence that the acts of provocation by the victim are not the result of

17 intentional acts of the defendant. State v. Padilla, 104 N.M. 446, 448, 722 P.2d

18 697, 699 (Ct. App. 1986) (citing State v. Manus, 93 N.M. 95, 597 P.2d 280

9
1 (1979)). When a defendant “intentionally provokes an attack so that he can use

2 that attack as an excuse for killing, he is guilty of murder,” rather than

3 manslaughter. Gaitan, 2002-NMSC-007, ¶ 13.

4 Defendant asserts that the evidence demonstrated that “tempers were

5 running high” between the Mississippi co-workers and the group of locals.

6 Although incidents occurred earlier in the evening between the local group and

7 the Mississippi co-workers, Defendant did not pull out a gun until the physical

8 altercation between the groups began. Additionally, Defendant points to

9 evidence of other weapons in the vicinity of the altercation (a knife and casings

10 from a 9mm gun were found). He notes that Victim was “drunk and

11 argumentative.” Defendant claims this was “sufficient evidence to merit a

12 manslaughter instruction.”

13 The State argues that Defendant was not entitled to an instruction on

14 voluntary manslaughter because he provoked the violence that resulted in

15 Victim’s death. The State notes that Defendant was a member of the group who

16 began the altercation with Owens inside the club’s restroom. The State claims

17 Defendant was trying to instigate violence by assailing the Mississippi co-

18 workers while brandishing a weapon. The State further maintains that Victim did

10
1 not approach the altercation outside of the club until after Defendant had joined

2 the argument. The State also contests the notion that Victim provoked Defendant

3 “to kill without malice.” The State notes that for voluntary manslaughter there

4 must be sufficient provocation “to obscure the reason of an ordinary man, and to

5 prevent deliberation and premeditation, and to exclude malice and to render [a]

6 defendant incapable of cool reflection.” State v. Kidd, 24 N.M. 572, 577, 175 P.

7 772, 774 (1917).

8 Viewing the evidence in the light most favorable to giving an instruction

9 on voluntary manslaughter, State v. Romero, 2005-NMCA-060, ¶ 8, 137 N.M.

10 456, 112 P. 3d 1113, there was insufficient evidence that Victim’s actions would

11 arouse in Defendant “anger, rage, fear, sudden resentment, terror or other extreme

12 emotions,” enough to affect his ability to reason or experience a “temporary loss

13 of self-control,” UJI 14-222. The trial evidence showed that Defendant was a

14 principal actor in the assault upon the Mississippi co-workers. The assault began

15 in the club’s restroom and moved to the sidewalk outside. Defendant then

16 approached several of the Mississippi co-workers, brandishing his weapon and

17 attempting to instigate a conflict. Therefore, because Defendant provoked the

18 hostility between the two groups, his claim that he was moved to a state of

11
1 “anger, rage, fear, sudden resentment, terror or other extreme emotions” lacks

2 merit. UJI 14-222.

3 We have found sufficient provocation where a defendant fears that the

4 victim is reaching for a gun, State v. Jernigan, 2006-NMSC-003, ¶25, 139 N.M.

5 1, 127 P.3d 537, or where a defendant receives extremely shocking information,

6 Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982). No such extreme

7 circumstances were evident in this case. Defendant relies on general allegations

8 that there were rising tensions between him and the Mississippi co-workers.

9 Furthermore, Victim’s actions were not enough to arouse sufficient provocation

10 of Defendant. Victim walked over to where the group of locals and his

11 co-workers were arguing, a fist was swung at him, and Victim merely swung

12 back at someone in the crowd. Defendant, outside of the crowd and to the right,

13 then cocked his gun and fired at Victim. Victim was shot at least five times, once

14 in the chest and four times in the back. Victim’s actions were simply not

15 sufficient to cause Defendant to temporarily lose his ability to reason and his

16 self-control. Therefore, there was not sufficient evidence to require an instruction

17 on voluntary manslaughter.

18 2. Involuntary Manslaughter

12
1 Involuntary manslaughter is “manslaughter committed in the commission

2 of an unlawful act not amounting to felony, or in the commission of a lawful act

3 which might produce death in an unlawful manner or without due caution and

4 circumspection.” Section 30-2-3(B). “An involuntary manslaughter jury

5 instruction is proper only when the evidence presented at trial permits the jury to

6 find the defendant had a mental state of criminal negligence.” Henley,

7 2010-NMSC-039, ¶ 3; see also id. ¶ 22. Criminal negligence is “conduct which

8 is reckless, wanton, or willful.” State v. Mascarenas, 2000-NMSC-017, ¶ 9, 129

9 N.M. 230, 4 P.3d 1221 (internal quotation marks and citation omitted).

10 In support of his claim that he was entitled to an instruction on involuntary

11 manslaughter, Defendant relies on evidence that there was a lot of shooting and

12 that he shot his gun randomly into the air. Defendant also notes that Heckard was

13 the only witness to testify seeing Defendant shoot Victim. Thus, Defendant

14 suggests that carrying a weapon and firing randomly “would support criminal

15 negligence.”

16 The State claims that Defendant’s argument with respect to the involuntary

17 manslaughter instruction was not properly preserved. The State notes that at trial,

18 Defendant requested an involuntary manslaughter instruction because “the

13
1 evidence that Defendant was in the nightclub supported an inference that he was

2 intoxicated, and that this supported a further inference that he shot [Victim]

3 negligently.” (Emphasis added.) Because the instruction was requested upon a

4 different theory, the State claims this count of error was not preserved.

5 Defendant’s requested instruction did include mention of intoxication. However,

6 the instruction fairly read, also referred to the Defendant’s action of negligently

7 firing a gun.” Accordingly, Defendant is not arguing on an entirely new,

8 unpreserved theory.

9 The State argues that an instruction on involuntary manslaughter is only

10 appropriate when the defendant acts with a mens rea of criminal negligence.

11 Henley, 2010-NMSC-039, ¶ 22. Here, the State claims the killing was

12 intentional, and therefore, Defendant did not act with a mens rea of criminal

13 negligence. Specifically, the State claims that the evidence that Defendant had

14 brandished his weapon and made implicit threats to shoot Owens and Tate

15 demonstrates he acted intentionally, rather than negligently, in killing Victim.

16 We recognize that only some reasonable view of the evidence is necessary

17 for an instruction on a lesser-included offense, such as involuntary manslaughter.

18 Gaitan, 2002-NMSC-007, ¶ 11. Aside from the one random gunshot in the air,

14
1 the most favorable view of the evidence demonstrates that the gravity of

2 Defendant’s actions exceeded criminally negligence. That Defendant fired one

3 gunshot indiscriminately into the air does not establish that the subsequent

4 gunshots fired at Victim were a result of unintentional actions. Such action is

5 murder, not manslaughter. See Henley, 2010-NMSC-039, ¶ 14 (citing State v.

6 Pruett, 27 N.M. 576, 579, 203 P. 840, 841 (1921). There was no error in refusing

7 Defendant’s requested involuntary manslaughter instruction.

8 C. Testimony by the supervising pathologist, as opposed to the
9 pathologist who conducted Victim’s autopsy, did not violate the
10 Confrontation Clause.

11 The Confrontation Clause ensures that “[i]n all criminal prosecutions, the

12 accused shall enjoy the right . . . to be confronted with the witnesses against

13 him.” U.S. Const. amend. VI. Thus, the Confrontation Clause bars

14 “[o]ut-of-court testimonial statements . . . unless the witness is unavailable and

15 the defendant had a prior opportunity to cross-examine the witness.” State v.

16 Zamarripa, 2009-NMSC-001, ¶ 23, 145 N.M. 402, 199 P.3d 846. Whether

17 evidence was admitted in violation of the Confrontation Clause is a question of

18 law which this Court reviews de novo. State v. Aragon, 2010-NMSC-008, ¶ 6,

19 147 N.M. 474, 225 P.3d 1280.

15
1 At trial, the State proffered the expert testimony of Dr. Kurt Nolte, a

2 forensic pathologist working as the Assistant Chief Medical Investigator for the

3 State of New Mexico. In this role, he trains forensic pathology fellows and

4 supervises them as they conduct autopsies. One of the pathology fellows, Dr.

5 Lauren Jackson, was assigned to conduct Victim’s autopsy under Dr. Nolte’s

6 supervision.

7 Typically, Dr. Nolte meets with the fellows and together they determine

8 the steps needed to complete a particular autopsy. The fellows then initiate

9 dissection while Dr. Nolte moves from table to table observing their findings. Up

10 to six autopsies may be conducted simultaneously; two supervisors are present

11 and each typically oversees three autopsies.

12 Dr. Jackson struggled to dissect several of the gunshot wounds because

13 they “were complex and had intersecting paths.” As a result, Dr. Nolte

14 personally participated in the dissection and helped Dr. Jackson understand the

15 gunshot wounds. Specifically, Dr. Nolte participated in dissecting the wound that

16 began in the right upper back and involved injury to the diaphragm, as well as

17 two other wounds.

16
1 After Victim’s autopsy was completed, Dr. Jackson prepared an autopsy

2 report reflecting the nature and extent of Victim’s injuries. The report was

3 reviewed for accuracy by Dr. Nolte and was then signed by both Dr. Nolte and

4 Dr. Jackson. The report, however, was not admitted at trial.

5 Defendant claims that the State’s decision to call Dr. Nolte instead of Dr.

6 Jackson deprived him of his right to confrontation. Defendant maintains that

7 because Dr. Jackson did not testify, he “did not have the opportunity to confront

8 the person who had actually performed the autopsy in this case.” Defendant also

9 objects to Dr. Nolte’s reliance on the autopsy report, which was written by Dr.

10 Jackson, but reflected their joint findings. Defendant cites Melendez-Diaz v.

11 Massachusetts, 129 S. Ct. 2527 (2009), and this Court’s opinion in Aragon in

12 support of his arguments.

13 In Melendez-Diaz, the U.S. Supreme Court held that laboratory certificates,

14 which stated that evidence found in the defendant’s possession was cocaine of a

15 certain weight, were testimonial in nature. 129 S. Ct. at 2531-32. Accordingly,

16 the defendant was entitled to confront the analyst who had tested the evidence

17 and produced the certificate at trial. Id. at 2542.

17
1 In Aragon, a forensic chemist, Eric Young, analyzed the contents of a

2 plastic baggie found by police in a home where the defendant was hiding. 2010-

3 NMSC-008, ¶¶ 3-4. Young determined that the baggie contained

4 methamphetamine. Id. ¶ 4. Young’s colleague, Andrea Champagne, analyzed

5 the contents of a second plastic baggie and determined that the second baggie

6 contained methamphetamine. Id. Each chemist prepared a report reflecting their

7 respective findings, and both reports were admitted at trial. Id. However, only

8 Young testified, and the trial court permitted him to discuss Champagne’s testing

9 and report regarding the second baggie, even though Young did not “observe,

10 supervise, or participate in either the analysis or the preparation of the report.”

11 Id. ¶ 5. On these facts, this Court found that the defendant’s confrontation rights

12 had been violated. Id. ¶ 33.

13 Defendant’s reliance on Melendez-Diaz and Aragon is misplaced. In

14 Melendez-Diaz, the defendant had no opportunity to confront the laboratory

15 analyst who performed the tests, and the laboratory certificates were admitted

16 without the benefit of live testimony. 129 S. Ct. at 2531. By contrast, in this

17 case, Dr. Nolte provided in-court testimony regarding the autopsy and was cross-

18 examined by Defendant. Defendant’s case is also distinguishable from Aragon.

18
1 In Aragon, the trial court allowed Young’s testimony regarding the chemical

2 analysis of the second baggie even though Young did not conduct the testing and

3 had no personal knowledge of it. 2010-NMSC-008, ¶ 5. Additionally, the Court

4 admitted the report discussing the contents of the second baggie. Id. Here, the

5 district court did not admit the autopsy report, and Dr. Nolte did not testify as to a

6 laboratory process conducted by another individual of which he had no personal

7 knowledge. He testified as to an autopsy which he supervised and, indeed,

8 participated in himself. Thus, we conclude that Defendant’s confrontation rights

9 were not violated.

10 III. CONCLUSION

11 We hold that (1) there was sufficient evidence of Defendant’s deliberate

12 intent in order to support his first degree murder conviction, (2) the district court

13 did not err in refusing Defendant’s requested instructions on voluntary and

14 involuntary manslaughter, and (3) admitting testimony by the supervising

15 pathologist who personally participated in Victim’s autopsy did not violate

16 Defendant’s rights under the Confrontation Clause. We affirm Defendant’s

17 convictions.

18 IT IS SO ORDERED.

19
1 ___________________________________
2 PETRA JIMENEZ MAES, Justice

3 WE CONCUR:

4 ___________________________________
5 CHARLES W. DANIELS, Chief Justice

6 ___________________________________
7 PATRICIO M. SERNA, Justice

8 ___________________________________
9 RICHARD C. BOSSON, Justice

10 ___________________________________
11 EDWARD L. CHÁVEZ, Justice

20