State v. Burrows

STATE V. BURROWS

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
KENNETH ALLIN BURROWS,
Defendant-Appellant.

Docket No. S-1-SC-36475
SUPREME COURT OF NEW MEXICO
June 3, 2019

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY, Bradford J. Dalley,
District Judge

COUNSEL

Bennett J. Baur, Chief Public Defender, John Charles Bennett, Assistant Appellate
Defender, Santa Fe, NM for Appellant

Hector H. Balderas, Attorney General, Emily C. Tyson-Jorgenson, Assistant Attorney
General, Santa Fe, NM, for Appellee

JUDGES

C. SHANNON BACON, Justice. WE CONCUR: JUDITH K. NAKAMURA, Chief Justice,
BARBARA J. VIGIL, Justice, MICHAEL E. VIGIL, Justice, DAVID K. THOMSON, Justice

AUTHOR: C. SHANNON BACON

DECISION

BACON, Justice.

{1} Defendant, Kenneth Allin Burrows, appeals his first-degree murder conviction. He
raises two issues 1on appeal: (1) whether the trial court’s denial of his motion to dismiss

1
In his statement of the issues, Defendant raises three issues including ineffective
assistance of counsel. In his brief in chief, however, Defendant abandons his ineffective
assistance of counsel claim. See State v. Hosteen, 1996-NMCA-084, ¶ 20, 122 N.M.
on double jeopardy grounds was in error, and (2) whether the trial court erred in
admitting a recording of a telephone call. Concluding that there was no prosecutorial
misconduct justifying dismissal and no error in admitting the recorded telephone call, we
affirm.

I. BACKGROUND

{2} On January 18, 2014, Defendant and co-defendant, Tiki Marez, went to the home
of Daniel Boone to “take care of” him. Boone was purportedly an informant. To lure
Boone out of his home, Marez knocked on his front door and told Boone and his wife
that Marez’s car battery had died and that she needed her battery jumped. Boone met
Marez near her car, where Defendant was hiding in the nearby bushes. Boone jumped
Marez’s car battery and while Boone was disconnecting the jumper cables, Defendant
emerged from the bushes. Boone began to run away. As Boone was running away
from the car, Defendant shot Boone. Boone died of his gunshot wounds at the scene.

{3} Defendant was charged with first-degree murder (willful and deliberate),
tampering with evidence (capital crime or first- or second-degree felony) and
possession of a firearm or destructive device by felon. The possession count was
severed prior to trial and ultimately the State dismissed this count. The State tried the
case twice, both times to juries. The first trial resulted in a mistrial.

{4} In its pretrial order, the trial court ordered that the State could not mention
“subsequent violence and/or alleged criminal behaviors by anyone accompanying
[Defendant] to the Daniel Boone residence in November of 2013.”

{5} At the first trial, Defendant moved for a mistrial on three occasions, asserting
violations of the trial court’s pretrial order. First, Marez, while testifying on direct, was
asked if she remembered any major disagreements that interfered with her intimate
relationship with Defendant. She responded, “We got arrested.” Defense counsel
objected that this statement was an inappropriate comment on prior bad acts and
moved for a mistrial. The trial court denied the request for mistrial.

{6} Next, during his direct testimony, Detective Nyce, the lead investigator in this
matter, referred to speaking with Defendant “one time at county jail.” Defense counsel
asked for a mistrial. While the trial court was not happy with the comment, it denied the
request for a mistrial, stating, “I don’t think that we got [sic] to a mistrial point yet.”

{7} Finally, on Detective Nyce’s redirect examination, the prosecution questioned
him about following up on certain evidence. The questions and answers unfolded as
follows:

228, 923 P.2d 595 (“[I]ssues must be adequately argued and supported by authority in
the brief-in-chief or they will be deemed abandoned.”).
State: Now, counsel asked you about your conversation with Mr. Maes. Did you
look into everything that he told you?

Nyce: Yes sir.

State: Okay. And did every single word he tell you help?

Nyce: No.

State: Did some of it help?

Nyce: Yes.

State: What?

Nyce: I learned about an incident where a door was kicked in and who was with
Mr. Maes at the time the door was kicked in.

State: And did the name Kenneth Burrows help in moving forward?

Defense counsel objected and asked to approach. At the bench, defense counsel
asked for a mistrial, asserting that this testimony violated the court’s pretrial order.
Based on the cumulative nature of the testimony, the trial court granted a mistrial. The
trial court ordered that a second trial would commence with a new jury panel.

{8} Prior to the second trial, defense counsel made a motion to dismiss on double
jeopardy grounds, arguing that prosecutorial misconduct necessitated a mistrial in
Defendant’s first trial. Defense counsel asserted that the State goaded him into asking
for a mistrial based on the testimony of Detective Nyce and testimony regarding prior
bad acts. The trial court denied the motion and specifically found that there was no
prosecutorial misconduct. The second trial proceeded.

{9} At trial, one of the facts at issue was whether boot prints at the scene of the
crime matched Defendant’s boots. Marez testified that on the night of the shooting,
Defendant was wearing a long-sleeved black t-shirt, jeans, and boots. She further
testified that the boots Defendant was wearing were the only boots she had ever seen
him wear and she identified the boots at trial.

{10} The trial court also allowed testimony, over Defendant’s objection, about a
recorded phone conversation between Defendant and his girlfriend (“Girlfriend”). In the
course of his investigation, Detective Nyce listened to many recordings of telephone
calls between Defendant and Girlfriend while Defendant was in custody. One such
conversation included a very brief discussion of Defendant’s boots. Prior to the
admission of the testimony, Defendant sought to exclude this testimony by arguing to
the trial court that Girlfriend’s statements were inadmissible hearsay and violated the
Confrontation Clause. The trial court overruled Defendant’s objection. Over
Defendant’s objection, the State asked Detective Nyce the following:

State: My question is—after the search warrant was executed at [Defendant’s]
house and the boots were collected as evidence, did you have an occasion to
hear a recording of a telephone conversation in which [Defendant] made a
comment relating to boots?

Nyce: Yes.

State: And what did you hear?

Nyce: The conversation I heard was: “No, ah, your riding boots, your black ones,
your old ones. Oh, okay.”

State: And the “Oh, okay” came from who?

Nyce: [Defendant].

{11} At the conclusion of trial, the jury convicted Defendant of first-degree murder and
acquitted Defendant of tampering with evidence. The trial court sentenced Defendant to
life in prison to be served concurrently with a sentence in federal prison for an unrelated
crime.

{12} On appeal, Defendant asserts that the trial court erred in denying his motion to
dismiss on double jeopardy grounds and that the trial court erred in admitting testimony
regarding the telephone call between Defendant and Girlfriend. We affirm.

II. DISCUSSION

A. No Prosecutorial Misconduct

{13} Defendant argues that the trial court erred in denying Defendant’s motion to
dismiss on double jeopardy grounds. Defendant, relying upon State v. Breit, 1996-
NMSC-067, 122 N.M. 655, 930 P.2d 792, argues that the State goaded his counsel into
moving for a mistrial by means of prosecutorial misconduct. Defendant, however, does
not apply Breit to the facts of this case.2 Further, Defendant concedes not only that the

2
We note that Defendant’s appeal is brought under State v. Boyer, 1985-NMCA-029, ¶
17, 103 N.M. 655, 712 P.2d 1 and State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127,
428 P.2d 982, and accordingly Defendant does not support either of his arguments with
references to the record or application of the law to the facts of this case. This Court
need not address conclusory statements lacking appropriate argument or citation to
authority. State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M.508, 873 P.2d 254. We
can affirm on this basis alone.
trial court found no prosecutorial misconduct, but also that “no prosecution misconduct
is evident on the CD of the trial.”

{14} In Breit, this Court held that where prosecutorial misconduct is pervasive,
incessant, and outrageous, principles of double jeopardy will bar reprosecution. 1996-
NMSC-067, ¶ 20. In Breit, the prosecutor referenced matters that were not admissible,
exaggerated claims, argued with witnesses, posed improper questions to witnesses,
engaged in sarcasm and scorn toward opposing counsel, and directed belligerent
statements toward opposing counsel. Id. ¶¶ 41-43. Unlike in Breit, the prosecutor here
was not the source of the comments leading to a mistrial. This Court’s double jeopardy
analysis for prosecutorial misconduct does not extend to unsolicited statements by
witnesses. See State v. Hernandez, 2017-NMCA-020, ¶ 29, 388 P.3d 1016. In the
complete absence of prosecutorial misconduct, double jeopardy did not bar the retrial of
Defendant. State v. Gonzales, 2002-NMCA-071, ¶ 14, 132 N.M. 420, 49 P.3d 681
(holding that only severe prosecutorial misconduct may give rise to the extreme
sanction of dismissal).

B. The Tape-Recorded Telephone Conversation

{15} Defendant challenges the admission of Detective Nyce’s testimony regarding a
tape-recorded telephone call between Defendant and Girlfriend based on hearsay and
Confrontation Clause grounds.

{16} Defendant concedes that his own statements are not hearsay. Rather,
Defendant’s objection focuses on Detective Nyce’s summary of Girlfriend’s portions of
the conversation. Defendant objected to Detective Nyce’s testimony recounting the
identification of Defendant’s black riding boots.

{17} Trial court evidentiary rulings are reviewed for an abuse of discretion. State v.
Patterson, 2017-NMCA-045, ¶ 6, 395 P.3d 543. The trial court abuses its discretion
when its ruling is “untenable or not justified by reason.” Id. ¶ 11 (internal quotation
marks and citation omitted). Here, the trial court did not err in admitting the summary of
the brief telephone conversation between Defendant and Girlfriend because Girlfriend’s
portion of the conversation was a “reciprocal and integrated utterance between the two
parties.” State v. Castillo-Sanchez, 1999-NMCA-085, ¶ 23, 127 N.M. 540, 984 P.2d 787
(quoting United States v. Lemonakis, 485 F.2d 941, 948 (D.C. Cir. 1973)). Absent
Girlfriend’s portion of the conversation, there would be no context for Defendant’s
statement. In addition, Defendant adopted Girlfriend’s statement regarding the
identification of the boots. See Rule 11-801(D)(2)(b) NMRA. An adoption of such a
statement is not hearsay. Id.

{18} As for Defendant’s Confrontation Clause argument, the only argument he
advances in his brief in chief is that when there is no reasonable possibility that a
constitutional error affected the verdict, the error is harmless. See State v. Tollardo,
2012-NMSC-008, ¶ 36, 275 P.3d 110. While this is a correct statement of the law,
Defendant does not apply this adage to the facts of this case. Defendant does not
articulate how the use of his own statements or statements he adopted violated his
confrontation rights. We conclude that there was no error.

III. CONCLUSION

{19} For the reasons stated herein, we affirm Defendant’s conviction for first-degree
murder.

{20} IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

BARBARA J. VIGIL, Justice

MICHAEL E. VIGIL, Justice

DAVID K. THOMSON, Justice