State v. Chavez

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
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Supreme Court.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: April 8, 2024

No. S-1-SC-39509

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ROBERT CHAVEZ,

Defendant-Appellant.

CAPITAL APPEAL
Angie K. Schneider, District Judge

Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Raúl Torrez, Attorney General
Jane A. Bernstein, Assistant Attorney General
Santa Fe, NM

for Appellee

DECISION

VARGAS, Justice.

{1} Pursuant to Rule 12-102(A)(1) NMRA, Defendant Robert Chavez appeals his
convictions for two counts of first-degree murder by deliberate killing contrary to NMSA
1978, Section 30-2-1(A)(1) (1994). Defendant seeks reversal of his convictions on the
grounds that (1) there was insufficient evidence to convict Defendant of the murders
based on uncorroborated accomplice testimony; (2) the district court erred when it
admitted testimony of a police deputy recounting the contents of a witness’s statement
under Rule 11-803(1) NMRA, the “present sense impression” exception to the rule
against hearsay; and (3) the district court erred when it admitted segments of
Defendant’s recorded jail telephone calls.

{2} We affirm Defendant’s first-degree murder convictions because the accomplice
testimony was corroborated and there was sufficient evidence to convict Defendant and
because the district court did not abuse its discretion in its evidentiary rulings. Because
the issues in this case are sufficiently addressed by New Mexico precedent, we
exercise our discretion to resolve this case by way of nonprecedential decision under
Rule 12-405(B)(1) NMRA.

I. BACKGROUND

{3} In 2009, Maximiliano Griego (Victim Griego) and his girlfriend, Mary Hudson
Gutierrez (Victim Gutierrez), were fatally shot in their Alamogordo home. Approximately
ten years later, in 2019, Defendant was indicted for the murders after Defendant’s
nephew, Joey Chavez, came forward with information about the case. Joey agreed to
testify truthfully in this case in exchange for a shorter sentence in a separate felony
matter.

{4} At the time of the murders, Defendant lived in Arizona with Joey, then fifteen, and
headed a drug-trafficking organization with his brother, Joe Chavez, who resided in
Alamogordo. In 2009, Defendant rented a vehicle in Arizona and drove to Alamogordo
with Joey and two associates. Joey testified that, once they arrived in Alamogordo,
Defendant and his brother discussed their plan to kidnap and kill Victim Griego because
he had been “making threats” and had fired shots at a family member’s house.
Defendant and his brother made a plan to ask one of their female customers to lure
Victim Griego to her house. At Defendant’s instruction, Joey and one of Defendant’s
associates bought long, thick, plastic zip ties to bind Victim Griego during the
kidnapping.

{5} Later that day, Defendant’s brother asked Melisa Eveleth—an Alamogordo
woman who bought methamphetamine from Defendant and his brother at the time—to
get in touch with Victim Griego because he wanted to talk to him about “steppin’ on his
toes” by selling meth to his customers. Melisa testified that at the direction of
Defendant’s brother, she contacted Victim Griego and asked him to bring $800 worth of
meth to her house, without mentioning that Defendant or his brother were involved.

{6} Before Victim Griego arrived at Melisa’s house, Defendant’s brother, Defendant,
and one of Defendant’s associates arrived at Melisa’s house. Joey testified that he
waited in a vehicle outside of Melisa’s house for about an hour before Defendant
emerged from the house. Meanwhile, Defendant’s brother and the associate stayed at
Melisa’s house, waiting for Victim Griego to arrive. Later, Victim Griego arrived and
Melisa went with him to a back room in the house to smoke meth. Victim Griego had not
seen the other men in the house yet because they were hiding in another room. As
Victim Griego was about to start smoking, Melisa turned around and saw two men
standing behind her with guns. Melisa heard the men say the names “Bob” (Defendant’s
nickname) and “Mighty Mouse” (Defendant’s associate’s nickname) before she ducked
and ran out of the house through the back door. Running away, Melisa heard screaming
coming from the back room and saw silhouettes of fighting in the window of the room
where she had left Victim Griego.

{7} Later that evening, Defendant’s brother called Melisa, laughing, and said that he
“had [Victim Griego],” and warned her that there may be some blood at her house even
though they had “cleaned up.” Defendant also called Defendant’s brother to let him
know that they (Defendant and the two associates) had kidnapped Victim Griego and
asked Defendant’s brother to let them into a family member’s vacant house. When
Defendant’s brother and Joey arrived at the vacant house, Joey saw Defendant and the
two associates pull a black t-shirt off Victim Griego’s head. Joey observed that the zip
ties he had bought earlier bound Victim Griego’s hands and that he had “bruises on his
face and a couple of scrapes on the top of his head.” Joey saw one of the associates hit
Victim Griego on the head with a wooden stick and he witnessed Defendant taunt Victim
Griego, asking him with a smirk, whose town is this?

{8} While these events were underway, Victim Gutierrez texted Victim Griego asking
him where he was because he had not responded to several earlier text messages. She
also called and texted a friend to ask if he knew where Victim Griego was. Then, at
Defendant’s direction, Victim Griego called Victim Gutierrez and asked her to leave the
back door of her house open because he was coming home. Joey testified that
Defendant directed his brother and his two associates to take Victim Griego to Victim
Gutierrez’s house and to kill them both.

{9} Joey testified that Defendant’s brother and the two associates drove Victim
Griego to Victim Gutierrez’s house while he stayed behind with Defendant. At Victim
Gutierrez’s house, Alexandra Estrada (Alex), Victim Gutierrez’s fifteen-year-old
daughter, was asleep. Alex woke up to the sound of two gunshots. She found both
Victims Griego and Gutierrez lying unresponsive in her mother’s bedroom. She ran out
to the living room and saw two men in dark clothes get into the passenger side of a
vehicle, with someone else in the driver’s seat. Alex called 911 and then gave her
statement to Deputy Luis Herrera after the police arrived on scene.

{10} When Defendant’s brother and two associates returned to the house where
Defendant and Joey were waiting, Victim Griego was not with them. They discussed
what had happened at Victim Gutierrez’s house. Joey heard one of Defendant’s
associates say that he had shot both Victims Griego and Gutierrez. Defendant, his two
associates, and Joey traveled back to Arizona in the rental vehicle. The next day,
Melisa returned to her house in Alamogordo, where she found blood splattered in the
kitchen and the back bedroom where she had left Victim Griego the day before.

{11} The case went cold until Joey came forward in 2019. After a three-day trial in
2022, the jury convicted Defendant of two counts of first-degree murder and the district
court sentenced him to two consecutive life sentences. Defendant appeals directly to
this Court.
II. DISCUSSION

A. Sufficiency of the Evidence

1. Standard of review

{12} Defendant argues that the State presented insufficient evidence to convict him of
first-degree murder. Our standard of review for sufficiency of the evidence is highly
deferential to the jury’s verdict. State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185,
246 P.3d 1057. “New Mexico appellate courts will not invade the jury’s province as fact-
finder by second-guess[ing] the jury’s decision concerning the credibility of witnesses,
reweigh[ing] the evidence, or substitut[ing] its judgment for that of the jury.” Id. ¶ 5
(alterations in original) (internal quotation marks and citation omitted). “When reviewing
the sufficiency of the evidence, we ask whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” State v.
Martinez, 2021-NMSC-012, ¶ 36, 483 P.3d 590 (internal quotation marks and citation
omitted). “In performing this review, we must view the evidence in the light most
favorable to the guilty verdict, indulging all reasonable inferences and resolving all
conflicts in the evidence in favor of the verdict.” State v. Chavez, 2009-NMSC-035, ¶ 11,
146 N.M. 434, 211 P.3d 891 (internal quotation marks and citation omitted).

2. Sufficient evidence supports Defendant’s first-degree murder convictions

{13} Defendant argues that the State did not present sufficient evidence to convict him
of the murders because only one witness, Joey, “could tie [Defendant] to the murders in
this case.” This, according to Defendant, is “troublesome” because Joey was an
accomplice to the murders and testified against Defendant in exchange for a lighter
sentence in a separate matter. Defendant also argues that Joey’s testimony was
uncorroborated and conflicted with the testimony of other witnesses. Specifically, only
Joey testified that he heard Defendant instruct another man (one of Defendant’s
associates who did not testify at trial) to kill Victims Griego and Gutierrez. For these
reasons, his testimony, Defendant contends, should be viewed with suspicion.

{14} Defendant’s argument is unpersuasive for two reasons. First, an accomplice is
competent to testify, and we do not reweigh the credibility of an accomplice’s testimony
on appeal. See Rule 11-601 NMRA (“Every person is competent to be a witness unless
these rules provide otherwise.”); see also UJI 14-5020 NMRA (noting that the jurors
“alone are the judges of the credibility of the witnesses and the weight to be given to the
testimony of each of them”); State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126,
753 P.2d 1314 (“This court does not weigh the evidence and may not substitute its
judgment for that of the fact finder.”). In fact, this Court has held that even the
uncorroborated testimony of an accomplice is sufficient to support a conviction. See
State v. Kidd, 1929-NMSC-025, ¶ 3, 34 N.M. 84, 278 P. 214 (“The uncorroborated
testimony of an accomplice is sufficient in law to support a verdict.”); State v. Gutierrez,
1965-NMSC-143, ¶ 4, 75 N.M. 580, 408 P.2d 503 (“[T]he rule in this jurisdiction is that a
defendant may be convicted on the uncorroborated testimony of an accomplice.”).
{15} On its cross-examination of an accomplice, “[a] defendant can raise any ulterior
motive he or she believes the witness may have, such as a motive to fabricate
testimony, and challenge such testimony on cross-examination, as well as raise
questions during closing argument.” State v. Sarracino, 1998-NMSC-022, ¶ 12, 125
N.M. 511, 964 P.2d 72. During its direct examination of Joey, the State elicited
testimony that he had pled guilty to two felonies in 2017 and that he made an
agreement with the State to testify truthfully against Defendant in this case in exchange
for a thirteen-year sentence in the 2017 case. Defense counsel then attempted to
impeach Joey’s credibility on cross-examination, challenging his memory of events.
Defense counsel also challenged Joey’s credibility in her closing argument. The jury
was instructed to judge “the credibility of the witnesses and the weight to be given to the
testimony of each of them,” depending on the witness’s truthfulness, memory, or bias.
Thus, the jury was instructed to consider whether there were facts, including the
agreement that Joey had with the State, that weighed against his credibility as a witness
in this case. It was within the jury’s province as fact-finder to make a decision
concerning Joey’s credibility and this Court will not second-guess that decision. See
Garcia, 2011-NMSC-003, ¶ 5.

{16} Second, Defendant’s contention that Joey’s testimony was uncorroborated is
incorrect. Other witness testimony and documentary evidence corroborated Joey’s
testimony. For example, the State presented a rental agreement and bank statement
corroborating Joey’s testimony that Defendant rented a vehicle and drove it from
Phoenix to Alamogordo, and back to Phoenix, on the dates in question. Defendant’s
brother’s girlfriend in 2009— Tracey Garrison—corroborated Joey’s testimony about the
long, thick zip ties that were used to bind Victim Griego’s hands; Tracey testified that on
the weekend in question, she saw large, thick zip ties in Defendant’s brother’s house,
where Joey and Defendant had stayed that weekend. The medical investigator’s
testimony about lacerations and abrasions found on Victim Griego’s head that resulted
from blunt force trauma, not a gunshot wound, corroborated Joey’s testimony that he
had seen bruises and scrapes on Victim Griego’s head and that he had seen
Defendant’s associate hit Victim Griego on the head with a wooden stick that night.

{17} Also, Victim Gutierrez’s phone calls and text messages to her friend and to
Victim Griego, asking him where he was on the evening of the murders, corroborated
the timeline of Victim Griego’s kidnapping that Joey provided. Melisa Eveleth
corroborated Joey’s testimony about Defendant’s plan to use a woman to lure Victim
Griego, testifying that Defendant’s brother instructed her to ask Victim Griego over to
her house under false pretenses. Both Joey and Melisa identified the same house—
Melisa’s house at the time—as the location where Victim Griego had been lured. All of
these facts corroborate Joey’s testimony about the circumstances surrounding the
murder of Victim Griego and Victim Gutierrez.

{18} We agree with the State that any inconsistencies between Joey’s testimony and
other witnesses’ testimony did not render Joey’s testimony “inherently improbable,” as
Defendant contends. See State v. Armijo, 1931-NMSC-008, ¶ 34, 35 N.M. 533, 2 P.2d
1075 (holding that an appellate court may set aside a conviction supported by one
witness’s uncorroborated testimony that is inherently improbable). To the extent that
Joey’s testimony conflicted with that of other witnesses, it was within the jury’s province
to evaluate any contradictions in the testimony and make its own determination about
each witness’s credibility. Also, to the extent that Defendant argues that some witness
testimony—including testimony of Melisa Eveleth and Tracey Garrison—conflicted with
Joey’s simply because their testimony did not provide as much detail as Joey’s, that
argument is without merit. Their testimony was still corroborative of Joey’s firsthand
account of events. See 29A Am. Jur. 2d Evidence § 1363 (2023) (“Circumstantial
nonaccomplice evidence is sufficient corroboration if it shows that rational jurors could
have found that it sufficiently tended to connect the accused to the offense.”).

{19} Because Joey’s testimony was neither inherently improbable nor uncorroborated,
we agree with the State that this is not the proper case to revisit our precedent that
allows uncorroborated accomplice testimony to support a conviction, as Defendant
requests. See Kidd, 1929-NMSC-025, ¶ 3; Gutierrez, 1965-NMSC-143, ¶ 4. The State
presented sufficient evidence for any rational trier of fact to find Defendant guilty of first-
degree murder beyond a reasonable doubt.

B. Evidentiary Issues

1. Standard of review

{20} “We review the district court’s decision to admit or exclude evidence for an abuse
of discretion.” State v. Guerra, 2012-NMSC-014, ¶ 36, 278 P.3d 1031. “An abuse of
discretion occurs when the ruling is clearly against the logic and effect of the facts and
circumstances of the case.” State v. Smith, 2016-NMSC-007, ¶ 27, 367 P.3d 420
(internal quotation marks and citation omitted). “A court abuses its discretion if it applies
an incorrect standard, incorrect substantive law, or its discretionary decision is premised
on a misapprehension of the law.” State v. Adams, 2022-NMSC-008, ¶ 35, 503 P.3d
1130 (brackets, internal quotation marks, and citation omitted).

2. The district court did not abuse its discretion when it admitted Alex
Estrada’s statement to Deputy Herrera under Rule 11-803(1)

{21} Defendant argues that Alex Estrada’s statements to Deputy Herrera were
improperly admitted under Rule 11-803(1). Rule 11-803(1), the “present sense
impression” exception to the rule against hearsay, allows the admission of hearsay
“describing or explaining an event or condition, made while or immediately after the
declarant perceived it.” “A present-sense impression is admissible because the
substantial contemporaneity of the event and statement negate the likelihood of
deliberate or conscious misrepresentation.” State v. Leyba, 2012-NMSC-037, ¶ 17, 289
P.3d 1215 (brackets, internal quotation marks, and citation omitted).

{22} According to Defendant, the district court deprived him of his right to a fair trial
when it admitted Deputy Herrera’s testimony under Rule 11-803(1). Defendant argues
that Alex’s statement was unreliable and should not have been admitted as a present
sense impression because too much time had lapsed between the shooting and Deputy
Herrera’s interview with Alex.
{23} We disagree. The district court did not abuse its discretion—much less did it
deprive Defendant of his right to a fair trial, as Defendant argues—when it admitted
Deputy Herrera’s testimony about Alex’s statement under Rule 11-803(1). After defense
counsel objected to the State’s attempt to introduce Alex’s statement to Deputy Herrera
on hearsay grounds, the district court called a side bar. The district court considered the
arguments of both parties and listened to Deputy Herrera’s proposed testimony outside
of the jury’s presence. In his statement to the district court, Deputy Herrera estimated
that fifteen minutes had elapsed between the shooting and his interview with Alex. Only
then did the district court rule that Alex’s statement to Deputy Herrera regarding the
events that evening was admissible under Rule 11-803(1).

{24} In its oral ruling, the district court cited State v. Perry, noting that, in that case, the
court admitted a statement under Rule 11-803(1) that the declarant had made about five
to ten minutes after the attack in question had occurred. See State v. Perry, 1980-
NMCA-156, ¶ 7, 95 N.M. 179, 619 P.2d 855 (“The [district court] judge, pursuant to
[Rule 11-803(1)], must decide whether the time element involving the perception affects
the reliability of the evidence.”). And, the district court noted, “the time issue is related to
the trustworthiness of the statement.” In this case, where the delay between the
shooting and Alex’s interview with Deputy Herrera was about fifteen minutes, the district
court reasoned, “I believe that is not too far or too big of a separation from the events to
[Alex] making those statements to make it unreliable. . . . And there is no reason for her
to have fabricated” her statement. Deputy Herrera then testified in accordance with the
district court’s ruling—he testified that Alex told him she woke up that night with the
sound of two gunshots; she saw Victims Griego and Gutierrez lying in her mother’s
bedroom; and she saw two Hispanic males getting into a four-door sedan.

{25} There is nothing in the record to indicate that the district court’s ruling was clearly
against the logic and effect of the facts and circumstances in this case or that it
misapprehended the law. See Adams, 2022-NMSC-008, ¶ 35. The district court
carefully evaluated the relevant law, the parties’ arguments, and the proposed testimony
before making its ruling. The district court’s ruling properly applied Rule 11-803(1) and
relevant case law interpreting the rule to reach its decision. Indeed, the district court’s
ruling was exemplary for appellate review purposes because it “place[d] on the record
the circumstances and factors critical to the decision,” relying “upon discretionary
authority” to admit Deputy Herrera’s testimony under Rule 11-803(1). See State v.
Trejo, 1991-NMCA-143, ¶ 7, 113 N.M. 342, 825 P.2d 1252.

3. The district court did not abuse its discretion when it admitted Defendant’s
jail call

{26} Defendant next argues that the district court erred when it admitted phone calls
Defendant made from jail, days before the commencement of trial. Over defense
counsel’s objections, the district court admitted portions of a jail call in which Defendant
appeared to discuss his case and Joey Chavez’s involvement in it. In reference to Joey,
Defendant stated:
You’re a rat, you’re a rat, you know? . . . I don’t make the rules, you know?
If you wanna rat, that shit’s gonna be on paper. When the paper goes
around, snitches get stitches. [laughs] But you know . . . I mean, I, I don’t
have nothin’ to do with it. His name’s already out there that he’s a snitch. I
don’t have nothin’, that’s outta my hands. What happens to him after that .
. . he did that to himself. Nobody told him to fuckin’ start tryin’ to, if he’d
kept his mouth shut we’d have all been ok.

Defendant argues that the call prejudiced him because it informed the jury that
Defendant had been held in jail pending trial, making the jury more likely to think of him
as a dangerous criminal, thereby undercutting his right to the presumption of innocence.
Defendant contends that admission of the jail call was so prejudicial that it “was no
different than if the court had allowed [Defendant] to appear in his jail uniform.”

{27} Both parties cite to our decision in State v. Rodriguez, S-1-SC-36459, dec. ¶ 20
(N.M. Sept. 20, 2018) (nonprecedential) in their briefs. In Rodriguez this Court
concluded that the district court did not abuse its discretion when it admitted recordings
of Defendant’s jail calls made while he was in pretrial custody for a first-degree murder
charge. During the calls, the defendant in Rodriguez discussed the evidence the police
had found and he indicated that he remembered “exactly what happened,” even though
the theory of his defense was that he had been too high to remember the murder. Id. ¶
17. This Court reasoned that “[a]lerting the jury of [the d]efendant’s incarceration was
not, as [the d]efendant argues, the same as a defendant appearing before the jury in
prison clothing or shackles” because the calls “were proffered as evidence of [the
d]efendant’s mental state,” not to imply that “the defendant was guilty or a person of bad
character.” Id. ¶ 20. This Court concluded that the district court properly weighed the jail
calls’ prejudicial impact (alerting the jury that the defendant was in jail three days after
the crime took place) with its probative value (evidence of the defendant’s mental state
at the time of the killing) pursuant to Rule 11-403 NMRA before admitting the
recordings.

{28} In this case, like in Rodriguez, the district court weighed the probative value of
the jail calls against their prejudicial effect before admitting them. Again, nothing in the
record indicates that the district court’s ruling was clearly against the logic and effect of
the facts and circumstances in this case or that it misapprehended the law. After
listening to the calls and counsels’ full arguments on the record, the district court
explicitly stated that it agreed with the State that “of course it is prejudicial, but the
prejudicial impact does not substantially outweigh the probative value.” See State v.
Maxwell, 2016-NMCA-082, ¶ 24, 384 P.3d 116 (“The purpose of Rule 11-403 is not to
guard against any prejudice whatsoever, but only against the danger of unfair prejudice.
Evidence is not unfairly prejudicial simply because it inculpates the defendant. Rather,
prejudice is considered unfair when it goes only to character or propensity.” (emphasis,
internal quotation marks, and citation omitted)). Thus, the district court properly
exercised its discretion when it applied Rule 11-403 before admitting the jail calls.

{29} Defendant argues that Rodriguez is distinguishable from this case because
Defendant’s “pretrial detention occurred in the aftermath of the highly publicized 2016
constitutional amendment to limit the use of financial bonds. Thus, the jury likely knew
that [Defendant’s] detention was not because of poverty, but . . . because the court
found him ‘dangerous’ or a flight risk.” We agree with the State that there is nothing in
the record to indicate that “the bail-reform issue swayed the jury.” The prejudicial impact
of alerting the jury that Defendant was in jail before trial was minimal, “as it is commonly
understood that a person suspected of committing murder may be held in pre-trial
custody.” Rodriguez, S-1-SC-36459, dec. ¶ 20.

{30} In sum, the district court did not abuse its discretion in making either of the
evidentiary rulings challenged by Defendant.

III. CONCLUSION

{31} For the foregoing reasons, we affirm Defendant’s first-degree murder convictions.

{32} IT IS SO ORDERED.

JULIE J. VARGAS, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

MICHAEL E. VIGIL, Justice

DAVID K. THOMSON, Justice

BRIANA H. ZAMORA, Justice