Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 05-23-2016

Case Style: STATE OF NEW MEXICO v. ROBERT EARLEY

Case Number: S-1-SC-353565

Judge: Charles W. Daniels

Court: IN THE SUPREME COURT OF THE STATE OF NEW MEXICO1

Plaintiff's Attorney: Hector H. Balderas, Attorney General, Steven H. Johnston, Assistant Attorney General

Defendant's Attorney: Robert E. Tangora

Description: Robert Glenn Earley, convicted by a jury of first-degree murder, tampering with3
evidence, and kidnapping, raises eight issues on direct appeal to this Court: (1) the4
trial court erred by denying Defendant’s motion to suppress three statements he made5
to law enforcement officers, (2) the trial court erred by denying Defendant’s motion6
for a continuance, (3) the trial court erred by admitting graphic crime scene and7
autopsy photographs, (4) the trial court erred by limiting testimony of Defendant’s8
pharmacology expert, (5) the trial court erred in disallowing Defendant to recall his9
pharmacology expert to answer the State’s rebuttal testimony, (6) the trial court erred10
by excluding testimony of Defendant’s mother about statements the victim Emily11
Lambert made to her, (7) evidence to support the jury’s verdicts was insufficient, and12
(8) the trial court’s errors taken together constitute cumulative error. We affirm13
Defendant’s convictions by nonprecedential decision. See Rule 12-405(B) (“The14
appellate court may dispose of a case by nonprecedential order, decision or15
memorandum opinion . . . [where t]he issues presented have been previously decided16
. . . [, t]he presence or absence of substantial evidence disposes of the issue . . . [, or17
3
t]he issues presented are manifestly without merit.”).1
I. BACKGROUND2
{2} Late on March 1, 2014, Defendant and his girlfriend Emily Lambert began to3
argue while drinking together at the Blue Cactus Lounge located within the Stevens4
Inn in Carlsbad, New Mexico. Lambert left the lounge angry but later returned to the5
hotel for her belongings and announced that she was leaving Defendant. As a result,6
the two started to fight again. During the argument, Lambert bit Defendant on the arm,7
and Defendant responded by hitting her. He then proceeded to kick Lambert several8
times in the face and head until she was “knocked out” but still breathing.9
{3} Defendant placed the unconscious Lambert in the car and drove her behind a10
private residence 11.7 miles from the hotel on Potash Mines Road. Lambert was still11
unconscious when Defendant grabbed an air pump from the vehicle and hit her with12
it multiple times. He then wrapped a rope around Lambert’s neck, attached the other13
end of the rope to his car, and dragged her behind a barn to remove her from the area14
in back of the house where she might be seen. Because Lambert “looked pretty bad”15
and appeared not to be breathing, Defendant “hit her with [a] bar a couple of times”16
to ensure she would not suffer or “freeze to death.” Defendant then left Lambert’s17
body and returned to his hotel room to sleep, disposing of the bar on his return route.18
{4} When Defendant awoke in the morning on March 2, 2014, he returned to the19
4
Potash Mines Road property to see if Lambert was moving, and she was not. He1
disposed of the rope “to cover [his] tracks.” Later that morning, Defendant called 9112
and reported Lambert missing, explaining to the dispatcher that Lambert never3
returned to the Stevens Inn after telling Defendant she was leaving the bar with4
another man.5
A. The Police Investigations6
{5} Officer David Williams responded to the 911 call on that same day in the7
afternoon and met with Defendant outside his Stevens Inn hotel room to take a8
missing persons report. Defendant recounted that he and Lambert had a verbal9
altercation on the prior night at the hotel lounge and that Lambert became upset and10
left with another man. During the interview, Officer Williams did not observe any11
signs that Defendant was intoxicated. The officer returned to the Stevens Inn on the12
next day to follow up on the case and learned that Lambert had not returned.13
{6} On the same morning, Detective Robert Scott Naylor and Sergeant Blaine14
Rennie of the Carlsbad Police Department were assigned to investigate the case. The15
two officers met with Defendant, as the original reporting party, at his hotel room.16
Once again, Defendant claimed that he had an argument with his girlfriend and that17
she left the hotel bar with another man and never returned. After speaking with18
Defendant, the officers requested consent to search Defendant’s vehicle that was19
5
parked by an oil rig on a county road approximately thirty miles from the Stevens Inn.1
Defendant consented to the search and provided officers with his vehicle key and2
directions to the vehicle.3
{7} Upon returning to the hotel, the officers requested that Defendant accompany4
them to make a recorded statement at the police station, and he agreed. Officers5
transported Defendant, unrestrained, to the station because he did not have a car. At6
the police station, Defendant provided Rennie with a recorded statement, reiterating7
that he and Lambert argued at the hotel bar and that she left, but this time he said that8
he did not actually see her leave with another man. Rennie asked Defendant if he9
would be willing to take a polygraph examination on the following day, and again10
Defendant agreed. When the interview concluded, an officer drove Defendant back11
to the Stevens Inn. Officers conducted surveillance of Defendant’s room overnight.12
Neither officer identified signs of impairment in Defendant throughout their first day13
of encounters with him.14
{8} On the following morning, March 4, 2014, Defendant contacted Rennie to15
request a ride to the police station to participate in the polygraph exam. At16
approximately 10:00 a.m., Tim Argo of the Artesia Police Department administered17
a polygraph exam to Defendant at the Carlsbad Police Department. Before18
commencing, Argo reviewed a “Consent for Polygraph Examination” form with19
6
Defendant. In addition to a waiver of liability for the exam itself, the form also1
included an advisement of the polygraph examinee’s Miranda rights. Defendant2
consented to the polygraph exam and indicated that he understood his rights and3
wished to proceed. During an interview before the polygraph exam, Defendant4
responded in the negative to standard questions regarding whether he was under the5
influence of illicit drugs, alcohol, or prescription medication. Argo did not identify6
any signs of impairment in Defendant. The exam lasted several hours, at the end of7
which Argo informed Defendant that he had failed and that Rennie wished to speak8
with him.9
{9} After Argo notified Rennie and Naylor that Defendant failed the polygraph10
exam, the officers gave Defendant a break and lunch, and then both officers returned11
to interview him. The officers did not repeat Defendant’s Miranda rights prior to12
conducting the postpolygraph-exam interview. During this interview, Defendant13
provided a second version of events. This time he claimed that when Lambert left the14
bar she got into another man’s truck and that Defendant followed her and the15
unidentified man in his own vehicle to a “housing . . . area.” Defendant said that when16
he pulled up behind the other vehicle, the man came after him with a pipe and17
Lambert jumped in between the two men, which caused the man to hit her in the head18
with the pipe. Defendant stated that he got back into his vehicle and fled. When the19
7
interview ceased, Defendant directed Rennie, Naylor, and another officer to the1
housing location on Potash Mines Road.2
{10} At the residence, Defendant waited in the driveway, outside the patrol unit,3
while the three officers proceeded further onto the property and discovered Lambert’s4
body. Rennie walked back to Defendant and advised him that the officers found5
Lambert. While the other officers secured the crime scene, Naylor transported6
Defendant to the Carlsbad Police Station for additional questioning. Prior to7
conducting the brief interview, Naylor again read Defendant his Miranda rights, and8
Defendant acknowledged that he understood those rights and agreed to speak with9
Naylor. Defendant repeated the version of events provided in the interview conducted10
in the early afternoon after the polygraph exam. The interview began at 5:49 p.m. and11
lasted twenty-six minutes.12
{11} A short time later, at approximately 7:15 p.m., Detective Sergeant Allen13
Sanchez entered the interview room to further question Defendant. Sanchez did not14
readvise Defendant of his Miranda rights prior to conducting the interview, though15
he was aware an officer had provided Defendant with the Miranda warnings earlier.16
Sanchez did not observe any signs that Defendant was impaired during the course of17
conducting the interview. This time, Defendant confessed to a third version of events18
where during a struggle with Lambert he kicked her in the head multiple times until19
8
she was unconscious, took her to the residence on Potash Mines Road, beat her with1
an air pump when she regained consciousness, dragged her body, and left her.2
Defendant then guided Sanchez and Rennie to locations where he had placed evidence3
of the crime. He first directed the officers to the rope and a bag with Lambert’s4
clothes. However, because he was unable to lead officers to the air pump that evening,5
Defendant volunteered to help the officers locate it on the next day.6
{12} On the following morning, March 5, 2014, Sanchez retrieved Defendant from7
the jail, and they located the air pump that matched the description Defendant had8
provided. On the way back to the jail, Defendant spontaneously began giving Sanchez9
new information about the crime. Sanchez allowed him to speak but did not ask any10
questions until they returned to the jail. Outside the jail, Sanchez asked for11
Defendant’s permission to record a statement pertaining to the new information.12
Sanchez again advised Defendant of his Miranda rights, and Defendant responded that13
he understood them. Defendant expounded on details he had previously provided and14
admitted that Lambert never regained consciousness at the Potash Mines Road15
property, contrary to the statement he made on the previous day that he beat Lambert16
again at the property when she regained consciousness and they resumed fighting.17
B. Court Proceedings18
{13} On March 14, 2014, the State charged Defendant with first-degree murder, first-19
9
degree kidnapping, and tampering with evidence. At the conclusion of a nearly three-1
week jury trial, Defendant was convicted of all three charges. The jury also2
unanimously found that Defendant murdered Lambert with the intent to kill in the3
commission of the kidnapping, an aggravating circumstance for sentencing purposes4
under NMSA 1978, Section 31-20A-5(B) (1981). Defendant was sentenced to life5
imprisonment without the possibility of parole. He now appeals his convictions6
directly to this Court pursuant to Article VI, Section 2 of the New Mexico7
Constitution, which states that “[a]ppeals from a judgment of the district court8
imposing a sentence of death or life imprisonment shall be taken directly to the9
supreme court.” The facts relevant to the trial court’s rulings challenged on appeal are10
developed further below.11
II. DISCUSSION12
A. Defendant’s Motion to Suppress His Statements to Law Enforcement13 Officials14
{14} Prior to trial, Defendant moved to suppress one postpolygraph-exam statement15
he made to law enforcement on March 4, 2014, as evidence obtained in violation of16
Miranda v. Arizona, 384 U.S. 436 (1966), and two additional statements made on the17
same date as fruits of the first unlawfully obtained statement. See State v. King, 2013-18
NMSC-014, ¶ 3, 300 P.3d 732 (“In Miranda, the United States Supreme Court19
10
articulated a warning that law enforcement must give to a suspect before the suspect1
can be subjected to a custodial interrogation without compromising the suspect’s2
privilege against self-incrimination.” (citing Miranda, 384 U.S. 478-79)). Defendant3
primarily contended that he did not voluntarily, knowingly, and intelligently waive his4
Miranda rights prior to making his first postpolygraph-exam statement “because he5
was coming out from under the influence of alcohol” after “four days of continuous6
drinking.” Following a suppression hearing, the trial court disagreed and denied the7
motion, finding that Defendant was not in custody until officers discovered Lambert’s8
body on the afternoon of March 4, 2014, and was not impaired when speaking to law9
enforcement during periods of custodial interrogation.10
{15} On appeal, Defendant abandons his argument that the first statement was11
involuntary based on intoxication. See State v. Correa, 2009-NMSC-051, ¶ 31, 14712
N.M. 291, 222 P.3d 1 (“On appeal, issues not briefed are considered abandoned.”).13
Rather, Defendant asserts the trial court erred because the first interview was custodial14
and unwarned, rendering the remaining statements inadmissible as fruits of the15
poisonous tree. To support his contention that he was in custody for Miranda16
purposes, Defendant notes that he was interviewed at the police station and “badgered17
by his interrogators” such that “no reasonable person would feel free to leave.”18
Defendant does not challenge other statements that he made to law enforcement on19
11
March 2, 3, or 5, 2014.1
{16} “In reviewing a trial court’s denial of a motion to suppress, we observe the2
distinction between factual determinations which are subject to a substantial evidence3
standard of review and application of law to the facts[,] which is subject to de novo4
review.” State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (alteration5
in original) (internal quotation marks and citation omitted). Determining whether a6
police interview constitutes custodial interrogation for Miranda purposes requires the7
application of law to facts. Id. We therefore review the trial court’s determination de8
novo, while giving deference to the court’s factual findings. Id.9
1. March 4, 2014, postpolygraph-exam statement to Sergeant Rennie and10 Detective Naylor11
{17} At issue is whether Defendant was in custody, thereby requiring a Miranda12
advisement, when Sergeant Rennie and Detective Naylor interviewed him following13
the failed polygraph exam. “A suspect’s Miranda rights attach only when he is the14
subject of a ‘custodial interrogation.’” Nieto, 2000-NMSC-031, ¶ 20 (citation15
omitted). “[W]hether or not an interview is custodial depends on whether there was16
a formal arrest or restraint on freedom of movement of the degree associated with a17
formal arrest.” Id. (internal quotation marks and citation omitted). “A suspect is also18
considered in custody if a reasonable person would believe that he or she were not free19
12
to leave.” State v. Munoz, 1998-NMSC-048, ¶ 40, 126 N.M. 535, 972 P.2d 847. This1
is an objective determination, and “the actual subjective beliefs of the defendant and2
the interviewing officer on whether the defendant was free to leave are irrelevant.” Id.3
(internal quotation marks and citation omitted).4
{18} In Nieto this Court determined that officers were not constitutionally required5
to advise the defendant of his Miranda rights prior to questioning in a murder case.6
See 2000-NMSC-031, ¶¶ 20-21. Though the defendant was questioned in the7
detective’s small office with his back to the wall, an officer was situated between the8
defendant and the doorway, and the office door was closed, the Court determined that9
these factors alone did not indicate that the “[d]efendant’s freedom of movement was10
restricted to an extent consistent with a formal arrest.” Id. ¶ 21. Rather, those facts11
combined with the trial court’s findings that the defendant agreed to accompany12
officers to the police station when asked, that he was free to leave or terminate the13
interview, and that he was provided with transportation to and from the police station14
were “consistent with routine, non-custodial police questioning.” Id. As a result, this15
Court affirmed the trial court’s ruling that the interview was noncustodial and that16
Miranda warnings were unnecessary. See id.17
{19} In the present case, a number of facts could support Defendant’s contention that18
he was in custody during the postpolygraph-exam interview: Defendant was19
13
questioned at the police station, the interview lasted several hours, and Defendant was1
escorted by an officer at all times while at the police station. See Munoz, 1998-NMSC-2
048, ¶¶ 42-43 (recognizing that the location and duration of the interrogation, as well3
as the fact that the defendant was the focus of the police investigation, could support4
a conclusion that the defendant was in custody but concluding that additional evidence5
in the record failed to demonstrate the defendant’s freedom as restricted in any way6
associated with formal arrest to constitute custody for Miranda purposes).7
{20} In this case as well, additional evidence presented at the suppression hearing8
supports the trial court’s ultimate determination that Defendant was not in custody9
during the postpolygraph-exam interview. Defendant initiated contact with police10
officers by filing a missing persons report. Officers then asked Defendant to11
participate in a polygraph exam at the police station, and he agreed to do so. On the12
morning of the exam, Defendant called Rennie’s cell phone to request a ride to the13
police station for the exam because he did not have a vehicle, and the officer14
responded by providing transportation for Defendant. During the postpolygraph-exam15
interview, officers provided Defendant with food, and Defendant took cigarette and16
bathroom breaks at will. An officer escorted Defendant during these breaks, in part17
to open the hallway door that automatically locked upon entering the bathroom.18
Officers did not block access to the door of the interview room. Rennie and Naylor19
14
testified that Defendant was free to leave at the time of the postpolygraph-exam1
interview. Defendant was not physically restrained at any time during the interview,2
his freedom of movement was not restricted in any significant way, and a review of3
the record does not reveal evidence that the officers’ interview method or the4
interview environment was unduly coercive. See State v. Chamberlain, 1991-NMSC-5
094, ¶ 17, 112 N.M. 723, 819 P.2d 673 (noting that Miranda warnings are not6
required “every time the police interview a suspect, even though there may be7
coercive aspects to the questioning; a coercive environment requiring warnings occurs8
only where there has been such a restriction on a person’s freedom as to render him9
in custody.” (emphasis added) (internal quotation marks and citation omitted)); State10
v. Swise, 1983-NMSC-071, ¶ 12, 100 N.M. 256, 669 P.2d 732 (concluding that the11
defendant was not in custody for Miranda purposes and noting that evidence12
“reflect[ed] no coercive atmosphere against which Miranda was developed to13
protect”). As in Nieto, these facts are indicative of routine, noncustodial police14
questioning. We affirm the trial court’s ruling that the May 4, 2014, postpolygraph-15
exam interview at the police station was noncustodial and that the officers were not16
constitutionally required to provide Defendant with Miranda warnings.17
2. March 4, 2014, statements to Detective Naylor and Detective Sanchez18
{21} Defendant claims the statements he made to Detective Naylor and Detective19
15
Sanchez later on March 4, 2014, following the discovery of Lambert’s body at the1
Potash Mines Road property must be suppressed as fruits of the first postpolygraph-2
exam statement he alleges to have been unlawfully procured. Because we conclude3
that the trial court did not err by admitting Defendant’s first postpolygraph-exam4
statement, Defendant’s argument fails. Moreover, Naylor again read Defendant his5
Miranda rights prior to questioning him at 5:49 p.m. Defendant acknowledged that6
he understood his rights and agreed to speak with Naylor. A short time later, Detective7
Sanchez entered the interview room to continue questioning Defendant on the same8
matter, but he did not readvise Defendant of his Miranda rights.9
{22} “A confession is not necessarily invalid because [Miranda] warnings . . . were10
not given in full each time the interrogation process was resumed after interruption.”11
State v. Gilbert (Gilbert I), 1982-NMSC-095, ¶ 12, 98 N.M. 530, 650 P.2d 814. In12
Gilbert I, this Court held that officers were not required to provide the defendant with13
“a second fresh and full Miranda warning” prior to a second interrogation when he14
had been advised of these rights twice that same day, “as recently as four hours15
before,” and when he expressed that he understood those rights. Id.16
{23} In this case, Defendant’s statements to Sanchez a short time after he was17
questioned by Naylor were not rendered inadmissible by Sanchez’s failure to18
separately advise Defendant of his Miranda rights before continuing the questioning.19
16
Defendant already had been advised of his rights prior to the polygraph exam at1
approximately 10:00 a.m. and again when Naylor interviewed him at 5:49 p.m.2
Following each set of warnings, Defendant indicated that he understood his rights and3
wished to proceed. After Naylor completed his brief twenty-six minute interview,4
Sanchez resumed questioning an hour later at approximately 7:15 p.m. The character5
of the interrogation did not change; Sanchez entered the interview room soon after6
Naylor and questioned Defendant in the same manner and on the same matter.7
Accordingly, we conclude that the trial court did not err by admitting Defendant’s8
March 4, 2014, statements into evidence.9
B. Defendant’s Motion for a Continuance10
{24} Defendant claims that the trial court erred by refusing to grant his motion for11
a continuance. “The grant or denial of a continuance is within the sound discretion of12
the trial court, and the burden of establishing abuse of discretion rests with the13
defendant.” State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135; see14
also State v. Smith, 1979-NMSC-020, ¶ 13, 92 N.M. 533, 591 P.2d 664 (“The standard15
of review on a denial for a motion for continuance is whether the trial court abused its16
discretion to the prejudice or injury of the defendant.”). When evaluating a trial court17
decision granting or denying a motion for continuance we look to a number of factors18
including19
17
“the length of the requested delay, the likelihood that a delay would1 accomplish the movant’s objectives, the existence of previous2 continuances in the same matter, the degree of inconvenience to the3 parties and the court, the legitimacy of the motives in requesting the4 delay, the fault of the movant in causing a need for the delay, and the5 prejudice to the movant in denying the motion.”6
State v. Gallegos, 2011-NMSC-027, ¶ 66, 149 N.M. 704, 254 P.3d 655 (quoting State7
v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20).8
{25} In applying these factors to the present case, we conclude that the trial court did9
not abuse its discretion in its ruling on Defendant’s motion for a continuance. On10
January 29, 2015, Defendant moved to continue the trial then scheduled for March 16,11
2015. In the motion and at a hearing on the matter, defense counsel requested that the12
court continue trial to August 2015, noting several reasons for the request including13
more time to accommodate defense counsels’ overloaded schedules, more time to14
allow newly assigned counsel acting as second chair to prepare for trial, more time to15
ascertain the proper procedures in a case with a potential sentence of life16
imprisonment without parole, more time to finalize supplemental jury questionnaires,17
and time to resolve several discovery matters. On appeal, Defendant asserts that the18
request had a sound basis and posed no inconvenience. Defendant does not articulate19
the prejudice that resulted from the trial court’s denial of his motion.20
{26} The record indicates that any concerns pertaining to discovery were resolved21
18
at the hearing on the motion for continuance. At the same hearing, former defense1
counsel also testified pertaining to case information that she transferred to new2
counsel when she left the Office of the Public Defender, stating that counsel serving3
as first chair was originally her second chair and was at all times privy to case-related4
information. She stated that the case was on schedule to move to trial when she left5
on December 26, 2014. The trial court noted it had initially set trial for January 20156
and then moved the setting to March 2015 to accommodate a request from defense7
counsel. The court did not believe it had another available setting for a year and8
expressed concern that Defendant would remain incarcerated during that time.9
Importantly, the trial court did not wholly deny Defendant’s request but rather granted10
a partial continuance to accommodate defense counsels’ schedules and workloads by11
moving the trial from the middle of March to the end of April. In this case, there is no12
showing that the trial court’s decision prejudiced Defendant, and the record reveals13
that the trial court did not abuse its discretion. Accordingly, we uphold the trial court’s14
ruling.15
C. Admission of Certain Crime Scene and Autopsy Photographs16
{27} Defendant asserts that the trial court improperly admitted six graphic autopsy17
photographs of Lambert, claiming they were redundant and irrelevant and should have18
been excluded because the danger that the photographs would unfairly prejudice19
19
Defendant substantially outweighed their probative value. For similar reasons,1
Defendant also asserts that the trial court improperly admitted twelve crime scene2
photographs.3
{28} “We review a trial court’s exercise of discretion in admitting allegedly4
prejudicial photographs under an abuse of discretion standard.” State v. Saiz, 2008-5
NMSC-048, ¶ 53, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State6
v. Belanger, 2009-NMSC-025, ¶ 36 & n.1, 146 N.M. 357, 210 P.3d 783. “Photographs7
are relevant and admissible for the purpose of clarifying and illustrating testimony.”8
State v. Gilbert (Gilbert II), 1983-NMSC-083, ¶ 43, 100 N.M. 392, 671 P.2d 640.9
“The court may exclude relevant evidence if its probative value is substantially10
outweighed by a danger of . . . unfair prejudice.” Rule 11-403 NMRA.11
{29} In this case, the contested photographs were relevant to the State’s case at trial.12
The physician-employee of the Office of the Medical Investigator who processed13
Lambert’s autopsy referred to the photographs in his medical testimony to establish14
Lambert’s cause and manner of death. He also relied on photographs showing portions15
of Lambert’s body with redness in her abrasions to demonstrate that Lambert was still16
alive when Defendant brought her to the Potash Mines property and dragged her17
behind the barn. Additionally, the State offered the disputed crime scene photographs18
as relevant to reconstruction of the crime scene, in conjunction with testimony from19
20
the officer who managed the crime scene investigation and reconstruction team.1
{30} The admitted photographs were not unduly prejudicial to Defendant. The trial2
court held hearings, outside the jury’s presence, on defense counsel’s objections to the3
photographs. Prior to trial, the State voluntarily cropped certain photographs and4
omitted others to reduce potentially inflammatory effects. The trial court further5
requested that the State crop portions of some of the remaining contested photographs6
and, in one instance, excluded a photograph. The trial court proceeded cautiously by7
holding hearings outside the jury’s presence and reviewing each disputed photograph8
both for relevance and for potential prejudice. See Saiz, 2008-NMSC-048, ¶ 549
(concluding that a trial court did not abuse its discretion in admitting probative10
graphic photographs of the victim’s body because the trial judge “proceeded11
cautiously and prudently” by considering the basis for the Rule 11-403 decision12
outside the jury’s presence and by carefully selecting some photographs to admit13
while excluding others). We conclude that the trial court did not abuse its discretion14
by admitting the contested autopsy and crime scene photographs.15
D. Limitation on the Testimony of Defendant’s Pharmacology Expert16
{31} Defendant next contends that the trial court erred in restricting the testimony17
of defense expert Dr. Jose O. Rivera. Defendant’s entire defense rested on his claim18
of voluntary intoxication and subsequent inability to form the specific intent required19
21
to sustain a first-degree murder conviction. Defendant proffered Dr. Rivera’s1
testimony to demonstrate the effects of alcohol consumption and energy drinks on a2
person given a number of variables such as person’s “age, weight, speed of drinking,3
and whether any food was consumed.” Defendant also sought to solicit Dr. Rivera’s4
opinion, through a series of hypothetical fact patterns based on the underlying5
circumstances of this case, regarding Defendant’s possible blood alcohol6
concentration (BAC) and ability to plan and weigh consequences on the night of the7
homicide.8
{32} The day before trial, the State filed a Daubert motion to exclude Dr. Rivera’s9
testimony in its entirety, arguing in relevant part that Dr. Rivera’s opinions were based10
on assumptions and insufficient facts and were therefore “speculative and11
conjectural.” The trial court initially addressed the matter in a pretrial hearing on April12
29, 2015, but did not rule at that time, preferring instead to hear from Dr. Rivera13
himself prior to allowing or limiting his testimony for the jury. Accordingly, prior to14
Dr. Rivera’s testimony, the trial court qualified him as an expert and found his15
methodology reliable but expressed its concern that the factual foundation for his16
testimony was highly subjective as to the amount of alcohol Defendant actually17
consumed. As a result, the trial court limited Dr. Rivera’s testimony to the effects of18
alcohol consumption on a hypothetical person of a similar height, weight, and age as19
22
Defendant if that hypothetical person consumed what Defendant claimed he1
consumed. The trial court limited the State’s rebuttal expert similarly.2
{33} We review a trial court’s decision to admit or exclude expert testimony for an3
abuse of discretion. State v. Guerra, 2012-NMSC-014, ¶ 36, 278 P.3d 1031; see also4
State v. Downey, 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 (“An abuse5
of discretion arises when the evidentiary ruling is clearly contrary to logic and the6
facts and circumstances of the case.” (internal quotation marks and citation omitted)).7
We assume without deciding that the trial court properly qualified Dr. Rivera as an8
expert witness and that the methodology this expert utilized for calculating BAC was9
valid. The narrow question before this Court, then, is whether the trial court abused10
its discretion by limiting Dr. Rivera’s testimony based on concerns that the factual11
basis for the testimony was deficient as to what Defendant himself ingested on the12
night in question.13
{34} Rule 11-702 NMRA governs the admission of expert testimony or other14
scientific evidence. “[F]or scientific evidence to be admissible under Rule 11-702, the15
reasoning or methodology underlying the testimony [must not only be] scientifically16
valid, it also must be properly . . . applied to the facts in issue.” Downey, 2008-17
NMSC-061, ¶ 30 (second alteration in original) (internal quotation marks and citation18
omitted). “Expert testimony may be received if, and only if, the expert possesses such19
23
facts as would enable him to express a reasonably accurate conclusion as1
distinguished from mere conjecture.” Id. ¶ 32 (internal quotation marks and citation2
omitted). “Experts may, and often do, base their opinions upon factual assumptions,3
but those assumptions in turn must find evidentiary foundation in the record.” Id. ¶ 34.4
{35} In Downey, this Court concluded that the trial court improperly admitted the5
state’s expert testimony utilizing retrograde extrapolation because the extrapolation6
was “predicated on factual assumptions unsupported by the record.” Id. ¶¶ 1, 137
(“[R]etrograde extrapolation . . . calculates an individual’s prior BAC level on the8
basis of a subsequently administered BAC test.”). The state in that case failed to9
produce evidence, even circumstantial evidence, regarding when the defendant last10
consumed alcohol or how much alcohol the defendant consumed, rendering the11
expert’s underlying assumptions “mere guesswork” and the conclusions “mere12
conjecture.” Id. ¶¶ 34, 36.13
{36} In contrast, this Court determined in State v. Hughey that the expert witness14
possessed sufficient facts in support of the conclusion that the defendant was at her15
peak alcohol level at the time the accident occurred to then accurately apply retrograde16
extrapolation. See 2007-NMSC-036, ¶ 15, 142 N.M. 83, 163 P.3d 470; see also17
Downey, 2008-NMSC-061, ¶ 37 (distinguishing Hughey). The expert testified about18
the generally accepted time for an individual to reach a peak alcohol level and then,19
24
“working from the assumption that [the d]efendant stopped drinking at 8:30 p.m., as1
she told police,” concluded as to when the defendant likely reached her peak alcohol2
level. Hughey, 2007-NMSC-036, ¶ 15.3
{37} In this case, Defendant and the State presented conflicting circumstantial4
evidence surrounding Defendant’s alcohol consumption and level of intoxication. The5
evidence included witness testimony from employees and patrons of the Blue Cactus6
Lounge, officers who interviewed and interacted with Defendant, and Defendant’s7
own videotaped statements. The parties also stipulated to the admission of restaurant8
receipts detailing alcohol Defendant and Lambert purchased on the night of the9
homicide, and the State introduced receipts similarly detailing alcohol purchased10
specifically from the Blue Cactus Lounge. Dr. Rivera testified that he reviewed11
transcripts and videos as the basis for his expert opinion testimony but did not12
indicate, nor does the record show, that he examined or interviewed Defendant,13
reviewed Defendant’s history of alcohol use, or reviewed Defendant’s medical14
records. Unlike in Downey and Hughey, here there was no BAC determination for15
Defendant at any time from which an expert could extrapolate a more accurate BAC16
estimate pertinent to the time the homicide occurred.17
{38} Given that Dr. Rivera, like the expert in Downey, did not have the facts18
necessary to speak specifically to Defendant’s level of intoxication on the night of the19
25
homicide, the trial court did not abuse its discretion in limiting his testimony to the1
effects of alcohol on a hypothetical person bearing the same characteristics as2
Defendant under the circumstances of this case. To be certain, the trial court could3
have allowed Dr. Rivera to testify, as the expert in Hughey did, that he was working4
from the assumption that the facts were as Defendant reported them. Nevertheless,5
through Dr. Rivera’s testimony, Defendant was able to present the same information:6
that if a male sharing Defendant’s characteristics consumed the number and type of7
drinks Defendant claimed he consumed over a twelve-hour period, he would have a8
BAC of at least 0.35 milligrams in 100 milliliters of blood at the time of the murder.9
Dr. Rivera opined that at that level, such a person would be severely impaired and10
unable to plan and properly weigh the consequences of his actions. Defendant does11
not state how he was prejudiced by the hypothetical framing of the testimony under12
an assumption of the facts as Defendant perceived them, nor does the record reflect13
that Defendant was prejudiced in any way by the trial court’s ruling. Given defense14
counsel’s statement in opening argument that Dr. Rivera would testify about the15
effects of alcohol on a “person who has the height and weight of Robert Earley” and16
the evidence both parties presented to the jury throughout the trial pertaining to17
Defendant’s alcohol use and consumption, a reasonable jury could easily make the18
inference from the hypothetical person to Defendant. Accordingly, the trial court did19
26
not abuse its discretion in limiting Dr. Rivera’s testimony.1
E. Denial of Defendant’s Motion to Allow Testimony in Answer to the State’s2 Rebuttal Testimony3
{39} “[W]hat shall be permitted to go to the jury as rebuttal testimony is a matter4
entirely within the discretion of the trial court, and this discretion will not be disturbed5
except for gross abuse.” State v. Johnson, 1983-NMSC-043, ¶ 27, 99 N.M. 682, 6626
P.2d 1349 (alteration in original) (internal quotation marks and citation omitted). A7
review of the record indicates that the trial court did not abuse its discretion in8
disallowing Defendant from recalling Dr. Rivera at the conclusion of the rebuttal9
testimony of State expert Dr. Hwang.10
{40} Defendant sought to answer the rebuttal with expert testimony to challenge the11
narrow issue of the rate of alcohol metabolism Dr. Hwang chose to use in his12
calculations. Prior to Dr. Rivera’s testimony, Defendant learned of the difference in13
the two experts’ opinions regarding the rate at which the body metabolizes alcohol.14
The trial court therefore allowed Dr. Rivera to testify in the case in chief that the15
metabolism rate Dr. Hwang utilized was unsupported by the scientific literature,16
leaving open the possibility that if Dr. Hwang presented unexpected testimony,17
defense counsel could address the matter at that time. Dr. Rivera did testify that18
experts in his field would not use the maximum metabolism rate that Dr. Hwang used19
27
as a standard, a rate he characterized as “extreme.” In addition, defense counsel cross-1
examined Dr. Hwang on this issue. Consequently, Defendant was not denied the2
opportunity to introduce Dr. Rivera’s testimony, and any further testimony in answer3
to the State’s rebuttal would have been merely confirmatory. See State v. Doe, 1983-4
NMCA-012, ¶¶ 10-11, 99 N.M. 456, 659 P.2d 908 (“If evidence sought to be5
introduced [in answer to the State’s rebuttal witness] is . . . merely cumulative or6
confirmatory, its admission is within the discretion of the trial court.”). We hold the7
trial court properly exercised its discretion.8
F. Exclusion of Testimony Concerning Lambert’s Statement to Defendant’s9 Mother10
{41} Defendant sought to introduce testimony of his mother, Donna Earley, that11
Lambert previously told her that Lambert and her ex-husband “had frequent domestic12
issues that turned physical” and that she was proud of “putt[ing] [him] down on the13
ground.” Defendant claimed Lambert’s comments were relevant and admissible to14
illustrate Defendant’s state of mind on the night Lambert was murdered. Defendant15
further argued that the State had placed Lambert’s character into evidence, thereby16
opening the door for Defendant to counter that information. He claimed the statements17
were admissible under an exception to the hearsay rule as statements against18
Lambert’s interest. The trial court disagreed and prohibited Ms. Earley’s testimony19
28
about Lambert’s statements as impermissible hearsay and irrelevant to Defendant’s1
claims that he lacked the specific intent for first-degree murder.2
{42} We examine the admission or exclusion of evidence for abuse of discretion. See3
State v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. Pursuant to Rule4
11-404(A)(1) NMRA, generally “[e]vidence of a person’s character or character trait5
is not admissible to prove that on a particular occasion the person acted in accordance6
with the character or trait.” In criminal cases, however, an exception exists that allows7
a defendant to offer “evidence of a victim’s pertinent trait” for the purpose of proving8
that the victim acted in conformity with that trait on a particular occasion. Rule 11-9
404(A)(2)(b). Rule 11-405(B) NMRA concerns methods for proving character and10
provides that in cases in which “a person’s character or character trait is an essential11
element of a charge, claim, or defense, the character or trait may also be proved by12
relevant specific instances of [the person’s] conduct,” in addition to proof in the form13
of reputation or opinion testimony. For example, “[w]hen a defendant is claiming self-14
defense, his or her apprehension of the victim is an essential element of his or her15
claim,” and consequently, “under Rule 11-405(B), evidence of specific instances of16
the victim’s prior violent conduct of which the defendant was aware may be admitted17
to show the defendant’s fear of the victim.” State v. Armendariz, 2006-NMSC-036,18
¶ 17, 140 N.M. 182, 141 P.3d 526, overruled on other grounds by State v. Swick,19
29
2012-NMSC-018, ¶ 31, 279 P.3d 747. Here, Defendant has not raised a theory of self-1
defense, and Lambert’s character is not an essential element of Defendant’s voluntary-2
intoxication defense. The trial court correctly ruled that testimony pertaining to3
Lambert’s statement was irrelevant to Defendant’s claims.4
{43} Moreover, Lambert’s statement to Ms. Earley is inadmissible hearsay. Hearsay5
is an out-of-court statement that is later “offer[ed] in evidence to prove the truth of the6
matter asserted.” Rule 11-801(C) NMRA. “The hearsay rule excludes from admissible7
evidence statements that are inherently untrustworthy because of the risk of8
misperception, failed memory, insincerity, ambiguity, and the like.” State v. Mendez,9
2010-NMSC-044, ¶ 19, 148 N.M. 761, 242 P.3d 328. Nevertheless, our rules of10
evidence provide exceptions to the inadmissibility of hearsay. See Rule 11-80211
NMRA. One such exception is Rule 11-804(B)(3) NMRA, which provides that the12
rule against hearsay does not exclude a statement against the declarant’s interest if the13
declarant is unavailable. A statement against interest is defined as a “statement . . .14
[that] was so contrary to the declarant’s proprietary or pecuniary interest or [that] had15
so great a tendency to invalidate the declarant’s claim against someone else or to16
expose the declarant to civil or criminal liability.” Id. This exception has no17
application here. There is no evidence that Lambert’s alleged statement was against18
any proprietary or pecuniary interest, nor would the statement have exposed Lambert19
30
to civil or criminal liability. Importantly, the record is devoid of “circumstantial1
guarantees of reliability sufficient to make the statement[] trustworthy and2
admissible.” Mendez, 2010-NMSC-044, ¶ 19. Consistent with Rule 11-804(B)(3), the3
trial court properly rejected Defendant’s argument.4
G. Sufficiency of Evidence to Support Defendant’s Convictions5
{44} In reviewing the sufficiency of the evidence, we consider the evidence “in the6
light most favorable to the State, resolving all conflicts and making all permissible7
inferences in favor of the jury’s verdict.” Id. ¶ 42 (internal quotation marks and8
citation omitted). The test for sufficiency of the evidence is whether substantial9
evidence exists that would allow a rational jury to find each element of the crime10
established beyond a reasonable doubt. See Id.11
1. Sufficient evidence supports Defendant’s deliberate intent to commit first-12 degree murder13
{45} Defendant argues that this Court should reverse his conviction for first-degree14
murder because there was insufficient evidence to support deliberate intent to commit15
murder as opposed to the killing being the result of a rash impulse. To establish first-16
degree deliberate murder, the State was required to prove beyond a reasonable doubt17
that Defendant killed Lambert with the deliberate intention to take away her life and18
that he was not intoxicated to the extent of being incapable of forming this intent. See19
31
NMSA 1978, § 30-2-1(A)(1) (1994) (“Murder in the first degree is the killing of one1
human being by another . . . by any kind of willful, deliberate and premeditated2
killing.”); UJI 14-201 NMRA (“The word deliberate means arrived at or determined3
upon as a result of careful thought and the weighing of the consideration for and4
against the proposed course of action,” and “a deliberate intention to kill” requires a5
“calculated judgment” to kill, although it “may be arrived at in a short period of6
time.”). “[I]f the State merely proves that the accused acted rashly or impulsively,7
rather than deliberately, and if the accused acted intentionally and without justification8
or provocation, then the facts would only support second-degree murder.” State v.9
Adonis, 2008-NMSC-059, ¶ 16, 145 N.M. 102, 194 P.3d 717.10
{46} Defendant relies on State v. Garcia, 1992-NMSC-048, 114 N.M. 269, 837 P.2d11
862, to argue there was insufficient evidence to prove the requisite mens rea beyond12
a reasonable doubt to sustain a conviction for deliberate-intent, first-degree murder.13
In Garcia, this Court held that not only was evidence insufficient to support an14
inference of deliberate intention in the stabbing death of the victim but that “[t]here15
was no evidence to support the jury’s conclusion that . . . [the defendant] decided to16
stab [the victim] as a result of careful thought; that he weighed the considerations for17
and against his proposed course of action; and that he weighed and considered the18
question of killing and his reasons for and against this choice.” Id. ¶ 28. The state’s19
32
evidence demonstrating that the defendant and the victim argued, reconciled, and1
argued again, ultimately resulting in the defendant stabbing the victim to death, was2
“consistent with a rash and impulsive killing” rather than a deliberate killing. See id.3
{47} The circumstances of this case are vastly distinct from those of Garcia, and this4
Court has concluded there was sufficient evidence for a rational jury to infer deliberate5
intent under factual circumstances similar to those here. For example, in State v.6
Duran, this Court concluded that a reasonable jury could infer deliberate intent based7
on evidence of a prolonged struggle, the large number of the victim’s wounds, and the8
defendant’s own statements. See 2006-NMSC-035, ¶¶ 9, 11, 140 N.M. 94, 140 P.2d9
515; see also State v. Astorga, 2015-NMSC-007, ¶ 65, 343 P.3d 1245 (concluding that10
the jury could have found that evidence of the defendant’s actions, including his own11
statements after the killing, aided in proving deliberate intention); Flores, 2010-12
NMSC-002, ¶ 22 (concluding that there was sufficient evidence of deliberate intent13
where the defendant stabbed the victim with a screwdriver “so many times that it14
evidenced an effort at overkill”); State v. Cunningham, 2000-NMSC-009, ¶ 28, 12815
N.M. 711, 998 P.3d 176 (concluding that evidence of the defendant returning to his16
vehicle to fire the fatal shot when the victim was incapacitated and defenseless could17
support a reasonable juror’s inference of deliberation). Further, “[n]ot only may18
Defendant’s acts before and during the crime provide evidence of intent, [but]19
33
evidence of flight or an attempt to deceive the police may prove consciousness of1
guilt.” Flores, 2010-NMSC-002, ¶ 23 (internal quotation marks and citation omitted).2
{48} In this case, the State presented substantial evidence at trial to raise a reasonable3
inference of deliberate intent. The jury could have found that Defendant (1) was upset4
by Lambert’s threats to leave following their argument, (2) rendered Lambert5
unconscious with multiple kicks to the head, (3) placed Lambert, unconscious and6
defenseless but still alive, in the vehicle and drove her to the more remote location7
11.7 miles from the hotel to finish killing her, (4) beat Lambert severely with an air8
pump causing the plastic to splinter and break, (5) affixed one end of a rope to his car9
and another to Lambert’s neck to drag her out of sight behind the barn, (6) then10
proceeded, by his own admission, to beat Lambert to death with a “bar,” (7) left the11
scene of the incident, (8) began getting rid of the evidence as he drove away, (9)12
returned the following morning to check on Lambert’s body, and (10) tried to deceive13
authorities by filing a missing persons report and then providing several different14
stories about what happened on the night in question.15
{49} The complexity of these extended activities also belies Defendant’s contention16
that he could not have formed specific intent due to voluntary intoxication. The jury17
also heard evidence from both parties regarding Defendant’s level of intoxication on18
the night of the homicide and was free to reject Defendant’s version of the facts. See19
34
State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that1
“[t]he fact finder may reject defendant’s version of the incident”). Reviewing the2
evidence in the light most favorable to the guilty verdict, we hold that there was3
sufficient evidence to support the jury’s conclusion that Defendant killed Lambert4
with the requisite deliberate intent to support a first-degree murder conviction.5
2. Sufficient evidence supports Defendant’s kidnapping conviction6
{50} To support a kidnapping conviction under New Mexico law, the State must7
prove an “unlawful taking, restraining, transporting or confining of a person by force,8
intimidation or deception, with intent . . . to inflict death, physical injury or a sexual9
offense.” NMSA 1978, § 30-4-1(A)(4) (2003); see also UJI 14-403 NMRA. Relying10
on State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, for the proposition11
that the State “must show that the defendant’s actual purpose was different from the12
reason the defendant and alleged victim voluntarily associated with each other,”13
Defendant claims the State failed to meet its burden. This argument is entirely without14
merit.15
{51} The jury could have inferred from the State’s evidence that any voluntary16
association between Defendant and Lambert ceased in the hotel room when the couple17
began arguing and Defendant administered several blows to Lambert’s head, knocking18
her unconscious. See State v. Ortega, 2014-NMSC-017, ¶ 23, 327 P.3d 107619
35
(“Kidnapping may occur once the [v]ictim’s physical association with [the d]efendant1
[is] no longer voluntary.” (alterations in original) (internal quotation marks and2
citation omitted)). And the jury verdict for kidnapping was supported by substantial3
evidence. The State presented evidence that Defendant placed the unconscious4
Lambert in a vehicle and transported her from the Stevens Inn to the location on5
Potash Mines Road 11.7 miles away where he proceeded to beat her with an air pump,6
drag her behind a barn by tying one end of rope to her neck and the other to the7
vehicle, and then hit her repeatedly with a “bar.” The State presented medical8
testimony that Lambert was still alive when Defendant transported her from the hotel9
to the Potash Mines Road property. The State’s medical expert also testified that10
Lambert was still alive when she incurred injuries consistent with the cause of her11
death, blunt trauma and ligature strangulation. We conclude there was sufficient12
evidence at trial to support Defendant’s kidnapping conviction.13
3. Sufficient evidence supports Defendant’s conviction for tampering with14 evidence15
{52} Defendant appeals his conviction for tampering with evidence under NMSA16
1978, Section 30-22-5 (2003), arguing that there was insufficient evidence to support17
his conviction on this charge. The State had to prove the following elements beyond18
a reasonable doubt to convict Defendant of tampering with the evidence:19
36
1. [D]efendant placed the pump or rope;1 2 2. [By doing so, D]efendant intended to prevent the apprehension,3 prosecution or conviction of himself for murder;4 5 3. [D]efendant was not intoxicated from the use of alcohol at the6 time the offense was committed to the extent of being incapable7 of forming an intention to prevent the apprehension, prosecution8 or conviction of himself for murder.9 10 4. This happened in New Mexico on or about March 2, 2014.11
See § 30-22-5(A); UJI 14-2241 NMRA. 12
{53} “Tampering with evidence is a specific intent crime,” and the State must present13
“sufficient evidence from which the jury can infer that the defendant acted with an14
intent to prevent ‘apprehension, prosecution, or conviction of any person or to throw15
suspicion of the commission of a crime upon another.’” State v. Silva, 2008-NMSC-16
051, ¶ 18, 144 N.M. 815, 192 P.3d 1192 (quoting § 30-22-5(A)). “When there is no17
other evidence of the specific intent of the defendant to disrupt the police18
investigation, intent is often inferred from an overt act of the defendant.” Duran,19
2006-NMSC-035, ¶ 14.20
{54} In this case, there is sufficient evidence from which a reasonable jury could21
conclude that Defendant placed the air pump and rope in locations outside of22
Carlsbad, New Mexico, with the intent to prevent his own prosecution, apprehension,23
or conviction. Defendant, by his own admission, sought to “cover [his] tracks” by24
37
locating the rope and throwing it on the side of the road, disposing of his bloody pants1
in a gas station dumpster, wiping blood off the hotel room walls, and throwing away2
Lambert’s dress. Defendant further admitted that he threw the “bar” off to the side of3
the road when leaving the scene of the homicide. Defendant described to officers how4
he disposed of the evidence, and he led officers to the locations where he had placed5
the rope, a bag with Lambert’s clothing, and the air pump. Accordingly, we affirm6
Defendant’s tampering conviction.7
H. Cumulative Error8
{55} Finally, Defendant contends his convictions should be reversed because errors9
raised in this case “accumulate[d] to the point of rendering the verdict inherently10
unreliable.” “The doctrine of cumulative error applies when multiple errors, which by11
themselves do not constitute reversible error, are so serious in the aggregate that they12
cumulatively deprive the defendant of a fair trial.” State v. Roybal, 2002-NMSC-027,13
¶ 33, 132 N.M. 657, 54 P.3d 61. “The cumulative error doctrine is strictly applied and14
may not be successfully invoked if the record as a whole demonstrates the defendant15
received a fair trial.” State v. Guerra, 2012-NMSC-014, ¶ 47, 278 P.3d 1031 (internal16
quotation marks and citation omitted). We conclude that Defendant received a fair17
trial, and we have determined that there was no error. “[W]here there is no error to18
accumulate, there can be no cumulative error.” State v. Samora, 2013-NMSC-038, ¶19
38
28, 307 P.3d 328 (internal quotation marks and citation omitted). Accordingly,1
Defendant’s cumulative error claim is meritless

Outcome: We hold that Defendant’s claims lack merit and affirm Defendant’s convictions for first-degree murder, kidnapping, and tampering with the evidence

Plaintiff's Experts:

Defendant's Experts:

Comments:



Find a Lawyer

Subject:
City:
State:
 

Find a Case

Subject:
County:
State: