State of New Mexico v. Anaya

Theresa Vigil, her daughter Natalie Vigil, and Natalie’s boyfriend Austin Urban11

all lived in Santa Fe in a trailer they rented from Defendant. Defendant lived in the12

trailer next door. In October 2011 Defendant and Theresa entered into an oral lease13

agreement for $300 per month to be paid on the twenty-third of each month.14

Defendant kept a notebook titled “rental agreement,” in which he noted the dates and15

payments he received from Theresa. The ledger reflected full payment for October,16

$150 for November, and $140 for December. As of January 23, 2012, Theresa had not17

paid any rent for January.1

{3} The morning of January 23 Natalie woke up and went into the living room to2

watch television with her mother. Theresa received a phone call from Defendant.3

Natalie testified that she could not hear the specifics of the conversation. After the4

call, Defendant walked over to the trailer where Theresa met Defendant outside.5

According to Natalie, the conversation was tense and confrontational. After the6

confrontation, Theresa walked back into the trailer and started making breakfast.7

Defendant went back to his trailer.8

{4} After arming himself with a gun, Defendant returned to Theresa’s trailer and9

forcefully entered without permission. He approached Theresa and Natalie with the10

gun in hand, screaming and yelling about the rent. Theresa stood up to confront11

Defendant, who hit her in the face with his gun. Natalie intervened and Defendant hit12

Natalie as well. Upon hearing the commotion, Austin rushed into the living room and13

punched Defendant in the face. Defendant did not fall or stumble backward.14

Defendant then raised his gun and shot Austin once in the face, killing him instantly.15

Immediately, Theresa grabbed her phone to call her son for help. When she stood up,16

Defendant turned and shot her in the face. The call went to Theresa’s son’s voice mail17

and the subsequent events were recorded. After realizing Theresa was still alive,18

3

Natalie begged Defendant to let her take her mother to the hospital. Defendant finally1

agreed. Natalie drove Theresa to the hospital, where she died later that night from her2

wounds. Javier Salcido, a friend of Austin Urban, was also present in the trailer during3

these events and testified at trial along with Natalie.4

{5} Natalie gave a statement to the police at the hospital and the police were5

immediately dispatched to Defendant’s trailer, but Defendant had already fled.6

According to the State, “[a] massive manhunt was launched in search of [D]efendant7

with many requests for information disseminated to the public.” Five days later, police8

were called to a trailer on Agua Fria Road where Defendant was hiding. After a9

standoff, police arrested Defendant. At trial, a jury convicted Defendant of two counts10

of first-degree murder, one count of aggravated burglary, and two counts of11

intimidating a witness.12

DISCUSSION13

{6} Defendant raises five issues on appeal: (1) the trial court erred in denying14

Defendant’s exercise of a peremptory excusal of the trial judge; (2) defense counsel’s15

failure to timely excuse the trial judge constituted ineffective assistance of counsel;16

(3) there was insufficient evidence to sustain Defendant’s conviction for aggravated17

burglary; (4) the trial court improperly denied Defendant’s self-defense jury18

4

instruction; and (5) cumulative error. Defendant does not challenge the sufficiency of1

the evidence to support his two murder convictions. We consider the issues raised in2

turn.3

Peremptory Excusal4

{7} Defendant argues that he was denied his right to peremptorily excuse the trial5

judge under NMSA 1978, Section 38-3-9 (1985), and Rule 5-106 NMRA. “A trial6

judge’s ruling on a party’s peremptory election to excuse presents a mixed question7

of law and fact. We review the judge’s findings of historical fact using the deferential8

substantial evidence standard, while we review the application of the law to those9

facts de novo.” State v. Devine, 2007-NMCA-097, ¶ 7, 142 N.M. 310, 164 P.3d 100910

(citations omitted). Rule 5-106(D) states the procedure for a peremptory excusal:11

The statutory right to excuse the judge before whom the case is pending12 must be exercised by a party filing a peremptory election to excuse with13 the clerk of the district court within ten (10) days after the later of: (1)14 arraignment or the filing of a waiver of arraignment; (2) service by the15 clerk of notice of assignment or reassignment of the case to a judge; (3)16 completion of publication of notice of reassignment in the case of a mass17 reassignment; or (4) filing of a notice of appeal from a lower court. 18

The rule also states that “[a] party may not excuse a judge after the party has requested19

that judge to perform any discretionary act.” Rule 5-106(A).20

{8} For clarity, we provide a brief timeline of the initial stages of Defendant’s21

5

criminal case. The State filed the criminal information on March 6, 2012, then1

amended that criminal information the next day. The case was assigned to Judge2

Stephen Pfeffer. Defendant was arraigned on March 9, 2012, where he pleaded not3

guilty to all charges. After the entry of the plea, his counsel raised the issue of4

competency.5

{9} Defendant made two pro se motions to excuse the judge, first on April 16, 2012,6

and then on April 18, 2012, well beyond ten days after his March 9 arraignment. The7

district court did not act on these untimely motions. The district court found8

Defendant competent to stand trial on May 16, 2012. The preliminary hearing9

commenced on May 29, 2012, and Judge Pfeffer found probable cause as to all10

charges on June 21, 2012. Also on June 21, the State again amended the criminal11

information but did not add any new charges. Defendant was arraigned for a second12

time that same day.13

{10} On June 28, 2012, within ten days of the second arraignment, defense counsel14

filed the third motion for peremptory excusal of Judge Pfeffer. The case was15

automatically transferred to First Judicial District Judge Michael Vigil that same day.16

On July 11, 2012, both Judge Pfeffer and Judge Vigil signed an order striking the17

peremptory excusal for two reasons: (1) it was untimely, and (2) by then, Judge18

6

Pfeffer had already exercised his judicial discretion when he conducted the1

preliminary hearing and found probable cause to proceed. See Devine, 2007-NMCA-2

097, ¶ 18.3

{11} Rule 5-106(D)(1) states that a party has ten days after an arraignment or filing4

of a waiver of arraignment to peremptorily excuse the trial judge. In this case,5

Defendant was arraigned on March 9, 2012, and pleaded not guilty to all charges. The6

district court accepted this plea. The time for exercising Defendant’s peremptory right7

to excuse began with his arraignment and extinguished ten days thereafter.8

Defendant’s pro se motions were well outside this time frame as was the motion filed9

by defense counsel.10

{12} The State’s amended criminal information and Defendant’s second arraignment11

did not revive the peremptory excusal time line. New Mexico law recognizes the12

distinction between an amendment to an information and an amended information. See13

Devine, 2007-NMCA-097, ¶ 9 (“We note[] . . . the distinction between an ‘amendment14

to an information,’ which is ‘a supplement to an otherwise effective and sufficient15

information,’ and an ‘amended information,’ which ‘constitutes the filing of a new16

instrument which supersedes its predecessor.’” (citation omitted)).17

{13} Devine provides an instructive example of this distinction. In Devine, the State18

7

charged the defendant with voluntary manslaughter. Id. ¶ 2. This charge resulted in1

a mistrial. Id. The State then filed an amended criminal information to change the2

charge from voluntary manslaughter to second-degree murder. Id. ¶ 3. The State3

argued that the second trial was a continuation of the first trial and that the amendment4

to the criminal information simply conformed to the evidence. Id. ¶¶ 10, 12.5

{14} Our Court of Appeals rejected that argument, citing the distinction between an6

amendment to an information and an amended information. The Court concluded that7

“the amended information in the present case, which added the charge of second-8

degree murder in place of the voluntary manslaughter charge, was a new instrument9

that superseded its predecessor.” Devine, 2007-NMCA-097, ¶ 14. With that “new10

instrument” based upon an entirely new criminal charge, came a renewed opportunity11

to exercise a timely peremptory excusal of the trial judge. Id. ¶ 14.12

{15} Here, by contrast, the State merely supplemented what it had already charged.13

The criminal information on which Defendant was initially arraigned (March 9, 2012)14

charged Defendant with two open counts of murder and tampering with evidence. The15

amended criminal information filed on June 21, 2012, changed the two open counts16

of murder to two counts of first-degree murder and dropped the tampering with17

evidence charge. This change constitutes a “supplement to an otherwise effective and18

8

sufficient information,” Devine, 2007-NMCA-097, ¶ 9 (internal quotation marks and1

citation omitted), that merely conforms to the anticipated evidence; it simply clarified2

that the original open count of murder was one of first-degree murder. We also note3

that when Defendant was first arraigned, the district court informed him that the4

possible sentence for the two open counts of murder was a life sentence as to each5

count, which under New Mexico law could only have meant first-degree murder. See6

NMSA §§ 30-2-1 (1994) and 31-18-14 (2009).7

{16} Defendant’s opportunity to peremptorily excuse the trial judge needed to be8

exercised within ten days of the initial arraignment, March 9, 2012. Failing to timely9

file such an excusal, Defendant cannot complain of any error on appeal.10

Ineffective Assistance of Counsel11

{17} Defendant argues in the alternative that if the motion to excuse was untimely,12

then he received ineffective assistance of counsel. As this Court has stated, an13

ineffective assistance of counsel claim is best handled through a habeas corpus14

proceeding where a proper evidentiary hearing can take place. See State v. Baca,15

1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that16

provides a basis for remanding to the trial court for an evidentiary hearing on17

ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition18

9

for writ of habeas corpus . . . .”); see also State v. Telles, 1999-NMCA-013, ¶ 25, 1261

N.M. 593, 973 P.2d 845 (“Defendant’s proper avenue of relief [from ineffective2

assistance of counsel] is a post-conviction proceeding that can develop a proper3

record.”). Defense counsel may have had sound reasons not to excuse Judge Pfeffer4

at the beginning of the district court proceedings. Only an evidentiary hearing on5

habeas can supply the necessary information. Nothing on this record suggests that6

defense counsel was ineffective for not pursuing a peremptory excusal.7

Aggravated Burglary8

{18} Defendant maintains that his aggravated burglary conviction was not supported9

by sufficient evidence because he had the lawful right to enter the trailer. “The test to10

determine the sufficiency of evidence in New Mexico . . . is whether substantial11

evidence of either a direct or circumstantial nature exists to support a verdict of guilt12

beyond a reasonable doubt with respect to every element essential to a conviction.”13

State v. Sosa, 2000-NMSC-036, ¶ 6, 129 N.M. 767, 14 P.3d 32 (alteration in original)14

(internal quotation marks and citation omitted). “A reviewing court must view the15

evidence in the light most favorable to the state, resolving all conflicts therein and16

indulging all permissible inferences therefrom in favor of the verdict.” Id. (internal17

quotation marks and citation omitted).18

10

{19} In New Mexico, “[a]ggravated burglary consists of the unauthorized entry of1

any . . . dwelling or other structure . . . with intent to commit any felony or theft2

therein and the person . . . is armed with a deadly weapon.” NMSA 1978, § 30-16-3

4(A) (1963) (emphasis added). Defendant advances two arguments as to why his entry4

was not “unauthorized.”5

{20} First, Defendant asserts the lack of any landlord/tenant relationship with6

Theresa Vigil. Defendant argues that he had “dominion and control over his father’s7

trailer and possessed a right of entry to the premises” at any time. Neither the law nor8

the evidence supports such a theory.9

{21} Historically, New Mexico required all rental agreements to be in writing. See10

NMSA 1978, § 47-8-3(O) (1997, amended 1999) (“‘[R]ental agreement’ means all11

written agreements between an owner and resident.” (emphasis added)). However, in12

1999 the Legislature amended this section to delete the word “written.” See NMSA13

1978, §47-8-3(P) (1999) (“‘[R]ental agreement’ means all agreements between an14

owner and resident.” (emphasis added)). Accordingly, an enforceable rental agreement15

need not be in writing and can be made orally by the parties. Once an owner and16

resident enter into a rental agreement, the resident acquires certain possessory rights17

to the property. See NMSA 1978, § 47-8-26(A) (1999); see also NMSA 1978, § 47-8-18

2Defendant did file a motion to dismiss pursuant to State v. Foulenfont, 1995-17 NMCA-028, 119 N.M. 788, 895 P.2d 1329, on this issue before trial, but during18 closing argument defense counsel stated “[h]e came in to do what he thought he19 needed to do as a landlord, it would appear.”20

11

25 (1975); NMSA 1978, § 47-8-22 (1995). Therefore, by statute a landlord can no1

longer enter at will under most circumstances. See NMSA 1978, § 47-8-24 (1995).2

{22} The evidence at trial showed that Theresa and Defendant entered an oral rental3

agreement beginning in October 2011. Evidence of Defendant’s conduct confirms4

this. Every time Defendant went to collect rent he carried a notebook titled “rental5

agreement” and noted the date and the payment. The evidence also showed that6

Defendant talked with a local bartender about his “tenants” and how to handle the rent7

payments. Moreover, in closing argument, defense counsel confirmed that Defendant8

was acting as a landlord.29

{23} Based on the foregoing, we conclude there was sufficient evidence for the jury10

to find an “unauthorized entry” by virtue of a landlord/tenant relationship between11

Defendant and Theresa. Theresa and her family had a possessory interest in the trailer12

and Defendant did not have “dominion and control” over the trailer and could not13

interfere with Theresa’s possessory rights without taking the proper steps provided by14

statute. See NMSA 1978, § 47-8-33 (1999).15

{24} Defendant’s second argument is that even if Theresa initially had a possessory16

12

interest in the trailer, she was divested of that interest when she failed to pay the1

required rent in full, not only on the due date in question, but also for the months of2

November and December. Defendant argues that since October was the only month3

when Theresa paid the full amount of rent, thereafter Defendant had the right to enter4

the property.5

{25} It is not clear from the record that Theresa actually was behind on the rent. It6

is undisputed that the rent was $300 a month. It is also undisputed that the ledger7

reflected full payment for October, $150 for November, and $140 for December.8

However, the reduction of the rent may have been due to the condition of the trailer.9

Natalie testified at trial that at times there was no heat or running water. We need not10

decide, however, whether Theresa properly withheld rent under these circumstances11

because Defendant’s actions cannot be justified under any circumstance.12

{26} Even if Theresa was behind on her rent, Defendant had to go through the proper13

channels and take the appropriate legal steps to regain exclusive possession of the14

trailer and evict his tenant. Pursuant to Section 47-8-33(D):15

If rent is unpaid when due and the resident fails to pay rent within three16 days after written notice from the owner of nonpayment and his intention17 to terminate the rental agreement, the owner may terminate the rental18 agreement and the resident shall immediately deliver possession of the19 dwelling unit; provided that tender of the full amount due, in the manner20 stated in the notice, prior to the expiration of the three-day notice shall21

13

bar any action for nonpayment of rent.1

(Emphasis added). This section specifically requires the landlord to give proper notice2

of the rent due and his intention to terminate the rental agreement if rent is not paid.3

After the three-day period, if the landlord has complied with these steps he can4

exercise his right to possession. If the resident denies the landlord possession of the5

premises, the landlord can then get a court order to regain possession. See § 47-8-6

24(D), (E).7

{27} New Mexico law does not permit a landlord to forcefully evict a tenant by8

unilateral action outside the legal system. Even if Theresa was behind on the rent,9

Defendant needed to give proper notice of the arrearage and his intention to terminate10

the rental agreement. Defendant chose not to follow statutory procedures, but instead11

forcefully entered the premises with a gun. Given these facts, Defendant cannot claim12

that his entry was authorized by law. We conclude that there was sufficient evidence13

for the jury to convict Defendant of an unauthorized entry for purposes of the14

aggravated burglary statute.15

Self-Defense16

{28} Defendant next argues that the district court erroneously determined that the17

evidence was insufficient to instruct the jury on self-defense. “The propriety of jury18

14

instructions given or denied is a mixed question of law and fact. Mixed questions of1

law and fact are reviewed de novo.” State v. Salazar, 1997-NMSC-044, ¶ 49, 1232

N.M. 778, 945 P.2d 996. “When considering a defendant’s requested instructions, we3

view the evidence in the light most favorable to the giving of the requested4

instruction[s].” State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 3555

(alteration in original) (internal quotation marks and citation omitted). “For a6

defendant to be entitled to a self-defense instruction . . . there need be only enough7

evidence to raise a reasonable doubt in the mind of a juror about whether the8

defendant lawfully acted in self-defense.” State v. Rudolfo, 2008-NMSC-036, ¶ 27,9

144 N.M. 305, 187 P.3d 170.10

{29} The elements of self-defense are that “the defendant was put in fear by an11

apparent danger of immediate death or great bodily harm, that the killing resulted12

from that fear, and that the defendant acted as a reasonable person would act under13

those circumstances.” State v. Lopez, 2000-NMSC-003, ¶ 23, 128 N.M. 410, 993 P.2d14

727 (internal quotation marks and citation omitted). See UJI 14-5183 NMRA. “A15

defendant is not entitled to a self-defense instruction unless it is justified by sufficient16

evidence on every element of self-defense.” Rudolfo, 2008-NMSC-036, ¶ 1717

(emphasis added).18

3Defendant claims Austin’s punch was “without provocation.” We agree with17 the State’s response: “[D]efendant apparently fails to appreciate the provocative18 nature of hitting one’s girlfriend in the side with a gun and hitting that girlfriend’s19 mother in the face with a gun.”20

15

{30} Defendant claims he was entitled to the self-defense instruction because he was1

confronted by “three hostile individuals” and he “was in fear for his safety.”2

Defendant argues that he acted reasonably in shooting Austin and Theresa under the3

circumstances. More importantly, Defendant claims that it was up to the jury to decide4

the reasonableness of his apprehension and corresponding conduct. We are not5

persuaded.6

{31} The record shows that after the initial argument with Theresa, Defendant went7

back to his trailer, armed himself, returned to Theresa’s trailer, forcefully entered the8

trailer, and resumed arguing with Theresa about the rent. He assaulted both Theresa9

and her daughter Natalie. Only then did Austin intervene, unarmed, and punch10

Defendant with his fist.3 Defendant than raised his gun and shot Austin in the face.11

Theresa stood up again, and Defendant turned the gun on her and shot her once in the12

head.13

{32} For a self-defense instruction, Defendant needed to point to evidence that he14

was confronted by an apparent danger of immediate death or great bodily harm. In15

New Mexico:16

16

Self defense is not available to the defendant if he [started the fight] . . .1 unless . . . 1. [t]he defendant was using force which would not ordinarily2 create a substantial risk of death or great bodily harm; and 2. [the victim]3 responded with force which would ordinarily create a substantial risk of4 death or great bodily harm.5

UJI 14-5191 NMRA (first alteration in original). This Court has stated that “a6

defendant who provokes an encounter, as a result of which he finds it necessary to use7

deadly force to defend himself, is guilty of an unlawful homicide and cannot avail8

himself of the claim that he was acting in self-defense.” State v. Chavez, 1983-NMSC-9

037, ¶ 6, 99 N.M. 609, 661 P.2d 887.10

{33} Here, Defendant killed Austin when Austin attempted to defend his girlfriend11

and her mother. Austin was unarmed, and though he punched Defendant, this act12

alone would not reasonably create a threat of great bodily harm or death to Defendant.13

Austin used non-lethal force attempting to defuse a lethal situation that Defendant14

created. Defendant then responded with lethal force without justification against both15

Austin and Theresa. Under these facts in the record, Defendant was not confronted by16

an apparent danger of death or great bodily harm. No reasonable juror could have17

found that Defendant acted in self-defense, and therefore, no self-defense instruction18

was warranted. “The purpose of recognizing self-defense as a complete justification19

to homicide is the reasonable belief in the necessity for the use of deadly force to20

17

repel an attack in order to save oneself or another from death or great bodily harm.”1

Rudolfo, 2008-NMSC-036, ¶20 (emphasis added) (internal quotation marks and2

citation omitted).3

Cumulative Error4

{34} Finally, Defendant raises the issue of cumulative error. Cumulative error occurs5

“when the cumulative impact of the errors [that] occurred at trial was so prejudicial6

that the defendant was deprived of a fair trial.” State v. Baca, 1995-NMSC-045, ¶ 39,7

120 N.M. 383, 902 P.2d 65 (alteration in original) (internal quotation marks and8

citation omitted). Since Defendant has failed to show that any error occurred at his9

trial, there is no cumulative error

We affirm Defendant’s convictions