Stephen D Aarons, Attorney at Law | Aarons Law PC | New Mexico Criminal Defense Attorney

Author: Stephen Aarons

  • Cordova Trial Will Proceed

    By Vic Vela / Journal Staff Writer

    SANTA FE, N.M. — A Rio Arriba County vehicular homicide case will survive, even though the truck allegedly driven by the defendant in a fatal Memorial Day weekend crash did not.

    A judge Thursday denied a defense motion to dismiss charges against Juan de Dios Cordova, despite his lawyers’ argument that Cordova’s ability to defend himself has been prejudiced because his truck was crushed into scrap metal instead of held as evidence.

    State District Judge T. Glenn Ellington did say that Cordova has legal remedies to ensure that he gets a fair trial. His defense attorneys maintain that the pickup is “the most important piece of evidence in this case.”

    Also Thursday, on a secondary matter, the judge denied defense motions that sought to have Rio Arriba County Sheriff Tommy Rodella held in contempt of court for testimony during a preliminary hearing on Cordova’s case and for comments he made in a radio interview.

    Cordova, 56, is alleged to have been drunk behind the wheel on the High Road to Taos on May 28, before striking and killing motorcyclist Mark Wolfe, 51, of Algodones. Wolfe’s wife, Debbie Hill, 50, was seriously injured. Other friends who were part of a group on motorcycle riders returning from a rally in Red River were also hurt.

    Cordova is accused of fleeing the scene and ditching his truck along the side of the road. He was arrested later at his home in Cordova. A blood sample taken several hours after the wreck showed his blood-alcohol concentration was 0.14 percent, nearly twice the state’s presumed level of intoxication.

    Cordova has claimed he wasn’t driving when the fatal wreck occurred.

    He faces one count of vehicular homicide; two counts of great bodily injury by vehicle; two counts of aggravated DWI; and one count of leaving the scene of an accident.

    The truck that hit Wolfe, which was supposed to held as evidence, was destroyed in a mishap involving a towing company owner who was storing the truck for the Rio Arriba County Sheriff’s Office. Freddie Seeds, owner of Total Secure Towing in Española, sold it as scrap metal and has said he had a deputy’s approval to release the truck.

    Representatives of the Sheriff’s Office and the District Attorney’s Office have denied ever giving Seeds permission to release the vehicle. They found out it had been destroyed during a preliminary hearing on Cordova’s charges that started in September.

    Cordova’s Public Defenders Damian Horne and Kathryn Fischer argue that the state had a duty to preserve the truck. The defense attorneys contend the truck had “mechanical defects” that contributed to the wreck, and it can never be tested by an expert witness. They also claim they’re not able to put on evidence that the pickup’s tires blew out before the crash.

    ‘Murky waters’

    Chief Deputy District Attorney Juan Valencia conceded the truck’s importance in the case, but said that it wouldn’t be prudent to dismiss the charges against Cordova outright.

    “The defense is asking for you to wade into very murky waters on what the destroyed truck might prove,” the prosecutor said. “There’s so much other evidence that the jury is entitled to hear.”

    Valencia also said that the DA’s Office “could not anticipate” the actions of the towing company owner Seeds. The prosecutor said Seeds was “operating under his own thought process” and should have known better than to get rid of a truck in a vehicular homicide case.

    Fischer said that regardless of how the truck came to be destroyed and whose fault it was is a “red herring.”

    “None of that matters,” she argued. “… We have nothing. We’ve been left with nothing.”

    Ellington agreed that the state “clearly had a duty” to preserve the truck, and the pickup and the evidence associated with it is “material” to the case. But, the judge said, “It is possible to construct remedies to protect Mr. Cordova’s due process rights without dismissal of the case.”

    The judge said the defense will be allowed at trial to put on expert testimony about what could have been gained by preserving the truck, as well as “how it came to be destroyed.” The defense team will also be “allowed to argue mechanical failure was a possibility.”

    As for what led to the truck’s demise, Chief Deputy District Attorney Dorie Biagianti Smith said State Police is expected to report findings by January.

    Contempt charges

    Another issue taken up by Ellington on Thursday were accusations by the defense attorneys that Rio Arriba County Sheriff Tommy Rodella had committed contempt of court.

    Two contempt motions were filed. One of them deals with Rodella’s court testimony about telephone conversation he had with a deputy, Paula Archuleta, who is at the center of a dispute over who authored a particular Sheriff’s Office report.

    Horne accused Rodella of stating “outright falsehoods” in his testimony during the preliminary hearing about the duration and nature of his phone call with Archuleta.

    Rodella’s attorney Stephen Aarons countered that the sheriff is standing by his testimony and that “there has to be a knowing falsehood” present for contempt.

    Horne’s other contempt motion is critical of Rodella for going on a radio show and praising his deputies for their “exceptionally fine work in the case,” even though the judge had told the sheriff not to discuss the case.

    Rodella’s “self-congratulatory oration about having gotten their man” over Rio Arriba County airwaves “virtually destroyed” Cordova’s shot at getting a fair trial there, Horne argued.

    Aarons said that there was no gag order in place during or after the preliminary hearing, and the sheriff was trying to defend his office’s handling of the Cordova case. “Attacks on him and the department were made,” Aarons said. “He felt there was another side of it that weren’t discussed in court.”

    The judge rejected both contempt motions. Ellington said the statements that the sheriff made on the radio were akin to protected “political speech.”

    But the judge did order that “no more statements be made publicly in order to protect the (jury pool).”

    As for the other contempt issue, the judge said that “the court knows (contempt) when it sees it. It is an affront on the process and proceedings (of the courtroom),” a line that apparently Ellington didn’t think Rodella crossed.

  • US v. Maestas, 639 F.3d 1032 (10th Cir 2011)

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    639 F.3d 1032

    UNITED STATES of America, Plaintiff–Appellee,
    v.
    Moses Earnest MAESTAS, Defendant–Appellant.

    No. 10–2226.

    United States Court of Appeals, Tenth Circuit.

    [639 F.3d 1033]

    Stephen D. Aarons, Aarons Law Firm PC, Santa Fe, NM, for Defendant–Appellant.John C. Anderson, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff–Appellee.Before MURPHY, HARTZ, and HOLMES, Circuit Judges.HOLMES, Circuit Judge.

    Defendant–Appellant Moses Earnest Maestas appeals from the district court’s denial of his motion to suppress evidence—specifically, forty-two grams of methamphetamine and a handgun—seized from an enclosed garbage storage area. Mr. Maestas argues that he had a reasonable expectation of privacy in the place where the evidence was seized, and that the seizure

    [639 F.3d 1034]

    therefore violated his Fourth Amendment rights. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s denial of Mr. Maestas’s motion to suppress.

    BACKGROUND

    On June 29, 2009, the Federal Bureau of Investigation and the Albuquerque, New Mexico, police department arranged for an undercover officer to make a controlled purchase of methamphetamine from Mr. Maestas. The law enforcement officers expected the purchase to take place at a triplex residential unit located at 13101 Mountain Road NE in Albuquerque, New Mexico. The Mountain Road residence was rented by a man known as “Road Dog,” R., Vol. III, at 8–9 (Suppression Mot. Hr’g Tr., dated Mar. 4, 2010), but Mr. Maestas had spent a considerable amount of time there over the preceding three months.

    The officers observed Mr. Maestas pull up in a maroon Nissan Maxima car and enter the residence. Before entering the home, however, he “place[d] a black firearm in the small of his back.” R., Vol. I, at 20 (Plea Agreement, filed Mar. 9, 2010). Once inside, Mr. Maestas “pulled out a ziplock bag that contained clear crystalline substance and started running his fingers through the contents of the ziplock bag.” Id. Mr. Maestas then realized that he needed scales to weigh the drugs, so he gave his brother (who was present at the residence) forty dollars and sent him out to purchase scales.

    Shortly thereafter, Mr. Maestas received a phone call informing him that law enforcement had the house surrounded. Mr. Maestas then took the ziplock bag of methamphetamine and went out the back door. As he stepped out, “he looked around,” reached “to the small of his back,” and walked toward the enclosed garbage storage area adjacent to the residence. R., Vol. III, at 32. Mr. Maestas disappeared momentarily inside the fenced-in area; during that time, the observing officer “could not see him.” Id. Once he reemerged, Mr. Maestas attempted to re-enter the residence, but the undercover officer had locked him out. Mr. Maestas was then arrested. The officers subsequently searched the enclosed garbage storage area and “discovered a black hand-gun placed near a fence and behind a garbage can” and “a ziplock bag that contained the crystalline type substance inside one of the garbage cans.” R., Vol. I, at 21. The bag contained forty-two grams of methamphetamine.

    Mr. Maestas was charged with one count of distributing five grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), one count of possessing with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and one count of carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(a). Mr. Maestas moved to suppress the methamphetamine and firearm recovered from the property; these items served as the basis for the second and third counts.1 Mr. Maestas argued that he had a reasonable expectation of privacy in the enclosed garbage storage area because (1) he was a guest in the home and, consequently, should be afforded the protections of the Fourth Amendment, and (2) the Fourth Amendment protections applicable

    [639 F.3d 1035]

    to the residence extended to the enclosed garbage storage area, which is within the curtilage of the home. The district court denied the motion, holding that

    Defendant Maestas failed in his burden to establish a privacy interest in the dwelling and certainly not the exterior, common garbage area where the physical evidence was located. Accordingly, Maestas lacked a subjective expectation of privacy necessary to challenge the search…. [E]ven if Maestas’ connection to the home had been less tenuous and he was the type of overnight guest to which Fourth Amendment privacy expectation has been assigned, the items were located i[n] an area shared with other apartment residents where garbage is placed outside for pickup. Surely Defendant Maestas has established no legitimate, reasonable expectation of privacy in that area.R., Vol. I, at 30 (Mem. Op. & Order Denying Def.’s Mot. to Suppress, filed Apr. 5, 2010).

    Mr. Maestas pleaded guilty to all three counts, reserving his right to appeal the district court’s denial of his motion to suppress. This timely appeal followed.

    STANDARD OF REVIEW

    When reviewing the denial of a motion to suppress, “we consider the totality of the circumstances and view the evidence in a light most favorable to the government.” United States v. Higgins, 282 F.3d 1261, 1269 (10th Cir.2002) (quoting United States v. Gordon, 168 F.3d 1222, 1225 (10th Cir.1999)) (internal quotation marks omitted). The district court’s factual findings are reviewed for clear error, and “the ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo.” Id. (same). “The burden of proof is on the defendant to demonstrate that he has a reasonable expectation of privacy in the place searched….” United States v. Johnson, 584 F.3d 995, 998 (10th Cir.2009).

    DISCUSSION

    The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A defendant invoking the protection of the Fourth Amendment “must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (emphasis added); see also United States v. Poe, 556 F.3d 1113, 1121 (10th Cir.2009) (“It is well-established that ‘the Fourth Amendment is a personal right that must be invoked by an individual.’ ” (quoting Carter, 525 U.S. at 88, 119 S.Ct. 469)). In order to meet this burden, “the defendant must show that he had a subjective expectation of privacy in the premises searched and that ‘society is prepared to recognize that expectation as reasonable.’ ” Higgins, 282 F.3d at 1270 (quoting United States v. Conway, 73 F.3d 975, 979 (10th Cir.1995)).

    Under the Fourth Amendment, it is axiomatic that people have a reasonable expectation of privacy in their own homes. Griffin v. Wisconsin, 483 U.S. 868, 884, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). However, “in some circumstances a person may have a legitimate expectation of privacy in the house of someone else.” Carter, 525 U.S. at 89, 119 S.Ct. 469. For example, in Minnesota v. Olson, the Supreme Court held that an overnight guest has a reasonable expectation of privacy in the home of his host. 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Extending this principle further, this court

    [639 F.3d 1036]

    has “held that a social guest who does not stay overnight has a reasonable expectation of privacy” in the host’s property. Poe, 556 F.3d at 1122 (citing United States v. Rhiger, 315 F.3d 1283, 1286 (10th Cir.2003)). In order for a social guest to qualify for protection under the Fourth Amendment, there must be a “degree of acceptance into the household,” Rhiger, 315 F.3d at 1286 (quoting Carter, 525 U.S. at 90, 119 S.Ct. 469) (internal quotation marks omitted), or an “ongoing and meaningful connection to [the host’s] home” establishing the person’s status as a social guest, id. at 1287.

    On the other hand, “an individual does not possess an expectation of privacy to challenge the search of another’s property when he or she is present solely for commercial or business reasons” and otherwise has no meaningful connection with the home. Id. at 1286 (citing Carter, 525 U.S. at 90–91, 119 S.Ct. 469). More specifically, in Carter, the Supreme Court found no expectation of privacy when the defendants were in the home for the sole purpose of packaging cocaine for distribution—they were “not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours,” and “[t]here [wa]s no suggestion that they had a previous relationship with [the resident of the home], or that there was any other purpose to their visit.” 525 U.S. at 90, 119 S.Ct. 469.

    Initially, Mr. Maestas argues that his relationship with Road Dog and the three-month period during which he frequented the residence “established a ‘meaningful connection’ to the apartment and an expectation of privacy there.” Aplt. Reply Br. at 3. Mr. Maestas testified that during the three-month period preceding his arrest he was at the house “on a regular basis,” R., Vol. III, at 9, that he frequently “stayed there overnight” when he was using drugs, id. at 10, that he would “shower there” and “g[e]t cleaned up there,” id. at 12, that he would spend time there “talk[ing] to [Road Dog] … about life,” id. at 16, and that “Road Dog [did not] have any problem with the fact that [he] w [as] staying the night there at his Mountain Road residence,” id. at 10. On the other hand, the government argues that “the record is clear that on the day of his arrest, Maestas was present at the Mountain Road apartment for no purpose other than to conduct an illegal narcotics transaction,” and therefore he “had no reasonable expectation of privacy in the Mountain Road apartment.” Aplee. Br. at 8.

    As stated above, the district court concluded that Mr. Maestas’s “connection to the home had been [too] tenuous and he was [not] the type of overnight guest to which Fourth Amendment privacy expectation has been assigned.” R., Vol. I, at 30. Accordingly, the district court concluded that the search did not violate the Fourth Amendment. We need not, however, definitively decide this issue. In this instance, we assume without deciding that Mr. Maestas was a social or overnight guest at Road Dog’s residence and that for Fourth Amendment purposes his expectation of privacy was coterminous with the expectation of privacy of the tenant, Road Dog. Under these assumptions, Mr. Maestas had a reasonable expectation of privacy in the apartment. But that does not necessarily resolve the issue of whether Mr. Maestas—standing in the shoes of the tenant, Road Dog—had a reasonable expectation of privacy in the garbage storage area adjacent to the triplex residence. That is the issue before us for decision.

    Mr. Maestas argues that the garbage storage area is within the curtilage protected by the Fourth Amendment, while the government argues that it is not. Under well-settled Fourth Amendment jurisprudence,

    [639 F.3d 1037]

    the privacy expectation that one has in the home generally extends to the “curtilage” of the home. See, e.g., Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Reeves v. Churchich, 484 F.3d 1244, 1254 (10th Cir.2007). “Curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Lundstrom v. Romero, 616 F.3d 1108, 1128 (10th Cir.2010) (brackets omitted) (quoting Reeves, 484 F.3d at 1254) (internal quotation marks omitted). In determining whether an area around a home is within the “curtilage,” the court generally considers four factors: “(1) the area’s proximity to the home; (2) whether the area is included within an enclosure surrounding the house; (3) the manner in which the area is used; and (4) the steps the resident has taken to protect the area from observation.” Id.

    Regarding the first, second, and fourth factors, the evidence presented in this case demonstrates that the garbage storage area at issue abuts one unit of the triplex, is enclosed by a fence, and is largely shielded from observation. See R., Vol. III, at 17–18, 32 (stating that the area was “an enclosed area adjacent to the residence,” surrounded by a “coyote fence,” and that the officer “could not see” Mr. Maestas when he entered the area). However, as stated above, “curtilage” is defined as “the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Lundstrom, 616 F.3d at 1128. Consequently, our observation that “it is difficult to imagine anyone using an area in which garbage was regularly deposited for the intimate activities of the home” is at least arguably relevant to our assessment of the third factor. United States v. Long, 176 F.3d 1304, 1308 (10th Cir.1999).2 However, ultimately we need not opine on whether the garbage storage area located outside Road Dog’s residence is in fact within the curtilage. Even assuming, arguendo, that it is, Mr. Maestas cannot demonstrate that he had a reasonable expectation of privacy in the area.

    Road Dog lived in a multi-unit residential complex—namely, a triplex. Thus, the garbage storage area was not used exclusively by Road Dog and his guests; to the contrary, it was used by at least two other tenants in the triplex (and presumably their guests), and it was accessible by the landlord (and presumably his or her agents). See R., Vol. III, at 14 (stating that the area contained “three trash cans” that were used by the “three residents at the apartment complex”). The government argues that “[t]he communal nature of the garbage area defeats any argument that Maestas maintained a legitimate expectation of privacy in that space.” Aplee. Br. at 10–11. Although we have stated in dicta that “[a]partment tenants who move personal items into a common hallway cannot reasonably believe those items will be left uninspected,” United States v. Barrows, 481 F.3d 1246, 1249 (10th Cir.2007), we have never definitively ruled on whether an individual can have a reasonable expectation of privacy in the common or shared areas of a multi-unit residential

    [639 F.3d 1038]

    dwelling, see United States v. Martin, 613 F.3d 1295, 1299 & n. 1 (10th Cir.2010) (recognizing the “disagreement among our sister courts about the Fourth Amendment status of apartment building common areas,” but finding it “unnecessary to resolve whether [the defendant] possessed a reasonable expectation of privacy in the apartment building’s atrium or entryway”).

    In general, most circuit courts have found that “shared” or “common” areas in apartment complexes or multi-unit dwellings, such as hallways, entryways, and basements, are not areas over which an individual tenant can have a reasonable expectation of privacy. See, e.g., United States v. Miravalles, 280 F.3d 1328, 1333 (11th Cir.2002) (holding that “tenants in a large, high-rise apartment building, the front door of which has an undependable lock that was inoperable on the day in question, [do not] have a reasonable expectation of privacy in the common areas of their building”); United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir.1993) (holding that a tenant in an apartment complex “has no reasonable expectation of privacy in the common areas of the building”); United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir.1992) (holding that the defendant did not have a reasonable expectation of privacy in the shared hallway or the backyard of a three-story, multi-unit apartment building); United States v. Eisler, 567 F.2d 814, 816 (8th Cir.1977) (holding that an apartment tenant does not have “a reasonable expectation of privacy in the hallway of the apartment building”). The general reasoning behind this conclusion, as the Eleventh Circuit explained in Miravalles, is that apartment tenants

    have little control over those areas, which are available for the use of other tenants, friends and visitors of other tenants, the landlord, delivery people, repair workers, sales people, postal carriers and the like. The reasonableness of a tenant’s privacy expectation in the common areas of a multi-unit apartment building stands in contrast to that of a homeowner regarding the home and its surrounding area, over which the homeowner exercises greater control.

    280 F.3d at 1332 (citations omitted).3

    Most courts have found this reasoning applies even to multi-unit complexes with a small number of units, such as duplexes. See, e.g., United States v. McCaster, 193 F.3d 930, 933 (8th Cir.1999) (holding that a tenant of a two-unit complex had no reasonable expectation of privacy in the shared hall closet of the dwelling, which was accessible by two other tenants and the landlord); United States v. Holland, 755 F.2d 253, 255 (2d Cir.1985) (holding that the defendant did not have a reasonable expectation of privacy in the entryway of a two-unit dwelling); see also United States v. McGrane, 746 F.2d 632, 634 (8th Cir.1984) (holding that the defendant had no Fourth Amendment right to privacy in the basement of a four-apartment residence, which was accessible to all tenants

    [639 F.3d 1039]

    and the landlord, even though the officer “gained entry to the basement as an uninvited person”).4

    On the other hand, at least one court has recognized that under certain unique circumstances a different result may be warranted—specifically, when all the occupants of a multi-unit residential dwelling have a familial or other special relationship with each other. In United States v. King, the Sixth Circuit held that the defendant “had a reasonable expectation of privacy in the basement of the two-family duplex where he resided,” when “he shared the downstairs unit with his brother while his mother and siblings resided in the upstairs unit.” 227 F.3d 732, 748–50 (6th Cir.2000). In other words, the defendant had a valid privacy interest in the shared basement of the two-unit residential dwelling because, among other things, the residents were all “family members.” Id. at 749; see also United States v. Mendoza, 281 F.3d 712, 721 (8th Cir.2002) (Bye, J., dissenting) (disagreeing with the majority’s holding that the defendant did not have a Fourth Amendment privacy interest in the vestibule of a duplex because, among other reasons, “[t]he only two tenants of the duplex were boyfriend and girlfriend, and thus they shared a common interest in excluding the public from the common vestibule”).

    Keeping these principles in mind, we need not establish any bright-line rules that would generally define the Fourth Amendment’s reach over common or shared areas of multi-unit residential dwellings. See United States v. Holt, 264 F.3d 1215, 1231 (10th Cir.2001) (en banc) (per curiam) (“Because of ‘the fact-specific nature of the reasonableness inquiry,’ the Supreme Court has generally ‘eschewed bright-line rules’ in the Fourth Amendment context.” (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996))), abrogated on other grounds as stated in United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir.2007); see also United States v. Villegas, 495 F.3d 761, 767 (7th Cir.2007) (noting that the inquiry “is necessarily fact dependent, and whether a legitimate expectation of privacy exists in a particular place or thing must be determined on a case-by-case basis” (citations omitted) (internal quotation marks omitted)). We conclude that on the particular facts of this case Mr. Maestas has failed to demonstrate that he had a subjective expectation of privacy in the garbage storage area which society is willing to accept as being objectively reasonable. First, the fact that this was a common area shared by all three tenants (and presumably their guests) and the landlord (and presumably his or her agents) weighs against a conclusion that Mr. Maestas had a reasonable expectation of privacy in the area. See, e.g., McCaster, 193 F.3d at 933 (finding no Fourth Amendment right to privacy in the hall closet of a two-unit dwelling when “[t]he evidence showed that two other tenants, as well as the landlord, had access to the closet”); McGrane, 746 F.2d at 634 (holding that the tenant did not have a reasonable expectation of privacy in the common storage area of the complex, which was “accessible to all tenants and the landlord”); see also Barrows, 481 F.3d at 1249 (“Apartment tenants who move personal items into a common hallway

    [639 F.3d 1040]

    cannot reasonably believe those items will be left uninspected.”).

    Second, Mr. Maestas has not demonstrated that Road Dog had any sort of familial or other special relationship with the other tenants—as in King—that might warrant a different result. See 227 F.3d at 748–50. Finally, the area in question was located outside of the multi-unit complex and was used to store cans of garbage. Cf. Long, 176 F.3d at 1308 (“[I]t is difficult to imagine anyone using an area in which garbage was regularly deposited for the intimate activities of the home.”). Under these specific facts, it cannot be said that Mr. Maestas had a reasonable expectation of privacy in the shared garbage storage area of Road Dog’s triplex. Accordingly, the district court did not err in denying the motion to suppress.

    CONCLUSION

    Based on the foregoing, we AFFIRM the district court’s denial of Mr. Maestas’s motion to suppress the methamphetamine and firearm.

    ——–

    Notes:

    1. The first count was based on a June 8, 2009, controlled transaction in which Mr. Maestas sold an officer eighteen grams of methamphetamine. This transaction and the resulting charge were not implicated by the motion to suppress, and Mr. Maestas does not challenge his conviction on this count on appeal.
    2. In Long, police officers “seized three garbage bags from atop a trailer parked near [the defendant’s] garage.” 176 F.3d at 1306. On appeal, we concluded that “the district court’s determination that the trailer was outside the curtilage [was] not clearly erroneous.” Id. at 1308. In noteworthy respects, however, the garbage area in Long differs from the one at issue here. In Long, “no fence or other barrier enclosed the trailer,” and the defendant did not “attempt[ ] in any way to shield [the trailer] from public view.” Id.
    3. But see United States v. Carriger, 541 F.2d 545, 549–50 (6th Cir.1976) (holding that “a tenant in an apartment building has a reasonable expectation of privacy in the common areas of the building not open to the general public,” where the apartment building was locked and the officer gained access to the common area “without permission” by entering the complex as several workmen left the building). The Sixth Circuit has recognized that Carriger is “outside of the mainstream” in finding a reasonable expectation of privacy in such common areas and has declined to move further in this regard by broadly applying its holding. United States v. Dillard, 438 F.3d 675, 683 (6th Cir.2006); see Nohara, 3 F.3d at 1242 (“[W]e join the First, Second, and Eighth Circuits which have rejected this [ Carriger ] rationale and held an apartment dweller has no reasonable expectation of privacy in the common areas of the building whether the officer trespasses or not”).
    4. But see United States v. Fluker, 543 F.2d 709, 716 (9th Cir.1976) (holding that the defendant had a reasonable expectation of privacy in the shared hallway of a duplex, where the door to the hallway was “always locked and [ ] only the occupants of the two apartments and the landlord had keys thereto”); Fixel v. Wainwright, 492 F.2d 480, 484 (5th Cir.1974) (holding that the defendant had a reasonable expectation of privacy in the shared backyard of a four-unit complex).

     

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  • Case of Mistaken Identity

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    US v Gee 1:10-cr-01759-JEC-2

    • Outcome:All charges dismissed
      Description:Charged with selling drugs to undercover police officer in Farmington.

     

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  • Not Guilty of Alleged Child Molesting

    United States v Theodore Largo

    Case Number 1:08-cr-02830-JCH

    Practice Area:
    Child abuse, Federal
    Outcome:
    Jury found him not guilty on all counts
    Description:
    Navajo father charged with sexual abuse of his own son. FBI laboratory result shown to be invalid by defense expert Richard Coughlin, Ph.D.
    Court appointed (CJA) case. After week long trial, jury deliberated for only an hour or two before returning with not guilty verdicts as to all counts.

  • Murder Suspect Gets Probation

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  • First Degree Murder Conviction Reversed

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    210 P.3d 228 2009 NMSC 029

    STATE of New Mexico, Plaintiff-Appellee,
    v.
    Orlando TORREZ, Defendant-Appellant.

    No. 29,869.

    Supreme Court of New Mexico.

       Aarons Law Firm, P.C., Stephen D. Aarons, Santa Fe, NM, for Appellant. Gary K. King, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Appellee.

    OPINION

    CHÁVEZ, Chief Justice.

    {1} Defendant Orlando Torrez directly appeals his convictions of first degree murder, shooting at a dwelling or occupied building resulting in injury, and tampering with evidence; charges arising from the shooting death of Danica Concha at a Halloween party in 2003. Defendant raises four arguments on appeal: (1) the trial court erred in not granting a mistrial after the jury expressed fears of gang retaliation; (2) the trial court erred in admitting the testimony of an expert witness on the subject of gang-related law enforcement and gang culture; (3) his convictions for felony murder and shooting at a dwelling house resulting in injury violated his constitutional protection against double jeopardy; and (4) cumulative error. We hold that the trial court erred in admitting the testimony of the gang expert, vacate Defendant’s convictions, and remand for a new trial.

    1. BACKGROUND

    {2} On Halloween night in 2003, Defendant, his girlfriend, Samantha Sanchez, his friend, Alfredo Sanchez, and three others went to a house party near Taos, New Mexico. During the party, two unidentified men confronted Defendant and threatened to kill him and his family because Defendant had killed a young man named Jeremy a few years earlier.1 Defendant and his companions left the house and the two unknown men, armed with guns, approached them as they walked toward Defendant’s vehicle. The men again threatened the lives of Defendant and his family and instructed him and his friends to leave or they would be killed. Defendant and his companions got into his car, and while they were driving away, the two men fired gunshots at Defendant’s vehicle, hitting it at least twice. No one was injured.

    {3} Defendant and his companions returned to his house. Defendant testified that he was scared that the assailants would come by his house and shoot at them again because they had told him they knew where he lived. He stated that he wanted to go back to the party and confront the men rather than take the chance that they might come to his house and hurt his pregnant girlfriend or unborn child. Defendant armed himself with a 9 millimeter handgun, and he and Alfredo then gathered five of Defendant’s firearms—a 12-gauge shotgun, a 16-gauge shotgun, a .22 caliber rifle, a .303 caliber rifle, and a .270 caliber rifle—and loaded them into Defendant’s car. Defendant and Alfredo returned to the party in Defendant’s car with the firearms.

    {4} At trial, Defendant described the following events after he and Alfredo returned to the party. He parked the car near the edge of the property and, having noticed one of the two men who had threatened him earlier standing outside the house, Defendant approached the man. While talking to him, Defendant was hit on the head from behind, fell to the ground, and was kicked. He reached for the 9 millimeter handgun that he had stuffed in his waistband, but it was missing. After getting back on his feet, Defendant was running to his car when he heard gunshots fired from behind him. Alfredo testified that when he saw Defendant running back toward the car, Defendant was unarmed and there was gunfire coming from

    [210 P.3d 231]

    the house. However, Alfredo could not state with certainty that Defendant had not been the first to shoot.

    {5} Once back at his car, Defendant testified that he grabbed the .303 caliber rifle and fired toward the house where he could see sparks of light that looked like gunfire. He stated that he heard more gunfire from a different area of the yard, grabbed the 12-gauge shotgun from his car, and then fired in the direction of those shots. Alfredo testified that he fired the 12-gauge shotgun, implying that Defendant did not. No one admitted to having fired the .270 caliber rifle, but casings from that gun were found at the scene.

    {6} At the time of the shooting, Naarah Holgate and Danica Concha were in a bathroom inside the house. Naarah testified that she heard what she thought were fireworks and then saw Danica collapse in the bathtub. An expert testified that Danica had been shot in the chest and killed with a bullet that was consistent with being fired from a center-fire, high velocity rifle. However, the expert could not say which weapon fired the fatal bullet.

    {7} The jury convicted Defendant of first degree murder, shooting at a dwelling resulting in injury, and tampering with evidence. Defendant raises four issues on appeal: (1) jury bias; (2) improper expert testimony; (3) double jeopardy; and (4) cumulative error. Because we grant Defendant’s request for a new trial on the basis that the trial court erred in admitting the expert’s testimony, we do not address Defendant’s other claims of error. Any possible error associated with juror bias will be corrected when a new jury is empaneled at Defendant’s new trial. Because we vacate his convictions, Defendant’s constitutional protection against double jeopardy has not been impaired. Finally, we conclude that his cumulative error argument is without merit. Therefore, we address only the error associated with the admission of the expert’s testimony.

    1. DISCUSSION

    {8} At trial, the State called Detective Robert Martinez as an expert witness to testify about “gang-related law enforcement and gang culture.” The trial court admitted his testimony over Defendant’s objections. On appeal, Defendant raises four arguments, alleging that the trial court’s admission of Detective Martinez’s expert testimony was in error. First, he argues that Detective Martinez was not qualified to be an expert on the behaviors of Taos gang members. Second, he contends that the expert’s testimony was the equivalent of “junk science,” amounting to nothing more than a prediction of Defendant’s behavior on the basis of his association with a gang. Third, Defendant argues that evidence of Defendant’s association with gangs was impermissible propensity evidence that encouraged the jury to conclude that he acted in conformity with the actions of members of criminal street gangs. Finally, Defendant asserts that the expert’s testimony was irrelevant and unfairly prejudicial because there was no evidence presented at trial that this shooting was gang-related. The State contends that Detective Martinez was qualified to give expert testimony on the subject of the behaviors of gang members and that the evidence of Defendant’s affiliation with gangs was allowable to show Defendant’s motive or intent, which the parties agree was the ultimate issue in this case. The State also argues that the expert’s testimony was neither irrelevant nor unfairly prejudicial because “the record clearly establishes that gang membership and gang affiliation permeated this entire trial.”

    {9} We review the trial court’s admission of expert testimony for an abuse of discretion. State v. Alberico, 116 N.M. 156, 169, 861 P.2d 192, 205 (1993). However, our role is not to simply “rubber stamp” the trial court’s determination. Id. at 170, 861 P.2d at 206. The abuse of discretion standard “should not prevent an appellate court from conducting a meaningful analysis of the admission [of] scientific testimony to ensure that the trial judge’s decision was in accordance with the Rules of Evidence and the evidence in the case.” Id. We agree with the State that the trial court did not err in qualifying Detective Martinez as an expert on the subject of gang-related law enforcement and gang culture. We also agree that the expert’s testimony was not impermissible

    [210 P.3d 232]

    propensity evidence because it was offered to prove Defendant’s motive. However, we conclude that the danger that the expert’s testimony was unfairly prejudicial to Defendant substantially outweighed its probative value. Therefore, we vacate Defendant’s convictions and remand for a new trial.

    1. THE PURPOSE OF THE EXPERT’S TESTIMONY

    {10} In Alberico, we stated that “the proper initial inquiry for the admissibility of expert opinion testimony … is [to determine] the purpose for which it is being offered.” 116 N.M. at 172, 861 P.2d at 208. The purpose of the testimony guides our inquiry into whether the expert was qualified to give an opinion on the subject, as well as our determination of whether the testimony was relevant, probative, and not unfairly prejudicial. Thus, we begin our inquiry by determining what the State sought to prove with Detective Martinez’s testimony.

    {11} In our review of the record, we discern two distinct purposes of Detective Martinez’s testimony: (1) to prove that Defendant was a member of the Barrio Small Town (BST) criminal street gang and (2) to explain Defendant’s motive for returning to the party and shooting at the house. Prior to Detective Martinez’s testimony, evidence had been introduced that Defendant had a tattoo that identified him as a BST member. Detective Martinez corroborated this testimony when he testified that BST was a “homegrown” gang in Taos and that the letters “BST” identified BST gang members. He emphasized that tattoos are prevalent in gang society and that tattoos of gang signs, symbols, and abbreviations are identifiers of who is a member of a particular gang. Thus, Detective Martinez offered circumstantial evidence that Defendant was a member of BST. However, no direct evidence was presented at trial that Defendant was a member of BST or any other gang at the time of the shooting.

    {12} The other, more significant purpose of Detective Martinez’s testimony was to refute Defendant’s claim of self-defense by offering another explanation of Defendant’s motive for shooting at the house. The expert’s testimony was significant because Defendant’s intent was the primary focus of the parties’ dispute. Defendant admitted that he shot at the house with a gun that could have fired the fatal bullet. However, he asked the jury to find that he did so in self-defense, in response to being shot at first by unidentified assailants. In contrast with Detective Martinez’s testimony, the State asked the jury to conclude that Defendant, an alleged gang member, returned to the party that night seeking revenge or retribution for being threatened, shot at, and otherwise disrespected.

    {13} Detective Martinez testified that respect is the most important value in gang culture. He testified that gang members gain respect through fear, intimidation, violence, and by controlling the drug trafficking trade. He also stated that gang members are governed by “the code of the street” and are motivated by “retribution,” “an eye for an eye,” with “[n]o assault go[ing] unanswered.” He stated that in his expert opinion, once a gang member has been disrespected, he or she must retaliate with “retribution that … is always done through violence.”

    {14} Detective Martinez explained that gang members can be disrespected in a number of ways. For example, showing a gang-specific tattoo in public or to members of another gang would be disrespectful, as would “mad-dogging,” a form of confrontation where two individuals aggressively stare at one another. Spoken threats are another form of disrespect, as are threats to a person’s life and the destruction of a person’s property. Detective Martinez further explained that disrespecting a gang member in front of other people demands retribution, especially if the member is disrespected in front of members of his or her own gang. Additionally, Detective Martinez repeatedly referred to gangs as “criminal,” explaining that

    if somebody is making threats to the well-being of another or to their life, some course of action must be taken [by] the person who is being threatened, not only because he must protect himself from becoming a victim from the perpetrator, but also because other people know about this.

    [210 P.3d 233]

    And if you don’t go out and take care of business, like he is supposed to be under this unwritten code that the criminal gang adheres to, then he shows weakness on his part.

    With these purposes for the expert’s testimony in mind, we now turn to Defendant’s arguments on appeal.

    1. THE EXPERT WAS QUALIFIED

    {15} Under Rule 11-702 NMRA, “a witness must qualify as an expert in the field for which his or her testimony is offered before such testimony is admissible.” State v. Downey, 2008-NMSC-061, ¶ 26, 145 N.M. 232, 195 P.3d 1244 (internal quotation marks and citation omitted). Rule 11-702 permits a witness to be qualified based on his or her knowledge, skill, experience, training, or education, “but no set criteria can be laid down to test such qualifications.” Id. (internal quotation marks and citation omitted). We have emphasized the use of the disjunctive “or” in Rule 11-702 in recognizing the wide discretion given the trial court in qualifying experts to testify. See, e.g., State v. McDonald, 1998-NMSC-034, ¶ 20, 126 N.M. 44, 966 P.2d 752.

    {16} The trial court qualified Detective Martinez to testify as an expert witness with respect to gang-related law enforcement and gang culture on the basis of his knowledge, skill, and experience in those fields. Defendant argues that Detective Martinez was not qualified to be an expert on these subjects because he (1) did not have personal knowledge of Taos area gangs; (2) did not have a college degree; (3) had not previously testified as an expert before a jury; (4) had never worked undercover in a gang unit; (5) had not published any materials that were subject to peer review; and (6) could not point to any recognized field of study that sought to determine why gang members assault one another. Defendant also argues that Detective Martinez was not qualified to predict the human behavior of gang members. The State contends that Detective Martinez was qualified to give expert testimony on gang culture and gang-related law enforcement because, among his other qualifications, he had thirteen years’ experience as a police officer working with gang units, had spent approximately 2,000 hours instructing other law enforcement personnel about gang culture and investigation, and had written the Albuquerque, Bernalillo County Street Gang Manual.

    {17} In addition to the expert’s qualifications upon which the State relies, the record reflects that Detective Martinez also possessed the following qualifications at the time of Defendant’s trial. As an investigating officer with the Bernalillo County Sheriff Department’s gang unit, it was his responsibility to certify gangs as criminal, identify members of those gangs, and collect intelligence on and conduct investigations of those gangs and individuals. He had been certified by the New Mexico Gang Task Force and the Bernalillo County Sheriff’s Department, as well as a private entity that certifies police officers who have completed its gang specialization course. His specialist certification was valid with the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. In addition to authoring the Albuquerque, Bernalillo County Street Gang Manual, he had also authored training programs on gang-related law enforcement and was certified as an instructor with the New Mexico Law Enforcement Training Academy. Finally, through his work, he had become familiar with Taos area gangs.

    {18} Based on these qualifications, we cannot say that the trial court abused its discretion in qualifying Detective Martinez as an expert on gang-related law enforcement and gang culture. Rule 11-702 expressly allows experts to be qualified based on their skills and experience, and Detective Martinez’s experience with gangs was sufficient to allow his testimony on this subject. That Detective Martinez did not have a college degree, had not previously testified as an expert before a jury, and had never worked undercover in a gang unit does not nullify the trial court’s determination that his experience in working with criminal gangs in New Mexico was sufficient for him to testify as an expert on gang culture and the behaviors of gang members. Furthermore, we note that the jury was free to weigh every aspect of Detective

    [210 P.3d 234]

    Martinez’s qualifications in their evaluation of his testimony, and any perceived deficiencies in his qualifications were “relevant to the weight accorded by the jury to [the] testimony and not to the testimony’s admissibility.” McDonald, 1998-NMSC-034, ¶ 21 (internal quotation marks and citation omitted). Therefore, the trial court did not err in qualifying Detective Martinez as an expert.

    1. THE EXPERT’S TESTIMONY WAS BASED ON HIS SPECIALIZED KNOWLEDGE

    {19} Although an expert may be qualified to give an opinion on a given subject, the expert’s testimony may nevertheless be inadmissible under Rule 11-702, which requires that the testimony assist the trier of fact and be based on “scientific, technical or other specialized knowledge.” See Alberico, 116 N.M. at 166, 861 P.2d at 202 (“We discern three prerequisites in Rule [11-]702 for the admission of expert opinion testimony. The first requirement is that the expert be qualified…. The second consideration … is whether [the testimony] will assist the trier of fact…. The third requirement … is that an expert may testify only as to `scientific, technical or other specialized knowledge.’”). We have already addressed the first of these three inquiries, whether the expert is qualified. We do not address whether the expert’s testimony assisted the trier of fact because that argument was not raised by Defendant. In light of Defendant’s remaining arguments, we now turn to whether Detective Martinez’s testimony was based on his specialized knowledge.

    {20} Defendant argues that the trial court should have excluded Detective Martinez’s testimony because it amounted to nothing more than “junk science” and an unscientific attempt to predict the behavior of gang members. Defendant also argues that the reliability of Detective Martinez’s methodology could not be tested because there is no recognized field of scientific study that seeks to explain in a scientific manner why gang members assault one another. To the extent that Defendant is arguing that Detective Martinez’s expert testimony should have been excluded because it is not the subject of a valid science and there are no means to test the reliability of his results, we disagree. Defendant confuses the standards applicable to determining the admissibility of expert scientific testimony with those for admitting expert testimony based on the specialized knowledge of the expert witness.

    {21} The requirements that scientific expert testimony be “grounded in valid, objective science” and “reliable enough to prove what it purports to prove,” Alberico, 116 N.M. at 168, 861 P.2d at 204, are inapplicable to expert testimony that is based on the expert’s specialized knowledge. See State v. Torres, 1999-NMSC-010, ¶ 43, 127 N.M. 20, 976 P.2d 20 (“[A]pplication of the Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] factors is unwarranted in cases where expert testimony is based solely upon experience or training.” (quoting Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1518 (10th Cir.1996))); accord United States v. Hankey, 203 F.3d 1160, 1168-70 (9th Cir.2000) (“The Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to [gang expert] testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”). Nevertheless, “[i]t is the duty of our courts … to determine initially whether expert testimony is competent under Rule 702….” Alberico, 116 N.M. at 164, 861 P.2d at 200. In other words, even with non-scientific expert testimony, the trial court must exercise its gate-keeping function and ensure that the expert’s testimony is reliable. However, when testing the reliability of non-scientific expert testimony, rather than testing an expert’s scientific methodology as required under Daubert and Alberico, the court must evaluate a non-scientific expert’s personal knowledge and experience to determine whether the expert’s conclusions on a given subject may be trusted. See Hankey, 203 F.3d at 1168-69.

    {22} While this inquiry is similar to a determination of whether an expert is qualified to opine on a given subject, the two inquiries are not identical. The first inquiry, testing an expert’s qualifications, requires

    [210 P.3d 235]

    that the trial court determine whether an expert’s skills, experience, training, or education qualify him or her in the relevant subject. Although the second inquiry uses these same factors, the court uses them to test the validity of the expert’s conclusions. In this way, an expert may be qualified to offer opinions on a subject, but those opinions may nevertheless be unreliable in that they do not prove what they purport to prove. We need not repeat Detective Martinez’s qualifications here. We have already concluded that the trial court did not err in qualifying him as an expert on the subject of “gang-related law enforcement and gang culture.” However, our inquiry does not stop with a determination of his specialized knowledge on these subjects. We must also determine whether his knowledge of gangs generally permitted him to offer an expert opinion regarding the motives of individual gang members.

    {23} It is widely held that expert opinion testimony is admissible to prove motive or intent of a gang member, subject to the balancing requirements of Rule 11-403 NMRA. See State v. Torres, 183 N.J. 554, 874 A.2d 1084, 1093-95 (2005) (listing cases admitting expert testimony on gang issues to prove the defendant’s motive). Indeed, this Court has held that Rule 11-404(B) NMRA permits an expert to testify regarding a defendant’s affiliation with a gang, as well as gang-specific rituals and procedures, “to show Defendant’s alleged motive (to rise up in the ranks of the gang by performing a hit on its behalf) and intent to murder the victims.” State v. Nieto, 2000-NMSC-031, ¶ 25, 129 N.M. 688, 12 P.3d 442. Here, Detective Martinez testified from his personal experience with gangs that gang members retaliate in violent ways when disrespected. He testified that being disrespected can occur in any number of ways, some of which could have been applicable in Defendant’s situation if sufficient evidence of Defendant’s gang affiliation had been presented to the jury. Based on his experience and knowledge, the trial court did not err in concluding that Detective Martinez’s opinions were reliable and that his testimony regarding the motives of gang members proved what it was offered to prove.

    {24} Despite the admissibility of evidence of a defendant’s “other crimes, wrongs or acts” to prove his or her motive or intent under Rule 11-404(B), Defendant encourages us to conclude that the expert’s testimony was impermissible propensity evidence that was offered to show his conformity with the criminal actions of gang members in general and of BST members in particular. “To be sure, evidence of gang affiliation could be used improperly as a backdoor means of introducing character evidence by associating the defendant with the gang and describing the gang’s bad acts.” Nieto, 2000-NMSC-031, ¶ 25. However, Rule 11-404(B) specifically allows evidence of “other crimes, wrongs or acts” to prove “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Defendant does not dispute that the expert’s testimony was offered to rebut his claim of self-defense, and therefore went to his motive for shooting at the house. In fact, Defendant acknowledged at trial that “the only battleground here is [Defendant’s] intent.” Given Defendant’s admission at trial that he fired a high-powered rifle that could have killed Danica, we agree that the primary issue the jury needed to resolve was his motive for doing so. Therefore, like the defendant in Nieto, the expert’s testimony was not impermissible propensity evidence because it was offered to establish Defendant’s motive.

    {25} Defendant attempts to distinguish Nieto on the basis that the expert in Nieto was allowed to testify only regarding the defendant’s affiliation with a particular gang and that gang’s specific rituals, procedures, clothing, and symbolism. See id. ¶ 25 (stating that the expert testified regarding the defendant’s “affiliation with the 18th Street Gang and the specific rituals and procedures of that gang”). We understand Defendant to be arguing that Detective Martinez’s expert testimony should have been excluded as impermissible character evidence under Rule 11-404 because he did not base his testimony on the specific behaviors and rituals of BST, the gang to which Defendant allegedly belonged at the time of the shooting. We agree with Defendant that Detective Martinez’s

    [210 P.3d 236]

    testimony should have been grounded in facts specific to Defendant’s case and that he effectively concluded that Defendant was motivated by the code of conduct of street gangs without sufficient additional evidence that any of the key players were gang members or that the shooting was in any way gang-related. However, rather than distinguishing Nieto on Rule 11-404 grounds, we believe our analysis is better suited to balancing the testimony’s probative value against the danger of unfair prejudice to Defendant under Rule 11-403.

    1. THE EXPERT’S TESTIMONY WAS UNFAIRLY PREJUDICIAL

    {26} Although gang expert testimony may be allowable to prove motive under Rule 11-404(B), it must still satisfy the requirements of Rule 11-403, which mandates exclusion “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” See Nieto, 2000-NMSC-031, ¶ 26 (subjecting gang expert’s testimony admitted to prove motive to Rule 11-403 balancing). Here, the probative value of Detective Martinez’s testimony was outweighed by the danger of unfair prejudice because there was no evidence presented at trial that Defendant was a gang member at the time of the shooting, the party was a “gang party,” or the shooting was in any way gang-related.

    {27} “[T]he allegation that a defendant is in a gang ought not serve as a justification for extensive expert testimony regarding criminal gangs.” State v. DeShay, 669 N.W.2d 878, 887 (Minn.2003); see also Utz v. Commonwealth, 28 Va.App. 411, 505 S.E.2d 380, 385 (1998) (recognizing that “evidence identifying a defendant as a member of a gang may be prejudicial, since juries may associate such groups with criminal activity and improperly convict on the basis of inferences as to the defendant’s character” (citation omitted)). Thus, “[t]he district court should scrutinize proffered gang expert testimony, preferably outside the presence of the jury, and exclude it where irrelevant, confusing, or otherwise unhelpful.” DeShay, 669 N.W.2d at 888 (internal quotation marks and citation omitted). Gang expert testimony “must be carefully monitored by the court so that the testimony will not unduly influence the jury or dissuade it from exercising its independent judgment.” Id.

    {28} Here, the probative value of Detective Martinez’s testimony would have been significant if the State had offered other evidence that the shooting was gang-related. The purpose of the expert’s testimony was to prove that Defendant returned to the party with the intention of shooting at the house in retribution for having been disrespected. However, the probative value of this testimony was contingent upon the State offering additional evidence that Defendant was in fact a gang member at the time of the shooting or that the shooting was somehow related to gang rituals, rivalries, procedures, or other aspects of gang culture. Absent corroborative evidence that the incident was influenced by a gang’s code of conduct or other criminal aspects of gang culture, the risk that Defendant was convicted because he was, or at one time had been, a member of a gang is too great to allow the evidence to be put before the jury. See State v. Cox, 258 Kan. 557, 908 P.2d 603, 609 (1995) (“Gang evidence is only admissible where there is sufficient proof that membership or activity is related to the crime charged.”).

    {29} At Defendant’s trial, there was no evidence presented supporting the State’s theory that Defendant was a member of BST or any other gang at the time of the shooting. Evidence was presented that on the night of the shooting, Defendant admitted to having been in BST at one time, an admission he confirmed with his testimony. The State also presented evidence of Defendant’s BST tattoo. However, the State never connected that tattoo with his continued membership in BST, and the State did not present any evidence that Defendant was a member of another gang at the time of the shooting. Thus, even considering Detective Martinez’s testimony, the State produced no evidence of Defendant’s gang membership at the time he shot at the house.

    [210 P.3d 237]

    {30} In addition, the State produced no evidence that the Halloween party was a “gang party,” such that the shooting was somehow connected to gang rivalry or other gang rituals or procedures. Indeed, testimony was presented that while members of one or more unidentified gangs were at the party, it was not a “gang party.” Testimony was also given that the shooting itself was not gang-related. Furthermore, the men who threatened and shot at Defendant and his companions were not identified, and their membership in any gang was unknown. Similarly, the party’s hosts were never identified as members of BST or any other gang. Finally, the State’s expert did not testify that the shooting itself was related to gang rivalry or other gang rituals.

    {31} Because no evidence was presented that Defendant was a member of any gang at the time of the shooting, the party was a “gang party,” or the shooting was gang-related, Detective Martinez’s testimony regarding Defendant’s motive was largely, if not entirely, irrelevant. See, e.g., Cox, 908 P.2d at 611 (holding that because “[n]o evidence was introduced … to suggest that the motive for the killing was gang related …[,] the trial court abused its discretion by admitting the gang expert testimony”). While Detective Martinez’s testimony was relevant to show that Defendant was a member of BST, his testimony regarding Defendant’s motive was irrelevant because the State offered no evidence that Defendant was a gang member at the time of the shooting. In the absence of supporting evidence, the expert’s testimony unfairly prejudiced Defendant by asking the jury to find that Defendant was a member of a gang and to conclude that he acted in accordance with the gang’s code of conduct.

    {32} Evidence of a defendant’s gang affiliation “is likely to be damaging to a defendant in the eyes of the jury” because “[g]angs generally arouse negative connotations and often invoke images of criminal activity and deviant behavior.” United States v. Irvin, 87 F.3d 860, 864, 865 (7th Cir.1996) (internal quotation marks and citation omitted). “There is therefore always the possibility that a jury will attach a propensity for committing crimes to defendants who are affiliated with gangs or that a jury’s negative feelings toward gangs will influence its verdict.” Id. at 865. In Defendant’s case, we are especially wary of the threat of guilt by association because Defendant’s intent was the primary issue to be resolved at trial. See State v. Phillips, 2000-NMCA-028, ¶ 29, 128 N.M. 777, 999 P.2d 421 (“[A] real threat of guilt by association may exist where the defendant’s gang membership is the entire theme of the trial.” (internal quotation marks and citation omitted)). As a result, we conclude that the trial court abused its discretion in admitting Detective Martinez’s expert testimony on gang culture and gang-related law enforcement. See State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991) (“[I]n applying Rule [11-]403, … [e]vidence should be excluded if it is calculated to arouse the prejudices and passions of the jury and [is] not reasonably relevant to the issues of the case.” (internal quotation marks and citation omitted)).

    1. THE EXPERT’S TESTIMONY WAS NOT HARMLESS

    {33} Having concluded that the trial court erred in admitting Detective Martinez’s testimony, we must now determine if that error was harmless. See, e.g., Casaus v. State, 94 N.M. 58, 59, 607 P.2d 596, 597 (1980) (concluding that evidence admitted improperly under the predecessor to Rule 11-403 was not harmless error). To determine whether a non-constitutional error was harmless, we must assess whether there is no reasonable probability that the error affected the verdict. State v. Barr, 2009-NMSC-024, ¶ 54, ___ N.M. ___, 210 P.3d 198 (2009). In this case, we have no doubt that there is a reasonable probability that the expert’s testimony contributed to Defendant’s conviction. The expert testified that Defendant was a member of the BST criminal street gang, that the events of the night of the shooting were such that any gang member in Defendant’s shoes would have been disrespected, and that gang members always retaliate against those who disrespect them with violence. Because Defendant’s motive for shooting at the house was the primary issue before the jury and the expert’s testimony was the linchpin in the State’s evidence rebutting

    [210 P.3d 238]

    Defendant’s claim of self-defense, the error of admitting Detective Martinez’s testimony was not harmless.

    III. CONCLUSION

    {34} For the reasons stated above, we hold that the trial court erred in admitting Detective Martinez’s expert testimony on gang culture and gang-related law enforcement. We therefore vacate Defendant’s convictions for first degree murder, shooting at a dwelling resulting in injury, and tampering with evidence, and remand to the district court for a new trial.

    {35} IT IS SO ORDERED.

    WE CONCUR: PATRICIO M. SERNA, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and CHARLES W. DANIELS, Justices.

    —————

    Notes:

    1. As a minor, Defendant apparently pled no contest to the involuntary manslaughter of Jeremy and spent two years in reform school. Although the facts supporting Defendant’s prior homicide conviction were not before the jury and are not part of the record, Defendant and his grandmother both testified that they had lived in fear because of Defendant’s involvement in Jeremy’s death.

    [/column]

  • Death Penalty Is Repealed in New Mexico

    By THE ASSOCIATED PRESS

    SANTA FE, N.M. (AP) — Gov. Bill Richardson signed legislation Wednesday to repeal New Mexico’s death penalty, calling it the “most difficult decision in my political life.”

    The legislation replaces lethal injection with a sentence of life in prison without the possibility of parole.

    “Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe,” Mr. Richardson said at a news conference in the Capitol.

    The governor, a Democrat, faced a deadline of midnight for making a decision on the bill that lawmakers sent him last week.

    New Mexico is only the second state to ban executions since the United States Supreme Court reinstated the death penalty in 1976. New Jersey was the first, in 2007. In all, 15 states now bar capital punishment.

    New Mexico has executed only one person since 1960, Terry Clark, a child killer, in 2001.

    Two men are currently on death row, Robert Fry of Farmington and Timothy Allen of Bloomfield. Their sentences are not affected by the new law

    Mr. Richardson, who formerly supported capital punishment, said his decision was “extremely difficult,” and he solicited advice over the weekend from state residents.

    Among those urging the governor to sign the bill was the U.S. Conference of Catholic Bishops. Officials of the Roman Catholic Church lobbied hard for repeal.

    Lt. Gov. Diane D. Denish, a Democrat, said she delivered a handwritten note to the governor on Wednesday indicating her support for repeal.

    The New Mexico Sheriffs’ and Police Association opposed repeal, saying capital punishment deterred violence against police officers, jailers and prison guards. District attorneys also opposed the legislation, arguing that the death penalty was a useful prosecutorial tool.

    New Mexico was one of several states considering repealing the death penalty this year. In Kansas, a bill to do so failed to clear the Senate this week.

  • “I knew I was Innocent”

    [column width=”1/1″ last=”true” title=”” title_type=”single” animation=”none” implicit=”true”]

    FIRST DAY OF FREEDOM:

    DA Drops Murder Charges Against Two

    Publication: Albuquerque Journal Final Edition; Page: A1 by Hall, Heinz, Journal Staff Writer

    Michael Lee has “NOT GUILTY” tattooed in 3-inch high letters across his back. He got the tattoo in prison using sharpened staples and burned petroleum jelly, a process that took 38 hours over two months. Lee said knowing he wasn’t guilty is what got him through the 15 months he spent in the Metropolitan Detention Center on murder charges that were dropped Wednesday. “I knew I was innocent,” he said.

    Lee and Travis Rowley have been at MDC since December 2007, when they were charged with the killing of Tak and Pung Yi, an elderly Korean couple who were slain in their home. The men were released Wednesday after District Attorney Kari Brandenburg said her office was “ethically obligated” to drop the charges until it could build a stronger case. She emphasized that the investigation continues and that the charges can be refiled if more evidence is found to advance the case.

    The two men looked exuberant during a news conference Wednesday. Rowley sipped an iced caramel macchiato from Starbucks, and both men had changed from their orange jumpsuits into dress clothes provided by the Public Defender’s Office that were a little too big. “I can’t wait to give my mom a hug,” Lee said.

    Rowley and Lee were arrested more than 15 months ago after witnesses living near the Yis told officers that a man matching Rowley’s description had been selling magazines in the area and had tried to talk his way into a nearby home. Rowley later confessed to the killings, but that confession has been called into question by his attorneys. Defense attorneys at Wednesday’s news conference said they felt the police investigation had focused too early on Rowley and Lee Instead of following up on other possible leads.

    Albuquerque police spokesman John Walsh said the Police Department stands firmly behind its 1nvestigat1on and still believes that Rowley and Lee were involved in the Yi k1lhngs.

    “The Distnct Attorney’s Office has requested some further investigation that is being done noe and chose to put the prosecution on hold,” he said. “We anticipate that these two individuals wtll be brought to Justice.” The case against the men began to unravel after DNA collected from under Tak Vi’s fingernails was matched to career criminal Clifton Bloomfield, then in prison for another homicide.

    Bloomfield has since pleaded guilty to killing the Yis and three other people.

    Stephen Aarons, one of Rowley’s defense attorneys, said he is grateful to Tak Yi, 79, for struggling to save himself and his wife Pung, 69, who was raped before she was killed. That struggle left DNA under Tak Vi’s fingernails that was used to link Bloomfield to the crime. “My thoughts are of Tak Yi,” Aarons said. “He fought Bloomfield, and he couldn’t save himself or his wife, but he did save these two men.”

     Journal staff writer Scott Sandlin contributed to this story.

    [/column]

  • Fourth Defendant Acquitted

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    ALBUQUERQUE, N.M. — Trial of fourth defendant accused of killing Mexican national starts today in Taos.

    3/3/08 UPDATE: We neglected to catch up with the outcome of the fourth straight murder trial to be held in Taos in the death of 22-year-old Juan Alcantar in September 2003.
    Here’s what the Albuquerque Journal reported last Friday:

    The fourth defendant to stand trial for murder in the 2003 death of a Mexican national was found not guilty Thursday by a Taos jury, which took only an hour and a half to decide his fate after a two-day trial.

    Acquitted of charges of first-degree murder and conspiracy to commit murder was 55-year-old Elias Romero, who took the stand in his own defense to deny the allegations that he supplied a syringe filled with heroin and ordered co-conspirators to fatally inject 22-year-old Juan Alcantar.

    A Taos jury on Monday convicted Luis “Tablas” Trujillo, 35, of first-degree murder and other charges for his part in the September 2003 of Juan Alcantar — the third defendant to be found guilty of the murder this month, The Taos News reported.

    Alcantar, who lived in Questa, was found burned inside his car at a Taos church parking lot after having been beaten and injected with a lethal dose of heroin, the News reported.
    Steve Tollardo, 34, and Lawrence “Pifas” Gallegos, 28, were found guilty of murder and other charges earlier this month, the paper said.

    The final defendant, Elias “Baby” Romero, 55, is scheduled to go on trial today, the News reported.

    7:55am 2/22/08 — Third Murder Trial Under Way in Taos: Two already convicted in 2003 death of Mexican national.
    The third of four scheduled trials of men accused in the 2003 death of Mexican national Juan Alcantar-Zarazua got under way in Taos Thursday with prosecutors claiming that 35-year-old Luis “Tablas” Trujillo struck the first blow and drove fellow defendants to the church parking lot where the victim was burned alive, The Taos News reported.
    Alcantar, whose age has been variously given as 21 and 22, was given a lethal injection of heroin, strangled, suffocated, then set on fire by four men who conspired to kill him and cover up the evidence by burning Alcantar’s car and body, according to an earlier Albuquerque Journal report.
    Two defendants already have been convicted in a series of separate trials being held in state District Court in Taos.
    Advertisement

    The first defendant, 34-year-old Steve Tollardo was found guilty of murder in a trial that ended on Feb. 15, and on Wednesday 28-year-old Lawrence Gallegos was convicted of first-degree murder, aggravated arson and kidnapping, plus three counts of conspiracy, the Journal reported this week.
    Trujillo is facing the same charges in a trial that is expected to wrap up on Monday, The Taos News reported.
    The fourth defendant, 55-year-old Elias “Baby” Romero, is expected to follow next week, the paper said.
    Trujillo’s trial began Thursday with his defense attorney, Daniel Salazar, claiming that the state’s case was based on the “lies” of 27-year-old Michelle Martinez, who has pleaded guilty to conspiracy to murder Alcantar and is serving 15 years in prison, The Taos News reported.

    Final trial begins in 2003 murder
    Posted Wednesday, February 27, 2008 5:00 pm
    By Chandra Johnson

    A jury heard opening statements Tuesday (Feb. 26) in the trial of a man accused of murdering a 21-year-old man in 2003.

    Elias “Baby” Romero, 55, faces charges of first-degree murder and conspiracy to commit murder for his alleged part in the murder of Juan Alcántar, a Mexican national who was living with his girlfriend in Questa at the time of his death.

    Romero is accused, among other things, of allegedly providing the syringe of heroin used to inject and kill Alcántar, whose body was found burning in a car in a church parking lot after being beaten and injected with a lethal dose of heroin in September of 2003.

    Three other men in the case have already faced trial ahead of Romero. Luis “Tablas” Trujillo and Lawrence “Pifas” Gallegos were both convicted of first-degree murder, kidnapping, aggravated arson and three more charges of conspiracy. Steve Tollardo was found guilty of the same charges except aggravated arson and conspiracy to commit aggravated arson.

    Deputy district attorney Jeff McElroy told the jury that although Romero faces fewer charges than the other men, his role was still paramount in Alcántar’s death.

    “This defendant prepared a syringe of heroin and sent his 21-year-old girlfriend, Michelle Martínez, out to inject and kill Juan Alcántar,” McElroy said. “With that, he was sending his own message.”

    But defense attorney Steve Aarons assured the jury that the evidence would show that Romero was a victim of circumstance.

    “Don’t let Michelle Martínez take you for a ride. She’s the only one who claims that Elias was somehow involved,” Aarons said. “In the end, we don’t have to rely on Michelle Martínez’s testimony. Whoever Elias Romero is and whatever he’s done in his life, he is not guilty of murder.”

    If convicted, Romero could face life in prison.

     

     

    [/column]

  • Monster Slayer

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    The Story of Serial Killer Robert Fry

    By Robert Scott (www.kensingtonbooks.com)

    Pages 240-241

    The first problems came for Fry’s defense team, Ed Bustamante and Eric Hannum, who were suddenly removed from the case. The state’s defenders’ office stepped in and began to negotiate a contract with Santa Fe lawyer Stephen Aarons.  Steve Aarons had a long and colorful career as an attorney.  He had attended George Washington University, Saint Louis University and Oxford University.  He was a lieutenant colonel in the Judge Advocate General’s (JAG) Corps of the Army. He had prosecuted fifty court martial cases between 1980 and 1983 and was special defense counsel in a Nürnberg, Germany, murder trial.  He spoke Spanish and German.

    Aarons opened his own law office in Santa Fe in 1992, and he had been practicing as a defense lawyer since then, handling over thirty murder cases.  One very interesting case that he was involved in just before the Fry/Tsosie trial was that of Judge Charles Maestas, of Espanola, New Mexico.  Four women accused Maestas of propositioning them.  They said that Maestas had promised to reduce their citations if they had sex with him.  Suzette Salazar actually went ahead and had sex with Maestas – but she audio taped their sexual encounter.

    At Maestas trial, Aarons acknowledged that the man did have sex with Salazar, but he said the sex was consensual. Aarons told Court TV,  “It’s not illegal to have sex.  Evidence will be presented that at least three of the four women did not tell the truth about their allegations.”

    Things took an even more bizarre turn when the lead investigator for the state, Karen Yontz, was shot dead while allegedly trying to rob a bank. Aarons contended that Yontz set up the whole scheme to try and discredit Judge Maestas in the first place. Just before the Robert Fry trial began, Judge Maestas was found guilty and sentenced to three years in prison. It was a victory of sorts for Aarons because the jury had acquitted on over forty counts as to three of the four women and the sentence was light compared to the hundred years Maestas might have received.

    [/column]