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Outcome: Misdemeanor probation (misprison of felon), no deportation – still driving his truck but more careful now
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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.
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.
{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.
{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.
{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.
{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.
{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.
{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.
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{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)).
{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.
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Notes:
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206 P.3d 579 2009 NMSC 014
STATE of New Mexico, Plaintiff-Respondent,
v.
Rich HUBBLE, Defendant-Petitioner.
No. 30,663.
Supreme Court of New Mexico.
March 31, 2009.
[206 P.3d 581]
Hugh W. Dangler, Chief Public Defender, Nancy M. Hewitt, Appellate Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.
Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Respondent.
Donna M. Bevacqua-Young, John Ward Wheeler, II, Santa Fe, NM, for Amici Curiae, New Mexico District Attorneys’ Association and New Mexico Department of Public Safety.
OPINION
SERNA, Justice.
{1} Defendant Rich Hubble was convicted in magistrate court of Driving Under The Influence of Intoxicating Liquor, contrary to NMSA 1978, Section 66-8-102 (1953, as amended through 2004), and Improper Turning at Intersection, contrary to NMSA 1978, Section 66-7-325(A) (1978). Pursuant to Rule 6-703 NMRA, he appealed to the district court. During the district court bench trial, Defendant moved to suppress the evidence that was obtained from the traffic stop, which he claimed was conducted without reasonable suspicion. The district court denied the motion and Defendant was once again convicted of the same two offenses. Defendant appealed the district court’s judgment and the Court of Appeals affirmed. We granted Defendant’s petition for writ of certiorari on the issue of whether the initial traffic stop was based upon reasonable suspicion that he violated a traffic law. We hold that the traffic stop was based upon reasonable suspicion and we affirm the denial of Defendant’s motion to suppress.
[206 P.3d 582]
I. BACKGROUND
{2} On the evening of February 15, 2005, Deputy Phillip Francisco was driving southbound on County Road 6100 when he observed Defendant’s vehicle come to a stop at a “T” intersection between County Road 6100 and an unnamed access road. Aside from the vehicles belonging to Deputy Francisco and Defendant, there were no other vehicles on either the county road or the access road. As Deputy Francisco passed through the intersection, he observed that Defendant did not have his turn signal engaged. Deputy Francisco continued to observe the vehicle through his rearview mirror as he proceeded southbound and never saw the turn signal engaged. Deputy Francisco then observed Defendant turn onto County Road 6100 without using his turn signal. Defendant and his passenger both testified that Defendant did turn on his signal before turning right onto Country Road 6100. Deputy Francisco pulled over to the side of the road about one hundred feet past the intersection and waited for Defendant to pass him. Deputy Francisco then proceeded to make the traffic stop on the basis that Defendant turned without using his signal.
{3} Deputy Francisco approached the vehicle and detected the odor of alcohol on Defendant’s breath and observed that Defendant had bloodshot, watery eyes and slurred speech. Deputy Francisco also observed Defendant act in a slow, impaired, and disoriented manner when he was retrieving his license and registration. Deputy Francisco ordered Defendant to exit his vehicle and observed Defendant swaying and losing his balance when standing. Deputy Francisco asked Defendant if he had been drinking and Defendant responded by saying that he had consumed one beer. Deputy Francisco then had Defendant undergo the horizontal gaze nystagmus, the walk-and-turn, and the one-leg stand tests. Defendant failed all three tests and Deputy Francisco placed him under arrest. Defendant consented to two breath tests and the results indicated that he had a blood alcohol content of 0.12 and 0.10, respectively. Deputy Francisco issued Defendant a citation for DWI and for Improper Turning at Intersection.
{4} At trial, Deputy Francisco acknowledged that the turn signal statute dictates that a driver use the turn signal in order to indicate to other traffic in which direction the driver intends to travel. Deputy Francisco testified that he considered himself to be traffic that night.
II. DISCUSSION
A. Standard of Review
{5} “In reviewing a trial court’s denial of a motion to suppress, we observe the distinction between factual determinations which are subject to a substantial evidence standard of review and application of law to the facts[,] which is subject to de novo review.” State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (internal quotation marks and citation omitted). “We view the facts in the manner most favorable to the prevailing party and defer to the district court’s findings of fact if substantial evidence exists to support those findings.” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. “Questions of reasonable suspicion are reviewed de novo by looking at the totality of the circumstances to determine whether the detention was justified.” State v. Robbs, 2006-NMCA-061, ¶ 9, 139 N.M. 569, 136 P.3d 570.
{6} Defendant did not assert that the New Mexico Constitution afforded him greater protection than the federal Constitution, so we only address the issue of reasonable suspicion under federal Fourth Amendment law. See State v. Gomez, 1997-NMSC-006, ¶¶ 22-23, 122 N.M. 777, 932 P.2d 1.
{7} “Both the United State Constitution and the New Mexico Constitution protect a citizen against unreasonable searches and seizures.” State v. Funderburg, 2008-NMSC-026, ¶ 12, 144 N.M. 37, 183 P.3d 922. Since an automobile stop is considered a “seizure” under the Fourth and Fourteenth Amendments, it must “be conducted in a reasonable manner to satisfy the Fourth Amendment.” State v. Duran, 2005-NMSC-034, ¶ 22, 138 N.M. 414, 120 P.3d 836. “Before a police officer makes a traffic stop, he must have a reasonable suspicion of illegal activity.” State v. Anaya, 2008-NMCA-020,
[206 P.3d 583]
¶ 6, 143 N.M. 431, 176 P.3d 1163. We analyze the reasonableness of a stop in accordance with the two-part test set forth in Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968):(1) whether the stop was justified at its inception and (2) whether the officer’s action was “reasonably related in scope to the circumstances which justified the interference.” Funderburg, 2008-NMSC-026, ¶ 13, 144 N.M. 37, 183 P.3d 922. Because there are no allegations that Deputy Francisco exceeded the scope of the initial interference, we need only examine the first part of the test—whether the stop was justified at its inception.
{8} “A reasonable suspicion is a particularized suspicion, based on all the circumstances that a particular individual, the one detained, is breaking, or has broken, the law.” State v. Jason L., 2000-NMSC-018, ¶ 20, 129 N.M. 119, 2 P.3d 856. “The test is an objective one. The subjective belief of the officer does not in itself affect the validity of the stop; it is the evidence known to the officer that counts, not the officer’s view of the governing law.” State v. Muñoz, 1998-NMCA-140, ¶ 9, 125 N.M. 765, 965 P.2d 349. We objectively examine whether the facts available to the officer warrant the officer, as a person of reasonable caution, to believe the action taken was appropriate. State v. Madsen, 2000-NMCA-050, ¶ 9, 129 N.M. 251, 5 P.3d 573. We will find reasonable suspicion “if the officer is aware of specific articulable facts, together with rational inferences from those facts, that, when judged objectively, would lead a reasonable person to believe criminal activity occurred or was occurring.” State v. Taylor, 1999-NMCA-022, ¶ 7, 126 N.M. 569, 973 P.2d 246 (internal quotation marks and citation omitted).
B. Section 66-7-325(A) Requires Engagement of a Turn Signal When There is a Reasonable Possibility That Other Traffic May Be Affected
{9} The determination of whether Deputy Francisco had reasonable suspicion to make the traffic stop does not hinge on whether Defendant actually violated the underlying turn signal statute. See State v. Brennan, 1998-NMCA-176, ¶ 12, 126 N.M. 389, 970 P.2d 161 (holding that, regardless of whether the defendant was ultimately convicted of careless driving, the officer had reasonable suspicion that he was driving carelessly and the stop was therefore justified). For clarity, we nonetheless take this opportunity to discuss Section 66-7-325(A) and review Defendant’s Improper Turning at Intersection conviction.
{10} “The primary goal in interpreting a statute is to give effect to the Legislature’s intent;” we first look at the words chosen by the Legislature and the plain meaning of those words. State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. Under the plain meaning rule, when a statute’s language is “clear and unambiguous,” we will give effect to the language and refrain from further statutory interpretation. State v. Rivera, 2004-NMSC-001, ¶ 10, 134 N.M. 768, 82 P.3d 939. We will not read into a statute language which is not there, especially when it makes sense as it is written. Burroughs v. Bd. of County Comm’rs of Bernalillo County, 88 N.M. 303, 306, 540 P.2d 233, 236 (1975).
{11} Section 66-7-325(A) provides in pertinent part: “No person shall . . . turn any vehicle without giving an appropriate signal . . . in the event any other traffic may be affected by such movement.” Thus, there are two elements in the statute that must be satisfied in order for its mandate to be triggered: (1) there must be other “traffic” (2) that “may be affected” by the motorist’s turn.
{12} The “traffic” element is easily interpreted and any questions regarding its application in this case are easily resolved given the factual scenario. In interpreting the “traffic” element, we look to how the word is defined in our Motor Vehicle Code: “pedestrians, ridden or herded animals, vehicles and other conveyances either singly or together using any highway for purposes of travel.” NMSA 1978, § 66-1-4.17(F) (1990, as amended through 2007). Thus, there is no doubt that Deputy Francisco, who was driving a vehicle on a highway, was “traffic” under Section 66-7-325(A). The more contentious
[206 P.3d 584]
question deals with the “may be affected” element.
{13} We first look to the plain meaning of the words chosen by the Legislature and in particular, the word “may.” Black’s Law Dictionary defines “may” as “[t]o be a possibility.” Black’s Law Dictionary 1000 (8th ed. 2004). Webster’s Dictionary defines it as “[u]sed to indicate a certain measure of likelihood or possibility.” Webster’s II: New Riverside University Dictionary 734 (1988). Thus, the concept of “possibility” is common to both definitions. To this end, it is significant that the Legislature chose the phrase “may be affected” as opposed to “is affected,” “will be affected,” or “most likely will be affected.” We understand this to mean that the Legislature’s intent was to provide Section 66-7-325(A) with a broad reach, requiring a signal even when there is only a reasonable possibility that other traffic may be affected by the signaling driver’s movement. Thus, under the plain meaning rule, we read the phrase “may be affected” to mean when there is a reasonable possibility that other traffic may be affected.
{14} This interpretation of Section 66-7-325(A) aligns with the policy and concerns that the New Mexico Motor Vehicle Division expressed in the New Mexico Driver Manual. See Motor Vehicle Div., New Mexico Taxation & Revenue Dep’t, New Mexico Driver Manual 19 (2004) [hereinafter New Mexico Driver Manual]. In the section titled “Letting Others Know What You Are Doing,” the manual states: “Generally other drivers expect you to keep doing what you are doing. You must warn them when you are going to change direction or slow down. This will give them time to react if needed, or at least not be surprised by what you do.” Id. The manual further instructs drivers to signal when they change direction, turn right or left, merge into traffic, or park so that other drivers will have time to react to such movements. Id. Thus, requiring motorists to signal before they turn when there is a reasonable possibility that other traffic may be affected by such a turn not only reduces the chance that other drivers would be surprised, but also increases the time that other drivers have to react to such movements.
{15} Given this interpretation, we now turn to the application of Section 66-7-325(A) to the facts of this case. In their arguments regarding whether Deputy Francisco was “other traffic [that] may be affected” under the meaning of the statute, the parties advocated for different snapshots of time from which this issue should be analyzed. Defendant argued that the issue be determined by analyzing Deputy Francisco at the point in time when he had already passed through the intersection and pulled over to the side of the road. Conversely, the State argued for an extended period of time—the time from when Deputy Francisco was approaching the intersection, including the time he passed through the intersection, until the time he pulled over onto the side of the road.
{16} In holding that Deputy Francisco was not traffic that may have been affected by Defendant’s turn, the Court of Appeals endorsed the Defendant’s proposed snapshot in time: “[t]he State has not directed our attention to any evidence that Deputy Francisco believed that Defendant’s right turn itself presented a potential hazard to him (the only traffic present) as he observed the turn in his rearview mirror from 100 feet down the road . . . .” State v. Hubble, No. 26,452, slip. op. at 3 (N.M.Ct.App. Sept. 10, 2007) (emphasis added).
{17} Given our interpretation that Section 66-7-325(A) requires a motorist to give the appropriate signal when there is a reasonable possibility that other traffic may be affected by a turn, we believe that the time period during which there was such a possibility that Deputy Francisco may have been affected by Defendant’s turn encompassed the time that Deputy Francisco was approaching and passing through the intersection. The broad reach and underlying policy of Section 66-7-325(A) dictate that the effect that one driver’s movement may have on another driver is not confined to the point in time when the actual, physical movement occurs. Rather, the effect also involves a driver’s decision-making process in the time leading up to the movement. A driver, once given a visual cue that indicates another driver’s intention, may decide to switch lanes, slow down, or prepare for a change in direction.
[206 P.3d 585]
When a driver engages his or her turn signal, it also communicates to other motorists that the driver is aware of their presence on the road. Thus, to consider that other traffic may be affected only at the time of the actual, physical movement unduly limits the broad reach of 66-7-325(A) and undermines our policy of giving drivers ample time to react to the future movements of other drivers on the road. See New Mexico Driver Manual at 19.
{18} Further, subsection (B) of the statute reinforces the notion that the time period before the actual, physical movement of a driver is pertinent to the determination of Section 66-7-325 violations. It provides: “[a] signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.” Section 66-7-325(B). Thus, because we have determined that Deputy Francisco was “other traffic [that] may [have been] affected,” Defendant should have engaged his right turn signal at least one hundred feet before the intersection. Such indication would have alerted Deputy Francisco as to Defendant’s intention before Deputy Francisco reached the intersection.
{19} The Court of Appeals also unreasonably narrowed the reach of Section 66-7-325(A) when it deviated from the language of the statute in its analysis. The first such deviation was when the Court articulated the issue that it would discuss: “we must decide whether Deputy Francisco could have been affected by Defendant’s turn within the meaning of Section 66-7-325(A).” Hubble, No. 26,452, slip. op. at 2 (emphasis added). Later, the Court reasoned, “[w]e do not understand how Deputy Francisco’s operation of his vehicle was affected in any normal sense of this word by a right turn that occurred after he was well clear of the intersection.” Id. at 3 (emphasis added). Finally, the Court stated, “[t]he State has not directed our attention to any evidence that Deputy Francisco believed that Defendant’s right turn itself presented a potential hazard to him. . . .” Id. (emphasis added).
{20} Given our interpretation of Section 66-7-325(A) and its underlying policy, it is clear that the Court of Appeals required a greater show of effect than the statute contemplates. The State was not required to prove that Deputy Francisco could have been affected, that he was affected, or that Defendant’s turn presented a potential hazard; the statute only requires that the surrounding facts establish that there was a reasonable possibility that he may have been affected. To require an actual effect or a potential hazard would undermine the policy behind driving safety by depriving non-signaling drivers of visual cues and ample decision-making time in their interactions with drivers who intend to change directions. We therefore conclude that Defendant violated Section 66-7-325(A) and affirm Defendant’s turn signal violation conviction. We now turn our discussion to reasonable suspicion.
C. Mistakes of Fact and Law and Reasonable Suspicion
{21} Defendant argues that the traffic stop was not supported by reasonable suspicion because Deputy Francisco made a mistake of law when he concluded that Defendant violated the traffic code. As we have already discussed, we agree with the district court that Defendant violated Section 66-7-325(A) and therefore Deputy Francisco did not make a mistake of any kind. However, in order to clarify the law regarding reasonable suspicion, we take this opportunity to discuss mistakes of law and mistakes of fact and how they interact with reasonable suspicion.
{22} A mistake of law is a “mistake about the legal effect of a known fact or situation,” whereas a mistake of fact is a “mistake about a fact that is material to a transaction; any mistake other than a mistake of law.” Black’s Law Dictionary 1023. Although mistakes of law and fact are more frequently encountered in the context of criminal defenses, some jurisdictions have incorporated these concepts into their rules regarding reasonable suspicion. See, e.g., United States v. Valadez-Valadez, 525 F.3d 987, 991 (10th Cir.2008) (“[F]ailure to understand the plain and unambiguous law . . . is not objectively reasonable.” (internal quotation marks and citation omitted)); United States v. Coplin, 463 F.3d 96, 101 (1st Cir.
[206 P.3d 586]
2006) (“Stops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.”); United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir.2003) (reasoning that, while an officer’s mistake of fact may provide the objective grounds for reasonable suspicion, an officer’s mistake of law cannot); People v. Ramirez, 140 Cal.App.4th 849, 44 Cal. Rptr.3d 813, 816 (2006) (“[A] suspicion founded on a mistake of law cannot constitute the reasonable basis required for a lawful traffic stop.”)
1. State v. Anaya
{23} Reasonable suspicion in New Mexico is analyzed with the use of an objective test. In State v. Anaya, our Court of Appeals held that “conduct premised totally on a mistake of law cannot create the reasonable suspicion needed to make a traffic stop; but if the facts articulated by the officer support reasonable suspicion on another basis, the stop can be upheld.” Anaya, 2008-NMCA-020, ¶ 15, 143 N.M. 431, 176 P.3d 1163.
{24} The facts in Anaya are similar to the instant case. The defendant in Anaya was observed to be weaving within his lane of traffic and was later stopped by a police officer after he failed to utilize his turn signal. Id. ¶ 2. After approaching the car and observing signs of intoxication, the officer arrested the defendant for DWI. Id. The defendant moved to suppress the DWI evidence on the basis that the initial stop was invalid because it was not supported by reasonable suspicion. Id. ¶ 3. At the suppression hearing, the officer testified that he did not observe any other cars in the area at the time of the stop and that he understood that the turn signal statute required the use of a turn signal in all circumstances. Id. Additionally, the officer did not testify that he was affected by the defendant’s right turn. Id. The district court found that the defendant’s traffic stop was not supported by reasonable suspicion and granted the motion to suppress the DWI evidence. Id. ¶ 4.
{25} In affirming the district court’s decision to suppress the evidence, the Anaya Court found that, although “there could be cases in which the officer’s vehicle could be considered affected traffic, depending on the evidence presented[,] . . . the facts as articulated by the officer do not support violation of the turn signal law.” Id. ¶ 19. The Court also stated that “[f]ailure to signal is not a per se traffic violation, despite [the] officer’s good-faith understanding to the contrary,” and also classified the officer’s mistake as a mistake of law. Id. ¶ 17. Viewing the evidence in the light most favorable to the defendant, the Court agreed with the district court’s finding that “the officer’s vehicle was not traffic that could be affected by [the][d]efendant’s failure to signal.” Id. ¶ 19.
2. Anaya Does Not Conflict With Our Objective Reasonable Suspicion Test
{26} The State argues that Anaya conflicts with our existing caselaw that has consistently applied an objective approach to analyzing reasonable suspicion. We disagree.
{27} In its answer brief, the State asserted that “[t]he Anaya Court incorrectly states that New Mexico caselaw holds that conduct premised totally on a mistake of law cannot create the reasonable suspicion needed to make a traffic stop.” However, in making this assertion, the State ignored the second part of Anaya’s holding: “but if the facts articulated by the officer support reasonable suspicion on another basis, the stop can be upheld.” Id. ¶ 15. This second part is critical because it establishes that a court’s analysis has not been completed once an officer’s conduct has been categorized as a mistake of law—courts will still analyze the facts surrounding the officer’s decision in order to determine whether the officer had reasonable suspicion on another basis. In essence, the second part of the Anaya proposition is our objective test for reasonable suspicion.
{28} Even with the “mistake of law” language of the first part of Anaya proposition, our objective test set forth in Brennan and Muñoz remains unaffected because it does not hinge on a court’s classification of an officer’s mistake as either a mistake of law or a mistake of fact. See Brennan, 1998-NMCA-176, ¶ 10, 126 N.M. 389, 970 P.2d 161 (“[T]he question is whether there
[206 P.3d 587]
were facts available to [the officer] that would warrant a person of reasonable caution to believe the stop was appropriate.”); Muñoz, 1998-NMCA-140, ¶ 9, 125 N.M. 765, 965 P.2d 349 (“The test [for reasonable suspicion] is an objective one. The subjective belief of the officer does not in itself affect the validity of the stop; it is the evidence known to the officer that counts. . . .”). In other words, it is not fatal in terms of reasonable suspicion if an officer makes a mistake of law when he conducts a traffic stop; courts will still look objectively to the totality of the circumstances surrounding the officer’s decision to conduct the traffic stop in order to determine if he or she had reasonable suspicion.
{29} This was the Court of Appeals’ process in Anaya. It determined that the officer in that case made a mistake of law because he believed that the turn signal statute required drivers to engage their turn signal at all times, no matter if there was other traffic that may have been affected or not. Anaya, 2008-NMCA-020, ¶ 17, 143 N.M. 431, 176 P.3d 1163. However, the inquiry did not end with this determination. The Court of Appeals still had to determine, despite the officer’s misunderstanding of the law, if there were other facts surrounding the officer’s decision to conduct the traffic stop that could provide the objective grounds for reasonable suspicion. Id. (“[T]here [were] no other facts or testimony . . . to support reasonable suspicion on other grounds.”). The Court further held that “[i]t cannot be objectively reasonable to stop a vehicle when there are no facts to support the inference that a law has been violated.” Id. ¶ 20 (emphasis added). Thus, the Court analyzed the facts surrounding the officer’s decision and did not merely conclude that there was no reasonable suspicion upon its determination that the officer had made a mistake of law.
3. This is Not a Mistake of Law Case
{30} In an attempt to apply the proposition set forth in Anaya, Defendant argues that Deputy Francisco made a mistake of law when he conducted the traffic stop of Defendant based on a perceived violation of the turn signal statute and that this mistake was the sole basis for the stop. We disagree.
{31} Primarily, as discussed above, we hold that Defendant violated the turn signal statute and thus, Deputy Francisco did not make a mistake either of fact or of law when he conducted the traffic stop of Defendant. Thus, the mistake of law portion of the Anaya proposition does not apply. Also, unlike the officer in Anaya, who testified that he “understood Section 66-7-325 to require the use of a turn signal in all circumstances,” id. ¶ 3, there is no evidence in the record before us that Deputy Francisco had any such misunderstanding of the breadth of Section 66-7-325(A).
{32} Finally, even if Deputy Francisco was mistaken when he believed that Defendant had violated the turn signal statute, such a mistake would be a mistake of fact, not a mistake of law. Deputy Francisco’s determinations—that he, while driving his vehicle on the highway, was “traffic,” and that he “may [have been] affected” by Defendant’s turn-concerned “fact[s] that [were] material to [the] transaction.” See Black’s Law Dictionary 1023. Deputy Francisco made no mistake about the applicable rules of law relating to the mandatory use of turn signal. Instead, he had to determine whether certain facts—the relative positions of the vehicles and their direction of travel—constituted a scenario where he may have been affected by Defendant’s movement. Thus, any mistakes regarding these factual judgments would be classified as mistakes of fact and not mistakes of law.
4. Reasonable Suspicion Analysis
{33} Given our interpretation of Section 66-7-325(A) and our holding that Defendant violated the statute, we now address the reasonable suspicion inquiry to the facts of this case.
{34} Viewing the facts in the light most favorable to the State, we hold that Deputy Francisco had reasonable suspicion to stop Defendant. Deputy Francisco testified that as he passed through the intersection, he observed Defendant approach the same intersection perpendicularly and come to a stop. Deputy Francisco observed that Defendant did not have his turn signal engaged at that time. Deputy Francisco further testified that Defendant never, at any time, had his turn signal engaged as Deputy
[206 P.3d 588]
Francisco drove through the intersection and pulled over to the side of the road.
{35} Looking at the “totality of the circumstances” and through an objective lens, we hold that Deputy Francisco had a “particularized suspicion . . . that [Defendant] [was] breaking, or [had] broken[] the law.” See Jason L., 2000-NMSC-018, ¶ 20, 129 N.M. 119, 2 P.3d 856. The “specific articulable” facts that Deputy Francisco observed would lead a reasonable officer to believe that Defendant had violated the turn signal statute and they created the objective basis for Deputy Francisco’s reasonable suspicion. Thus, Deputy Francisco’s traffic stop of Defendant was based upon reasonable suspicion.
III. CONCLUSION
{36} We hold that Defendant violated Section 66-7-325(A) and that Deputy Francisco had reasonable suspicion to conduct the traffic stop of Defendant. The district court’s denial of Defendant’s motion to suppress and his convictions are hereby affirmed.
{37} IT IS SO ORDERED.
WE CONCUR: EDWARD L. CHÁVEZ, Chief Justice, PETRA JIMENEZ MAES, RICHARD C. BOSSON, and CHARLES W. DANIELS, Justices.
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.
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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.”
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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.
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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.
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“When Jessica Quintana wanted to sneak classified material out of the nation’s top nuclear weapons lab, the biggest outrage is how scandalously simple it was…
Quintana has agreed to cooperate with prosecutors and faces up to a year in jail. Her lawyer says Americans can thank her for one thing: exposing persistent gaps in security at a place guarding some of our most sensitive nuclear secrets.”
Watch the video and full article at CBS News
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“I had the flashdrive in my pocket when I entered the vault that day,” recalls Quintana. “And at some point in the day I knew I wasn’t being watched, the racks were open, simply inserted the flashdrive into my computer, took what I needed.”
It was material related to underground nuclear weapons tests from the 70’s, and she printed more classified documents — 228 pages.
“I printed out the pages I needed and put in my backpack with my school books and walked out like I did every day,” said Quintana.
The materials were found accidentally months later by local police during a drug raid on Quintana’s roommate in their trailer home, reports Attkisson.
It’s an understatement to say that walking out with national secrets shouldn’t have been so easy, especially in light of the rash of security scandals at Los Alamos: missing hard drives, even radioactive material smuggled out.
Tens of millions of tax dollars have been spent to upgrade security. Quintana’s case raises the question. Have others, even spies, made off with top secret material?
Quintana says in the years she worked at the lab, nobody ever questioned or searched her. Not once.
“They were so lax about coming in and out,” said Quintana.
Congress was so outraged that the Energy Department fired its top nuclear security official.
Quintana has agreed to cooperate with prosecutors and faces up to a year in jail. Her lawyer says Americans can thank her for one thing: exposing persistent gaps in security at a place guarding some of our most sensitive nuclear secrets.
Los Alamos confirms data breach
reprinted from LA Times LAT ^ | Oct. 26, 2006 | Ralph Vartabedian Posted on 10/28/2006, 8:59:52 PM by FairOpinion
Los Alamos National Laboratory, one of the nation’s key nuclear weapons research centers, confirmed Wednesday that it experienced a potentially major security breach — discovered last week when police found three laboratory computer drives during a drug arrest at a New Mexico trailer park.Police reports released Wednesday identified the owner of the trailer, where officers found a sizable amount of drug paraphernalia associated with methamphetamine use, as Jessica Quintana. Law enforcement officials said Quintana was a former contract employee at the lab.The FBI executed a second search of the trailer in Los Alamos on Friday but sealed the warrant and said little about what agents found.Quintana was employed as an archivist and apparently had a key security clearance, including approvals to participate in special access programs, according to sources familiar with the investigation who spoke on condition of anonymity because they were not authorized to discuss the case.
(Excerpt) Read more at latimes.com …
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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.
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[c
Friday, January 21, 2005
Man Convicted of 2 Murders; Farmington Store Site of Killings
The Associated Press
Robert Fry was found guilty Thursday of first-degree murder in the 1996 slaying of two men inside a counterculture store in downtown Farmington.
Jurors deliberated for 11 hours before reaching a verdict. Fry, who had been smiling earlier, put his hands on the table before him and hung his head after hearing the verdict.
Fry, 31, was charged in the Nov. 29, 1996 slayings of Matthew Trecker, 18, and Joseph Fleming, 25. They were stabbed and their throats slashed in the now-defunct Eclectic store.
Fry was also found guilty of larceny, tampering with evidence and intimidation of a witness.
He was immediately sentenced to two consecutive life sentences, 41/2 years for tampering with evidence and 6 years for intimidation.
“Matt and Joe are smiling today and I’m glad I was a part of it,” Assistant District Attorney Mitch Burns said.
Defense Attorney Steve Aarons said he will appeal the convictions.
Fry already is facing the death penalty for the 2000 murder of a Shiprock woman and is serving a life sentence for the 1998 murder of an Arizona man.
In closing arguments Wednesday, prosecutors had asked the jury to piece together a puzzle of evidence linking Fry to the killings.
The puzzle pieces consisted of testimony from witnesses and statements made by Fry during an inconclusive polygraph test. During the interview, Fry gave his “theory” of how the killings occurred, and prosecutors said the details were too close to reality to be overlooked.
Fry had said that if he were the killer he would cut Fleming’s throat and lay him down. This happened, according to testimony from a crime scene investigator.
“We have a braggart giving details,” Assistant District Attorney Brent Capshaw said Wednesday. “In the process of bragging, he can’t help disclosing facts only the killer would know.”
But the defense argued that Fry was attempting to help solve the mystery of who killed the young men.
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Byline: Jeremy Pawloski, Albuquerque Journal Staff Writer
Slain youth’s family denies allegations he was involved with gangs
A 17-year-old boy who admitted to fatally stabbing a Santa Fe police officer’s brother last year walked out of court a free man late Thursday night after a jury found that he acted in self-defense.
Fred Mestas of Santa Fe was at an undisclosed location Friday afternoon out of fear for his safety, his attorney, Stephen Aarons said.
Meanwhile, the family of Jason Vasquez, 19, who was stabbed by Mestas in the heart and the abdomen the night of June 13, 2001, was trying to come to grips with the verdict.
Mestas was acquitted of second-degree murder.
“For me, working in Santa Fe and having to work in the area where my brother was killed … it’s hard,” said Jason’s older brother, Santa Fe Police Officer Robert Vasquez, 24. “Obviously, no justice was served. …
Demonstration Given in Court
Bent down on one knee, 17-year-old Fred Mestas showed a jury Wednesday how he pulled a knife from a strap in his pants and used it to strike out during a fight at the Cottonwood Village mobile home park on June 13, 2001.
“I reached for the knife, I put my head down and I just started punching,” Mestas said earlier during his testimony.
Two of Mestas’ blows with the knife mortally wounded Jason Vasquez, 19, the younger brother of Santa Fe Police Officer Robert Vasquez.
Mestas is charged with a count of second-degree murder in Vasquez’s death and tampering with evidence for throwing away the knife. …
Jury Says Killing Was Self-Defense.(Journal North)
A
Teen Facing Murder Charges in Trailer Park Stabbing.(Journal North)
Article from: Albuquerque Journal (Albuquerque, NM) | March 13, 2002 | Copyright
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Byline: Jeremy Pawloski Journal Staff Writer
A 16-year-old Santa Fe boy despondent over losing his ex-girlfriend brought a kitchen knife with him when he went looking for her at a mobile home park the night of June 13, 2001, according to http://www.go-binder.com/ and court records.
“He was in a sad mood,” Eric Rael has said in court of his friend Fred Mestas, on the night Mestas left to find his ex-girlfriend, Felicia Valdez.
Prosecutors allege Mestas used the knife that night to kill Jason Vasquez, a Santa Fe police officer’s brother.
Mestas, now 17, is charged with second-degree murder in connection with Vasquez’s death. His trial starts Thursday before 1st District Judge Stephen Pfeffer.
According to court records, Mestas and Vasquez had a fistfight when a group of teens confronted each other on Sycamore Loop in the Cottonwood Village mobile home park the night of Vasquez’s death. …
Fatal Stabbing Suspect Out of Jail.
Article from: Albuquerque Journal (Albuquerque, NM) | August 9, 2001 | Copyright
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Byline: Wren Propp Journal Staff Writer
Teen Now Under House Arrest
A 16-year-old accused of stabbing a man to death in a Santa Fe mobile home park was released from jail Wednesday but placed under house arrest while waiting for trial.
Two state district court judges had to sign off on the release of Fred Mestas, who faces a second-degree murder charge in the death of Jason Vasquez, 20, of Penasco.
Vasquez was stabbed once in the chest and once in the abdomen during an altercation between two groups of teen-agers who had a history of violent confrontation.
The murder charge against Mestas is being heard by State District Judge Stephen Pfeffer. …
Friends Say Fatal-Stabbing Suspect Was Attacked.
Article from: Albuquerque Journal (Albuquerque, NM) | July 12, 2001 | Copyright
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Byline: Jeremy Pawloski Journal Staff Writer
Teen Is Facing Murder Charge
Friends of Fred Mestas, a 16-year-old charged in the stabbing death of Jason Vasquez, 20, testified Wednesday that they saw Mestas being attacked by a group of 15 or more the night of Vasquez’s death.
“As I ran up I saw just a bunch of guys around Fred, beating him as if he were a dog,” said Michael Gonzales during Mestas’ preliminary hearing before Santa Fe Magistrate George Anaya.
Gonzales had previously written in a statement to police that he saw “Fred stab someone” that night, Deputy District Attorney Tony Julian said.
But Gonzales said Wednesday he does not recall Mestas stabbing anyone on the night Vasquez died. …
Self-Defense Claimed as Murder Trial Opens.(Journal North)
Article from: Albuquerque Journal (Albuquerque, NM) | March 15, 2002 | Copyright
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Byline: Jeremy Pawloski Journal Staff Writer
Trailer Park Site of Stabbing
A prosecutor said Thursday that 17-year-old Fred Mestas “was a festering boil of love, jealousy, anger, revenge and finally murder,” on the night of Jason Vasquez’s fatal stabbing at the Cottonwood Village mobile home park on June 13, 2001.
But Mestas’ attorney said Mestas acted out of self-defense during a fight that night and “was getting hit multiple times by multiple people,” including by one young man wielding a broomstick, when Mestas stabbed the 19-year-old Vasquez twice.
“Thank God, he had a knife,” Mestas’ attorney, Stephen Aarons, said during opening statements in Mestas’ second-degree murder trial before 1st Judicial District Judge Stephen Pfeffer. …
Suspect Says He Was Jumped.
Article from: Albuquerque Journal (Albuquerque, NM) | June 22, 2001 | Copyright
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Byline: Jeremy Pawloski Journal Staff Writer
Teen Held on Open Count of Murder
A 16-year-old boy charged with murder in a fatal stabbing at the Cottonwood Village mobile home park last week told police he was “jumped” while taking a walk on Sycamore Loop, according to the probable cause statement for his arrest.
Fred Mestas, 16, of Santa Fe, is charged with an open count of murder in the fatal stabbing of Jason Vasquez, 20, of Penasco on the night of June 14.
Vasquez was stabbed twice once in the chest and once in the abdomen in front of 2612 Sycamore Loop and died at the scene, according to the statement.
Mestas had “visible injuries to his face, arms and neck area” when he turned himself in to sheriff’s deputies Thursday near the Old Las Vegas Highway with his mother, the probable cause statement says.
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Gun Report Puts Teen Slaying Suspect Back in Jail.
Article from: Albuquerque Journal (Albuquerque, NM) | November 15, 2001 | Copyright
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Byline: Jeremy Pawloski Journal Staff Writer
House Arrest Order Violation Alleged
A Children’s Court judge on Wednesday ordered that a Santa Fe boy charged with murder must go back to jail after he was accused of violating his house arrest by shooting a neighbor in the leg with a pellet gun, a police report said.
Children’s Court Judge Barbara Vigil said in court Wednesday that she does not know if the charge that Fred Mestas, 16, shot a neighbor in the leg with a pellet gun is true. Mestas’ attorney on Wednesday entered a denial to the charge.
Vigil nonetheless placed Mestas back in detention and said that, even if Mestas was only shooting a pellet gun at tin cans, that in itself is a probation violation. …
Boy Charged in Killing Released From Detention.
Article from: Albuquerque Journal (Albuquerque, NM) | November 20, 2001 | Copyright
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Byline: Jeremy Pawloski Journal Staff Writer
Police Allege Youth Used Pellet Gun
A Children’s Court judge on Monday ordered that a Santa Fe boy charged in a killing be released from detention, after his attorney argued that an alleged violation of his conditions of release was unfounded.
Last week, Children’s Court Judge Barbara Vigil ordered that Fred Mestas, 16, must return to juvenile detention because of the alleged violation in a juvenile case separate from his charges in connection with a killing.
Mestas spent four days in jail after prosecutors on Nov. 14 brought before Vigil an allegation that he violated his interim order by shooting a man in the leg with a pellet gun.
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