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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DANIEL MARSON MURRELL,
Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY, Fred
Travis Van Soelen, District Judge
Jorge A. Alvarado, Chief Public Defender,
William A. O’Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant
Hector H. Balderas, Attorney General,
Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee
CHARLES W. DANIELS, Justice. WE CONCUR:
BARBARA J. VIGIL, Chief Justice, PETRA JIMENEZ MAES, Justice, EDWARD L. CHÁVEZ,
Justice, JUDITH K. NAKAMURA, Justice
AUTHOR: CHARLES W. DANIEL
{1} Defendant Daniel
Murrell appeals his convictions for felony murder, armed robbery, theft of a
credit card, eleven counts of fraudulent use of an illegally obtained credit
card, and tampering with evidence. He argues that there was insufficient
evidence to support the verdict and that the ineffective assistance of defense
counsel requires reversal. We affirm Defendant’s convictions by nonprecedential
decision.
See Rule 12-405(B) (“The appellate court may dispose of a case
by non-precedential order, decision or memorandum opinion . . . [where t]he
issues presented have been previously decided . . . [or t]he presence or
absence of substantial evidence disposes of the issue . . . [or t]he issues
presented are manifestly without merit.”).
{2} The charges against
Defendant arose from two robberies committed in Clovis, New Mexico, within a
two-day period. On January 2, 2013, victim David Shober, who was eighty-four
years old at the time of trial, was in his garage when a man with a gun
approached him from behind and demanded money. The man hit Shober in the head
twice with the gun, knocking him down, and took his wallet. Shober did not get
a clear look at his assailant but said that the man wore a bandana over his
face and a hat on his head, and “by the dialect of his voice [Shober] assumed
he was a black person.” Shober also thought his attacker was about the same
height as Shober himself, five feet ten-and-a-half inches, but saw the man only
after being knocked to the ground, and because “[the assailant] was in a
lunging position, . . . [Shober] never really saw him erect.”
{3} Two days later, on
January 4, 2013, a second victim, sixty-one-year-old Joseph Garcia, was
attacked when walking down an alley near Allsup’s. Garcia’s assailant also came
up behind him and knocked him down, then took his wallet and cell phone. Garcia
described his attacker as a tall black male in his early to middle thirties,
wearing a hooded jacket or sweatshirt and a white head covering with black
writing on it. Garcia was beaten severely and his jaw was broken. He was
prescribed hydrocodone for the pain, and relatives cared for him and ensured
that he took his medication as prescribed. On January 7, 2013, Garcia became
dizzy, had difficulty breathing, and was given oxygen. After returning to his
daughter’s house later in the day, he had trouble breathing again and then died
suddenly.
{4} Garcia was in poor
health even before the attack and had previously been diagnosed with congestive
heart failure. His heart was significantly enlarged, his coronary arteries were
narrowed, and he had cirrhosis of the liver. Forensic pathologist Dr. Katherine
Callahan, who performed Garcia’s autopsy, testified that pain from his injuries
would have increased his heart rate and blood pressure. She concluded that he
had suffered “sudden cardiac death” as a result of complications from blunt
trauma to the head and chest. She acknowledged that toxicology results showed
an elevated level of hydrocodone in his blood, but she did not believe that he
had died of an overdose because there was no frothy fluid in his airways and he
had remained alert prior to his sudden death, both atypical of an opiate
overdose. Further, the blood samples were not a reliable indicator of his
hydrocodone levels before death due to post-mortem redistribution of that drug
from body tissues to the blood. Dr. Callahan classified Garcia’s death as a
homicide and opined that despite his poor health he would not have died on
January 7, 2013, if he had not received the beating. In contrast, Defendant’s
expert testified that he believed Garcia’s death was attributable to a
hydrocodone overdose and not to his injuries. But he agreed with the State that
Garcia would still be alive had he not been beaten because he would not have
ingested the hydrocodone if he had not suffered injuries from the beating.
{5} Witness Terrill
Smolar testified that Defendant was the assailant in both of these robberies.
At about 6:00 a.m. on January 2, 2013, Smolar was at a friend’s house when
Defendant knocked on the door and asked Smolar to accompany him. With Smolar as
his passenger, Defendant drove a red Ford Mustang that belonged to his fiancée.
After a few minutes, Defendant pulled into an alley and got out of the car. He
returned shortly with a gun and a wallet, resumed driving, and took money and
credit cards out of the wallet before throwing it out of the car. He then
bought gas and Newport cigarettes with one of the stolen credit cards. In the
morning of January 4, 2013, Defendant again picked Smolar up and this time
drove to an Allsup’s convenience store. Defendant got out of the car, and
Smolar drove around the block on Defendant’s instructions to move the car. When
Smolar returned, he saw Defendant knock Garcia to the ground, hit him twice,
and kick him in the face before Garcia “went limp.” Defendant got back in the car
with a wallet and a knife. Smolar drove away, but when Defendant realized he
had dropped his beanie hat at the scene he told Smolar to drive back. When
Smolar refused to go back, Defendant threatened him, then switched seats to
drive back for the hat himself before dropping Smolar off.
{6} Smolar’s testimony
was corroborated by independent evidence tying Defendant to the crimes. Police
recovered Shober’s wallet in the area where Smolar described it as having been
discarded. There were seven unauthorized charges on Shober’s stolen credit
cards. Surveillance video from near the Allsup’s store where one of the stolen
cards was used showed “an older model” red Ford Mustang there at the time of
the transaction. Video also showed the car traveling around the block, as
Smolar described, just before Garcia was attacked on January 4, 2014.
{7} The Mustang
was registered to the mother of Defendant’s fiancée. Defendant’s fiancée lived
with him, let him drive her car, and believed that he was using it at the time
of the robberies. After Defendant’s arrest he called her from jail and told her
to clean the car out and keep it inside the garage. She did not do so, and
police located the Mustang parked outside Defendant’s residence.
{8} The police
recovered stolen property belonging to Garcia from the Mustang and from
Defendant’s room inside the house. Defendant’s fingerprints were on a card that
had been in Shober’s wallet. Other items found by the police included a money
order and cell phone that belonged to Garcia, a black and white bandana, a
beanie, several garage door openers, and a Newport cigarette butt.
{9} Smolar turned
himself in and gave a statement to police before being offered any plea
agreement. He later pleaded guilty to his part in the robberies, and in return
for his cooperation in Defendant’s prosecution the State agreed that he would
be released from prison after serving twenty months and would then be on
probation for five years.
{10} Defendant’s jury
found him guilty of felony murder, armed robbery, robbery, theft of a credit
card, eleven counts of fraudulent use of an illegally obtained credit card, and
tampering with evidence. The robbery conviction merged with the felony murder
conviction, and the district court sentenced Defendant as a habitual offender
on the remaining charges, for a total sentence of life in prison plus
thirty-one years.
{11} Defendant appeals
his convictions directly to this Court.
See N.M. Const. art. VI, § 2
(“Appeals from a judgment of the district court imposing a sentence of death or
life imprisonment shall be taken directly to the supreme court.”).
{12} Defendant argues
first that insufficient evidence supports his convictions and next that, even
if supported by sufficient evidence, his convictions must be reversed because
he was denied effective assistance of counsel.
A. Sufficient Evidence Supports Defendant’s
Convictions
{13} Defendant does not
argue that the acts constituting armed robbery, robbery, theft of a credit
card, fraudulent use of an illegally obtained credit card, and tampering with
evidence did not occur but asserts that the State failed to present sufficient
evidence that it was he, rather than Smolar, who committed those crimes.
{14} “The test for
sufficiency of the evidence is whether substantial evidence of either a direct
or circumstantial nature exists to support a verdict of guilt beyond a
reasonable doubt with respect to every element essential to a conviction.”
State
v. Cabezuela,
2015-NMSC-016, ¶ 14,
350 P.3d 1145 (internal quotation marks
and citation omitted). Substantial evidence is evidence acceptable to a
reasonable mind as adequate to support a conclusion.
State v. Arredondo,
2012-NMSC-013, ¶ 10,
278 P.3d 517. This Court reviews the sufficiency of the
evidence to support a conviction by viewing it “in the light most favorable to
the State, resolving all conflicts and making all permissible inferences in
favor of the jury’s verdict.”
State v. Consaul,
2014-NMSC-030, ¶ 42,
332
P.3d 850 (internal quotation marks and citation omitted).
{15} Defendant admits
that he drove the car and handled some of the evidence, but he maintains that
not he but Smolar attacked Garcia and Shober. Defendant argues that Smolar
should not be deemed a credible witness against him because Smolar also
admitted to being present when the robberies occurred, could have fit the
descriptions given of the assailant, and had a motive to shift the blame.
Defendant contends that Smolar’s testimony should be disregarded and that
without this testimony, on which the State heavily relied, there is
insufficient evidence to support the jury’s verdict.
{16} The law is clear in
New Mexico that the factfinder is the judge of credibility, and this Court will
not reweigh the evidence.
See State v. Garcia,
2011-NMSC-003, ¶
5,
149 N.M. 185,
246 P.3d 1057 (“New Mexico appellate courts will not invade
the jury’s province as fact-finder by second-guess[ing] the jury’s decision
concerning the credibility of witnesses, reweigh[ing] the evidence, or
substitut[ing] its judgment for that of the jury.” (alterations in original)
(internal quotation marks and citation omitted)).
{17} Additionally,
Smolar’s testimony was corroborated by independent evidence and is controverted
only by arguments made by defense counsel. Surveillance video confirmed
Smolar’s description of the car traveling around the Allsup’s store at the time
Garcia was attacked. Defendant’s fingerprints were on a card taken from
Shober’s wallet, and several pieces of evidence, including some clearly connected
to both robberies, were found at Defendant’s residence. The totality of the
evidence was sufficient to support the jury’s conclusion that it was Defendant
who attacked and robbed Shober and Garcia.
{18} Defendant argues
further that even if he was properly convicted for robbing Garcia, the State
did not present sufficient evidence that Garcia’s death was a homicide caused
in the commission of the robbery so as to justify a felony murder conviction.
See
NMSA 1978, §
30-2-1(A)(2) (1994) (“Murder in the first degree is the killing of
one human being by another . . . in the commission of or attempt to commit any
felony.”). Robbery is a predicate felony that will support a conviction for
felony murder if it is committed in a dangerous manner with the requisite mens
rea and it is a cause of the homicide.
See NMSA 1978, §
30-16-2 (1973)
(defining robbery as a third-degree felony involving theft “by use or
threatened use of force or violence”); UJI
14-202 NMRA (containing the
essential elements of felony murder, including that a felony of less than first
degree must be committed “under circumstances or in a manner dangerous to human
life” and with the intent to kill or knowledge that one’s “acts created a
strong probability of death or great bodily harm”);
State v. Duffy,
1998-NMSC-014, ¶¶ 18-28,
126 N.M. 132,
967 P.2d 807 (affirming a conviction for
felony murder that occurred when a defendant snatching the purse of an elderly
woman knocked her to the ground where the resulting head injury caused her
death; and determining that the robbery was an independent felony, that the
jury reasonably concluded that the defendant possessed the requisite mens rea,
that the crime was committed in a dangerous manner, and that the act of
forcefully taking the purse caused the victim to fall and hit her head which
resulted in her death),
overruled on other grounds by State v.
Tollardo,
2012-NMSC-008, ¶ 37 n.6,
275 P.3d 110.
{19} Despite the severe
injuries that were inflicted on Garcia during the attack, Defendant denies that
his actions in committing the robbery can be said to have caused Garcia’s death
three days later. For the purposes of felony murder, the predicate felony must
be both the factual and the proximate cause of death.
State v. Montoya,
2003-NMSC-004, ¶ 11,
133 N.M. 84,
61 P.3d 793;
see also UJI
14-251 NMRA
(Defining proximate cause of homicide as an act that “was a significant cause
of death . . . which, in a natural and continuous chain of events,
uninterrupted by an outside event, resulted in the [foreseeable] death and
without which the death would not have occurred.”). Even if another cause may
have contributed, Defendant is not relieved “of responsibility for an act that
significantly contributed to the cause of the death so long as the death was a
foreseeable result of the defendant’s actions.” UJI
14-252 NMRA.
See also
Montoya,
2003-NMSC-004, ¶ 19 (“In cases where death results from multiple
causes, an individual may be a legal cause of death even though other significant
causes significantly contributed to the cause of death. Thus, even if the
victim is at ‘death’s door,’ a defendant is liable for the victim’s death if
his act hastens the victim’s death.” (citation omitted)). Although Garcia
already had severe health problems prior to the robbery, “defendants take their
victims as they find them.”
State v. Romero,
2005-NMCA-060, ¶ 19,
137
N.M. 456,
112 P.3d 1113.
{20} In
Montoya,
we explained that while a defendant’s act must be a factual “but for” cause of
death, it need not be the only cause.
See 2003-NMSC-004, ¶ 19 (“‘General
principles of criminal law do not require that a defendant’s conduct be the
sole
cause of the crime.”’ (
quoting State v. Simpson,
1993-NMSC-073, ¶
14,
116 N.M. 768,
867 P.2d 1150)). We held that there was sufficient evidence
to support a felony murder conviction where the defendant had kidnapped an
already severely injured victim, driven him in a direction away from the
hospital, and left him alone where he bled to death from gunshot wounds.
See
id. ¶¶ 27-30. Despite medical testimony that the victim would probably
still have died even if he had been taken directly to a hospital, a jury could
reasonably have concluded that the defendant’s actions were a significant
factual cause of death because they precluded any chance of the victim’s
survival.
See id.
{21} Here, there is
sufficient evidence that Defendant’s actions were a significant cause of
Garcia’s death. Callahan testified that Garcia had suffered a “sudden cardiac
death” classified as a homicide because it was the result of physical stress to
his heart caused by the pain he experienced from the injuries inflicted during
the robbery. This expert testimony alone is substantial evidence on which a
reasonable jury was entitled to rely in finding that Defendant’s violent acts
during the commission of the robbery were a significant cause of Garcia’s death
and therefore that Defendant was guilty of felony murder.
{22} While Defendant’s
expert offered a contrary opinion that a hydrocodone overdose rather than
cardiac arrest was the ultimate cause of Garcia’s death, the conflicting
testimony of experts must be resolved by the jury.
See State v.
Hughey,
2007-NMSC-036, ¶ 15,
142 N.M. 83,
163 P.3d 470. Additionally,
Defendant concedes that Garcia would not have ingested the hydrocodone and died
when he did had he not been attacked and severely injured, so that even under
Defendant’s theory of the case a reasonable jury could still have concluded
that his actions were a significant cause of Garcia’s death.
See Montoya,
2003-NMSC-004, ¶ 19 (“[A] defendant is a but for cause of death if the death
would not have occurred at the time it did and in the manner it did but for
defendant’s actions.”);
Romero,
2005-NMCA-060, ¶¶ 17, 19-20 (stating
that a jury would not entertain any reasonable doubt that the defendant’s acts
were a significant cause of the victim’s death when she died after being beaten
by the defendant, even though the victim’s drunken state and preexisting liver
condition had rendered her more susceptible to the beating that was not so
severe to ordinarily have caused death);
State v. Ewing,
1968-NMCA-071,
¶¶ 4-6,
79 N.M. 489,
444 P.2d 1000 (affirming a conviction for second-degree
murder and holding that there was substantial evidence that gunshot wounds
caused a victim’s death when the shots themselves were not fatal but where
treatment of the resulting injuries by insertion of a tracheotomy tube caused
an infection in the area of the insertion that spread to the victim’s brain).
{23} We conclude that
sufficient evidence supports Defendant’s convictions.
B. Defendant Has Not Shown That His Counsel Was
Ineffective
{24} Even though his
convictions are supported by sufficient evidence, Defendant asks this Court to
overturn the jury’s verdict and order a new trial based on ineffective
assistance of counsel. “To establish ineffective assistance of counsel, a
defendant must show: (1) ‘counsel’s performance was deficient,’ and (2) ‘the
deficient performance prejudiced the defense.’”
State v. Paredez,
2004-NMSC-036, ¶ 13,
136 N.M. 533,
101 P.3d 799 (quoting
Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
{25} “Claims of
ineffective assistance of counsel are reviewed de novo.”
State v. Tafoya,
2012-NMSC-030, ¶ 59,
285 P.3d 604. But because the record on direct appeal is
often inadequate to evaluate counsel’s performance or to determine prejudice,
we prefer these claims to be brought in a habeas corpus proceeding where
evidence can be presented regarding defense counsel’s actions.
State v.
Astorga,
2015-NMSC-007, ¶ 17,
343 P.3d 1245. “Absent a prima facie case, we
presume that counsel’s performance was reasonable,” and we will not remand to
the district court on direct appeal without the benefit of a habeas record.
Id.
{26} Defendant’s central
claim is that his counsel should have moved to sever the charges related to
Shober from those pertaining to Garcia because the evidence was not
cross-admissible and joinder of the offenses allowed the jury to consider
propensity evidence that was unfairly prejudicial. However, Shober’s testimony
reflected that the height of his attacker was closer to Smolar’s height of five
feet nine inches than to Defendant’s height of six feet three-or-four inches.
Defense counsel could rationally have concluded that this weakness might
undermine the credibility of Smolar’s testimony regarding the deadly attack on
Garcia that resulted in the most serious charge. Additionally, the similarity of
these crimes extended beyond the nature of the charges and could have rendered
much of the evidence cross-admissible to prove the identity of the perpetrator.
See State v. Lovett,
2012-NMSC-036, ¶ 40,
286 P.3d 265
(“[E]vidence is cross-admissible to prove identity when it demonstrates a
unique or distinct pattern easily attributable to one person.” (internal
quotation marks and citation omitted)). Both victims were elderly men who were
attacked in broad daylight two days apart in the same area of Clovis, New
Mexico, and each described his attacker as a black man wearing a bandana who
approached from behind, hit him in the head, knocked him down, and took his
wallet. Much of the evidence was obtained from one location, and both cases
would have involved the presentation of largely the same witnesses. Considering
the available evidence on each charge and the probability that much of that
evidence would have been cross-admissible if the crimes had been tried
separately, defense counsel’s choice not to move for severance was a reasonable
trial tactic. “A prima facie case for ineffective assistance of counsel is not
made if there is a plausible, rational strategy or tactic to explain the
counsel’s conduct.”
Astorga,
2015-NMSC-007, ¶ 18 (internal quotation
marks and citation omitted).
{27} Defendant argues
further that his counsel failed to adequately cross-examine Smolar or to
present evidence probative of Smolar’s guilt and failed to intervene when the
prosecutor attempted to influence prospective jury members or when a juror fell
asleep at trial. He contends that the cumulative impact of these failures
deprived him of a fair trial but fails to specify how he was prejudiced by
these alleged deficiencies. Because the record does not allow us to adequately
evaluate these claims on direct appeal, we hold that Defendant has not made a
prima facie case of ineffective assistance of counsel.
{28} Sufficient evidence
supports the jury’s verdict. We affirm Defendant’s convictions.
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
JUDITH K. NAKAMURA, Justice