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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JORDAN HURD,
Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY, James
Lawrence Sanchez, District Judge
Bennett J. Baur, 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
GARY L. CLINGMAN, Justice. WE CONCUR:
JUDITH K. NAKAMURA, Chief Justice, PETRA JIMENEZ MAES, Justice, CHARLES W.
DANIELS, Justice, BARBARA J. VIGIL, Justice
{1} A jury found
Defendant Jordan Hurd guilty of the willful and deliberate murders of Wesley
Hobbs and Amanda Hobbs, both contrary to NMSA 1978, Section
30-2-1(A)(1)
(1994), and of aggravated battery with a deadly weapon upon Patricia Hobbs,
contrary to NMSA 1978, Section
30-3-5(C) (1969). The jury also found that
Defendant used a firearm in the commission of the aggravated battery pursuant
to NMSA 1978, Section
31-18-16(A) (1993). The trial court imposed a sentence of
life imprisonment for each of the willful and deliberate murders. For the
aggravated assault with a deadly weapon, the trial court sentenced Defendant to
the basic sentence of three years imprisonment, increased by one year by virtue
of the jury’s firearm finding, for a sentence of four years. The trial court
ordered that the sentences imposed be served consecutive to one another for a
total sentence of life imprisonment followed by life imprisonment followed by
four years imprisonment.
{3} Defendant
challenges his convictions on four grounds. First is that the trial court
improperly admitted into evidence three gruesome photographs that emphasized
the horrific impact of the crime scene on Patricia Hobbs but which had little
probative value. Second, Defendant contends that the trial court deprived him
of a fair trial when it refused to give a failure-to-call-witness jury
instruction. Third, Defendant asserts that cumulative error deprived him of a
fair trial. Fourth, Defendant argues that the evidence was insufficient to
support a finding that he was the shooter.
{4} We affirm
Defendant’s convictions on all counts. Because Defendant raises no questions of
law that New Mexico precedent does not already sufficiently address, we
exercise our discretion under Rule
12-405(B)(1) NMRA to dispose of this case by
nonprecedential decision.
{5} Wesley Hobbs lived
with his wife Patricia Hobbs, his daughter Amanda Hobbs and his son John Hobbs
in Jarales, Valencia County, New Mexico. On September 7, 2013, the family was
preparing to go on a camping trip. John had already departed. Wesley was trying
to repair a broken radiator on an SUV. Mark Lujan, a friend of the Hobbs
family, was around the Hobbs’ house that day. Lujan had known Wesley for about
six months and considered Wesley a friend. On occasion, Wesley had supplied
Lujan with methamphetamine.
{6} Lujan testified
that Wesley sent him to get a replacement radiator. Lujan lived in the garage
of a man named George Bond. In the course of his errand, Lujan went to George
Bond’s house. Defendant was at Bond’s house when Lujan arrived.
{7} Lujan stated that
Bond had both a radiator and a stolen motorcycle. Bond, Lujan, and Defendant
decided that they would try to sell the motorcycle to Wesley and hoped to get
some drugs from him. Bond, Lujan, and Defendant smoked a couple of bowls of
methamphetamine. They then drove (Lujan rode the stolen motorcycle) to the
Hobbs’ residence.
{8} Wesley did not want
to buy the stolen motorcycle. Wesley then took the three men into his house.
Patricia was cleaning the refrigerator when they came in. They went into
Wesley’s room and smoked together. Lujan testified that when he got
sufficiently high, he left Wesley, Bond, and Defendant in the room and went
outside.
{9} Patricia testified
that she did not know the two men that Lujan brought with him that day. One was
wearing a “hoodie,” and the other was wearing a jersey and also wore a
backpack. When the men went into the bedroom, Patricia stayed in the kitchen.
She testified that after five or ten minutes Lujan came out of the bedroom and
left the house through the kitchen door. She then heard Wesley say “What?
What?” and then heard two or three gunshots.
{10} Patricia testified
that after the gunshots the two strangers came out of the bedroom and that the
man in the jersey had a gun. At that moment, Amanda appeared and asked, “What’s
going on?” Patricia testified that the man with the gun shot Amanda two times
and that she fell to the floor. She testified that the man with the gun then
shot at Patricia as well and that one shot struck her in her neck.
{11} The man with the gun
appeared to have run out of bullets and yelled “There’s one still standing.”
The two men then left the residence.
{12} Patricia testified
that she crawled into the bedroom to see Wesley and that he was unresponsive.
She went to Amanda next but found her unresponsive also. She described getting
a towel and trying to clean up the blood, but because there was so much blood,
she “couldn’t take it” and went outside to the porch to phone for help.
{13} At trial, Patricia
identified Defendant as the man wearing a jersey who shot Amanda and who shot
her. She testified about previously picking a photograph of Defendant from a
photo-lineup and identifying him as the man who shot her and Amanda. She
testified she had no doubt that Defendant was the shooter. She testified that
she could not even describe the other man wearing the hoodie.
{14} We clarify our
conclusions on the four issues that Defendant has raised in this appeal.
A. Admission of the Photographs
Was Not an Abuse of Discretion
{15} Defendant asserts
that the trial court admitted three gruesome photographs that emphasized the
horrific impact of the crime scene on Patricia but had little probative value.
Defendant claims that these photos, admitted over Defendant’s objection, were
cumulative of other evidence that amply described the crime scene. Defendant
also claims that the graphic nature of the photographs inflamed the passions of
the jury and that the three photographs were more prejudicial than probative
thereby depriving Defendant of a fair trial. Defendant urges this Court to
adopt the reasoning of the Utah Supreme Court when it interpreted Utah’s Rule
of Evidence 403, which is identical to our Rule
11-403 NMRA. In
State v.
Dunn, 850 P.2d 1201 (Utah 1993), the Utah Supreme Court held that “[w]hen
applying Rule 403, it is necessary to determine first whether the proffered
evidence has an unusual propensity to unfairly prejudice, inflame, or mislead
the jury.”
Id. at 1221. If the evidence has an “unusual propensity to
unfairly prejudice, inflame or mislead” the Utah Court presumed the prejudice
to outweigh the probative value and required the “proponent to show that the
evidence has unusual probative value.”
Id. at 1222.
{16} As held in
State
v. Arredondo-Soto, S-1-SC-35112, dec. ¶ 22 (N.M. Sup. Ct. June 2, 2016)
(nonprecedential), this Court concludes that
Dunn is inapplicable. Here
the trial judge had considerable discretion in determining the admissibility of
evidence under New Mexico’s Rule 11-403.
Arredondo-Soto, S-1-SC-35112,
dec. ¶ 22. The plain language of Rule 11-403 correctly sets forth the test for
the admissibility of the three photographs. “A court may exclude relevant
evidence if its probative value is
substantially outweighed by a danger
of . . .
unfair prejudice . . . or needlessly
presenting cumulative evidence.”
Id. (emphasis added).
{17} Here the prosecutor
argued that a photograph of Amanda Hobbs was relevant because it showed her
body in relation to the living room couch on which two spent cartridge casings
were found indicating the proximity of the shooter to the victim. In admitting
the photograph, the trial court found that the photograph was relevant and that
its “probative value outweighed any potential for unfair prejudice” under Rule
11-403. The prosecutor also argued that the two other contested photographs
showed Wesley Hobbs essentially trapped in the back of a very small room. The
trial court found the photographs were relevant to show the position of the
body and the way the room looked. The trial court then admitted the two photographs
as relevant, finding that their “probative value outweighs” unfair prejudice.
{18} A trial court’s
rulings on the admission of evidence are reviewed for abuse of discretion.
State
v. Flores,
2010-NMSC-002, ¶ 25,
147 N.M. 542,
226 P.3d 641. “An abuse of
discretion occurs when the ruling is clearly against the logic and effect of
the facts and circumstances of the case. We cannot say the trial court abused
its discretion by its ruling unless we can characterize it[s ruling] as clearly
untenable or not justified by reason.”
State v. Rojo,
1999-NMSC-001, ¶
41,
126 N.M. 438,
971 P.2d 829 (internal quotation marks and citation omitted).
Here the trial court properly applied Rule 11-403. The trial court found the
photographs to be relevant and then balanced their probative value against the
danger of unfair prejudice. In finding no danger of unfair prejudice
substantially outweighing their probative value, the trial court properly
admitted the photographs as evidence. The trial court did not abuse its discretion.
B. A Failure-to-Call-Witness Instruction Is
Inappropriate in This Case
{19} Defendant argues
that the State failed to call witnesses to testify regarding DNA and
fingerprint analyses that were conducted at the crime scene. Defendant asserts
that the trial court deprived him of a fair trial when it refused to give a
failure-to-call-witness instruction to the jury. Defendant tendered to the
trial court UJI
14-5014 NMRA to be included with the final instructions to be
given to the jury. The State objected and the trial court rejected the tendered
instruction.
If a witness whose
testimony would have been material on an issue in the case was peculiarly
available to the state and was not introduced by the state and the absence of that
witness has not been sufficiently accounted for or explained, then you may, if
you deem it appropriate, infer that the testimony by that witness would have
been unfavorable to the state and favorable to the accused.
{21} The UJI 14-5014 use
note states, “No instruction on this subject shall be given.”
{22} The committee
commentary to UJI 14-5014 further states that “[n]o instruction on this subject
is necessary to guide the jury, and such an instruction may constitute a
comment on the evidence” (citing Rule
11-107 NMRA). “The legitimate function of
jury instructions is not to further the art of advocacy. Their function is to
shed light and eliminate confusion.”
State v. Robinson,
1980-NMSC-049, ¶
27,
94 N.M. 693,
616 P.2d 406. In this case, the jury was instructed that
Defendant was presumed “to be innocent unless and until [the jury was]
satisfied beyond a reasonable doubt of his guilt” and that “the burden is
always on the state to prove guilt beyond a reasonable doubt.” To give
Defendant’s tendered instruction “would only have caused the court to comment
upon the weight of the evidence,” placing “undue emphasis and importance on
[testimony not introduced by the State] instead of leaving it to the jury to
assess [Defendant’s guilt] according to all the evidence” the State presented
at trial.
Robinson,
1980-NMSC-049, ¶¶ 29, 31 (internal quotation marks
and citations omitted). Plainly speaking, this instruction is never justified.
The trial court properly refused to give the failure-to-call-witness instruction
to the jury.
C. Cumulative Error Did Not Deprive Defendant of a
Fair Trial
{23} Defendant points to
perceived trial errors raised in the previous two issues which when taken
individually would not warrant the granting of a new trial but when taken
together would be so prejudicial to Defendant as to require a new trial. The
doctrine of cumulative error is to be strictly applied and cannot be invoked
“when the record as a whole demonstrates that Defendant received a fair trial.”
State v. Trujillo,
2002-NMSC-005, ¶ 63, 131 N.M. 719,
42 P.3d 814
(internal quotation marks and citation omitted). Each of Defendant’s claimed
errors in the two issues discussed previously fails to establish meritorious
grounds for finding error.
See State v. Saiz,
2008-NMSC-048, ¶
66,
144 N.M. 663,
191 P.3d 521 (“[W]here there is no error to accumulate, there
can be no cumulative error.”),
abrogated on other grounds,
State v.
Belanger,
2009-NMSC-025, ¶ 36 & n.1,
146 N.M. 357,
210 P.3d 783.
Defendant has raised no additional legal issues to support his claim of
cumulative error. Defendant’s claim is without merit.
D. The Evidence Is Sufficient to Support
Defendant’s Convictions
{24} Defendant argues
that the evidence is insufficient to establish him as the shooter in his convictions
of two counts of first-degree murder and one count of aggravated battery. In
reviewing for sufficiency of the evidence that supported a conviction, this
Court must determine “whether any rational finder of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
State v. Holt,
2016-NMSC-011, ¶ 20,
368 P.3d 409 (internal quotation marks and citation
omitted). We review the sufficiency of the evidence “from a highly deferential
standpoint,”
State v. Dowling,
2011-NMSC-016, ¶ 20,
150 N.M. 110,
257
P.3d 930, considering the evidence adduced at trial “in the light most
favorable to the guilty verdict, indulging all reasonable inferences and
resolving all conflicts in the evidence in favor of the verdict,”
State v.
Cunningham,
2000-NMSC-009, ¶ 26,
128 N.M. 711,
998 P.2d 176.
{25} The jury heard the
testimony of Mark Lujan who placed himself, Defendant, George Bond, and Wesley
Hobbs in the bedroom of the Hobbs’ residence. Lujan testified that he left
before any shots were fired. Patricia Hobbs corroborates this by testifying
that she saw Lujan, an unknown man wearing a hoodie, and an unknown man wearing
a jersey, whom she identified as Defendant, go into the bedroom at the Hobbs’
residence. Patricia then testified that she saw Lujan exit the bedroom and
residence leaving the two unknown men and Wesley in the bedroom.
{26} Patricia further
testified that a short while later she heard two or three gunshots from the
bedroom and then saw the two unknown men emerge from the room. The man in the
jersey whom she identified as Defendant had a gun. She saw the man in the
jersey, Defendant, shoot Amanda Hobbs. The man in the jersey, Defendant, was
also shooting at Patricia and struck her once, stopping only when his gun was
empty.
{27} In court and before
the jury, Patricia Hobbs identified Defendant as the man in the jersey who was
in the bedroom when Wesley was shot, who emerged from the bedroom with a gun,
who shot and killed Amanda, and who shot and wounded her. She testified that
she had no doubt that Defendant was the shooter.
{28} Six cartridge
casings were recovered from the scene. Three were found in the bedroom where
Wesley was shot three times in the head. Two casings were found in the living
room where Amanda was shot two times in the head. One casing was found in the
kitchen area where Patricia was shot in the neck. Steve Guerra, a firearm and
tool-mark expert, testified that the casing found in the kitchen was fired from
a .40 caliber Glock pistol. The pistol that fired this cartridge was recovered
six weeks after the shooting at the residence of Lujan’s sister while the
police pursued Bond, her then-boyfriend. Guerra testified that the three
casings found in the bedroom and the two casings found in the living room were
fired from the same pistol but not from a Glock pistol. That unknown pistol was
not recovered.
{29} Defendant argues
that Lujan’s testimony is unreliable because Lujan did not like Defendant and
was afraid of Bond. Defendant argues that Patricia’s testimony is not credible
because she only saw Defendant a short while, because she herself was
traumatized and shot, and because she cannot fully describe or identify the
other man wearing the hoodie. The jury heard these arguments and found them to
be without merit. We will not examine issues of credibility; that is for the
jury alone to decide.
See UJI
14-5020 NMRA. “This Court has consistently
held that the jury [is] the judge[] of the weight and credibility of evidence.”
State v. Alberico,
1993-NMSC-047, ¶ 33,
116 N.M. 156,
861 P.2d 192
(internal quotation marks and citation omitted).
{30} We hold that a
reasonable juror, based upon the evidence produced in court, could have found
Defendant guilty beyond a reasonable doubt of the murder of Wesley Hobbs, the
murder of Amanda Hobbs and the aggravated battery with a firearm upon Patricia
Hobbs.
{31} We affirm the
judgment of the trial court.
GARY L. CLINGMAN, Justice
JUDITH K. NAKAMURA, Chief Justice
PETRA JIMENEZ MAES, Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice