State v. Zarazua

1 This decision was not selected for publication in the New Mexico Reports. Please see Rule 12-
2 405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this
3 electronic decision may contain computer-generated errors or other deviations from the official
4 paper version filed by the Supreme Court and does not include the filing date.

5 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

6 Opinion Number:
7
8 Filing Date:
9
10 NO. 30,607

11 STATE OF NEW MEXICO,

12 Plaintiff-Appellee,

13 v.

14 PEDRO ZARAZUA,

15 Defendant-Appellant.

16 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
17 Thomas A. Rutledge, District Judge

18 Liane E. Kerr, L.L.C
19 Liane E. Kerr
20 Albuquerque, NM

21 for Appellant

22 Gary K. King, Attorney General
23 Andrea Sassa, Assistant Attorney General
24 Santa Fe, NM
1 for Appellee
 1 DECISION

2 MAES, Justice.

3 {1} Defendant, Pedro Zarazua, was convicted of first-degree murder, contrary to

4 NMSA 1978, Section 30-2-1 (1963, as amended through 1994), for the death of

5 James Thomas “Birdman” Sparrow (Victim). Pursuant to Rule 12-102(A)(1)

6 NMRA, Defendant appeals his conviction directly to this Court, arguing that (1)

7 the evidence was insufficient to support a conviction of first-degree murder; (2) the

8 district court improperly admitted into evidence a graphic, forensic picture of

9 Victim at the crime scene; and (3) the district court improperly qualified Lieutenant

10 Jeff Zuniga to testify as an expert witness concerning blood spatter evidence. We

11 conclude that the evidence was sufficient to support Defendant’s conviction, the

12 district court properly admitted the graphic photograph and properly qualified the

13 State’s witness as an expert. We affirm the conviction.

14 I. FACTS AND PROCEDURAL HISTORY

15 {2} The jury could have found the following facts. On December 24, 2005,

16 Defendant and his associates “pulled over” the vehicle in which Victim was

17 traveling to confront Victim about a $50.00 debt, because he believed that Victim

18 had sold him fake drugs. A passenger from Victim’s vehicle, George Luevano,

19 intervened, and though some words were exchanged, no physical altercation

20 ensued from the confrontation.

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 1 {3} Four days later, Victim was at the apartment of Lydia Lujan. Several

2 witnesses testified that Defendant was there as well and that he appeared to be

3 “pumped up.” Defendant was observed carrying a handgun with a brown handle in

4 his right pocket. Around this time, Lindsey Sparrow, Victim’s sister, received a

5 call from Victim asking her to lend him $50.00 to pay a debt involving drugs and

6 informing her that it was a “life or death situation.” Victim told her that he feared

7 Defendant would stab him if he did not pay up. Sparrow was unable to provide her

8 brother with the funds he requested.

9 {4} Lujan testified that Defendant persuaded Victim to leave the apartment with

10 him and that Defendant later returned in the company of two unidentified females,

11 but without Victim. Other witnesses testified that they saw Victim in the parking

12 lot of Lujan’s apartment complex with another male and that the two left together

13 in a gray car. One of these witnesses also testified that the same unknown male

14 later returned without Victim, accompanied by two women. Lujan testified that

15 Defendant admitted to killing Victim and went into her house to wash blood off of

16 his hands.

17 {5} On the night of the murder, two residents of the North Park Trailer Park

18 testified that they heard four gunshots shortly after midnight. One stated that she

19 was inside her home, but after hearing the shots she went outside to see what had

20 happened and observed a gray car speeding away. She called the police, and the

3
 1 first officer arrived on the scene within a few minutes. The reporting witness

2 pointed the officer to the direction from which she believed the shots had

3 originated, and upon inspection, the officer found Victim on the ground with what

4 appeared to be gunshot wounds to the head.

5 {6} Lead crime scene investigator, Lt. Jeff Zuniga, arrived on the scene at

6 approximately 2:45 a.m. Lt. Zuniga took several photographs as he processed the

7 scene, including one close-up of Victim’s wounds to the head. He also observed

8 blood spatter patterns surrounding Victim and blood pooling around Victim’s head.

9 A subsequent autopsy revealed that Victim had been shot four times, resulting in

10 three wounds “to the right side of the head and one to the right side of the back.”

11 The Office of the Medical Investigator’s forensic pathologist testified that any one

12 of the four wounds could have caused Victim’s death.

13 {7} Before dawn on the day after the murder, Defendant met with Robert

14 Hernandez in order to obtain ammunition for a .357 handgun. Hernandez testified

15 that Defendant needed bullets for his .357 handgun because he had run into trouble

16 with the police and that Luevano might be after him as well. Being without such

17 caliber ammunition, Hernandez offered to lend Defendant his .45 handgun for the

18 night in exchange for the .357 handgun. Hernandez kept the .357 handgun until he

19 was arrested on non-related charges on December 30, 2005. Once in custody,

20 Hernandez informed the authorities that he was in possession of a .357 handgun

4
 1 that he believed was used to murder Victim and that he could arrange to have it

2 delivered to an officer. Hernandez telephoned his girlfriend and had her retrieve

3 the gun and give it to an officer. Bullet comparison and ballistic analysis later

4 established that the .357 handgun was the weapon used to kill Victim.

5 {8} A jury found Defendant guilty of murder in the first degree and was given a

6 life sentence. This direct appeal followed. See N.M. Const. art. VI, § 2 (“Appeals

7 from a judgment of the district court imposing a sentence of death or life

8 imprisonment shall be taken directly to the supreme court.”); accord Rule 12-

9 102(A)(1) NMRA.

10 II. DISCUSSION

11 A. Whether the evidence was sufficient to support Defendant’s conviction
12 of murder in the first degree.

13 {9} Defendant claims that the evidence relied upon by the jury was insufficient

14 to support a conviction of murder in the first degree. Although the substance of

15 Defendant’s challenge is somewhat unclear, Defendant seems to argue that

16 circumstantial evidence alone is insufficient to support a jury’s finding of guilt on

17 the element of deliberate intent. Defendant asserts that “the State must present

18 both direct evidence of a specific intent to kill and evidence of an overt act from

19 which the jury may infer such an intent.” Defendant concludes the argument on

20 this point, stating, “Defendant admits that if the jury were to buy the tenuous

21 theory set forth by the State, the jury could circumstantially find that he planned to

5
 1 kill [Victim]; however, inasmuch as there was no forensic evidence linking the

2 Defendant to the murder, deference to the jury’s finding cannot stand.”

3 Defendant’s claim is without merit.

4 {10} In reviewing a conviction for sufficient evidence, we “examine the record to

5 determine whether substantial evidence of either a direct or circumstantial nature

6 exists to support a verdict of guilt beyond a reasonable doubt with respect to every

7 element essential to a conviction.” State v. Day, 2008-NMSC-007, ¶ 15, 143 N.M.

8 359, 176 P.3d 1091 (internal quotation marks and citation omitted). “We view the

9 evidence in the light most favorable to the verdict, resolving all conflicts therein

10 and indulging all permissible inferences therefrom in favor of the verdict.” Id.

11 (internal quotation marks and citation omitted). Viewing the evidence in the light

12 most favorable to the verdict, if the Court determines that the jury could not

13 reasonably infer guilt with respect to an element of the crime, then such an

14 inference is speculative and there is insufficient evidence to support the conviction.

15 See State v. Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994); State v.

16 McGee, 2002-NMCA-090, ¶ 20, 132 N.M. 537, 51 P.3d 1191; State v. Hernandez,

17 1998-NMCA-082, ¶ 6, 125 N.M. 661, 964 P.2d 825. However, “[c]ontrary

18 evidence supporting acquittal does not provide a basis for reversal because the jury

19 is free to reject Defendant’s version of the facts.” State v. Duran,

20 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and

6
 1 citation omitted).

2 {11} This Court has consistently held that when “reviewing the sufficiency of the

3 evidence to establish that the defendant acted with deliberate intent, we inquire

4 whether substantial evidence, either direct or circumstantial in nature, exists to

5 support a verdict of guilty beyond a reasonable doubt.” State v. Motes, 118 N.M.

6 727, 729, 885 P.2d 648, 650 (1994) (emphasis added) (internal quotation marks

7 and citation omitted). “Intent is subjective and is almost always inferred from

8 other facts in the case.” Id. (internal quotation marks and citation omitted). In

9 Duran, this Court held that the defendant’s deliberate intent to kill could be

10 reasonably inferred from the physical evidence of a struggle and multiple stab

11 wounds suffered by the victim. 2006-NMSC-035, ¶ 8.

12 {12} In the present case, Victim was shot four times, including twice in the head.

13 As in Duran, the jury could infer deliberate intent to kill from the physical

14 evidence surrounding the killing alone. Multiple gunshot wounds, any one of

15 which could have caused death, provide a reasonable inference that “the slayer . . .

16 weigh[ed] and consider[ed] the question of killing and his reasons for and against

17 such a choice.” UJI 14-201 NMRA. In addition to the physical circumstances of

18 the killing, however, the evidence establishing that Defendant committed first

19 degree murder is overwhelming. After leaving with Victim, Defendant returned to

20 Lujan’s house, washed blood off of his hands, and admitted to killing Victim.

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 1 Additionally, the evidence established that Defendant had a motive for killing

2 Victim, namely, a dispute over a $50.00 debt, and that Defendant was seen

3 carrying a weapon, which the jury reasonably could have found was used to kill

4 Victim. Accordingly, we reject Defendant’s sufficiency of the evidence claim.

5 B. Whether the district court abused its discretion by admitting a
6 photograph displaying Victim’s gunshot wounds to the head.
7 {13} Defendant asserts that the district court improperly admitted a graphic

8 photograph of Victim taken at the crime scene because the photo’s probative value

9 was substantially outweighed by the danger of unfair prejudice. The photograph in

10 question is a close-up of Victim’s head from the neck up. It shows the gunshot

11 wound to Victim’s right eye and the resulting gore from that wound. Also visible

12 is a second gunshot wound to the upper-left side of Victim’s head and a large pool

13 of blood surrounding Victim’s head.

14 {14} In reviewing a trial court’s admission of photographic evidence, we utilize

15 an abuse of discretion standard. State v. Saiz, 2008-NMSC-048, ¶ 53, 144 N.M.

16 663, 191 P.3d 521, abrogated by State v. Belanger, 2009-NMSC-025, __ N.M. __,

17 __ P.3d __, cert. granted, 2007-NMCERT-010, __ N.M. __, __ P.3d __ (No.

18 30,654, May 12, 2009). We have established that “[a]n abuse of discretion occurs

19 when the ruling is clearly against the logic and effect of the facts and

20 circumstances of the case.” State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234

21 (1995). Further, “[a] trial court has great discretion in balancing the prejudicial

8
 1 impact of a photograph against its probative value.” State v. Mora, 1997-NMSC-

2 060, ¶ 55, 124 N.M. 346, 950 P.2d 789.

3 {15} “Although relevant, evidence may be excluded if its probative value is

4 substantially outweighed by the danger of unfair prejudice . . . .” Rule 11-403

5 NMRA. “The trial court ought to exclude photographs which are calculated to

6 arouse the prejudices and passions of the jury and which are not reasonably

7 relevant to the issues of the case.” State v. Boeglin, 105 N.M. 247, 253, 731 P.2d

8 943, 949 (1987).

9 {16} However, graphic photographs are not per se unduly prejudicial, and district

10 courts are afforded broad discretion concerning admission of relevant photographic

11 evidence. “Photographs are relevant and admissible for the purpose of clarifying

12 and illustrating testimony.” Mora, 1997-NMSC-060, ¶ 54. For example, in

13 Boeglin, this Court upheld the admission of a close-up photograph depicting

14 gruesome neck wounds suffered by the victim, proffered to “illustrate, clarify, and

15 corroborate the testimony of witnesses.” 105 N.M. at 253, 731 P.2d at 949.

16 Similarly, in Saiz, we held that the district court did not abuse its discretion by

17 admitting five photographs of the victim’s decomposed body, where those

18 photographs aided the pathologist’s testimony explaining the nature of the victim’s

19 injuries to the jury. 2008-NMSC-048, ¶ 54; see also Mora, 1997-NMSC-060, ¶ 55

20 (holding that admission of autopsy photographs was not an abuse of discretion).

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 1 Photographs showing a victim’s injuries, therefore, are probative “to show the

2 nature of the injury, to explain the basis of the forensic pathologist’s opinion, and

3 to illustrate the forensic pathologist’s testimony,” and may be admitted for such

4 purposes. State v. Garcia, 2005-NMCA-042, ¶ 50, 137 N.M. 315, 110 P.3d 531.

5 {17} In the present case, the contested photograph was relevant to the State’s case

6 at trial and was not unduly prejudicial. For the reasons previously explained, the

7 location and severity of the wounds depicted in the photograph supported the

8 State’s claim that the killing was committed with deliberate intent. Additionally,

9 the pool of blood shown in the photograph corroborated Lt. Zuniga’s testimony,

10 that Victim was shot and killed where his body was found, thus buttressing the

11 State’s theory that Defendant had lured Victim away from witnesses to kill him.

12 The district court acknowledged the potential prejudicial effect of the photograph

13 on the jury and appropriately limited the admission of photographic evidence. See

14 Boeglin, 105 N.M. at 253, 731 P.2d at 949 (holding that the district court properly

15 “exercised its discretion carefully by compelling the State to choose one of the two

16 proffered relevant photographs which served to illustrate, clarify, and corroborate

17 the testimony of witnesses for the prosecution and the defense”). Given the

18 relevance of the photograph and the district court’s due consideration of the

19 potential prejudice to the jury, we conclude that the court did not abuse its

20 discretion by admitting the photograph.

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 1 C. Whether the district court abused its discretion by qualifying Lt.
2 Zuniga as an expert witness in blood spatter analysis.

3 {18} Defendant’s final contention on appeal is that the district court improperly

4 qualified the State’s witness, Lt. Zuniga, as an expert in blood spatter evidence,

5 because he lacked sufficient knowledge, training and experience. We review

6 Defendant’s claim for an abuse of discretion. State v. Alberico, 116 N.M. 156,

7 169, 861 P.2d 192, 205 (1993). Generally “any doubt regarding the admissibility

8 of scientific evidence should be resolved in favor of admission, rather than

9 exclusion.” State v. Fry, 2006-NMSC-001, ¶ 55, 138 N.M. 700, 126 P.3d 516

10 (internal quotation marks and citation omitted).

11 {19} Rule 11-702 NMRA governs the admission of expert testimony: “If

12 scientific, technical or other specialized knowledge will assist the trier of fact to

13 understand the evidence or to determine a fact in issue, a witness qualified as an

14 expert by knowledge, skill, experience, training or education may testify thereto in

15 the form of an opinion or otherwise.” Therefore, Rule 11-702 predicates the

16 admissibility of expert testimony on three requirements, that (1) the expert be

17 qualified; (2) the testimony be of assistance to the trier of fact; and (3) the expert’s

18 testimony be about scientific, technical, or other specialized knowledge with a

19 reliable basis. Alberico, 116 N.M. at 166, 861 P.2d at 202. Defendant challenges

20 the admission of Lt. Zuniga’s testimony solely on the basis of the first requirement.

21 {20} In general, the district court judge has wide discretion to determine whether

11
 1 a witness is qualified to give expert testimony. In State v. Downey, we recently

2 explained that

3 [u]nder Rule 11-702, a witness must qualify as an expert
4 in the field for which his or her testimony is offered
5 before such testimony is admissible. In most cases, this
6 means that the calling party must qualify the witness to
7 testify as an expert first, before any substantive testimony
8 is given. In order to testify, it must appear that an expert
9 witness has acquired sufficient knowledge, skill, training,
10 or experience that such testimony will aid the fact finder,
11 but no set criteria can be laid down to test such
12 qualifications. The use of the disjunctive “or” in Rule
13 11-702 permits a witness to be qualified under a wide
14 variety of bases, “knowledge, skill, experience, training,
15 or education,” and underscores that broad discretion
16 intentionally is given to the trial court to determine
17 whether expert testimony will assist the trier of fact.

18 2008-NMSC-061, ¶ 26, 145 N.M. 232, 195 P.3d 1244 (internal quotation marks

19 and citations omitted). Once the district court determines that an expert witness is

20 qualified under any one of the wide variety of bases enumerated in Rule 11-702,

21 any perceived deficiencies in the expert’s qualifications pertain to the weight of the

22 evidence, rather than its admissibility. See State v. McDonald, 1998-NMSC-034,

23 ¶ 21, 126 N.M. 44, 966 P.2d 752 (“[T]he jury [is] free to weigh every aspect of the

24 expert’s qualifications and [is] free to disregard it entirely.”).

25 {21} The State sought to introduce blood spatter evidence through the testimony

26 of Lt. Zuniga in order to establish that blood spatter patterns and blood pooling at

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 1 the crime scene indicated that Victim was shot and killed where his body was

2 found. Defense counsel objected to Lt. Zuniga’s qualification as an expert in blood

3 spatter analysis, and in response, the court permitted counsel to voir dire the

4 witness. Voir dire revealed that Lt. Zuniga had received a composite 40 hours of

5 blood spatter training over the course of three separate training sessions from 2001

6 through 2004. Lt. Zuniga explained that the first and last training sessions were

7 conducted by the Department of Public Safety and taught by officer Art Ortiz, the

8 head of the crime scene processing unit for the New Mexico State Police. The

9 second training session was conducted by an independent company and taught by

10 pathologist Sandra Maes. At the conclusion of voir dire, the court found Lt. Zuniga

11 to be an expert in blood spatter evidence.

12 {22} Defendant provides no meaningful argument as to why the jury should not

13 have been allowed to hear Lt. Zuniga’s testimony and weigh his qualifications.

14 Given Lt. Zuniga’s specialized training in blood spatter recognition and his

15 experience as an investigator, we cannot say that his qualifications were deficient

16 to such a level that the district court committed an abuse of discretion by allowing

17 him to testify.

18 III. CONCLUSION

19 {23} For the foregoing reasons, we affirm Defendant’s conviction of murder in

20 the first degree.

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1 {24} IT IS SO ORDERED.

2 _____________________________
3 PETRA JIMENEZ MAES, Justice

14
1 WE CONCUR:

2 _________________________________
3 EDWARD L. CHÁVEZ, Chief Justice

4 _________________________________
5 PATRICIO M. SERNA, Justice

6 _________________________________
7 RICHARD C. BOSSON, Justice

8 _________________________________
9 CHARLES W. DANIELS, Justice

15