State v. Nowicki

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

No. S-1-SC-37388

Filing Date: April 20, 2020

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JASON NOWICKI,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Brett R. Loveless, District Judge

L. Helen Bennett, P.C.
Linda Helen Bennett
Albuquerque, NM

for Appellant

Hector H. Balderas, Attorney General
M. Victoria Wilson, Assistant Attorney General
Santa Fe, NM

for Appellee

DECISION

BACON, Justice.

{1} Defendant Jason Nowicki was convicted of first-degree murder (willful and
deliberate), contrary to NMSA 1978, Section 30-2-1(A)(1) (1994); felony murder,
contrary to Section 30-2-1(A)(2); conspiracy to commit first-degree murder, contrary to
Section 30-2-1(A)(1) and NMSA 1978, Section 30-28-2 (1979); conspiracy to commit
felony murder, contrary to Section 30-2-1(A)(2) and Section 30-28-2; shooting at a
dwelling or occupied building (great bodily harm), contrary to NMSA 1978, Section 30-3-
8(A) (1993); and conspiracy to commit shooting at a dwelling or occupied building,
contrary to Section 30-3-8(A) and Section 30-28-2.1 Defendant appeals directly to this
Court pursuant to Rule 12-102(A)(1) NMRA.

{2} Defendant’s convictions stem from the shooting death of Eduardo Quintana
(Victim). Defendant presents two arguments2 for his appeal: (1) his sentences for
multiple crimes arising out of one death violate his right to be free from double jeopardy,
and (2) the district court erred in denying Defendant’s request for a Daubert-Alberico
hearing to verify the reliability of expert testimony. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993); State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d
192. Without reaching the merits of Defendant’s double jeopardy argument, we vacate
his convictions for felony murder, conspiracy to commit felony murder, and shooting at a
dwelling or occupied building. Concluding that the district court did not err in admitting
the expert testimony, we affirm Defendant’s other convictions.

I. BACKGROUND

{3} On November 9, 2012, Defendant and three other men parked their vehicle
outside Victim’s apartment, and waited for Victim to arrive. Defendant was upset with
Victim over a dispute that had occurred earlier. Upon seeing Victim approaching,
Defendant and the other men stepped outside of the vehicle, and Defendant called to
Victim. Victim ran toward his apartment. Defendant brandished a nine millimeter pistol
and fired multiple times at Victim, who was in front of his apartment building. Victim was
hit at least twice by the gunfire. Victim stumbled through his front door and was found
dead on his kitchen floor. Bullets fired from Defendant’s pistol also struck the apartment
building behind Victim.

{4} Defendant was indicted by a grand jury for charges related to the shooting of
Victim. A jury convicted Defendant of the crimes referenced above. Defendant was
sentenced to life imprisonment for his first-degree murder conviction and life
imprisonment for his felony murder conviction, with both sentences to run concurrently.
Defendant was additionally sentenced to eighteen years imprisonment for his other
convictions and guilty pleas stemming from other charges.

II. DISCUSSION

A. Based on This Court’s Recent Opinion in State v. Comitz, We Vacate
Defendant’s Convictions for Felony Murder, Conspiracy to Commit Felony
Murder, and Shooting at a Dwelling

1Defendant’s conviction for conspiracy to shoot at a dwelling or occupied building was vacated by the district
court.
2In his statement of issues, Defendant also raised an argument related to his right to an impartial jury. This
argument was not articulated, or referenced, in his brief in chief. We will not analyze undeveloped arguments.
See State v. Gonzales, 2011-NMCA-007, ¶ 19, 149 N.M. 226, 247 P.3d 1111 (stating a court “has no duty to review
an argument that is not adequately developed”).
{5} Defendant appeals his felony murder conviction, arguing that his convictions for
both felony murder and shooting at a dwelling or occupied building violate his double
jeopardy rights because the two convictions punish Defendant twice for the same act.
This argument, set forth in Defendant’s brief in chief, was articulated three days before
this Court rendered its opinion in State v. Comitz, 2019-NMSC-011, 443 P.3d 1130. In
Comitz, we held that the crime of shooting at a dwelling or occupied building cannot be
supported merely by the fact that a defendant is shooting at a person standing in front of
a dwelling. Id. ¶ 18 (determining that under Section 30-3-8(A), a conviction for shooting
at a dwelling or occupied building cannot stand when the intended target of the shooting
is a person, not a dwelling). In light of our previous holding, we vacate Defendant’s
convictions for felony murder, conspiracy to commit felony murder,3 and shooting at a
dwelling or occupied building without addressing his double jeopardy arguments.

{6} In this case, Defendant’s conviction of shooting at a dwelling or occupied building
was based upon the fact that he shot at Victim, who was standing in front of his
apartment building. The State concedes that, under Comitz, this cannot support
Defendant’s conviction for shooting at a dwelling or occupied building. While we are not
bound by the State’s concession, see, e.g., State v. Martinez 1999-NMSC-018, ¶ 26,
127 N.M. 207, 979 P.2d 718, we find support in its reasoning. The State underpins its
concession by pointing out that the pivotal fact in this case is that Defendant intended to
shoot at Victim, not the dwelling. The State emphasizes that the only fact that supports
Defendant’s conviction for shooting at a dwelling or occupied building is that the bullets
aimed at Victim struck a dwelling. We agree. The salient facts here are that Defendant
did not immediately shoot at the apartment building, but rather waited for Victim to
arrive. Further, Defendant called out to Victim before shooting, and the evidence shows
that after the shooting ceased, Defendant asked if he had hit Victim. Viewed in a light
most favorable to the verdict, see State v. Torres, 2018-NMSC-013, ¶ 42, 413 P.3d 467,
the evidence supports that Defendant was shooting at Victim, not the dwelling behind
him. Thus, under Comitz, Defendant’s conviction for shooting at a dwelling cannot
stand. As in Comitz, we vacate Defendant’s conviction for shooting at a dwelling or
occupied building for failure of proof. See 2019-NMSC-011, ¶ 24.

{7} Defendant’s conviction for shooting at a dwelling or occupied building served as
the predicate felony for his felony murder conviction. We therefore vacate Defendant’s

3At Defendant’s January 14, 2016, sentencing hearing, the district court orally sentenced Defendant to nine years
imprisonment for conspiracy to commit felony murder. The district court, however, omitted any sentencing for
conspiracy to commit felony murder in its written and filed judgment. This omission likely was in error, as the
written judgment references Defendant’s conviction for felony murder, but inexplicably omits any sentence for the
conviction. When there is conflict between a district court’s oral sentencing and written judgment, the court’s oral
pronouncements generally control. See State v. Stejskal, 2018-NMCA-045, ¶ 14, 421 P.3d 856 (“[I]f there is a
variance between the oral pronouncement of sentence and the written judgment of conviction, the oral sentence
generally controls.” (internal quotation marks and citation omitted)); see also Rule 5-113(B) NMRA (allowing a
district court to amend written judgments to correct oversight or omission). Thus, it appears that Defendant’s
conviction for conspiracy to commit felony murder was not vacated, and the district court indeed imposed
sentence at Defendant’s January 14, 2016, hearing. Neither party briefs this issue. Nevertheless, we will vacate
Defendant’s conviction for conspiracy to commit felony murder for the same reasons stated herein that we vacate
Defendant’s convictions for felony murder and shooting at a dwelling or occupied building.
felony murder conviction and conspiracy to commit felony murder. Because
Defendant’s felony murder conviction is vacated, his double jeopardy arguments are
moot and unnecessary to the disposition of this matter. We do not address them. See
Schlieter v. Carlos, 1989-NMSC-037, ¶ 13, 108 N.M. 507, 775 P.2d 709 (“It is an
enduring principle of constitutional jurisprudence that courts will avoid deciding
constitutional questions unless required to do so. We have repeatedly declined to
decide constitutional questions unless necessary to the disposition of the case.”).

B. The District Court Did Not Abuse Its Discretion in Admitting Expert
Testimony on Firearm Forensics and Tool Mark Analysis Without Holding a
Daubert-Alberico Hearing

{8} Defendant argues next that the district court erred in admitting firearm evidence
without holding a Daubert-Alberico hearing. Defendant raises this argument pursuant to
State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982 and State v. Boyer,
1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. Specifically, Defendant contends that the
State’s witness, Jay Stuart, used unreliable and invalid forensic methods in concluding
that a pistol traceable to Defendant was used to shoot Victim. According to Defendant,
the district court therefore erred by denying his request to hold a Daubert-Alberico
hearing.

{9} Mr. Stuart, a forensic firearm and tool mark examiner for the Albuquerque Police
Department, testified as an expert witness at trial. Mr. Stuart offered his opinion that a
firearm traceable to Defendant was likely the firearm used in the shooting of Victim.
This conclusion was based on comparing bullets recovered at the scene of Victim’s
death with bullets fired from the pistol linked to Defendant. Mr. Stuart stated his
conclusion was a “practical certainty,” and that the chances of the bullets coming from
another firearm were so remote as to constitute an impossibility. At trial, counsel for
Defendant did not object to the tendering of Mr. Stuart as an expert, and did not object
to his expert conclusion. Before trial, however, counsel for Defendant did raise issue
with the validity of the science underlying Mr. Stuart’s conclusions, and requested a
Daubert-Alberico hearing. The district court denied the request for a hearing, finding
“[t]he proposed testimony by the State’s Firearm Identification Expert is sufficiently
scientific.”

{10} We will review the district court’s decision for abuse of discretion. Defendant
asks us to employ a de novo review, contending his argument is a threshold question of
whether the district court applied the correct evidentiary rule. We disagree with this
contention, however, because Defendant is arguing the reliability and validity of Mr.
Stuart’s ballistic techniques. Under Alberico, reliability and validity are patently
discretionary considerations for a district court, and those discretionary decisions are
reviewed for abuse of discretion. 1993-NMSC-047, ¶¶ 47-51, 56-62.

{11} Expert testimony must conform to the requirements of Rule 11-702 NMRA. In
Alberico, we stated three basic requirements for the admission of expert testimony
under Rule 11-702: (1) the “expert must be qualified”; (2) the expert’s testimony must
assist the trier of fact; and (3) the expert’s testimony must be about “scientific, technical,
or other specialized knowledge” with a reliable basis. 1993-NMSC-047, ¶¶ 43-45. Only
reliability is at issue in the instant matter. Reliability is a determination of “whether the
scientific technique is based upon well-recognized scientific principle and whether it is
capable of supporting opinions based upon reasonable probability rather than
conjecture.” Id. ¶ 47. In order to make this reliability determination, a district court
considers:

(1) whether a theory or technique “can be (and has been) tested”; (2)
“whether the theory or technique has been subjected to peer review and
publication”; (3) “the known potential rate of error” in using a particular
scientific technique “and the existence and maintenance of standards
controlling the technique’s operation”; and (4) whether the theory or
technique has been generally accepted in the particular scientific field.

State v. Anderson, 1994-NMSC-089, ¶ 15, 118 N.M. 284, 881 P.2d 29 (quoting
Daubert, 509 U.S. at 593-94).

{12} Defendant essentially argues that the science underlying Mr. Stuart’s
conclusions—firearm forensics and tool mark analysis—is invalid and unreliable. As
stated by our Court of Appeals in State v. Fuentes, when the underlying science of an
expert’s testimony is “properly . . . taken for granted because the reliability of the
science in question has long been accepted, a defendant must make an affirmative
showing that there is some reason to doubt the reliability of that science before a district
court is obligated to require a reliability hearing.” 2010-NMCA-027, ¶ 28, 147 N.M. 761,
228 P.3d 1181. Defendant failed to make such a showing here.

{13} Despite this failure to adequately challenge the reliability of the firearm forensics,
we briefly examine Mr. Stuart’s testimony under the guidance set forth by this Court in
Anderson. See 1994-NMSC-089, ¶ 15. First, Mr. Stuart described at trial the various
experiments used by firearms examiners to hone firearm testing techniques. Second,
Mr. Stuart accounted for how his scientific techniques had been tested and peer-
reviewed, and described how he had published research in that area. Third, Mr. Stuart
testified to the guidelines and procedure employed in firearm forensic testing and tool
mark analysis. Lastly, we reiterate that the theories and techniques underlying firearm
forensics and tool mark analysis have been widely accepted in the courts and scientific
fields. See Fuentes, 2010-NMCA-027, ¶ 26.

{14} We see no reason to doubt the validity and reliability of the firearm forensics and
tool mark analysis that Mr. Stuart relied on. Given the established reliability of the
science, the district court properly decided against the necessity of a Daubert-Alberico
hearing. See State v. Lente, 2005-NMCA-111, ¶ 8, 138 N.M. 312, 119 P.3d 737
(observing that courts have discretionary authority “to avoid unnecessary ‘reliability’
proceedings in ordinary cases where the reliability of an expert’s methods is properly
taken for granted.” (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
The district court did not abuse its discretion in admitting Mr. Stuart’s testimony without
holding a Daubert-Alberico hearing.

III. CONCLUSION

{15} For the foregoing reasons, we vacate Defendant’s convictions for felony murder,
conspiracy to commit felony murder, and shooting at a dwelling or occupied building.
We affirm Defendant’s other convictions. We remand the case to the district court for
further proceedings in accordance with this decision.

{16} IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

BARBARA J. VIGIL, Justice

DAVID K. THOMSON, Justice