State v. Santiesteban

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: January 8, 2021

No. S-1-SC-37856

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

YOAN PENA SANTIESTEBAN,

Defendant-Appellant.

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

Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
Anne E. Minard, Assistant Attorney General
Santa Fe, NM

for Appellee

DECISION

VIGIL, Justice.

{1} Mr. Severinghaus was shot and killed on the morning of May 26, 2017. Mr.
Santiesteban (Defendant) was later convicted of his murder along with other crimes and
sentenced to life in prison plus sixty-eight years and six months. On appeal, Defendant
argues that his conviction is improper for three reasons. First, he argues that the district
court should have granted a mistrial when the State’s primary witness, Defendant’s ex-
girlfriend, improperly testified about Defendant’s other murder charges. Second,
Defendant argues that the district court erred in admitting polygraph evidence of the
State’s primary witness. Third, Defendant argues that his conviction violates double
jeopardy and that a firearm enhancement was improperly added to his sentence.

{2} Our analysis of Defendant’s first two arguments leads us to conclude that the
district court did not abuse its discretion in either ruling. However, we agree that
Defendant’s sentence is improper for both of the reasons set forth by Defendant.
Therefore, we affirm Defendant’s conviction for the murder of Mr. Severinghaus but
vacate his conviction for shooting at a motor vehicle and his one-year firearm
enhancement.

I. BACKGROUND

{3} Defendant and his ex-girlfriend, Gloria Chavez, were charged with committing
multiple murders in May of 2017. Ms. Chavez signed a plea agreement and agreed to
testify against Defendant. Defendant’s murder charges were severed for trial.
Defendant’s first murder trial ended in a hung jury. Defendant’s second murder trial, for
the death of Mr. Severinghaus, lasted two weeks and resulted in a guilty verdict.

{4} During Defendant’s second trial, the evidence revealed the following. At
approximately 6:00 a.m. on the morning of May 26, 2017, Mr. Severinghaus left his
house for work. Just after starting his car in the driveway, he was shot and killed. Mr.
Severinghaus’s mother testified that from inside the house, she heard “two very loud
popping sounds.” She looked out the window and saw a thin Hispanic man who was
“[a]bout medium height, wearing gray cargo shorts, [a] dark T-shirt, [and a] baseball
cap, dark gray.” She saw the man get into a small, white car and drive away. Mr.
Severinghaus’s mother then ran to her son, who was bleeding profusely and lying face
down in the driveway. Mr. Severinghaus died at the scene shortly thereafter.

{5} The Severinghaus’s neighbor, Ms. Fachini, also testified that while walking in the
neighborhood around the same time that morning, she spotted a small, white car parked
in the middle of the street. She said that she heard three gunshots before watching a
man drive away in the white car. She said the man looked slender and wore a gray-
brown colored t-shirt. A second neighbor, Ms. Marshall, testified similarly saying that
she was awakened by three loud bangs. Ms. Marshall’s home surveillance camera also
captured a white car driving by the house around the same time.

{6} An autopsy later revealed three bullet tracks through Mr. Severinghaus’s neck,
chest, and back. The forensic pathologist testified that there was evidence of
gunpowder stippling on his face, which indicated that he was shot at intermediate range.
Ultimately, Mr. Severinghaus’s cause of death was gunshot wounds to the neck and
torso, which caused severe blood loss.

{7} Later that morning, Defendant went to Wells Fargo bank in Albuquerque claiming
to be Mr. Severinghaus and asked to change the PIN on his bank card. A suspicious
bank employee called the police who arrested Defendant. Defendant told police that he
had found Mr. Severinghaus’s wallet on the side of the road and admitted to trying to
use his bank card and identification but denied any involvement in his death.
Nevertheless, Defendant was indicted for the death of Mr. Severinghaus and was tried
by a jury for first-degree murder.

{8} As was part of Ms. Chavez’s plea agreement, she testified for the State during
Defendant’s trial. Ms. Chavez’s version of events around the time of the crime went as
follows. She and Defendant were together at a casino on the evening of May 25, 2017,
the night before Mr. Severinghaus died. After the casino closed at 5:30 a.m. on May 26,
2017, they had sex in his car in the parking lot and then drove around town. She stated
that they planned to steal something but did not specify what. She stated that Defendant
drove them around a neighborhood that she did not recognize before stopping at Mr.
Severinghaus’s house. Ms. Chavez recalled that Defendant “got out of the car and
walked straight to the driver’s side door and just started shooting at [Mr. Severinghaus].”
Defendant then grabbed Mr. Severinghaus’s wallet and came back to the car. He then
took a rag from his car and wiped down the door of Mr. Severinghaus’s car. Ms. Chavez
said that when they were unsuccessful at using Mr. Severinghaus’s bank card at an
ATM and changing his PIN over the phone, they went home, changed clothes, and then
went to the bank where Defendant pretended to be Mr. Severinghaus.

{9} Ms. Chavez also testified that she and Defendant used methamphetamine and
delivered drugs together. In response to defense counsel’s questioning on cross-
examination, Ms. Chavez said that her drug use affected her memory. On redirect
examination, the State questioned Ms. Chavez on the clarity of her memories:

State: Your testimony yesterday to defense counsel
was that you lost track of time at some points
around May 26th, 2017. Do you remember that
testimony?
Ms. Chavez: Yes, sir.
State: Why was that?
Ms. Chavez: Just because I was high and playing at the
casino. I don’t really remember too much of time.
State: Are there events regarding that time frame that
are clear in your memory?
Ms. Chavez: Yes, sir.
State: Why is it that some of those memories are
clearer?
Ms. Chavez: Because they were so sad. I don’t know what
you mean. Sorry.
State: Well, let’s talk about that. Because they’re so
sad. The ones that stick out in your memory
because they’re so sad, what are you referring to
exactly?
Ms. Chavez: Like, lifes were tooken [sic].
….
State: The events that stand out most to you, would it
be fair to say they’re the events related to the
crimes that happened at this time?
Ms. Chavez: Yes, sir.

(Emphasis added.) Defendant later moved for a mistrial arguing that Ms. Chavez’s
testimony that “lifes were tooken [sic],” was an improper reference to the other murders
that Defendant was indicted for. The district court found no basis for the mistrial as there
was no information presented to the jury to suggest that Ms. Chavez was talking about
the other deaths and further, the prosecutor did not intentionally elicit the statement.
Therefore, the district court denied the motion for mistrial.

{10} To strengthen Ms. Chavez’s credibility, the State introduced testimony from a
polygraph examiner who stated that he performed a polygraph examination on Ms.
Chavez. The polygraph examiner testified that he asked Ms. Chavez three questions
regarding whether, at the time of the murder, she ever left the car or touched Mr.
Severinghaus’s car. She responded that she had not, and the polygraph examiner
concluded that she was telling the truth. He testified that there was only a ten percent
chance that she was misleading him.

{11} Defense counsel objected to the polygraph examiner’s testimony arguing that the
testimony should be excluded because polygraphy is not “generally accepted as a field
of science in the courts” and is not “accepted around the country, other than in New
Mexico.” The judge overruled this objection and admitted the testimony.

{12} At the conclusion of the trial, the jury returned a guilty verdict for first-degree
murder, aggravated burglary, armed robbery, shooting at a motor vehicle resulting in
great bodily harm, identity theft, and conspiracy to commit burglary and fraud.
Defendant was sentenced to life in prison plus sixty-eight years and six months.
Defendant directly appealed his convictions to this Court pursuant to Article VI, Section
2 of the New Mexico Constitution.

II. DISCUSSION

A. Standard of Review

{13} On appeal, Defendant argues that the district court erred by refusing to grant a
mistrial due to improper witness testimony and by admitting polygraph evidence.
Because both issues were preserved at trial (one through a motion for mistrial and the
other through an objection), we review these issues for abuse of discretion. See Rule
12-321(A) NMRA; State v. Sosa, 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348
(“Where error is preserved at trial, an appellate court will review under an abuse of
discretion standard.”).

{14} This Court “must determine whether the relative weight of the error meets the
threshold required to reverse a conviction.” Sosa, 2009-NMSC-056, ¶ 26. “We will find
an abuse of discretion if a court’s ruling is clearly untenable or contrary to logic and
reason. Additionally, a court abuses its discretion if it applies an incorrect standard,
incorrect substantive law, or its discretionary decision is premised on a
misapprehension of the law.” State v. Sena, 2020-NMSC-011, ¶ 15, 470 P.3d 227
(internal quotation marks and citation omitted). With this high standard in mind, we
proceed to the issues presented by Defendant.

B. Ms. Chavez’s Testimony

{15} The first issue is whether the district court abused its discretion when it denied
Defendant’s motion for mistrial after the State’s primary witness testified, “lifes were
tooken [sic].” Defendant argues that Ms. Chavez’s testimony referred to Defendant’s
other murder charges and therefore violated the agreement that neither party was
permitted to introduce evidence of his other murder charges at Defendant’s trial for the
Severinghaus murder.

{16} Defendant insists that Ms. Chavez’s statement that “lifes were tooken [sic]”
required the district court to grant a mistrial because the prosecutor intentionally elicited
disallowed testimony. Defendant says the prosecutor demonstrated this when he asked
a question that called for inadmissible testimony and then re-asked the question after
the witness hesitated by saying, “I don’t know what you mean. Sorry.” Defendant
criticizes that rather than generally asking about “events regarding that time frame,”
which Ms. Chavez could have interpreted to include the other murders, the prosecutor
should have asked more specifically about just Mr. Severinghaus’s death. Defendant
parallels this case to State v. Ruiz, where the Court of Appeals held that the prosecutor
improperly elicited inadmissible testimony when he could not later explain what he was
expecting the witness to say in answer to his question. 2003-NMCA-069, ¶¶ 7, 11, 133
N.M. 717, 68 P.3d 957. Defendant says that this case is similar because both contain a
pattern of questioning that shows that the state intended to elicit comments.

{17} We note, however, that in the Ruiz case, it was more obvious that the prosecutor
improperly elicited inadmissible testimony. In that case, “the witness was trying to avoid
improper reference.” Id. ¶ 8. “The witness exhibited an awareness that what he was
trying to say was forbidden.” Id. The witness even tried to clarify with the prosecutor,
“you want me to say what he said?” Id. Still, the prosecutor continued on the same line
of questioning. Id. ¶ 7-8. After weighing the evidence as a whole, the Ruiz Court could
not “say that the erroneous [testimony] did not contribute to [defendant’s] conviction.” Id.
¶ 11.

{18} Defendant next argues that regardless of whether the prosecutor intentionally
elicited Ms. Chavez’s statement, it required a mistrial because of how prejudicial it was
to Defendant’s theory of innocence. Defendant argues that Ms. Chavez’s statement that
“lifes were tooken [sic]” had a reasonable probability of affecting the jury’s verdict
because it could have planted the idea that Defendant perhaps killed other people as
well. Defendant stresses that the problem with the statement was not that it was false
but that it potentially reflected something that was true as Defendant was in fact
charged with other murders. For this reason, Defendant says that a curative instruction,
correcting the accuracy of the witness’s statement, which is sometimes enough to
overcome an error like this, was not an option in this case. Therefore, the only way to
cure the error was to grant a mistrial.

{19} The State disagrees arguing that not only was the court well within its discretion
but the statement itself was so harmless that it likely did not affect the verdict in this
case. The State asserts that Ms. Chavez’s statement that “lifes were tooken [sic]” was
too ambiguous and unintelligible to have any impact on the jury. In denying the motion
for mistrial, even the judge commented,

[T]he impression I was getting was that she was mixing up her plural with
singular. . . I don’t even know that the jury would draw or could draw any
inference that there were additional things. I just think it’s too
speculative[.]

....

[A]t a minimum, in order to grant a mistrial, I would have to, at least,
believe that she was talking about the larger context of this case, the
multiples, and I don’t even know what she was saying.

{20} The State reassures us that any improper inference the jury may have drawn
from Ms. Chavez’s statement was minimized when it was given no emphasis during the
trial. The State recounts that defense counsel did not immediately object to the
comment and the prosecutor who was questioning Ms. Chavez “seamlessly” moved on
to the next question without fixating on what the witness had just said.

{21} We observe, however, that the prosecutor did not immediately move away from
this line of questioning. A few moments after Ms. Chavez said, “lifes were tooken [sic],”
the prosecutor followed up with, “The events that stand out most to you, would it be fair
to say that they’re the events related to the crimes that happened at this time?”, to
which Ms. Chavez replied, “Yes, sir.” (Emphasis added.) Following up with a question
mentioning “crimes” may have drawn slightly more attention to the inappropriate witness
testimony. Though this was an ill-advised question on the part of the prosecutor, it is not
enough to show that he intentionally elicited improper testimony.

{22} In order to side with Defendant on this issue, we must be able to discern what
exactly Ms. Chavez was referring to when she said, “lifes were tooken [sic].” We can
guess that she was referring to the other murders, but she could have also been
referring to other violence that she was surrounded by due to her circumstances. Even
defense counsel noted in his motion for mistrial that it is possible that the jury perceived
the statement in the context of Ms. Chavez’s previous testimony regarding witnessing
violence in her own neighborhood.

{23} Regardless, considering the statement within the larger context of the case leads
us to conclude that the three words, “lifes were tooken [sic],” did not have much
influence on the jury. The abundance of evidence against Defendant including three
eyewitnesses suggests that even if Ms. Chavez’s statement had some impact, the jury
likely would have reached the same conclusion irrespective of her comment.

{24} It is clear that here “the relative weight of the error” in the witness’s comment
does not “meet[] the threshold required to reverse a conviction.” See Sosa, 2009-
NMSC-056, ¶ 26. The district court’s ruling in denying a mistrial was not an abuse of
discretion because it was not “clearly untenable or contrary to logic and reason.” See
Sena, 2020-NMSC-011, ¶ 15 (internal quotation marks and citation omitted). In fact, as
the judge could not decipher the meaning behind the witness’s statement, it was
reasonable to allow the trial to proceed to verdict. The district court exercised proper
discretion when it denied Defendant’s motion for mistrial.

C. Polygraph Evidence

{25} The second issue before us is whether the district court abused its discretion
when it allowed the State to admit polygraph evidence. Defendant argues that it was
improper for the court to admit the State’s “polygraph evidence to bolster the credibility”
of Ms. Chavez’s testimony.

{26} Rule 11-707(C) NMRA explicitly allows polygraph evidence: “A polygraph
examiner’s opinion as to the truthfulness of a person’s answers in a polygraph
examination may be admitted.” Further, in New Mexico Supreme Court case, Lee v.
Martinez, 2004-NMSC-027, ¶ 11, 136 N.M. 166, 6 P.3d 291, we acknowledged that
polygraph testimony is permitted in New Mexico courtrooms. (“[A]dmission of expert
testimony or other scientific evidence is peculiarly within the sound discretion of the trial
court and will not be reversed absent a showing of abuse of that discretion.” (citation
omitted)).

{27} In sum, Defendant argues that the State’s polygraph evidence should not have
been admitted in this case and should not be permitted in future criminal cases either.
Emphasizing that polygraphs are unreliable, Defendant highlights that New Mexico is
one of the only states that allows polygraphs to be admitted in court. Defendant cites to
federal circuit court cases and other state court cases to support the notion that
polygraph results are generally disfavored and rarely admissible. Given that the science
underlying polygraph testing remains weak and that most other jurisdictions do not
recognize polygraph evidence as reliable, Defendant asks this Court to modify Rule 11-
707 and its ruling in Lee and ban polygraph results from being admitted against a
criminal defendant.

{28} The polygraph issue in this case does not meet the high threshold to overturn
New Mexico Supreme Court precedent. This Court only overturns precedent in limited
circumstances when it is “a remnant of abandoned doctrine,” when it is unworkable, or if
“changing circumstances have deprived the precedent of its original justification.” State
v. Montoya, 2013-NMSC-020, ¶ 40, 306 P.3d 426 (internal quotation marks and citation
omitted).
{29} While this Court has ultimate authority over questions of practice and procedure,
we choose to be prudent in exercising that authority. See State v. Gutierrez, 2020-
NMSC-___, ¶ 111, ___P.3d ___ (S-1-SC-36394, Nov. 5, 2020) (referring the rule at
issue to the Rules of Evidence Committee explaining that a rule change “should be the
subject of comprehensive study and robust public discussion”). Without further analysis
and public comment and consideration of the issue, we refrain from prematurely
revisiting the rule allowing the admissibility of polygraph evidence.

{30} The district court’s admission of polygraph evidence in this case was squarely
permissible under Rule 11-707. In admitting expert testimony regarding polygraph
results, the district court here did not “appl[y] an incorrect standard, incorrect
substantive law,” nor was “its discretionary decision . . . premised on a misapprehension
of the law.” Sena, 2020-NMSC-011, ¶ 15. (internal quotation marks and citation omitted)
On the contrary, by admitting polygraph evidence, the district court applied the correct
standard and substantive law and appropriately exercised its discretion.

D. Double Jeopardy and Improper Firearm Enhancement

{31} Lastly, Defendant argues that his sentence violates double jeopardy and includes
an improper firearm enhancement. Defendant states that his convictions for both
murder and shooting at a motor vehicle constitute double jeopardy. Defendant explains
that this is a double-description case under which he was convicted of two crimes for
the same conduct of fatally shooting Mr. Severinghaus while Mr. Severinghaus was
sitting in his car. Because the conduct underlying both crimes was unitary, Defendant
asks this Court to vacate his conviction for shooting at a motor vehicle. The State
agrees that Defendant’s conduct for both crimes was unitary. Therefore, the State
stipulates to Defendant’s argument that his conviction for shooting at a motor vehicle
should be vacated to avoid a violation of double jeopardy.

{32} Defendant also argues that the district court improperly applied a one-year
firearm enhancement to his sentence for first-degree murder. Pursuant to NMSA 1978,
Section 31-18-16(A) (1993), a court may impose such an enhancement if the defendant
used a firearm “in the commission of a noncapital felony.” (Emphasis added.) Here,
Defendant used a firearm in the commission of a capital felony. NMSA 1978, Section
30-2-1(A) (1994) (“Whoever commits murder in the first degree is guilty of a capital
felony.”). It was therefore incorrect for the district court to attach a firearm enhancement
to Defendant’s sentence for a capital crime. Defendant asks this Court to vacate his
one-year enhancement because it violates Section 31-18-16(A). The State stipulates to
this request.

{33} Though the Court is not bound by the State’s concessions, State v. Montoya,
2015-NMSC-010, ¶ 58, 345 P.3d 1056, both of Defendant’s arguments bring to light
clear errors in sentencing. To remedy these errors, we vacate Defendant’s conviction
for shooting at a motor vehicle along with his one-year firearm enhancement.

III. CONCLUSION
{34} As to Defendant’s arguments regarding an abuse of discretion, we hold that the
district court did not abuse its discretion in denying a mistrial nor in admitting polygraph
evidence. Accordingly, we affirm Defendant’s conviction for first-degree murder. We
vacate Defendant’s conviction for shooting at a motor vehicle along with his one-year
firearm enhancement.

{35} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice