1194, 10 L.Ed.2d 215 (1963). {16} The trial court found the statement admissible under Rule 11-803(X), and we conclude that it did not abuse its discretion by admitting Ortiz's statement under this Rule. Rule 11-613(B) would allow, in this case, for the impeachment of Ortiz with extrinsic proof of those out-of-court statements, but would not allow them to come in for substantive purposes. The agreement need not be verbal, but may be shown to exist by acts which demonstrate that the alleged co-conspirator knew of and participated in the scheme. As a result, we do not address Defendant's confrontation concerns on appeal. All dates selected Filter by filing date. In those cases the defendants were not challenging their sentences as violations of the constitutional prohibition against cruel and unusual punishment, but rather were claiming that their sentences were illegal as not authorized under the applicable statute. Because Rule 11-803(X) requires an affirmative showing of such guarantees, I do not believe that it provides a basis for admitting this statement. In that interview Ortiz stated that he did not recognize the shooters but described them as a little guy wearing light blue jeans and a striped shirt, presumably Defendant, and a big guy wearing black jeans and a black t-shirt, presumably Allison. While the prosecutor cannot hide information behind other arms of the State, see Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. Verna Trujillo A Overview. . According to Ortiz's statement, after Defendant resisted Allison's request for the gun, Defendant told the four down below, You guys think I'm joking, and began shooting. See State v. Nieto, 2000-NMSC-031, 25, 129 N.M. 688, 12 P.3d 442 (finding expert testimony on defendant's gang affiliation and specific rituals and procedures of that gang was admissible to show defendant's alleged motive). After a lengthy discussion of that rule, the State noted, There are some other exceptions that I could argue or basis on the rules of evidence that I could argue for the admission of this, but that [, Rule 11-803(E),] I think is [the principal basis]. After Defendant's response to the State's argument, the State proffered several other grounds for the admission of the statement: Rule 11-801(D)(1)(c) NMRA 2002, Rule 11-803(X), Rule 11-804(A)(3) NMRA 2002, and Rule 11-613(B) NMRA 2002. We conclude that Defendant's thirty year sentence with the possibility of good time credit does not constitute fundamental error. Elaine Trujillo is 69 years old today because Elaine's birthday is on 11/05/1953. Chris Trujillo - Farm Bureau Financial Services - We make it simple to protect your family, home,. On cross-examination, Detective Shawn testified that at the time of the interview he felt that Ortiz knew who the shooters were but was concealing their identity. Experience . He was a 1959 graduate of Valley High School (ABQ) and attended one year at UNM. Organizers became used to getting 100 requests per day, but saw it go down to 20 requests because the government increased its food aid, she said. However, we conclude that these references to Canas' statement did not deprive Defendant of a fair trial. of County Comm'rs v. McCulloh, 52 N.M. 210, 215, 195 P.2d 1005, 1008 (1948) (quoting State ex rel. {79} I also note that the detective who took Ortiz's statement felt that Ortiz was lying to him. As you look at Silly here in the courtroom today, is his skin-the skin on his face the same or different than it was back then? Judge Victor S. Lopez presiding. {55} Canas was arrested on a material witness warrant but was not interviewed by the defense and apparently fled the jurisdiction prior to trial. {36} It is the absence of evidence on this point that convinces us that Defendant did not willfully discharge the gun at a dwelling or occupied building or agree with another person to commit such a crime. {40} Defendant first argues that even the State in this case acknowledged from the outset that his counsel was ineffective, stating: What you have here is ineffectiveness of counsel crusading as someone who wants to disqualify me from participation in this case. {12} Defendant first argues that the admission of the tape and transcript of Ortiz's out-of-court statement violated his right to confront the witness against him under the Sixth Amendment to the United States Constitution as applied to the States by the Fourteenth Amendment, and under Article II, Section 14 of the New Mexico Constitution. {31} Ortega testified at trial that he and fellow Juaritos Maravilla gang members were asked what they were doing in the Barelas barrio by people standing on a second-floor apartment balcony. I publish daily videos playing Slots in casinos all over the country, showing millions of fans how to have a great time using an entertainment budget! Defendant asserts that, as a result, the admissibility of this evidence should be reviewed de novo rather than for an abuse of discretion. Christopher passed away on month day 2001, at age 35 at death place, New Mexico. He is a Taos High School graduate of (1998). Q. Because Defendant did not properly preserve the following issues for appellate review, we review them for fundamental error. Detective Shawn stated that on the night of the shooting Ortega identified Defendant as one of the shooters from a photo lineup and that he recorded this identification. Thus, even assuming the prosecutor improperly led the witness in the excerpts identified by Defendant, we find no prejudice to Defendant on the issue of identification. . Regardless of who shot first, the evidence clearly supports an inference that Defendant helped, encouraged, caused, and intended that the shooting be committed. The fact that Ortiz most likely would view his cousin as being less culpable had he not fired the fatal shots significantly diminishes any circumstantial guarantee of trustworthiness based on the notion that people do not implicate family members unless believing it to be true. However, [a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Id. Furthermore, just because the prosecutor thought defense counsel to be ineffective does not make it so. . (3)the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. We review each of Defendant's allegations of prosecutorial misconduct individually in addition to considering their cumulative effect. This Court's mandatory appellate jurisdiction is not based on a prison sentence to a term of years, nor is it based on a first-degree murder conviction. However, by bringing this evidence in through Detective Shawn, Defendant was able to argue that the police did an inadequate investigation, potentially leaving the jury with reasonable doubt as to the identification of the shooters. See id. [A] non-jurisdictional claim not raised in the lower court is not properly reviewable on appeal. State v. Burdex, 100 N.M. 197, 201, 668 P.2d 313, 317 (Ct.App.1983) (finding defendant's constitutional claim of cruel and unusual punishment was not asserted at the trial court and was therefore not properly preserved for appeal because such a claim is non-jurisdictional).4 We therefore review Defendant's claim for fundamental error. We are also not persuaded that had the defense attorney received the requested rap sheets that contained Ortega's and Mendez's juvenile history, any difference in the outcome would have resulted. {47} We consider the entire proceeding as a whole and judge any claim of ineffectiveness on whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. State v. Richardson, 114 N.M. 725, 727, 845 P.2d 819, 821 (Ct.App.1992) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. and studied at Brighton High School. Decided: February 05, 2002 Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Lisa N. Cassidy, Albuquerque, NM, Phyllis H. Subin, Chief Public Defender, Nancy M. Hewitt, Assistant Appellate Defender, Santa Fe, NM, for Appellant. He is not prepared to proceed today, Your Honor. This comment was apparently made by the prosecutor in response to defense counsel's request for a one-day continuance. He was buried on month day 2001, at burial place. Rather, relying on State v. Hernandez, 117 N.M. 497, 873 P.2d 243 (1994), Defendant argues that the State failed to prove that his actions caused Mendez's death, therefore failing to meet its burden as to the causation requirement. Copyright 2023, Thomson Reuters. Chris was a hard worker and established his company "All American Towing" in 2017. In order to find the Defendant guilty, the State had to prove beyond a reasonable doubt that Defendant willfully shot a firearm at a dwelling or an occupied building. {76} The majority also reasons that because Ortiz put himself and his family in danger by giving a description of the shooters to the police, it is less likely that he lied. Questions Post Question The test under the catch-all rules is whether the out-of-court statement-not the witness's testimony-has circumstantial guarantees of trustworthiness.3 Id. 26,108. Furthermore, Detective Shawn also testified that he believed Ortiz's statement was truthful because it was consistent with other witnesses' testimony and the physical evidence found at the scene. Exercising this discretion, the trial court sentenced Defendant to a term of THIRTY (30) YEARS, BUT NOT LIFE for his first-degree murder conviction. Chris Trujillo's Phone Number and Email Last Update. 2052). (1)Ambiguity-the danger that the meaning intended by the declarant will be misinterpreted by the witness and hence the jury; (2) Lack of candor-the danger the declarant will consciously lie; (3) Faulty memory-the danger that the declarant simply forgets key material; and (4) Misperception-the danger that the declarant misjudged, misinterpreted, or misunderstood what he saw. State v. Torres, 1998-NMSC-052, 18, 126 N.M. 477, 971 P.2d 1267 (agreeing that, in the analogous context of statements against penal interest, the subjective beliefs of the declarant about legal culpability are relevant to determining the admissibility of the hearsay). March 02, 2023 8:32 PM EST. Luciano (Lucky) (Caddy) Trujillo, 78, of Pojoaque, passed away on October 28, 2021 at his home in Nambe. {3} On July 3, 1997, Defendant and Charlie Allison were outside on a second-floor apartment balcony in the Barelas neighborhood of Albuquerque when they became involved in an argument with four men located at ground level: Joseph Ortiz, Juan Ortega, Jesus Canas, and Javier Mendez. We think the record makes clear that the trial judge relied on Rule 11-803(X), even though it may not have been the cornerstone of its ruling. He was born in Los Padilla's, New Mexico to Alfonso and Valentina Sosa, who proceeded him in death. She told him that she was going to be back in a few. Defense counsel requested the continuance because he claimed that he was so upset by the incident that he felt he could not proceed that day. We affirm Defendant's convictions for first-degree depraved-mind murder and conspiracy to commit aggravated battery. Date added: 1/11/2012. We conclude that Defendant's gang membership was undisputed by the defense and that the State used evidence of gangs to the extent that it was relevant to its case. Q. We conclude, however, that the alleged instances of prosecutorial misconduct in this case do not rise to the level of reversible or fundamental error regardless of whether they are considered individually or cumulatively. {82} The Court of Appeals has said of the essentially identical predecessor to Rule 11-803(X) that it cannot be read to mean that hearsay which almost, but not quite, fits another specific exception, may be admitted under the other exceptions' subsection State v. Barela, 97 N.M. 723, 726, 643 P.2d 287, 290 (Ct.App.1982). The State responds to this argument by claiming that the prosecutor went to great pains to neutralize any bad feelings the jurors may have had about gangs and repeatedly cautioned the jury to judge the case only on its facts. At trial, the judge ruled that the State could introduce evidence relating to gang names and affiliation, but limited the scope and the purpose of the testimony so that it would only be admissible insofar as it's probative of motive, state of mind, intent, and those sorts of things. On direct examination, Ortiz testified that he grew up in Barelas and was basically born and raised in the gang. Prosecutors say he and Christopher Trujillo kidnapped and murdered Cindy near Bernal in 2012. {49} When an issue of prosecutorial misconduct is properly preserved by a timely objection at trial, we review the trial court's ruling on this issue under the deferential abuse of discretion standard because the trial court is in the best position to evaluate the significance of any alleged prosecutorial errors. State v. Duffy, 1998-NMSC-014, 46, 126 N.M. 132, 967 P.2d 807. Gwyneth Paltrow and Chris Martin are among a small group of celebrity exes, that are still friends. He is preceded in death by his great grandmother Flora Ortiz, grandfathers Johnny Bustamante, Manuel Trujillo, Luis Avitia, uncles Eric Bustamante, Mark Trujillo, aunts Elaine Whatley, Darlene Anaya and numerous other relatives. See State v. Sanchez, 112 N.M. 59, 65, 811 P.2d 92, 98 (Ct.App.1991) (In ruling upon the admissibility of the statement the trial court does not determine the ultimate questions of the declarant's credibility; instead, this is the province of the jury); see also UJI 14-5020 NMRA 2002. Id. Full Service Burial. {39} Defendant claims that the following flaws in defense counsel's performance resulted in ineffective assistance: counsel was unprepared to start trial, he failed to review jury questionnaires prior to jury selection, he failed to complete his interview with Ortega, he failed to interview, secure the presence of, or secure a continuance until such time as Canas could be located, he failed to object to prejudicial hearsay statements, he elicited highly prejudicial evidence against his own client, and he failed to challenge an indictment for a nonexistent crime. Familial loyalty and fear of retaliation would seem to argue more forcefully against a truthful statement; at the very least they do not provide circumstantial guarantees of trustworthiness. The prosecutor then requested that the court allow him to play for the jury the tape of Ortiz's July 3rd statement to Detective Shawn in which Ortiz gave a more detailed account of the events. {7} Defendant was tried, convicted, and sentenced for first-degree murder as a serious youthful offender pursuant to NMSA 1978, 31-18-15.3(D) (1993), which allows a district court to sentence the offender to less than, but not exceeding, the mandatory term for an adult. NMSA 1978, 31-18-14(A) (1993) grants the district court discretion in sentencing minors who have been convicted of a capital felony: [I]f the defendant has not reached the age of majority at the time of the commission of the capital felony for which he was convicted, he may be sentenced to life imprisonment but shall not be punished by death. (Emphasis added.) Our resolution of this issue rests on whether the prosecutor's improprieties had such a persuasive and prejudicial effect on the jury's verdict that the defendant was deprived of a fair trial. Id. Based on these facts, we find that there are equivalent circumstantial guarantees of trustworthiness to make this statement admissible under Rule 11-803(X) and conclude that the trial court's determination that the evidence was admissible was not erroneous, arbitrary, or unwarranted. Moreover, counsel did not draw the jury's attention to it, and it was not repeated by counsel or the prosecutor. As quoted above, Ortega told the story in his own words. By Jovita Trujillo -Los Angeles March 03, 2023 11:14 PM EST Michael Douglas is sharing insight into his activities on the golf course with his wife, Catherine Zeta-Jones. {1} Defendant Chris Trujillo was convicted of first-degree depraved-mind murder, conspiracy to commit first-degree depraved-mind murder, aggravated assault, conspiracy to commit aggravated battery, conspiracy to commit shooting at a dwelling or occupied building (great bodily harm), conspiracy to commit shooting at a dwelling or occupied building (resulting in injury), shooting at a dwelling or occupied building (no injury), and conspiracy to commit shooting at a dwelling or occupied building (no injury).1 The jury found Defendant not guilty of aggravated battery, aggravated assault, shooting at a dwelling or occupied building (great bodily injury), and shooting at a dwelling or occupied building (resulting in injury). He was born and raised in Bernal, New Mexico to Ted Trujillo and LuAnna Bustamante. Trujillo v. Sullivan, 815 F.2d 597, 613 (10th Cir.1987). Thus, under our law, adults convicted of first-degree murder may appeal directly to the Supreme Court, as of right, because they will always be sentenced to life imprisonment or death, while it appears juvenile offenders convicted of first-degree murder may not be able to appeal their convictions directly to the Supreme Court because the trial court has discretion to sentence them to less than a life sentence. Verna Trujillo A in 2018 was employed in Northern New Mexico College and had a reported pay of $27,475 according to public records. 4. . See State v. Salgado, 1999-NMSC-008, 5-11, 126 N.M. 691, 974 P.2d 661; see also State v. Beachum, 83 N.M. 526, 527, 494 P.2d 188, 189 (Ct.App.1972) (A decision of the trial court will be upheld if it is right for any reason.). I do not think that Rule 11-803(X) allows the admission of his statement because the elements of that rule are not met, because the trial court did not seem to rely on that rule in its decision, and because the use of Rule 11-803(X) in this context seems contrary to its purpose. On the other hand, both facts also argue that the statement he gave was less than candid. We agree with the Court in State v. Ortiz-Burciaga, 1999-NMCA-146, 22, 128 N.M. 382, 993 P.2d 96, however, that under a substantial evidence review, [i]t is the exclusive province of the jury to resolve factual inconsistencies in testimony. We will not reweigh the evidence or substitute our judgment for that of the jury. 3. While we remind counsel of their obligations of civility and professionalism under the Rules of Professional Conduct, see e.g., Rule 16-804 NMRA 2002, we are not persuaded that this incident, or the trial judge's denial of the request for a continuance, resulted in prejudice to the Defendant. Second, the statement was more probative of the identity of the shooters than any other evidence the State could procure through reasonable efforts-in Ortiz's taped statement he indicated that there was a big guy wearing black jeans and a black t-shirt, presumably Allison, and a little guy wearing light blue jeans and a striped shirt, presumably Defendant, on the balcony and that the little guy did the shooting. San Juan County, New Mexico H2 Fact Sheet . {46} Finally, Defendant argues that defense counsel's failure to challenge the indictment for conspiracy to commit depraved-mind murder, a non-existent crime, constituted per se ineffectiveness. Four members of the army were placed under arrest Thursday and each face homicide, bodily injury and . We find there was sufficient evidence to convict Defendant of first-degree depraved-mind murder on either of these theories. Q. See e.g., Gonzales, 113 N.M. at 230, 824 P.2d at 1032 (finding that in order to prevail on his ineffective assistance of counsel claim, defendant had to first demonstrate that had his counsel moved for severance, the motion would have been granted). Christopher Raymond Trujillo, 1970 - 2007 Christopher Raymond Trujillo was born on month day 1970, at birth place, District of Columbia. 2023 March February January 2022 December November October September August . The dissent argues that our analysis under Rule 11-803(X) is misplaced because this exception cannot be read to mean that hearsay which almost, but not quite, fits another specific exception, may be admitted under the other exceptions' subsection Dissent 82 (quoting State v. Barela, 97 N.M. 723, 726, 643 P.2d 287, 290 (Ct.App.1982)). Because causation was at issue here, the jury was also instructed that: The cause of death is an act which, in a natural and continuous chain of events, produces the death and without which the death would not have occurred. Chris Trujillo in Albuquerque, NM 145 results - Chris Trujillo may also have lived outside of Albuquerque, such as Rio Rancho, Las Cruces and 2 other cities in New Mexico. {10} It is the duty of this court to interpret the various provisions of the Constitution to carry out the spirit of that instrument. Bd. {78} Both familial loyalty and fear of retaliation could lead to an inference that Ortiz would not have made the statement to the police unless he believed it to be true. While a life sentence has never been interpreted to mean a sentence to imprisonment for the duration of the defendant's natural life, it has been interpreted to mean thirty years of imprisonment before the possibility of parole or reduction of sentence through good time credits. Our mandatory appellate jurisdiction is constitutional and is limited to [a]ppeals from a judgment of the district court imposing a sentence of death or life imprisonment. N.M. Const. We do not find the trial court's decision to be arbitrary, capricious, or beyond reason. And I've instructed the State that that did not open the door and I don't want that pursued, but that's as far as I'm going to go. However, as Defendant did not raise this issue below, it was not properly preserved for appellate review. The jury had testimony from two other eyewitnesses, Ortiz and Ortega, that support its findings of guilt. The same motivation that influenced Ortiz to neglect to name the two men on the balcony would, I think, encourage him to shift the blame for the fatal shot from his cousin to Defendant. Arrangements made through Riverside Funeral Home of Santa Fe. The State has an affirmative duty to disclose any material evidence favorable to the defendant which the state is required to produce under the due process clause of the United States Constitution. Rule 5-501(A)(6) NMRA 2002. He earned his wings too soon on May 4, 2021. Furthermore, it is the policy of this Court to construe its rules liberally so that causes on appeal may be determined on their merits. As noted in State v. Swavola, 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct.App.1992), a prima facie case [of ineffective assistance] is not made when a plausible, rational strategy or tactic can explain the conduct of defense counsel. We find that defense counsel's failure to question Ortega about his alleged statements to Landaras and his failure to challenge his conflicting identifications can be explained as a rational trial strategy and therefore conclude that defense counsel was acting with reasonable competence, and, in any event, did not prejudice Defendant's case. {37} Defendant claims that he received ineffective assistance of counsel at every stage of the trial proceedings. Any danger inherent in a true identification of a gang member, however, would also seem to argue against the candor of such a statement, especially to the police. Invalid memorial . {17} In determining whether a statement is sufficiently trustworthy the statement must be inherently reliable at the time it is made. State v. Williams, 117 N.M. 551, 561, 874 P.2d 12, 22 (1994). For example, the prosecutor asked: Q. See State v. Mora, 1997-NMSC-060, 47 n. 1, 124 N.M. 346, 950 P.2d 789 (finding that defendant did not preserve the confrontation issue for appellate review because he did not timely object to the admission of [the deceased witness's] statement on confrontation grounds, nor did he timely object on general constitutional grounds); cf. STATE of New Mexico, Plaintiff-Appellee, v. Chris TRUJILLO, Defendant-Appellant. An isolated, minor impropriety ordinarily is not sufficient to warrant reversal, because a fair trial is not necessarily a perfect one. Allen, 2000-NMSC-002, 95, 128 N.M. 482, 994 P.2d 728 (internal quotation marks and citations omitted). Please try again. Trujillo, Casey On June 30, 2012, 19-year-old Cindy "Tig" Rivera left the home she shared with her father on Peggy Lee Lane in Las Vegas, New Mexico. Accordingly, defendant must still affirmatively prove prejudice. {60} Defendant's final claim is that the prosecutor aggravated the damage in closing by repeatedly referring to Jesus' story and identification as though it were valid evidence properly before the jury for consideration. {61} Defendant next asserts that the multiple conspiracy charges and convictions violate the Double Jeopardy Clause where there was no evidence of any agreement, let alone separate agreements to support separate charges. {24} Depraved-mind murder is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life. Section 30-2-1(A)(3). Leave a sympathy message to the family in the guestbook on this memorial page of . It cannot be invoked when the record as a whole demonstrates that the defendant received a fair trial. Id. Accordingly, we respectfully disagree with the dissent's reasoning on this point. Also the statements of Canas was that a skinny, thin Hispanic guy with acne was up on the balcony and a big-boned, heavyset guy with a ponytail significantly bigger than the thin Hispanic guy was up on the balcony and those are the two guys who committed the killing. Alejandro Trujillo was one of five men who were shot dead by soldiers in Nuevo Laredo, Mexican. Chris Trujillo. Defendant maintains that the only testimony regarding the sequence of events surrounding the shooting was from Ortega who testified that Allison shot at Mendez multiple times before Defendant took the gun and shot towards Canas and Ortega. Cf. Christopher John Trujillo was born on March 30, 1991. See Danzer v. Prof'l Insurors, Inc., 101 N.M. 178, 180, 679 P.2d 1276, 1278 (1984); see also Govich v. N. Am. Christopher Trujillo in New Mexico 283 people named Christopher Trujillo found in Albuquerque, Santa Fe and 6 other cities. View Chris Trujillo results in New Mexico (NM) including current phone number, address, relatives, background check report, and property record with Whitepages. Defendant also does not dispute that he knew this act was greatly dangerous to the lives of others. Evidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory. The email address cannot be subscribed. A. I concur in parts II, III(A), IV, V, VI, VIII, IX and XI. This Constitutional provision is buttressed by Rule 12-102(A)(1) and NMSA 1978, 34-5-8(A)(3) (1983) which reiterate this limitation to our jurisdiction. Defendant argues there is insufficient evidence to establish elements one and three beyond a reasonable doubt-that Defendant intended for Allison to shoot and kill Mendez and that Defendant helped or encouraged him to do it. 1555, 131 L.Ed.2d 490 (1995), Defendant had knowledge of these two men's juvenile records and has not demonstrated any prejudice which resulted from the State's failure to provide that information. Counsel's failure to ask Ortega about this alleged inconsistent identification could have been a rational trial strategy. "Watching your passion for students and your support of one another has been a privilege and an honor," wrote Trujillo, in this open letter to . Second, Ortiz's ranking out of the Barelas gang offered a plausible explanation for the start of the quarrel; his former comrades objected to Ortiz showing back up at the scene of his disgrace. Brandon Trujillo in New Mexico Bernalillo County. The prosecutor sought to show that Ortiz was aligned with the Barelas, not the Juaritos Maravilla gang. However, this conviction has been vacated, and Defendant has not demonstrated that had he timely challenged this indictment he would have been acquitted of his other convictions. 2001) (Although there was initially some debate about the meaning of this phrase, [not specifically covered by any of the foregoing exceptions,] the majority of circuits have concluded that the phrase means only that, if a statement is admissible under one of the hearsay exceptions, that exception should be relied on instead of the residual exception. . However, during cross-examination, defense counsel questioned Detective Shawn about Ortega's alleged statement to Landaras, specifically attacking his failure to follow-up on this information known by one of his detectives, Detective Martinez. Despite Defendant's objections, the court admitted the evidence pursuant to Rules 11-803(E), 11-803(X), 11-804(A)(3), and 11-612 NMRA 2002. His fear could have had the same effect on his statement to the police. He was shooting, and these guys over here took the gun away from his hands and started shooting at me and Jesus. We therefore find no error. An autopsy report shows Gustavo Surez, a 21-year-old American, was shot 12 times after he failed to stop while being chased by Mexican soldiers, who opened fired after he crashed. The State concedes that this conviction must be vacated because this Court has explicitly held that this is not a cognizable crime in New Mexico. PAMELA B. MINZNER, Justice (concurring in part, dissenting in part).