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State v. Torres12/3/1998
{1} Defendant Jerry Torres appeals his convictions of first degree depraved-mind murder, see NMSA 1978, § 30-2-1(A)(3) (1994), aggravated battery with a firearm (two counts), see NMSA 1978, § 30-3-5(C) (1969), aggravated assault with a firearm (three counts), see NMSA 1978, § 30-3-2(A) (1963), and shooting at a dwelling or occupied building, see NMSA 1978, § 30-3-8(A) (1993), each of which was obtained following a jury trial. Defendant Torres contends on appeal that the trial court erred in admitting the out-of-court statement of a prosecution witness. We affirm.
I. Facts
{2} On the night of December 31, 1995, Defendant Torres attended a New Year's Eve party (the South Spruce party) in Roswell, New Mexico. Sometime before midnight, occupants of a passing car fired several gunshots in the direction of the South Spruce party. Shortly thereafter, several individuals from the South Spruce party drove to another party (the West Deming party) several blocks away, and two people, one with a shotgun and one with a nine-millimeter pistol, fired into a crowd standing in the front yard. The latter shooting resulted in the death of Robert Bonilla and injuries to Elizabeth Galindo and Billy Ray Castillo. Police later learned that a nine-millimeter gun caused the death and the injuries to these individuals. The State accused Defendant Torres of firing the nine-millimeter gun into the crowd and charged him with, inter alia, depraved-mind murder.
{3} At trial, the State introduced the testimony of several witnesses from the West Deming party. The witnesses identified the car and described the shooting, testifying that one of the assailants yelled, "Westside," which was allegedly a gang reference. The witnesses, however, were unable to identify the assailants. The State also introduced the testimony of Russell Lueras. Lueras testified that he attended the South Spruce party, which he described as being a Westside gang party and which was held at Jimmy Barela's house. At the time of the first shooting, Defendant Torres, Lueras, Earsley Chico Barnett, and Jimmy Barela were standing outside and heard the gunshots. After determining that the bullets had hit an acquaintance's van, Lueras shined the lights of his car on the van to get a closer look. At that time, unidentified individuals in a car drove by to tell them where the other car had gone. After Defendant Torres and Chico Barnett got into his car, Lueras then drove to the West Deming party. Lueras testified that, when he stopped across the street from the party, Defendant Torres exited the driver's side door from the backseat, with Lueras leaning forward, and Chico Barnett exited the passenger side. Lueras testified that, even though he was armed, he remained in the car because another car in front of him had its lights shining into his car and made him nervous. A few seconds after Defendant Torres and Chico Barnett got out of the car, Lueras heard several gunshots. He testified that he did not see who was firing or what type of gun Defendant Torres or Chico Barnett had at the time. However, Lueras testified that, upon returning to the South Spruce party, he saw Chico Barnett get out of his car holding a shotgun and Defendant Torres holding a nine-millimeter gun.
{4} The State also called Chico Barnett to testify regarding the shooting at the West Deming party. At the time he testified, Barnett had already pleaded guilty to two counts of aggravated battery, one count of aggravated assault, and one count of shooting at a dwelling in connection with the shooting at the West Deming party and had been sentenced to twelve years imprisonment. Barnett testified that he had no agreement with the State for his sentencing or in return
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