{44} IT IS SO ORDERED. 13
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DAVID K. THOMSON, Chief Justice 2
WE CONCUR: 3
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MICHAEL E. VIGIL, Justice 5
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JULIE J. VARGAS, Justice 7
C. SHANNON BACON, Justice, dissenting 8
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BACON, Justice (dissenting in part). 1
{45} The State's evidence supporting the charge of conspiracy to commit first-2 degree murder by deliberate killing was thin. Because the evidence was purely 3 circumstantial, the jury necessarily drew inferences to arrive at facts of consequence. 4 The validity of those inferences gives me pause. They were not reasonable ones 5 grounded in logic, sense, or reason. Instead, each necessary inference was either an 6 implausible one based on overly broad generalizations and conjecture, or a plausible-7 but-improbable one selected from equally plausible competing inferences. So, 8 although I join the majority in denying Defendant's claims that he was deprived of 9 a fair trial and received ineffective assistance of counsel, I respectfully dissent from 10 its holding that there was sufficient evidence supporting Defendant's conviction for 11 conspiracy to commit first-degree murder by deliberate killing. 12
I. SUFFICIENCY OF THE EVIDENCE 13
{46} This Court follows a deceptively simple test to determine whether a criminal 14 conviction is supported by sufficient evidence. First, the evidence is viewed in the 15 light most favorable to the verdict. State v. Trossman, 2009-NMSC-034, ¶ 16, 146 16 N.M. 462, 212 P.3d 350. Then, this Court must make "'a legal determination of 17 whether the evidence viewed in this manner could justify a finding by any rational 18 trier of fact that each element of the crime charged has been established beyond a 19
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reasonable doubt.'" Id. (quoting State v. Lopez, 2008-NMCA-111, ¶ 14, 144 N.M. 1 705, 191 P.3d 563). Although appellate courts are highly deferential to a jury's 2 decisions, it is "the independent responsibility of the courts to ensure that the jury's 3 decisions are supportable by evidence in the record, rather than mere guess or 4 conjecture." State v. Vigil, 2010-NMSC-003, ¶ 4, 147 N.M. 537, 226 P.3d 636 5 (internal quotation marks and citation omitted). This principle necessarily requires a 6 reviewing court to distinguish between conclusions based on reasonable inferences 7 and those based on speculation—not always a straightforward task. See Romero v. 8 State, 1991-NMCA-042, ¶ 38, 112 N.M. 291, 814 P.2d 1019 ("[T]he line between 9 speculation and reasonable inference is not always clear."), rev'd in part on other 10 grounds, 1991-NMSC-071, 112 N.M. 332, 815 P.2d 628. 11
{47} In determining the line between reasonable inference and speculation, we 12 have recognized "[e]vidence equally consistent with two hypotheses tends to prove 13 neither . . . [and] does not, without more, provide a basis for adopting either one—14
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especially beyond a reasonable doubt."1State v. Garcia, 1992-NMSC-048, ¶ 32, 114 1 N.M. 269, 837 P.2d 862 (internal quotation marks and citation omitted). Put another 2 way, if evidence plausibly, but could not probably, lead to a particular inference 3 because the evidence—in the light most favorable to the verdict—equally supports 4 multiple inferences, then any conclusion by the trier of fact would necessarily entail 5 guesswork. See State v. Stephenson, 2017-NMSC-002, ¶ 26, 389 P.3d 272 6 ("Evidence from which a proposition can be derived only by speculation among 7 equally plausible alternatives is not substantial evidence of the proposition." (text 8
1 This concept is divisive, but maintains acceptance in a number of jurisdictions. See Linton v. Saba, 812 F.3d 112, 123 (1st Cir. 2016) ("Where any reasonable jurist would conclude that evidence viewed in the light most favorable to the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence . . . this Court must reverse because equipoise is tantamount to reasonable doubt." (internal quotations marks and citation omitted)); United States v. Weidner, 437 F.3d 1023, 1032 (10th Cir. 2006) ("[W]here such evidence is equally consistent with both guilt and innocence the conviction cannot be sustained."
(internal quotation marks and citation omitted)); United States v. Louis, 861 F.3d 1330, 1333 (11th Cir. 2017) ("If the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt." (text only) (citation omitted)). However, it is not without its criticisms. See State v. Wall, 2020 UT App 36, ¶ 54, 460 P.3d 1058 ("[T]he fact that we can identify an equally plausible alternative inference is not nearly enough to set [a] verdict aside." (second alteration in original) (internal quotation marks and citation omitted)); State v. Chaney, 967 S.W.2d 47, 54 (Mo.
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only)2(citation omitted)). Probability is the ingredient that separates a reasonable 1 inference from speculation. See United States v. Summers, 414 F.3d 1287, 1295 2 (10th Cir. 2005) ("An inference is reasonable if it flows from logical and 3 probabilistic reasoning, i.e., with experience serving as the touchstone, a jury's 4 inference is permissible where there is a reasonable probability that the conclusion 5 flows from the facts in evidence." (emphasis added) (internal quotation marks and 6 citation omitted)). 7
{48} Because this Court must not reweigh evidence nor substitute our judgment for 8 that of the trier of fact, see State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 9 P.3d 72, the question for us is whether a reasonable trier of fact could find the 10 inference to be probably true when viewing the evidence in the light most favorable 11
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to the verdict.3Cf. Huddleston v. United States, 485 U.S. 681, 690 (1988) ("In 1 determining whether the [g]overnment has introduced sufficient evidence to meet 2 [Federal] Rule [of Evidence] 104(b), the trial court neither weighs credibility nor 3 makes a finding that the [g]overnment has proved the conditional fact by a 4 preponderance of the evidence. The court simply examines all the evidence in the 5 case and decides whether the jury could reasonably find the conditional fact . . . by 6 a preponderance of the evidence." (emphasis added)); see generally David S. 7
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Schwartz, A Foundation Theory of Evidence, 100 Geo. L.J. 95, 126 (2011) ("Indeed, 1 foundation is the burden of production applied on a more specific level of detail, to 2 items of evidence rather than to a claim as a whole. That accounts for why the 3 standard is the same for both: evidence sufficient to support a finding."). 4
{49} In this case, in order for the State to prove conspiracy to commit murder it 5 needed to prove Defendant agreed with another to commit first-degree murder by 6 deliberate killing, and Defendant and another intended to commit first-degree 7 murder by deliberate killing. The majority is right in concluding that the State 8 presented sufficient evidence to prove Defendant and another, Jaramillo, arrived at 9 an agreement to commit some act. However, the State did not present sufficient 10 evidence to show murder was the objective of the agreement, or Jaramillo intended 11 to commit murder. 12
{50} As discussed next, each of the evidentiary components of the State's case—13 viewed individually and then as a whole—falls short of establishing murder was the 14 objective of the agreement between Defendant and Jaramillo. 15
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II. ANALYSIS 1
A. Evidentiary Components 2
1. Jaramillo's knowledge of Defendant's motive 3
{51} Jaramillo testified that Defendant told her he was in debt for $50,000 and his 4 aunt kept a large amount of cash in her house. While evidence of motive can be used 5 to support an inference of intent, mere knowledge of motive does little to prove 6 agreement or intent. See State v. Rojo, 1999-NMSC-001, ¶ 24, 126 N.M. 438, 971 7 P.2d 829 (concluding the physical evidence supported deliberate intent "[w]hen 8 combined with the evidence concerning [the d]efendant's motive for the killing"); 9 State v. Motes, 1994-NMSC-115, ¶ 14, 118 N.M. 727, 885 P.2d 648 (considering 10 evidence of motive in assessment of whether the defendant had a deliberate intent to 11 kill). Even though Jaramillo knew why Defendant may have wanted to kill the 12 victim, it does not follow that she knew Defendant intended to do so, nor does it lead 13 to a plausible inference that she shared that motive. Further, considering Defendant's 14 motive was to get money, the State did not introduce evidence to show that killing 15 was a necessary or preferred method to accomplish the motive, and so there was a 16 gap between the motive of theft and the act of killing left unfilled by the State. 17
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2. Jaramillo accompanied Defendant to visit the victim a week prior 1
{52} The majority concludes because Jaramillo accompanied Defendant to visit the 2 victim a week prior to the murder, a reasonable inference could be that Jaramillo 3 agreed to and intended to commit murder. While I agree that Jaramillo's presence 4 during this visit is sufficient to establish Defendant and Jaramillo had some sort of 5 agreement to commit a crime involving the victim, nothing about the joint visit could 6 reveal the probable crime. The State presented no evidence that could support a 7 logical link between the visit to the victim and the planning of her murder, as 8 opposed to planning any other criminal act against her. 9
3. Jaramillo was with Defendant when he purchased zip ties 10
{53} The State's evidence revealed, despite her assertions to the contrary, Jaramillo 11 knew Defendant purchased zip ties and those zip ties could have been the same ones 12 used in the murder. While Jaramillo's knowledge of the purchase of zip ties could 13 lead to an inference that she and Defendant agreed to enact some criminal plan, zip 14 ties do not prove murder could have been the likely plan. Zip ties, unlike a gun or 15 hatchet or poison, could not lead to a probable inference of killing because many 16 crimes against people involve restraint or fastening, and the State presented no 17 evidence that Jaramillo knew or intended the zip ties would be used for such 18 purposes during the course of a murder. That the zip ties were eventually used by 19
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Defendant in the murder could not support a probable inference that Jaramillo knew 1 or intended they would be used in such a way, as opposed to being used for any other 2 crime involving restraint or fastening, because she was not present during the killing. 3
4. Jaramillo drove separately to the victim's neighborhood 4
{54} In its briefing, the State characterized the fact that Jaramillo drove to the 5 victim's neighborhood separately as "odd." Oddities are the stuff of reasonable 6 suspicion, not proof beyond a reasonable doubt. Characterizing the behavior as 7
"odd" revealed the State itself could not find the logical link between driving 8 separately and Jaramillo's agreement and intent to commit murder. The State's 9 inability to articulate a logical link is understandable because there is not one. While 10 driving separately and meeting at the same location could clearly show a scheme and 11 plan, nothing about it makes murder a plausible plan. Without more, carpooling only 12 circumstantially proves agreement, but has no tendency to show the objective of the 13 agreement was murder. 14
5. Defendant and Jaramillo got high in Defendant's truck 15
{55} Like the fact that Jaramillo drove separately, the State characterized 16 Defendant's and Jaramillo's drug use prior to the murder as "odd." For this fact, I 17 disagree with that characterization, and believe drug use could have a reasonable 18 explanation: viewed in the light most favorable to the State, drug use could 19
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circumstantially show Defendant and Jaramillo were preparing to commit a crime, 1 and they decided to alter their states of mind in order to help them do it. However, 2 even assuming Defendant and Jaramillo intended to alter their states of mind with 3 drugs, nothing about the drug use itself could reveal they both likely intended to 4 commit murder rather than any other crime. 5
6. The murder 6
{56} I am cautious when examining the probative value of after-the-fact evidence 7 because of its limited value in demonstrating earlier intent, in addition to the simple 8 fact that hindsight bias can interfere with the reasoning process. That said, and with 9 regard to the issues at hand, I accept that in certain circumstances the act of murder 10 may circumstantially prove conspiracy to commit murder. See State v. Torres, 2018-11 NMSC-013, ¶ 51, 413 P.3d 467 (holding sufficient evidence supported conspiracy 12 to commit murder when, inter alia, Defendant "went to the shooting scene [with two 13 co-conspirators] before the shots were fired, [then] he ran back from the scene 14 smelling like 'burned matches' immediately after the shots were fired"); State v. 15 Lopez, 2005-NMSC-036, ¶ 25, 138 N.M. 521, 123 P.3d 754 (holding sufficient 16 evidence supported conspiracy to commit first-degree felony murder when 17 Defendant and co-conspirator "threw [the victim] into the well while he was alive 18
. . . that they carefully, deliberately, even painstakingly first opened, then covered, 19
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and finally re-sealed the well supports an inference that they reached an agreement 1 to kill [the victim] in the course of the robbery and that both intended his death"); 2 State v. Nieto, 2000-NMSC-031, ¶ 29, 129 N.M. 688, 12 P.3d 442 (holding sufficient 3 evidence supported conspiracy to commit first-degree murder when the defendant, 4 inter alia, incapacitated a witness while co-conspirators murdered and robbed 5 victims). In this case, however, the act of murder itself was not probative of 6 Defendant's and Jaramillo's agreement and intent to commit murder because of the 7 way the murder occurred. The State presented no evidence showing Jaramillo did 8 anything more than wait outside the house to stand lookout. Standing lookout could 9 not lead to a probable inference that Jaramillo agreed and intended to commit murder 10 because the concept of having a lookout is not logically connected with murder more 11 than any other crime or nefarious act. Considering the State's motive evidence, the 12 clear alternative front-runner would be robbery. Further, the act of murder was done 13 completely by Defendant with no physical help from Jaramillo, and outside her 14 presence. The State needed to put forward any fact about the murder probative of 15 mutual agreement and intent to commit murder specifically. However, no such fact 16 was presented, and thus the evidence left open a gap wherein inferences of 17 agreement and intent to commit non-murder were equally as plausible as murder. 18 Accordingly, the murderous act itself was not sufficient to prove it was the intended 19
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objective of any agreement between Defendant and Jaramillo. See Summers, 414 1 F.3d at 1295, 1297 (holding "evidence of mere association or presence, even when 2 coupled with evidence of flight, is not enough to support a conspiracy conviction," 3 where government had to prove elements of "(1) an agreement between two or more 4 persons to break the law, (2) an overt act in furtherance of the conspiracy's objects, 5 and (3) that the defendant willfully joined in the conspiracy" (internal quotation 6 marks and citation omitted)). 7
7. Conduct after the murder 8
{57} A defendant's state of mind prior to an act is the central inquiry of a crime 9 based on deliberate intent. See Rule 14-201 NMRA ("The word deliberate means 10 arrived at or determined upon as a result of careful thought and the weighing of the 11 consideration for and against the proposed course of action."). The State argues, and 12 the majority agrees, Jaramillo's conduct following the murder circumstantially 13 proves agreement and intent to commit murder. True, conduct following a crime can, 14 in some instances, prove premeditation or deliberation by revealing a defendant's 15 state of mind prior to the crime. See Torres, 2018-NMSC-013, ¶¶ 6, 51 (holding that 16 a co-conspirator's statement to the defendant saying, "Oh we got the wrong . . . guy," 17 was sufficient, inter alia, to prove conspiracy to commit first-degree murder). 18 However, in this case Jaramillo's conduct after the murder showed nothing to prove 19
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her state of mind prior to the murder, and I am reluctant to assign meaning to after-1 the-fact conduct that lacks a logical connection to the crime charged. 2
{58} First, Jaramillo drove away from the victim's house with Defendant, 3 abandoning her rental car nearby. Assigning some further reason or significance to 4 this act could only amount to pure speculation because abandoning a car has no 5 logical link to a prior agreement nor intent to commit murder. At most, it could show 6 a consciousness of guilt as to some involvement in the crime, but it is not indicative 7 of Jaramillo's state of mind prior to the crime. See Garcia, 1992-NMSC-048, ¶ 31 8 (holding the defendant's attempt to conceal his identity from police "did not give 9 rise to any inference as to his state of mind before the [killing]"). 10
{59} Second, Jaramillo accepted some of the stolen money when Defendant gave 11 it to her. Even viewing this evidence in the light most favorable to the State, which 12 at most could support the conclusion that Jaramillo knew Defendant intended to steal 13 money from the victim, the fact that Jaramillo accepted some of it does not plausibly 14 support the conclusion that she agreed, intended, or even knew Defendant was going 15 to kill the victim. Nothing about accepting the fruits of the crime indicated, in this 16 case, Jaramillo's state of mind prior to the crime. See id. 17
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B. The Evidence as a Whole 1
{60} Even though no individual evidenced fact suggested Defendant and Jaramillo 2 both agreed and intended to commit murder, sufficiency review requires evidence 3 be viewed as a whole. State v. Gutierrez, 2021-NMSC-008, ¶ 61, 482 P.3d 700 ("We 4 view the evidence as a whole and in the light most favorable to the [s]tate."); State 5
v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285 ("Th[e] divide-and-6 conquer approach is not contemplated in appellate review for sufficiency of the 7 evidence."). In this case, the evidence as a whole could not lead a trier of fact to 8 conclude Jaramillo conspired with Defendant to commit murder without filling in 9 gaps with speculation. The primary gap the State did not—or could not—fill 10 involved showing what crime, specifically, Jaramillo agreed to and intended to 11 commit. While the triers of fact could have drawn reasonable inferences about 12 Jaramillo's agreement and intent to commit some criminal act, any trier of fact would 13 have needed to look beyond the evidence in order to convict for conspiracy to 14 commit murder. See State v. Slade, 2014-NMCA-088, 331 P.3d 930 (stating while 15 permissible logical inferences may be drawn from the facts, if they "'must be 16 buttressed by surmise and conjecture' in order to convict, the conviction cannot 17 stand" (quoting State v. Tovar, 1982-NMSC-119, ¶ 8, 98 N.M. 655, 651 P.2d 1299)). 18 Leading up to the killing, there was not a single fact that could show Jaramillo 19
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probably agreed to or intended to commit murder more than any other potential 1 crime. Because a murder eventually occurred, it would be tempting for any trier of 2 fact to work backwards and view every act between Defendant and Jaramillo to fit 3 the outcome. Outcome-driven reasoning, however, is highly susceptible to 4 conflating correlation with causation, which can lead to erroneous outcomes based 5 not on logical inferences, but speculation that conveniently fits the verdict. That is 6 what occurred in this case. Whatever happened in the house between Defendant and 7 the victim was inevitably going to be taken as the purpose of a conspiracy between 8 Defendant and Jaramillo. While the evidence supported the jury's conclusion that a 9 conspiracy indeed existed, the State did not present sufficient evidence to show 10 murder was the objective of the conspiracy. When a conclusion drawn from evidence 11 is implausible, or plausible but improbable because equally (or more) plausible 12 alternatives exist, speculation, guesswork, and conjecture are necessary to support a 13 finding of guilt beyond a reasonable doubt. See Schwartz, supra, at 146 ("'Plausible 14 fictionalizing' is a very good definition of speculation."). Because the jury in this 15 case necessarily speculated to reach its guilty verdict on the charge of conspiracy to 16 commit first-degree murder by deliberate killing, I respectfully dissent. 17
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C. SHANNON BACON, Justice 19
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