State v. Duhart

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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Supreme Court. 1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Filing Date: November 13, 2026 3 STATE OF NEW MEXICO, 4 Plaintiff-Appellee, 5 v. NO. S-1-SC-40734 6 RASHAWD DASHON DUHART, 7 Defendant-Appellant. 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 9 Bruce C. Fox, District Judge 10 Bennett J. Baur, Chief Public Defender 11 Santa Fe, NM 12 Steven J. Forsberg, Assistant Appellate Defender 13 Albuquerque, NM 14 for Appellant 15 Raúl Torrez, Attorney General 16 Santa Fe, NM 17 Charles J. Gutierrez, Senior Solicitor General 18 Albuquerque, NM 19 for Appellee 20 DECISION 21 VARGAS, Chief Justice. 22 {1} Defendant Rashawd Duhart appeals from his convictions for first-degree  1 willful and deliberate murder, armed robbery, conspiracy to commit armed robbery, 2 and shooting at or from a motor vehicle. He raises three issues. First, he argues the 3 district court abused its discretion by allowing the State to introduce hearsay 4 statements made by Victim Andres Loera prior to his death. Second, he contends the 5 district court erred by extending the 180-day time limit for trial under the Interstate 6 Agreement on Detainers (IAD), NMSA 1978, § 31-5-12, art. 3(A) (1971), without 7 good cause. Third, he asserts he received ineffective assistance of counsel because 8 trial counsel did not move to sever his trial from that of a codefendant. 9 {2} We find no merit in these arguments. However, we determine sua sponte that 10 Defendant’s conviction for shooting at a motor vehicle and first-degree murder arise 11 from unitary conduct and therefore violate double jeopardy. As such, we remand to 12 the district court to vacate the conviction for shooting at a motor vehicle. We affirm 13 Defendant’s remaining convictions. We exercise our discretion to dispose of this 14 appeal by nonprecedential decision. Rule 12-405(B) NMRA. Accordingly, we limit 15 our discussion to the law and the facts necessary to decide the issues raised. See State 16 v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d 361 (explaining that 17 nonprecedential decisions are written solely for the benefit of the parties, who know 18 the details of the case). 19 I. BACKGROUND 2  1 {3} In the early morning hours of February 13, 2020, a resident of a Northeast 2 Albuquerque neighborhood heard what he thought were rocks being thrown at his 3 home. He went outside and discovered Victim slumped in the driver’s seat of a 4 parked car, unresponsive and bleeding heavily from four gunshot wounds. Victim 5 was clutching $80 in his hand. A loaded gun, which had not been fired, lay at his 6 feet. Twelve bullet casings were found near Victim’s car. Three casings were from 7 a 9mm firearm, and nine casings were from a .22 caliber rifle. 8 {4} On March 3, 2020, an officer with the Jemez Police Department stopped a car 9 in which Defendant and four companions were riding. The officer saw a .22 caliber 10 rifle wedged in the driver’s door. A subsequent search revealed additional weapons, 11 including a 9mm handgun. Forensic testing linked those weapons to the killing: the 12 bullet casings found on the scene of the homicide matched the firing patterns from 13 the .22 caliber rifle and 9mm handgun located during the traffic stop. 14 {5} During the traffic stop, police also recovered cell phones belonging to 15 Defendant and two of his companions, Codefendants Ryan Baca and Serina Burks. 16 Police extracted social media account data, messages, photographs, and videos from 17 the phones. In one video posted to Defendant’s Facebook account and saved on 18 Baca’s phone on February 7, 2020, Codefendants Baca and Burks told him he 19 needed “to come home—ASAP!—cause we tryna rob a motherfucker.” At 1:12 a.m. 3  1 on February 13, 2020, Codefendant Burks posted in a Facebook group chat 2 indicating her desire to purchase marijuana. Victim responded to Codefendant 3 Burks’s post, and over the next hour, Codefendant Burks and Victim negotiated a 4 sale of one ounce of marijuana for $180. During that time, Defendant was also 5 messaging people on Facebook trying to negotiate a marijuana deal. Between 2:28 6 a.m. and 3:00 a.m., Codefendant Burks and Victim were messaging while en route, 7 discussing where specifically to meet. The conversation ended at 3:00 a.m. with 8 Codefendant Burks telling Victim that she was “comin’ in now” and “U fin see.” 9 Officers were dispatched to the scene of the shooting at 3:03 a.m. 10 {6} At Defendant’s trial, which was joined with the trial of Codefendant Baca, a 11 coconspirator named Markell Barnes testified for the State. Barnes testified that he 12 was with Defendant and both Codefendants when Codefendant Burks suggested that 13 they find someone to rob. They planned for Barnes to purchase marijuana while the 14 others waited in the car. Defendant would then “pop out” with his .22 caliber rifle, 15 and Barnes would grab the money back. 16 {7} Barnes approached Victim and purchased the marijuana. While he was taking 17 the money back, Barnes heard gunshots and ran back to the car. He saw Defendant 18 outside the car. Barnes testified that Defendant and Codefendant Baca were the 19 shooters. 4  1 {8} The jury found Defendant guilty of willful and deliberate first-degree murder, 2 NMSA 1978, § 30-2-1(A)(1) (1994); armed robbery, NMSA 1978, § 30-16-2 3 (1973); conspiracy to commit armed robbery, NMSA 1978, § 30-28-2 (1979); and 4 shooting at a motor vehicle, NMSA 1978, § 30-3-8(B) (1993). The jury also found 5 that a firearm was used in the commission of the armed robbery, NMSA 1978, § 31- 6 18-16(A) (2022). Accordingly, the district court sentenced Defendant to life in 7 prison plus ten years, run consecutively to a sentence he was serving in Oregon. 8 Defendant appeals directly to this Court. See N.M. Const. art. VI, § 2 (“Appeals from 9 a judgment of the district court imposing a sentence of death or life imprisonment 10 shall be taken directly to the supreme court.”); accord Rule 12-102(A)(1) NMRA. 11 Further facts will be developed as necessary to the discussion. 12 II. DISCUSSION 13 A. Testimony Regarding Victim’s Statements to His Sister About His Plan 14 to Sell Marijuana Were Properly Admitted Under Rule 11-803(3) NMRA 15 {9} Defendant’s first contention is that Victim’s sister should not have been 16 permitted to testify that, on the night of his murder, Victim stated he was leaving the 17 house for the purpose of selling marijuana to “some girl named Serina” and that it 18 was “the first time” he had sold marijuana to her. 5  1 1. Standard of review 2 {10} Defendant argues that this issue was preserved by timely objection at trial. 3 Therefore, Defendant states, we would normally review for abuse of discretion. 4 However, he further states that because his challenge is based on the Confrontation 5 Clause of the Sixth Amendment to the United States Constitution, this issue presents 6 a question of law that we should review de novo. The State counters that Defendant’s 7 trial objection did not properly preserve the issue because defense counsel “did not 8 object to the particular testimony challenged in this appeal that [Victim] stated he 9 was going to sell to a girl named Serina,” but only to testimony about Victim’s 10 demeanor and statement that he had never sold to Serina before. Therefore, the State 11 urges us to apply a plain error standard of review. In the alternative, the State argues 12 that the standard of review should be abuse of discretion and nonconstitutional 13 harmless error. 14 {11} Defendant has not shown that this issue implicates his rights under the 15 Confrontation Clause, which guarantees a defendant the right to cross-examine the 16 declarant of a testimonial statement. See generally Crawford v. Washington, 541 17 U.S. 36 (2004). “Statements are testimonial when the primary purpose of the 18 interrogation is to establish or prove past events potentially relevant to later criminal 6  1 prosecution.” State v. Navarette, 2013-NMSC-003, ¶ 8, 294 P.3d 435 (text only)1 2 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006) (relying on Crawford, 541 3 U.S. at 52-53)). Defendant makes no effort to show how Victim’s statements to his 4 family members explaining his reasons for leaving the house could be considered 5 testimonial and thereby implicate the Confrontation Clause. Nor do we see how they 6 could have been. See, e.g., State v. Gurule, 2013-NMSC-025, ¶ 38, 303 P.3d 838 7 (noting that a mother’s statement to her son was more like “a casual remark to an 8 acquaintance than . . . a formal statement to a government official” and did not fall 9 under the protections of the Confrontation Clause). Therefore, we decline 10 Defendant’s invitation to review the admission of this evidence de novo. See 11 Crawford, 541 U.S. at 68 (“Where nontestimonial hearsay is at issue, it is wholly 12 consistent with the Framers’ design to afford the States flexibility in their 13 development of hearsay law,” including “an approach that exempt[s] such 14 statements from Confrontation Clause scrutiny altogether.”). 15 {12} Instead, we assume without deciding that the issue was adequately preserved 16 through defense objection at trial. Accordingly, we review the admission of the 1 “(Text only)” indicates the omission of nonessential punctuation marks— including internal quotation marks, ellipses, and brackets—that are present in the text of the quoted source, leaving the quoted text otherwise unchanged. 7  1 evidence for an abuse of discretion. See State v. Soto, 2025-NMSC-051, ¶ 42, 580 2 P.3d 781 (“If an evidentiary issue is preserved by objection, we review the district 3 court’s decision to admit or exclude evidence for an abuse of discretion, which 4 means the decision was clearly against the logic and effect of the facts and 5 circumstances of the case.” (text only) (quoting State v. Bregar, 2017-NMCA-028, 6 ¶ 28, 390 P.3d 212)) “Discretion is the authority of a district court judge to select 7 among multiple correct outcomes. . . . If proper legal principles correctly applied 8 may lead to multiple correct outcomes, deference is given to the district court judge 9 because if reasonable minds can differ regarding the outcome, the district court judge 10 should be affirmed.” State v. Ferry, 2018-NMSC-004, ¶ 2, 409 P.3d 918. 11 2. Victim’s statements were properly admitted under Rule 11-803 12 {13} Hearsay is an out of court statement that is offered into evidence to prove the 13 truth of the matter asserted. Rule 11-801(C) NMRA. Hearsay is not admissible 14 unless an exception applies, Rule 11-802 NMRA, such as those set forth in Rule 11- 15 803. Rule 11-803 exceptions include “[a] statement of the declarant’s then-existing 16 state of mind (such as motive, intent, or plan).” Rule 11-803(3). “This exception . . . 17 is based on the assumption that such statements are trustworthy because it is unlikely 18 that the declarant would inaccurately perceive his or her own state of mind.” 6 19 Barbara E. Bergman, Nancy Hollander & Theresa M. Duncan, Wharton’s Criminal 8  1 Evidence § 70:1 (15th ed. 2001; 15th ed. Cumulative Supplement Nov. 2020). 2 {14} Defendant argues that this exception does not apply to Victim’s statement 3 regarding his plan to sell marijuana; however, because his statement “did not only 4 relay his intent, but because it named Ser[i]na it was circumstantial evidence that 5 her intent was also to meet for a drug transaction.” For authority, Defendant relies 6 on a single out of state case, D.R.C. v. State, 908 N.E.2d 215 (Ind. 2009), and the 7 cases that court cited in a footnote. Besides being nonbinding precedent, that case is 8 readily distinguishable. In D.R.C., the decedent wife’s statement that “‘she was 9 expecting her husband home between 7:00 and 7:30,’” id. at 225, was used at trial 10 to show that the defendant had actually arrived home at that time and murdered the 11 wife, id. at 227. The Indiana Supreme Court held that the statement was inadmissible 12 under Indiana’s equivalent to Rule 11-803(3) because “the wife did not say, ‘I plan 13 to be home between 7:00 and 7:30 p.m.’ Rather, her statement more directly relayed 14 her belief about the defendant’s future act of returning home.” Id. at 226-27. 15 {15} Unlike D.R.C., in this case, Victim’s statements squarely indicated his own 16 then-existing intent or plan to leave the house and sell marijuana to his new customer 17 named Serina. Such statements are “recognized as admissible to prove subsequent 18 conduct. Thus, out-of-court statements that tend to prove a plan, design, or intention 19 of the declarant may be received . . . to prove that the plan, design, or intention of 9  1 the declarant was carried out by the declarant.” 2 Robert P. Mosteller, ed., 2 McCormick on Evidence § 275 (8th ed. 2020). A declarant’s plan that happens to 3 encompass meeting with another person has been held to be admissible in New 4 Mexico and elsewhere. See, e.g., State v. Aragon, 2026-NMSC-008, ¶ 21 n.4, 593 5 P.3d 596 (May 11, 2026) (affirming the admissibility under Rule 11-803(3) of the 6 Victim’s statement that she planned to speak to the defendant about their relationship 7 on the weekend she was murdered); see also Mut. Life Ins. Co. of N.Y. v. Hillmon, 8 145 U.S. 285, 295-96 (1892) (holding as admissible a letter which stated the 9 decedent “had the intention of going” on a trip “with Hillmon” because the letter 10 “made it more probable both that he did go and that he went with Hillmon than if 11 there had been no proof of such intention”); see also Mosteller, supra, n.15 12 (collecting cases affirming the admissibility of statements regarding a declarant’s 13 plans to meet with another person). Under the plain language of Rule 11-803(3) and 14 the weight of authority, Victim’s statements were admissible as evidence of Victim’s 15 then-existing state of mind. Defendant has not met his burden to show that the district 16 court abused its discretion in admitting this evidence. 17 B. The District Court Did Not Abuse Its Discretion by Extending the IAD 18 Deadline 19 {16} Defendant next contends that the district court erroneously granted the State’s 20 first motion to extend the 180-day deadline set forth in the IAD because the State 10  1 “never demonstrated ‘good cause.’” 2 1. Applicable law and standard of review 3 {17} Under the IAD, when a New Mexico defendant held in another jurisdiction 4 requests a speedy resolution of his or her New Mexico criminal case, the defendant 5 “shall be brought to trial within one hundred eighty days” from the date the State 6 receives the defendant’s written assertion “of the place of [the defendant’s] 7 imprisonment.” Section 31-5-12, art. 3(A). The IAD allows for extensions of this 8 deadline, providing that “for good cause shown in open court, the prisoner or his 9 counsel being present, the court having jurisdiction of the matter may grant any 10 necessary or reasonable continuance.” Id. 11 {18} We consider “the totality of the circumstances when reviewing for good cause 12 in granting a continuance under the IAD.” State v. Livernois, 1997-NMSC-019, ¶ 13 26, 123 N.M. 128, 934 P.2d 1057. “Reversal is only warranted if the trial court 14 abused its discretion.” State v. Chavez, 2022-NMCA-007, ¶ 46, 504 P.3d 541. As 15 with any challenge to the grant or denial of continuance, “the burden of establishing 16 abuse of discretion rests with the defendant.” State v. Salazar, 2007-NMSC-004, ¶ 17 10, 141 N.M. 148, 152 P.3d 135. The defendant “must establish not only an abuse 18 of discretion, but also that the abuse was to the injury of the defendant.” Id. (text 19 only) (citation omitted). 11  1 2. The district court granted the motion for good cause 2 {19} On January 10, 2023, the State filed its first motion for continuance seeking 3 an extension of the 180-day IAD deadline it acknowledged would run on January 4 17, 2023. At the hearing on the motion, the prosecutor explained that shortly after 5 Defendant and his coconspirators allegedly committed the homicide in this case, 6 they travelled to Portland, Oregon, and committed an armed robbery. Before the 7 State issued its arrest warrant on the homicide in this case, the State of Oregon issued 8 an arrest warrant in the armed robbery case; Defendant was detained and extradited 9 to Oregon, where he was convicted of the armed robbery. After his armed robbery 10 conviction in Oregon, on July 5, 2022, Defendant initiated IAD paperwork to be 11 returned to New Mexico and adjudicated on this homicide case. However, the State 12 did not receive the paperwork from Oregon until the end of November 2022. 13 Defendant was extradited back to New Mexico in December 2022. 14 {20} The State discussed the complex nature of the case, including the pending 15 cases of three additional codefendants, two of whom the State had indicted much 16 earlier and was in the process of joining, and one of whom anticipated entering a 17 plea and was still in Oregon pending extradition. After hearing argument from both 18 sides, the district court ruled in favor of the State. The district court explained its 19 ruling as follows: 12  1 The good cause that I’m finding is basically the nature of the case, and 2 the status of the cases. . . . The other codefendants’ cases are still 3 pending and in the trial preparation process. This case has been joined 4 with [theirs]. 5 I believe the good cause is that the defendant’s case should be basically 6 treated like the other cases. . . . 7 It’s really about trial preparation and timely trial preparation. And I 8 believe the defendant is being treated just like the other codefendants 9 being put on a Track 3, likely being put on a Track 3 trial assignment 10 following his arraignment, which would take him into . . . late 2023 or 11 2024. 12 And so that is the cause that I’m finding, is that the State, to adequately 13 present its case for trial, and to conform with the trial schedule of the 14 codefendants, would require a continuance. So I’m going to grant the 15 continuance and find that that is the good cause. 16 {21} Defendant argues that the district court did not have good cause to grant the 17 continuance because “[c]rowded dockets are not good cause” and “[a] trial court’s 18 scheduling order, local rules, case management orders, and such do not trump the 19 deadlines imposed by the IAD.” These arguments are unavailing. The district court 20 did not grant the continuance merely because of crowded dockets, but because of the 21 complexity of this case. “Under the IAD, the complexity of a case is an appropriate 22 factor for courts to consider in setting a trial date.” Chavez, 2022-NMCA-007, ¶ 48. 23 Defendant’s case had already been joined with that of Codefendants Baca and Burks. 24 The district court properly ruled that these similarly situated defendants should be 25 treated similarly and thereby granted the continuance to allow the State adequate 13  1 time to prepare for the joint trial. Defendant has not shown an abuse of discretion. 2 C. Defendant Has Not Shown That His Counsel Was Ineffective 3 {22} Finally, Defendant contends that his counsel was ineffective for 4 “complacently” allowing his trial to “remain joined” to that of Codefendant Baca. 5 Defendant makes no showing that his counsel’s conduct fell below the standard of a 6 reasonably competent attorney, or that he was prejudiced by counsel’s conduct. See 7 Strickland v. Washington, 466 U.S. 668, 687 (1984) (articulating these two prongs 8 constituting the test on capital appeal for ineffective assistance of counsel). We 9 decline to address this issue further. Defendant is not precluded from raising a claim 10 of ineffective assistance of counsel in a habeas proceeding. See State v. Rivas, 2017- 11 NMSC-022, ¶ 23, 398 P.3d 299 (“Typically, we prefer that ineffective assistance 12 claims be brought in collateral proceedings so that defendants may adequately 13 develop a record of counsel’s conduct.”). 14 D. Defendant’s Conviction for Shooting at a Motor Vehicle Violates Double 15 Jeopardy and Must be Vacated 16 {23} It is well settled that dual convictions for murder and shooting at a motor 17 vehicle based on the same conduct are barred by double jeopardy. See State v. 18 Montoya, 2013-NMSC-020, ¶ 2, 306 P.3d 426 (holding that punishment cannot be 19 imposed both for shooting at or from a motor vehicle under Section 30-3-8(B) “and 20 the homicide resulting from the penetration of the same bullet into the same 14  1 person”); see also State v. Torres, 2018-NMSC-013, ¶ 26, 413 P.3d 467 (recognizing 2 that “convictions for causing great bodily harm to a person by shooting at a motor 3 vehicle and the resulting homicide of the same person constitute[] double jeopardy 4 when both convictions [are] based on the unitary conduct of shooting at a person in 5 a motor vehicle”). 6 {24} In this case, the conduct underlying the murder conviction and the shooting at 7 a motor vehicle conviction was indisputably unitary. As security camera footage 8 shows, Defendant and his accomplices pulled up to Victim’s car, jumped out and 9 shot Victim multiple times, and Defendant’s car immediately sped off. A neighbor 10 went outside when he heard the shots, found Victim dead, and called police just three 11 minutes after Defendant and his accomplices had first arrived in the parking lot. 12 Therefore, the double jeopardy principle first set forth in Montoya is squarely 13 presented here, and punishment cannot be had for both shooting at a motor vehicle 14 and the homicide resulting from that shooting. 15 {25} The district court appears to have recognized the underlying double jeopardy 16 problem because, in the judgment and sentence, it merged the sentence for shooting 17 at a motor vehicle with the sentence for first-degree murder. However, merger of 18 sentences is not the proper remedy for a double jeopardy violation; instead, the lesser 19 offense of shooting at a motor vehicle must be vacated. See State v. Santillanes, 15  1 2001-NMSC-018, ¶ 28, 130 N.M. 464, 27 P.3d 456 (“[C]oncurrent sentencing does 2 not adequately remedy the imposition of impermissible multiple punishments for a 3 single offense; double jeopardy requires that the lesser offense merge into the greater 4 offense such that the conviction of the lesser offense, not merely the sentence, is 5 vacated.”). 6 {26} Even though defense counsel did not raise a double jeopardy claim, we raise 7 it sua sponte because this issue affects Defendant’s fundamental rights. See Rule 12- 8 321(B)(2)(d) NMRA (allowing “the appellate court, in its discretion” to consider 9 “issues involving . . . fundamental rights of a party”); cf. State v. Alingog, 1994- 10 NMSC-063, ¶ 14, 117 N.M. 756, 877 P.2d 562 (recognizing double jeopardy 11 protections as a fundamental right). We remand to the district court to vacate 12 Defendant’s conviction for shooting at a motor vehicle. 13 III. CONCLUSION 14 {27} For the foregoing reasons, we remand to the district court to vacate 15 Defendant’s conviction for shooting at a motor vehicle. We affirm Defendant’s other 16 convictions. 17 {28} IT IS SO ORDERED. 18 19 JULIE J. VARGAS, Chief Justice 16 1 WE CONCUR: 2 3 MICHAEL E. VIGIL, Justice 4 5 C. SHANNON BACON, Justice 6 7 DAVID K. THOMSON, Justice 8 9 BRIANA H. ZAMORA, Justice 17