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Sunday, December 19, 2004
Brothers' Supporters Pick Apart Prosecution's Case
By Rene Romo
Journal Southern Bureau
Twin brothers Joseph and Jeremy Montoya admit they both lied in
a 2000 Las Cruces murder trial in a failed effort to keep Joseph
from going to prison. But their trial was filled with
conflicting testimony, supporters of the brothers say. The
brothers each offered a similar alibi: After a fight at a party
near New Mexico State University on Sept. 2, 1999, they went to
the nearby apartment of their brother Jason and later left
together to go to a friend's house. Jeremy, in a bid to free
Joseph from a 20-year prison sentence, says he is now prepared
to take full responsibility for the shooting that night that
killed a California man, Robert Williams. Their earlier
statements had them at the friend's house at the time Williams
was shot at the party. "I'm not saying that what we did was
right— lying in court— but we did it to protect each other,"
said Jeremy in a recent interview in the Phoenix area, where he
lives and works. "Now we're just trying to dig ourselves out of
a hole." Prosecutors have said the twins are not credible
because of their confessed perjury. The twins' advocates say
prosecution witnesses provided equally questionable testimony in
a trial that relied largely on witness accounts. For instance,
one key prosecution witness, Lamar Don James, told police two
days after the fatal 1999 incident that the shooter was
left-handed— as Jeremy Montoya is. At the trial one year later,
however, James said he was mistaken and that the shooter was
right-handed— as Joseph Montoya is. Joseph Montoya and other
witnesses said Joseph suffered a black eye and bloodied face in
the fight that preceded the shooting. James testified that the
twin with the bloodied face and black eye was not the shooter.
But James also said he was sure that the taller twin, Joseph,
was the shooter. Six months before Joseph Montoya's murder
trial, James was arrested in Las Cruces on eight counts of check
forgery. And, on Sept. 25, 2000, less than a week after
testifying against Joseph Montoya, James entered a plea
agreement with prosecutors.
James, a man with four aliases, agreed to plead guilty to four
counts of forgery, and prosecutors dropped four other charges.
James affirmed in court that no promises were made to induce him
to agree to the plea. Two months later, in November 2000, James
was given a 12-year suspended sentence and was placed on
probation for five years. James' probation was subsequently
revoked in early 2002 after he failed five drug tests, and he
was sentenced to 20 months in prison. Another key eyewitness, a
former NMSU student, testified at trial that she saw the
shooter's gun. Later, under defense questioning, she
acknowledged that she had told police she had not seen the gun.
The witness also acknowledged not wearing her glasses or contact
lenses the night of the party. She was the only witness to
testify that the twins wore baseball caps the night of the
party. A transcript of the September 1999 grand jury proceedings
in the case show that the same witness initially testified that
she recognized Joseph as the shooter, not because of his
clothing or appearance, but his "personality." "Joseph's always
been the more aggressive one, and Jeremy, Jeremy's always been
very shy and timid," the witness said. Several prosecution
witnesses said they distinguished the twins by height: Joseph is
about half an inch to an inch taller than Jeremy. Witnesses also
gave different accounts of what the shooter wore at the party.
One said he saw a yellow shirt; another said a plaid shirt;
another saw a blue shirt. In his closing argument at the trial,
Assistant District Attorney Tom Clark appeared mindful of a key
vulnerability in the prosecution's case: How could witnesses
confidently identify Joseph as the shooter when the twins are so
hard to tell apart? "I would suggest to you, before I even get
to the elements of the crimes, that there is one overriding
issue, and that is the identity of the person who killed
Robert Williams ... "The first question you need to resolve is,
was the shooter one of the Montoya twins? And if your answer to
that is ultimately yes, then you would have to move on to the
second part of the question, which is, which twin was it?" Clark
told the jury. Winding up the prosecution's case, Assistant
District Attorney William Kinsella concluded: "You ... found out
that he (Joseph) said his brother (Jeremy) didn't do it. His
brother didn't do it. "And the brother (Jeremy) said he (Jeremy)
didn't do it. That leaves just one person left."
Sunday, December 19, 2004
Man Says He, Not His Twin in Prison, Is Killer
By Rene Romo
Journal Southern Bureau
PHOENIX— Jeremy Montoya says he wants to go to prison for a 1999
killing in Las Cruces for which he now claims responsibility.
But there's an obstacle: His 25-year-old identical twin brother,
Joseph, is doing time for the crime. And prosecutors believe the
right man is behind bars. Joseph Montoya has spent most of the
last five years behind bars, most recently in the Southern New
Mexico Correctional Facility near Las Cruces. He is serving a
20-year sentence for the fatal shooting of a 23-year-old Los
Angeles man, Robert Williams, at a college party near the New
Mexico State University campus on Sept. 2, 1999. Both Montoya
brothers were NMSU students at the time. Jeremy Montoya
previously said he fired the shot that killed Williams, but
prosecutors did not find his confession genuine, and a District
Court judge refused to grant Joseph a retrial. Jeremy hopes a
renewed, stronger confession that he killed Williams will lead
the state District Court to vacate his brother's conviction. If
the effort succeeds, one brother's freedom would mean the
other's imprisonment. "It would give me peace of mind," Jeremy
Montoya said in a recent interview in the Phoenix area, where he
works as a car salesman. "It's not going to give me freedom."
New court hearing
The New Mexico Supreme Court remanded Joseph Montoya's
homicide case to District Court last June with orders to conduct
an evidentiary hearing in light of his brother's expected,
self-implicating testimony. "I want to tell the truth about what
happened that night and set the record straight, not only to
clear my brother's name and set him free, but also to free my
conscience of what I am doing to him," Jeremy Montoya wrote in a
Jan. 6 letter to state authorities. "Unlike what the district
attorney believes, I am not trying to swindle the court of law
again; I am not looking to get Joseph a second trial. "All that
I am requesting is for somebody in charge to sit down with me
and negotiate a plea bargain where I sign on the dotted line,
waive my rights to an appeal, and serve my time in prison for
the murder that I committed." District Judge Stephen Bridgforth
of Las Cruces, has set a Dec. 29 hearing in the case, the day
after the 26th birthday of the twins, who are natives of
Roswell. At that hearing, Joseph Montoya's lawyer hopes Jeremy
will take responsibility for the slaying in terms more clear and
convincing than before— sufficient to earn Joseph's freedom.
Bridgforth deemed the earlier confession by Jeremy in late 2000
to be unconvincing and refused to grant his twin brother a new
trial. The decision was appealed to and upheld by the state
Supreme Court. The new evidentiary hearing is the result of a
"last gasp" petition for writ of habeas corpus, said Joseph
Montoya's attorney, Eric Hannum of Albuquerque. "This case will
stand or fall on Jeremy Montoya and what he says on the witness
stand," Hannum said.
But District Attorney Susana Martinez of the Third Judicial
District in Las Cruces is skeptical of the twin's effort. "Once
again, he (Jeremy) is trying to commit a fraud," Martinez said.
"The first time, he tried to get his brother (Joseph) to take
the blame or be found not guilty. The second time, he tried to
equivocate. And, now, he's surprised he's not believed." To such
doubts, Joseph Montoya responded in a recent telephone interview
from the southern New Mexico prison: "One of us is going to be
in prison, and the question should be: Do they want the right
one in prison?"
Their plan backfires
The Montoya brothers readily admit their part in ending up where
they are now: They admit lying in court during the 2000 murder
trial in Las Cruces to provide each other with alibis. They wore
identical suits at the trial, showing how difficult it was to
tell them apart. Later, Jeremy Montoya hurt their cause by being
less than forthcoming in a retrial hearing about his role in the
slaying, Hannum said."We took chances ... and we lost, and we
are suffering the consequences now," Joseph Montoya said in the
telephone interview. "But does that mean that I have to stay 20
years in prison for a crime I didn't commit?," he asked. "I can
sit here and admit that I did commit perjury, and if the
punishment for perjury is 20 years, then give me 20 years for
perjury. But as God is my witness, I did not commit murder." The
shooting On an overcast night in September 1999, the pair
attended a party on Rentfrow Avenue after an NMSU Aggies home
football game. They got into a fight with a group of men,
including witness Lamar Don James, who had previously feuded
with the twins' older brother, Jason Montoya, at a Las Cruces
bar. Joseph took the worst of the post-game brawl— a blow
to his face around his left eye that caused bleeding. The
brothers each testified that they left the scene and hurried on
foot to brother Jason's apartment a few blocks away. Then, the
twins testified, they, their brother and a friend went to the
friend's house in a car— and were not present at the party near
the campus at the time shooting. The Montoya twins— corroborated
by other witnesses, including their brother, Jason— thus
provided each other with an alibi they now say was inaccurate.
Witnesses said that, about 15 minutes after the fight, one of
the twins returned to the Rentfrow party with a handgun and
began firing. Partiers scattered in terror.
Two men said the shooter fired at them, missing. A third man, Williams, was shot in the back and died a short time after.
Police suspected Joseph
Police focused on Joseph Montoya, he now speculates, because he
had angrily broken into an ex-girlfriend's Las Cruces apartment
on Aug. 29, 1999, a few days before the shooting. Joseph
believes, since the shooting occurred days later, that police
were predisposed to see him as "the bad twin," the "twin on a
rampage." Before his September 2000 murder trial, Joseph Montoya
pleaded guilty in April to a fourth-degree felony charge of
breaking and entering. That allowed the prosecution to tell
jurors that Joseph Montoya was a convicted felon. Shortly after
Joseph's conviction, Jeremy pulled his father and mother aside
and confessed that he was the shooter. "We wanted to keep both
of us out of jail," Jeremy said in the interview earlier this
month in Phoenix, his wrists sporting bracelets bearing the
letters "WWJD" ("What would Jesus do?"). "That's what our whole
goal was." Joseph's first defense attorney, Gary Mitchell of
Ruidoso, immediately filed a motion for another trial based on
the "new" evidence.
During a hearing on that motion in early 2001, Jeremy testified
that he was the twin who returned to the party with a gun and
fired the shot that killed Williams. Jeremy testified at the
hearing that he fired the gun into the air. He also said he
fired the shot after he and Williams had struggled in the
street. A polygraph test showed that Jeremy was truthful when he
said he fired the fatal shot. But Judge Bridgforth ruled that
Jeremy's testimony did not meet the test for newly discovered
evidence. Bridgforth also concluded that Jeremy's new testimony
was not more credible than his earlier testimony, when he said
he was not the shooter.
Skepticism abounds
District Attorney Martinez echoed Bridgforth's skepticism
recently while commenting on Joseph Montoya's situation. "Who
says he (Joseph) is innocent? A man who's committed a fraud on
the court twice. That's the evidence that exists that supposedly
an innocent man is serving time," Martinez said. "Nothing more."
In the latest effort to free Joseph Montoya, Hannum wrote in a
petition for writ of habeas corpus that prosecutors have
"correctly pointed out that, while Jeremy admitted to being the
shooter, his testimony seemed designed to provide himself with a
claim that the killing of Robert Williams was somehow either an
accident or an act of self-defense." On the advice of his
attorney, Jeremy also cited the Fifth Amendment several times in
declining to answer questions, the lawyer said. "This
equivocation on the part of Jeremy robbed his testimony at the
motion hearing of some of the persuasive heft that a truly
self-incriminating confession would have," Hannum wrote. Hannum
argued that, while previous court rulings have focused on the
question of whether the confession met the test of "newly
discovered evidence" that would allow a new trial, they never
addressed the "underlying claim: That despite the fact that he
committed perjury to protect his twin brother, Joseph Montoya is
factually innocent of the crimes for which he is now
imprisoned." Martinez said she is not persuaded by the argument
that, if it seems logical for someone to lie to stay out of
prison or keep a loved one out of prison, it seems illogical
someone would lie to get into prison. "What is persuasive to me
is the guilty verdict of the jury," Martinez said.
Hannum disagrees.
"When someone who has nothing to gain and everything to lose
says 'I did this,' that carries some weight," Hannum said.
"Jeremy Montoya really has nothing to gain by the confession we
expect him to make at that hearing, and I'm hoping that because
of that the judge will see that it's true. And then it will be
up to the court to figure out how to fix this thing." Jeremy
Montoya said his persistence underscores his credibility. "Why
would we take it this far, five or six years later, if it wasn't
true?" he asked.
The twins today
Joseph Montoya said he was initially mad at the world when he
was convicted "of a crime I didn't commit." He was angry at
Jeremy as well. But, after struggling emotionally, he said he
realized that "bitterness only consumes the vessel it's
contained in." "So I've had to learn to forgive him," Joseph
said. "We just have to learn to deal with this situation and fix
this wrong into a right." Jeremy, for his part, is working long
hours in sales in Arizona, discovering skills he did not know he
had until the last few years. Aware that he could be going to
prison, he has avoided getting involved with a girlfriend,
traveled a bit and tried to save money to pay for legal expenses
and for Joseph. Jeremy said he has not allowed himself to be
weighed down with guilt for the choices he made, though he is
remorseful and repents "for the sins I committed." Jeremy
said he hopes his brother can be released from prison soon,
knowing what that would mean for himself. "I'm going to prepare
for the worst and hope for the best," Jeremy said. "I'm going to
say what has to be said. I'm not going to b.s. around this
time."
Court ignores twin brother's confession
Published: Wednesday, April 20, 2005
ASSOCIATED PRESS
LAS CRUCES, N.M. (AP) - A Roswell man will remain in prison for second-degree murder despite his twin brother's sworn confession to the crime. Jeremy Montoya's confession did not constitute new evidence that would warrant a new trial, state District Judge Stephen Bridgforth ruled Monday. Joseph Montoya, 26, was convicted on Sept. 20, 2000, in the Sept. 3, 1999, shooting death of Robert Williams, 23, of Los Angeles.
Tuesday, April 19, 2005
Twin Can't Sway Judge
By Rene Romo
Journal Southern Bureau
LAS CRUCES— Joseph Montoya won't be freed any time soon from prison for a murder his twin brother swore this month he committed. Montoya, 26, is serving a 20-year sentence for the 1999 murder. District Court Judge Stephen Bridgforth ruled Friday that the April 5 sworn confession of Montoya's twin brother, Jeremy, didn't constitute new evidence that could not have been discovered before the original trial in 2000. Nor, the judge ruled, was Jeremy Montoya's claim of responsibility for shooting 23-year-old Los Angeles resident Robert Williams the kind of evidence that was strong enough to change the outcome of a trial if a new one were granted. Joseph Montoya's attorney, Eric Hannum, said Monday that he planned to appeal the latest ruling to the state Supreme Court. "I can't imagine they (the Supreme Court) are going to be uninterested in a case where the state is imprisoning someone who is patently and obviously the wrong guy," Hannum said. Locked up for 51/2 years, Joseph Montoya had hoped his conviction on a second-degree murder charge and two counts of aggravated assault would be vacated in light of his brother's testimony. The state Supreme Court ordered Bridgforth to hold the April 5 evidentiary hearing after it was found that Jeremy Montoya claimed responsibility for fatally shooting Williams in less ambiguous terms than he had in the past. During a 2001 hearing for a new trial following Joseph's conviction, Jeremy Montoya testified that, minutes after he and his brother were jumped by a group of men at a party near the New Mexico State University campus, he returned to the scene armed with a handgun.
In that testimony, Jeremy Montoya said he fired the gun to scare his assailants but did not take responsibility for deliberately aiming at Williams or anyone else and trying to shoot them. But at the hearing two weeks ago, Jeremy Montoya testified under oath that he aimed his gun at Williams to shoot the victim, and he said Williams' slaying was not an accident. Jeremy Montoya went on to testify that, during the earlier 2001 hearing, he perjured himself because he was still trying to protect himself even as he sought to have his brother Joseph's conviction vacated. Jeremy Montoya also testified this month that he perjured himself during the original 2000 trial. At that time, both brothers lied to provide alibis for each other. In his ruling, Bridgforth focused on Jeremy Montoya's credibility problem: "Jeremy already admits to twice testifying falsely, the second time after taking a polygraph examination, and is not sufficiently credible to overcome the great weight of that (2000) trial testimony." Hannum has said that, although Jeremy Montoya has admitted lying and committing perjury in the past, it would be illogical for him to testify falsely to something that would land him in jail for a long sentence. Joseph Montoya also testified April 5 that, while he hadn't seen the shooting, he knew his brother had shot Williams. Joseph Montoya said, however, that he was not prepared to testify against his brother during the original trial. He said he believed, since he was innocent, that he wouldn't be convicted. Hannum said the case is ironic because it is typically defense attorneys who are accused of relying on technicalities to protect their clients. "Here we have the state and the court essentially asserting a very technical, legalistic argument to essentially keep the wrong guy in prison," Hannum said. "And that does a great disservice to the whole notion of our courts as some forum for justice rather than a legalistic side show."
Tuesday, April 11, 2006
Twin Convicted in Slaying Seeks New Trial
Associated Press
SANTA FE — A man serving time for a 1999 slaying has asked the state Supreme Court for a new trial because his twin brother has confessed to the killing. Joseph Montoya of Roswell was convicted of second-degree murder and other crimes in the shooting death of Robert Williams at a party in Las Cruces. He and his twin brother Jeremy Montoya had been involved in a fight at the party but left. Prosecutors and witnesses said that later that night, Joseph returned and shot Williams. After Joseph was convicted and sentenced to 20 years, Jeremy claimed he was the triggerman. But state courts — including the Supreme Court — have affirmed Joseph's convictions and said no new trial is warranted. The brothers may be colluding, "hoping for acquittals all around,'' the Court of Appeals suggested in one ruling. The Supreme Court again heard arguments Monday — arguments very similar to those made before the court last July. The justices made no immediate ruling. Joseph Montoya's attorney, Eric Hannum, said the trial testimony was inconsistent. He argued that his client is serving time for a crime he did not commit and at the very least, should be allowed a new trial. "The gorilla in the room is Jeremy Montoya's confession, and a jury has never heard that,'' Hannum said. Chief Justice Richard Bosson asked what would stop Jeremy Montoya from changing his story if the court granted his brother's motion. Hannum acknowledged that was a possibility, but said the confession was given in court under oath. An attorney for the state argued that other evidence, including eyewitnesses, helped in the conviction and that no new evidence has been produced. Assistant Attorney General Arthur Pepin noted two witnesses said Joseph, not Jeremy, fired the shot. While the brothers are twins, Joseph is taller and is right-handed; Jeremy is left-handed. "There is nothing, zero, zilch, to overturn that testimony,'' Pepin said. State District Court Judge Stephen Bridgforth heard Jeremy Montoya's confession, weighed it against other evidence and rejected it, he said. "He heard Jeremy testify under oath, 'Let my brother go, I'm the one who belongs in jail.' And he didn't buy it,'' Pepin said.
Which Twin Was the Shooter?
By Bruce Daniels - ABQnewsSeeker
Tuesday, 11 April 2006 01:08
High court again hears wrong brother may be in prison.
Attorneys for Joseph Montoya, who is serving a 20-year sentence
for the 1999 death of Robert Williams in Las Cruces, were back
before the New Mexico Supreme Court on Monday arguing that a
confession by Montoya's identical twin brother requires, at the
very least, a new trial.
The Supreme Court heard oral arguments on Monday, but didn't make a ruling, which could result in a new trial, an acquittal or allowing the original conviction to stand, the Las Cruces Sun-News reported today on its Web site.
"Joseph Montoya is now serving a 20-year sentence for a crime that he, demonstrably, did not commit," his attorney Eric Hannum told the court, according to the Sun-News. "The gorilla in the room is Jeremy Montoya's confession, and a jury has never heard that." But Assistant Attorney General Arthur Pepin told the justices that two eyewitnesses helped lead to Joseph Montoya's conviction for second-degree murder and that no evidence has been produced since then to overturn that conviction, the Sun-News reported. Jeremy Montoya, who confessed under oath to the killing at a hearing in Las Cruces last April, was present at the Supreme Court hearing Monday. Pepin told the justices that state District Court Judge Stephen Bridgforth heard that confession, weighed it against all other evidence in the case and concluded that it wasn't credible, the Sun-News said. Pepin also said that the brothers intentionally dressed the same way at Joseph Montoya's trial to try to confuse the jury, according to the Sun-News. Hannum, however, argued that most of the witnesses who testified agreed that one of the twins did the shooting but couldn't say which one and that the two eyewitnesses who fingered Joseph Montoya were inconsistent, the paper reported.Williams was killed on Sept. 2, 1999, at a party in Las Cruces after a New Mexico State University football game. Joseph Montoya was convicted in June 2002, and several appeals filed since then have been unsuccessful, the Sun-News reported.Joseph Montoya's attorneys made nearly identical arguments last July before the Supreme Court, but the high court declined to rule on the case, according to this account by The Associated Press. And here is the Albuquerque Journal account of the trial judge's dismissal of Jeremy Montoya's confession.
2007 N.M. LEXIS 312,*;142 N.M. 89;
2007 NMSC 35;163 P.3d 476
JOSEPH MONTOYA, Petitioner, v. ROBERT ULIBARRI, Warden,
Respondent.
Docket No. 29,218
SUPREME COURT OF NEW MEXICO
142 N.M. 89; 2007 NMSC 35; 163 P.3d 476; 2007 N.M. LEXIS 312
June 20, 2007, Filed
PRIOR HISTORY: [*1]
ORIGINAL PROCEEDING ON CERTIORARI. Stephen Bridgforth, District
Judge.
Montoya v. Ulibarri, 138 N.M. 146, 117 P.3d 952, 2005 N.M. LEXIS
338 (N.M., 2005).
COUNSEL: Dane Eric Hannum, Albuquerque, NM, for Petitioner.
Gary King, Attorney General, Arthur Pepin, Assistant Attorney
General, Santa Fe, NM, for Respondent.
Scott M. Davidson Esquire, , Ph.D., Scott M. Davidson,
Albuquerque, NM, for Amicus Curiae, New Mexico Criminal Defense
Lawyers Association.
JUDGES: PETRA JIMENEZ MAES, Justice. WE CONCUR: EDWARD L.
CHAVEZ, Chief Justice, PAMELA B. MINZNER, Justice, PATRICIO M.
SERNA, Justice, RICHARD C. BOSSON, Justice (specially
concurring).
OPINION BY: PETRA JIMENEZ MAES
OPINION
MAES, Justice.
Petitioner, Joseph Montoya, appeals from a decision of the
district court denying his petition for habeas corpus pursuant
to Rule 5-802 NMRA. See Rule 12-501 NMRA; Rule 5-802 NMRA. This
case presents the issue of whether the protections afforded by
the New Mexico Constitution allow a prisoner to obtain habeas
relief based upon a freestanding claim of actual innocence,
independent of any constitutional violation at trial. We
conclude that the continued incarceration of an innocent person
is contrary to both due process protections and the
constitutional prohibition against cruel and unusual punishment
within the New Mexico [*2] Constitution. Therefore, we hold that
a habeas petitioner may obtain relief if he can establish by
clear and convincing evidence that no reasonable juror would
have convicted him in light of new evidence. However, Petitioner
has failed to meet this standard. Thus, we affirm the district
court's denial of Petitioner's habeas petition.
FACTS AND PROCEEDINGS BELOW
A proper understanding of our determination of the issues
presented in this case requires a thorough review of the
procedural history of the case, as well as the evidence produced
at Petitioner's criminal trial, at the hearing on his motion for
a new trial, and at his habeas proceeding. Petitioner was
convicted by a jury of second-degree murder, contrary to NMSA
1978, § 30-2-1(B) (1994), and two counts of aggravated assault
with a deadly weapon, contrary to NMSA 1978, § 30-3-2(A) (1963).
The evidence supporting Petitioner's convictions was summarized
by this Court in a Dispositional Order of Affirmance addressing
Petitioner's original appeal on the merits. State v. Montoya,
Dispositional Order of Affirmance, No. 27,594, PP 5-11 (Mar. 17,
2003). "[Petitioner] and his mirror image, identical twin,
Jeremy, lived in an apartment [*3] with their older brother,
Jason. As 'mirror image' twins, [Petitioner] is right handed,
and Jeremy is left handed. Several witnesses testified that the
two brothers, although identical, are distinguishable;
[Petitioner] is taller and weighs more than Jeremy. On September
2, 1999, [Petitioner] and Jeremy attended a party, which was,
according to [Petitioner], located approximately four or five
blocks, or a 'good [ten-] minute walk' from Jason's apartment.
[Petitioner] and Jeremy were involved in a fight with [three
individuals]. Later that night, at approximately 11:40 p.m.,
[Petitioner] returned with a gun; in front of numerous
witnesses, [Petitioner] fired the gun several times. The victim
[Robert Williams] died from a gunshot to the back. Several
witnesses specifically identified [Petitioner], as opposed to
Jeremy, as the shooter, including Vickie Hughes. She testified
that she knew the twins and that she attended the party on the
night of the altercation. She identified [Petitioner] as the
shooter. The assault victims [Lamar Don James and Kenneth
Taylor] testified that the shooter pointed the gun directly at
them and fired.
"[Petitioner] testified that, following the initial fight, [*4]
he and Jeremy went to Jason's apartment, where they told several
people about the altercation. [Petitioner] testified that he
went into the bathroom and cleaned off a cut near his eye.
[Petitioner] testified that he, Jeremy, and Jason went with
Gabriel Estrada to the house Estrada shared with the Montoyas'
cousin, Vanessa Estrada, because they were afraid to stay at
Jason's apartment. [Petitioner] testified that they stayed at
Estrada's house that night." [Petitioner] testified that, after
their arrival, he again went into the bathroom to clean off his
cut; afterward, they went into the garage to socialize.
[Petitioner] testified that he did not have a gun, that he did
not talk about going back to the party, and that he was not the
shooter. [Petitioner] testified that Jeremy was with him the
entire time after they left the party, that Jeremy did not
return to the party, and that Jeremy was also not the shooter.
[Petitioner] presented alibi witnesses including Jeremy, their
brother Jason, and his friends, Steven Sunday, Michael Ponce,
and Gabriel Estrada. Jeremy testified that, after the fight at
the party, they went to Jason's apartment for about five minutes
and then they went to [*5] their cousin's house. Jeremy
testified that he had never seen a gun at Jason's home. Jeremy
testified that neither he nor his twin, [Petitioner], left the
Estrada house again that night. Jeremy testified that he was
also not the shooter and that he was positive that [Petitioner]
was not the shooter. Gabriel Estrada, Sunday, Ponce and Jason
also all testified that the twins came to Jason's apartment
after the initial fight for a short period of time, then went to
the Estrada house. Gabriel Estrada testified that [Petitioner]
did not leave the house. Jason testified that he did not own a
gun, and he also testified that they went 'straight to the
garage' when they arrived at the Estradas' home. Vanessa Estrada
testified that [Petitioner], Jeremy, Jason, and Gabriel Estrada
arrived at her house at 11:30 that evening, that they went into
the garage, and that [Petitioner] and Jeremy were there when she
woke up the next morning.
"[Petitioner] was convicted by a jury. After his conviction, he
moved for a new trial. Defense counsel, at the hearing on the
motion, stated that right after the conclusion of the trial, he
received a call from Jeremy asking him to meet with himself,
Jason, and his [*6] parents. Defense counsel stated that Jeremy
told him that he was the shooter. Defense counsel presented
evidence that Jeremy took a polygraph which supported his new
claim that he was the shooter.
"Jeremy again testified at the motion for a new trial. Jeremy's
new testimony was not consistent with his own testimony at [Petitioner]'s
trial, with [Petitioner]'s trial testimony, with the testimony
of [Petitioner]'s alibi witnesses, or with critical details
within the testimony of the State's witnesses. Jeremy stated
that, after the initial fight, the twins went to Jason's
apartment and [Petitioner] got into the shower. Jeremy stated
that he had seen a gun in Jason's room, armed himself with the
nine millimeter handgun, and, not saying anything to
[Petitioner], left the apartment. Jeremy returned to the party
to 'let [the individuals with whom they'd fought earlier] know
that they can't be messing with us.' Jeremy claimed that he
approached the men, pulled out the gun, and fired a few shots in
the air. He claimed that he never pointed the gun directly at
anyone, but instead '[o]ver their heads, more or less.' Jeremy
described running down the street while firing the gun. He
claimed that, [*7] while 'shooting in the air,' he 'struck a
man,' who 'fell down.' Jeremy further claimed that, when he
approached the man whom he just shot, the 'man actually got up
and tried to wrestle with me, tried to approach me once again.'
Jeremy claimed that he fired another shot 'after [the victim]
tried to wrestle with' him. He asserted that he ran away,
frightened, because he did not know whether anyone was shooting
back. He claimed that he threw the gun away near a school and
returned to Jason's apartment. He claimed that this event took
him less than ten minutes' total time and that [Petitioner] was
not with him. Jeremy invoked his right against
self-incrimination and refused to answer questions on
cross-examination regarding this trial testimony, including
whether he simply recalled testifying at [Petitioner]'s trial,
as well as specific questions regarding his prior testimony.
"Defense counsel presented an additional witness who supported
Jeremy's new confession. Darius Jones testified that he knew the
twins and saw the fight at the party. He asserted that he drove
to Jason's apartment and saw Jeremy running from the apartment
complex toward the area of the party. He claimed that he went
[*8] to Jason's apartment and spoke to [Petitioner], who had
just gotten out of the shower; as a result, Jones admitted that
both [Petitioner] and Jason knew he had been at Jason's
apartment on the night of the party. Jones said he never made a
statement to police." State v. Montoya, Dispositional Order of
Affirmance, No. 27,594, PP 5-9 (Mar. 17, 2003)
"The trial court denied [Petitioner]'s motion for a new trial.
The court found that [Petitioner] and Jeremy colluded to create
a complete alibi for both and withheld information from the
defense attorney. The court found that the information could
have been discovered through the exercise of due diligence and
thus was not 'newly discovered' evidence." State v. Montoya,
Dispositional Order of Affirmance, No. 27,594, PP 11 (Mar. 17,
2003). Petitioner appealed to the Court of Appeals.
In a Memorandum Opinion, the Court of Appeals affirmed the
district court's denial of Petitioner's motion for a new trial,
as well as his convictions and sentence. State v. Montoya, No.
22,219, slip op. at 5 (N.M. Ct. App. June 17, 2002). The Court
held that the standards for granting a new trial based on newly
discovered evidence were not met, concluding that [*9] the
testimony would probably not change the result, the evidence
should have been discovered before trial by the exercise of due
diligence, and the evidence, "insofar as [Petitioner]'s
whereabouts are concerned, could be viewed as merely cumulative
of his own alibi defense and therefore merely impeaching of the
State's witnesses, who were already impeached on the basis of
questions concerning the accuracy of their identification of the
correct twin." Id. at 4-5.
This Court granted Petitioner's Writ of Certiorari, and issued a
Dispositional Order of Affirmance. State v. Montoya,
Dispositional Order of Affirmance, No. 27,594, P 17 (Mar. 17,
2003) Like the Court of Appeals, this Court concluded that the
trial court did not abuse its discretion when it denied
Petitioner's motion for a new trial. This Court held that
Jeremy's recantation testimony was not newly discovered evidence
because, "[Petitioner] had to know at the time of trial that his
own testimony was false and, by extension, that Jeremy's trial
testimony was false." Id. P 18. The Court stated that "assuming
that Jeremy is now being truthful, [Petitioner] chose not to
rebut the perjured testimony at trial and instead actually [*10]
presented it as part of his defense, corroborating it with not
only his own testimony but that of several other witnesses." Id.
Because the statute of limitations for filing a motion for a new
trial based on newly discovered evidence had expired, Petitioner
filed a Petition for Writ of Habeas Corpus in the district court
on March 3, 2004. See Rule 5-614 NMRA (requiring a motion for
new trial based on the ground of newly discovered evidence must
be made "within two (2) years thereafter, but if an appeal is
pending the court may grant the motion only on remand of the
case"). The district court originally denied Petitioner's
petition without a hearing. This Court granted Petitioner's writ
of certiorari and ordered the district court to hold an
evidentiary hearing.
At the evidentiary hearing, the district court heard testimony
from Jeremy, Petitioner, and a polygraph examiner. Jeremy
testified that he shot and killed Robert Williams intentionally,
not accidentally. He also stated that he intentionally fired at
the other two victims. Jeremy went on to testify that his
testimony in Petitioner's original criminal trial was false and
constituted perjury. Next, Petitioner testified that he [*11]
too had lied at his original trial and admitted to committing
perjury. Petitioner testified that after being beaten up at the
party, he and Jeremy had walked to their brother Jason's
apartment where Petitioner took a shower. When he came out of
the shower, Jeremy was gone. Petitioner found Jeremy later that
night and Jeremy told Petitioner that he had gone back to the
party and "shot some guy." Petitioner testified that while
awaiting trial, he conspired with Jeremy and their brother Jason
to concoct a false alibi.
The polygraph examiner, James L. Wilson, testified that he
conducted a polygraph examination of Jeremy Montoya on March 13,
2001, nine days before the March 22, 2001, hearing on
Petitioner's Motion for New Trial. During the examination, Mr.
Wilson asked Jeremy if he shot Robert Williams, to which Jeremy
responded, "Yes." Jeremy answered in the negative when Mr.
Wilson asked him if Petitioner was present at the time Robert
Williams was shot. Mr. Wilson testified that using a
computer-based analysis program, he calculated the probability
that Jeremy was not lying was 99.49 percent. After hearing this
evidence, the district court issued its Order Denying Petition
for Writ of [*12] Habeas Corpus.
Petitioner filed his Petition for Writ of Certiorari in this
Court. Following oral argument, this Court granted the writ. In
his Petition for Writ of Certiorari, Petitioner raised two
questions for review: (1) whether the district court erred in
holding that Jeremy's confession at the habeas hearing was not
newly discovered evidence, and that the confession if heard by a
jury was unlikely to lead to a different result in a new trial;
and (2) whether the protections within the federal constitution
and the New Mexico Constitution prohibit the imprisonment of the
actually innocent, notwithstanding any procedural requirement
that exculpatory evidence be newly discovered. We begin our
discussion with the issue of whether either the federal or the
New Mexico Constitution provides relief for a prisoner asserting
a claim of actual innocence.
DISCUSSION
Actual Innocence Claim
Whether to recognize a claim of actual innocence, absent any
constitutional violation at trial, is a question of law
demanding de novo review. See State v. Attaway, 117 N.M. 141,
145, 870 P.2d 103, 107 (1994) (indicating de novo review of
"threshold constitutional issues"), modified on other grounds by
State v. Lopez, 2005 NMSC 18, 138 N.M. 9, 116 P.3d 80. [*13]
Petitioner asserts that, in light of his claim of actual
innocence, his continued incarceration is a violation of both
the federal and state constitutions. Because Petitioner is
asserting rights under provisions of both the federal and state
constitutions, we employ the interstitial approach to
constitutional interpretation adopted by this Court in State v.
Gomez, 1997 NMSC 6, PP 19-21, 122 N.M. 777, 932 P.2d 1. "Under
the interstitial approach, the court asks first whether the
right being asserted is protected under the federal
constitution. If it is, then the state constitutional claim is
not reached. If it is not, then the state constitution is
examined." Id. P 19. When implementing the interstitial approach
three questions must be answered: "(1) whether the right being
asserted is protected under the federal constitution; (2)
whether the state constitutional claim has been preserved; and
(3) whether there exists one of three reasons for diverging from
federal precedent." State v. Cardenas-Alvarez, 2001 NMSC 17, P
6, 130 N.M. 386, 25 P.3d 225.
Federal Constitutional Protections
The United States Supreme Court discussed the viability of a
freestanding claim of actual innocence as [*14] a basis for
habeas relief in federal courts in Herrera v. Collins, 506 U.S.
390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993). Petitioner
Herrera filed a Petition for Writ of Habeas Corpus in federal
court, asserting that new evidence demonstrated his actual
innocence. His claim, however, was not attached to any assertion
that a constitutional violation had occurred during his criminal
trial. Id. at 396-98. Instead, Herrera argued that because he
was innocent, his death sentence violated the Eighth Amendment's
prohibition against cruel and unusual punishment as well as the
Fourteenth Amendment's guarantee of due process. Id. at 396-97.
The majority in Herrera denied Herrera's federal habeas
petition. The Court refused to conclude that the incarceration
or execution of an actually-innocent person violates the
Fourteenth or the Eighth Amendment to the United States
Constitution, holding that "[c]laims of actual innocence based
on newly discovered evidence have never been held to state a
ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state
criminal proceeding." Id. at 400. The majority stated that "in
state criminal proceedings the trial is the paramount event for
[*15] determining the guilt or innocence of the defendant.
Federal habeas review of state convictions has traditionally
been limited to claims of constitutional violations occurring in
the course of the underlying state criminal proceedings." Id. at
416. The Court refused to expand the scope of habeas review to
include claims of innocence independent of a claim of
constitutional violation when there is a state avenue open to
correct an error of fact. The Court stated "that a claim of
'actual innocence' is not itself a constitutional claim, but
instead a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim considered on the
merits." Id. at 404.
In reaching its conclusion that Herrera's claim of actual
innocence did not warrant federal habeas relief, the Court
stated "'[f]ederal courts are not forums in which to relitigate
state trials.'" Id. at 401 (quoting Barefoot v. Estelle, 463
U.S. 880, 887, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983)
(overruled on other grounds)). Instead, the majority emphasized
the role of executive clemency in providing relief to prisoners
demonstrating actual innocence. Id. at 415-417. "History shows
that the traditional remedy for claims of innocence [*16] based
on new evidence, discovered too late in the day to file a new
trial motion, has been executive clemency." Id. at 417. Federal
Circuit Courts of Appeal interpreting Herrera have concluded
"that the refusal by the United States Supreme Court to hold
that a claim of actual innocence is grounds for relief means
that there exists no constitutional prohibition against leaving
an innocent person in jail if the State provides for a pardon
based upon innocence." People v. Cole, 1 Misc. 3d 531, 765
N.Y.S.2d 477, 484 (N.Y. App. Div. 2003) (citing Royal v. Taylor,
188 F.3d 239, 243 (4th Cir. 1999); Sellers v. Ward, 135 F.3d
1333, 1338-39 (10th Cir. 1998); Lucas v. Johnson, 132 F.3d 1069,
1075-77 (5th Cir. 1998); Meadows v. Delo, 99 F.3d 280, 283 (8th
Cir. 1996); Milone v. Camp, 22 F.3d 693, 705 (7th Cir. 1994));
see also State ex rel. Amrine v. Roper, 102 S.W.3d 541, 546-47
(Mo. 2003).
The New Mexico Constitution vests executive clemency authority
with the governor, providing an avenue of relief for prisoners
who are actually innocent. N.M. Const. art. V, § 6; NMSA 1978, §
31-21-17 (1955). Because there is an opportunity for an innocent
person to be pardoned in New Mexico, the incarceration of an
individual [*17] who is actually innocent does not violate the
federal constitution. See Cole, 765 N.Y.S.2d at 484. Since the
freestanding claim of innocence asserted by Petitioner is "not
cognizable under the federal constitution, we now examine
Petitioner's state constitutional claim." Cardenas-Alvarez, 2001
NMSC 17, P 10, 130 N.M. 386, 25 P.3d 225.
Preservation
Our examination of Petitioner's state constitutional claim
begins with a determination of whether Petitioner preserved his
claim below.
[W]hether a state constitutional claim has been preserved
depends on how our precedent treats the constitutional provision
in question. If there is no precedent construing the state
constitutional provision more broadly than its federal analog
the defendant must assert at trial that the state constitution
should be interpreted more broadly and provide reasons for the
requested departure.Id. P 11 (internal citation omitted). In his
Supplemental Memorandum on Petition for Writ of Habeas Corpus,
filed in district court, Petitioner argued both that his claim
was cognizable under the federal constitution, and that the
guarantees of due process and against cruel and unusual
punishment within the New Mexico Constitution provide greater
protections [*18] than their federal counterparts. In light of
this argument, we conclude Petitioner adequately preserved his
state constitutional claim.
Departing from Federal Precedent
In Gomez we articulated three reasons a state court may diverge
from federal precedent: "a flawed federal analysis, structural
differences between state and federal government, or distinctive
state characteristics." 1997 NMSC 6, P 19, 122 N.M. 777, 932
P.2d 1. Any one of these reasons may provide sufficient
justification for departing from federal precedent.
Cardenas-Alvarez, 2001 NMSC 17, P 14, 130 N.M. 386, 25 P.3d 225.
As we examine Petitioner's claim, we identify both structural
differences between our state government and the federal
government as well as distinctive state characteristics that
warrant a departure from the federal rule not to hear the
freestanding innocence claims of habeas petitioners. Thus, we do
not reach the question of whether the federal analysis of actual
innocence claims is flawed.
Structural Differences
The majority's decision in Herrera to deny the petitioner's
habeas corpus petition was informed by concerns of federalism
and an unwillingness to overturn convictions of petitioners who
have been afforded fair trials in state courts. See Herrera, 506
U.S. at 399, 401, 407-08; Summerville v. Warden, State Prison,
229 Conn. 397, 641 A.2d 1356, 1378 (Conn. 1994) [*19] (Berdon,
J., dissenting) (stating "the federal courts are limited by
federalism concerns and by the traditional deference paid to the
states in matters of criminal process"). When examining a
federal habeas petitioner's claim of actual innocence, the
United States Supreme Court must balance the rights of a
petitioner to be free from unlawful confinement with a State's
interest in comity and finality. The Supreme Court has
recognized the right of states to conduct their own criminal
trials, announcing that "[f]ederal intrusions into state
criminal trials frustrate both the States' sovereign power to
punish offenders and their good-faith attempts to honor
constitutional rights." Engle v. Isaac, 456 U.S. 107, 128, 102
S. Ct. 1558, 71 L. Ed. 2d 783 (1982). Additionally, the Supreme
Court has recognized that the better place to correct an error
of fact, including a finding of guilt or innocence, is in state
court. Barefoot, 463 U.S. at 887 (stating that "[f]ederal courts
are not forums in which to relitigate state trials") (overruled
on other grounds).
The principles of federalism which informed the majority's
decision in Herrera, do not constrain this Court in our
determination of whether the protections within the New [*20]
Mexico Constitution allow a habeas corpus petitioner to assert a
freestanding claim of actual innocence. Rather than being
concerned with principles of federalism, the New Mexico
Constitution is obligated to protect our State's sovereignty.
Intrinsic within state sovereignty is an interest protecting the
credibility of the state judiciary. See Larry May and Nancy
Viner, Actual Innocence and Manifest Injustice, 49 St. Louis U.
L.J. 481, 488 (Winter 2005) (commenting that "[s]tate
sovereignty involves significant interests in preserving the
accuracy of a state's own trial process and in ensuring the
correct determination of guilt or innocence according to state
law"). This Court has a particular interest in ensuring accuracy
in criminal convictions in order to maintain credibility within
the judiciary. "'We must take every precaution to avoid casting
even the slightest doubt on the propriety of jury verdicts in
criminal proceedings.'" State v. Jojola, 2005 NMCA 119, P 23,
138 N.M. 459, 122 P.3d 43 (quoting State v. Rodriguez, 2004 NMCA
125, P 12, 136 N.M. 494, 100 P.3d 200). Additionally, we agree
with the United States Supreme Court's assessment that the best
place to correct an error [*21] of fact is in our state courts.
Barefoot, 463 U.S. at 887. Thus, in view of our state interest
in insuring accuracy and the superior ability of our state
courts to make accurate factual findings, we find sufficient
reason to depart from the federal decision not to recognize
freestanding innocence claims brought by habeas petitioners.
Distinctive State Characteristics
In many instances this Court has concluded that the New Mexico
Constitution provides greater rights to New Mexico defendants
than those rights provided in the federal constitution. See
State v. Nunez, 2000 NMSC 13, P 15, 129 N.M. 63, 2 P.3d 264
(protecting against double jeopardy); Cardenas-Alvarez, 2001
NMSC 17, P 15, 130 N.M. 386, 25 P.3d 225 (providing additional
protection from unreasonable searches and seizures than federal
law); New Mexico Right to Choose v. Johnson, 1999 NMSC 5, P 27,
126 N.M. 788, 975 P.2d 841 (ensuring a more robust guarantee of
equal protection of the law than that provided by the federal
constitution). Particularly, the provisions at issue in this
case, Article II, Section 18, ensuring due process, and Article
II, Section 13, prohibiting cruel and unusual punishment, have
been interpreted as providing greater protection [*22] than
their federal counterparts. See State v. Vallejos, 1997 NMSC 40,
PP 35-38, 123 N.M. 739, 945 P.2d 957; State v. Rueda, 1999 NMCA
33, PP 9-14, 126 N.M. 738, 975 P.2d 351.
Article II, Section 18 of the New Mexico Constitution prohibits
the deprivation of life or liberty without due process of law.
Fundamental fairness is intrinsic within the concept of due
process that is provided by the New Mexico Constitution. See
Vallejos, 1997 NMSC 40, P 17, 123 N.M. 739, 945 P.2d 957. We
believe that to ignore a claim of actual innocence would be
fundamentally unfair. The Herrera dissent stated that "[n]othing
could be more contrary to contemporary standards of decency, or
more shocking to the conscience, than to execute a person who is
actually innocent." Herrera, 506 U.S. 390, 430, 113 S. Ct. 853,
122 L. Ed. 2d 203 (Blackmun, J., dissenting) (internal citations
omitted). We conclude that the conviction, incarceration, or
execution of an innocent person violates all notions of
fundamental fairness implicit within the due process provision
of our state constitution. See Cole, 765 N.Y.S.2d at 485
(holding "that the conviction or incarceration of a guiltless
person violates elemental fairness, deprives that person of
freedom of movement and freedom from [*23] punishment and thus
runs afoul of the due process clause of the [New York] State
Constitution"). To ensure that the principles of fairness within
the New Mexico Constitution are protected, we hold that a habeas
petitioner must be permitted to assert a claim of actual
innocence in his habeas petition. See Engle, 456 U.S. at 126
(articulating that habeas corpus is the last judicial inquiry
into the validity of a defendant's criminal conviction and
sentence and serves as "a bulwark against convictions that
violate 'fundamental fairness'"); Summerville, 641 A.2d at 1368
(stating "[h]abeas corpus is the ultimate inquiry into the
fundamental fairness of a criminal proceeding").
We find additional support for this holding within Article II,
Section 13 of the New Mexico Constitution, prohibiting the
infliction of cruel and unusual punishment. N.M. Const. art. II,
§ 13. A punishment is excessive and unconstitutional if "(1)
[The punishment] makes no measurable contribution to acceptable
goals of punishment and hence is nothing more than the
purposeless and needless imposition of pain and suffering; or
(2) [the punishment] is grossly out of proportion to the
severity of the crime." State v. Garcia, 99 N.M. 771, 780, 664
P.2d 969, 978 (1983) [*24] (quoting Coker v. Georgia, 433 U.S.
584, 592, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977)). It cannot be
said that the incarceration of an innocent person advances any
goal of punishment, and if a prisoner is actually innocent of
the crime for which he is incarcerated, the punishment is indeed
grossly out of proportion to the severity of the crime. See
Herrera, 506 U.S. at 431 (Blackmun, J., dissenting) (stating "[t]his
Court has ruled that punishment is excessive and
unconstitutional if it is nothing more than the purposeless and
needless imposition of pain and suffering, or if it is grossly
out of proportion to the severity of the crime" (internal
quotation marks and citations omitted)); Cole, 765 N.Y.S.2d at
485 (holding "that punishing an actually innocent person is
disproportionate to the crime (or lack of crime) committed and
violates the cruel and inhuman treatment clause").
Standard Applied to Claims of Actual Innocence
Having resolved that the New Mexico Constitution permits habeas
petitioners to assert freestanding claims of actual innocence,
we must now decide what standard should be applied to such
claims. In order to determine the appropriate standard, we look
to both the United States Supreme Court, as well [*25] as other
states that entertain postconviction applications for the writ
of habeas corpus alleging actual innocence as an independent
ground for relief. In Herrera, several different standards of
proof were suggested as the standard a petitioner must meet to
prevail on a freestanding claim of actual innocence. The
majority stated:
[w]e may assume, for the sake of argument in deciding this case,
that in a capital case a truly persuasive demonstration of
'actual innocence' made after trial would render the execution
of a defendant unconstitutional, and warrant federal habeas
relief if there were no state avenue open to process such a
claim.Herrera, 506 U.S. at 417. Justices O'Connor and Kennedy,
in a concurring opinion, stated that relief should be reserved
for "extraordinarily high and truly persuasive demonstration[s]
of actual innocence." Id. at 426 (internal quotation marks
omitted). In his concurrence, Justice White stated that to
warrant relief, a "petitioner would at the very least be
required to show that based on proffered newly discovered
evidence and the entire record before the jury that convicted
him, 'no rational trier of fact could [find] proof of guilt
beyond a reasonable [*26] doubt.'" Id. at 429 (quoting Jackson
v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)). The least rigorous standard of proof was offered by
Justice Blackmun. He suggested that "to obtain relief on a claim
of actual innocence, the petitioner must show that he probably
is innocent." Id. at 442 (Blackmun, J., dissenting).
The variety of standards advanced by the various opinions in
Herrera, is echoed by the states recognizing freestanding claims
of actual innocence. The California Supreme Court sets a heavy
burden on petitioners presenting claims of actual innocence,
requiring a petitioner to present evidence that "undermine[s]
the entire prosecution case and point[s] unerringly to innocence
or reduced culpability." In re Clark, 5 Cal. 4th 750, 21 Cal.
Rptr. 2d 509, 855 P.2d 729, 739 (Cal. 1993) (quoting People v.
Gonzalez, 51 Cal. 3d 1179, 275 Cal. Rptr. 729, 800 P.2d 1159,
1196 (Cal. 1990)). In contrast, the Illinois Supreme Court
stated that it would grant habeas relief to a petitioner that
made an evidentiary showing of actual innocence which was "of
such conclusive character as would probably change the result on
retrial." People v. Washington, 171 Ill. 2d 475, 665 N.E.2d
1330, 1337, 216 Ill. Dec. 773 (Ill. 1996) (internal quotation
marks and citations omitted).
When the Texas Court of Appeals initially [*27] recognized
habeas corpus as the appropriate vehicle for an inmate to assert
an actual innocence claim, it set a very high burden of proof
for petitioners. See State ex rel. Holmes v. Honorable Court of
Appeals for Third District, 885 S.W.2d 389, 399 (Tex. Crim. App.
1994) (en banc). The court held that "in order to be entitled to
relief on a claim of factual innocence the applicant must show
that based on the newly discovered evidence and the entire
record before the jury that convicted him, no rational trier of
fact could find proof of guilt beyond a reasonable doubt." Id.
(adopting the burden of proof set forth by Justice White in his
concurrence in Herrera, 506 U.S. at 429). This burden was later
modified by the Texas Criminal Court of Appeals in Ex parte
Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) (superseded on
other grounds by statute). That court decided that a burden of
proof "conditioned upon a finding that no rational juror could
convict the applicant after introduction of the newly discovered
evidence" was too high, since under the standard set forth in
Holmes, relief would be impossible because exculpatory evidence
can never outweigh inculpatory evidence. Id. at 205. [*28] The
court decided that the proper standard for a freestanding claim
of actual innocence would allow a case-by-case determination of
the reliability of the new evidence. Id. at 207. The new
exculpatory evidence can then be directly weighed against the
inculpatory evidence which was the basis for the conviction. The
court determined that because the jury's conviction at trial is
considered valid, the appellate court's "job is not to review
the jury's verdict but to decide whether the newly discovered
evidence would have convinced the jury of [sic] applicant's
innocence." Id. The court held relief should be granted if the
petitioner can convince the court "by clear and convincing
evidence that no reasonable juror would have convicted him in
light of the new evidence." Id. at 209.
The clear and convincing standard articulated in Elizondo has
been adopted in Connecticut, Missouri, and New York. See Miller
v. Comm'r of Corr., 242 Conn. 745, 700 A.2d 1108, 1132 (Conn.
1997) (holding "in order to grant a petitioner's request for
relief, the habeas court first must be convinced by clear and
convincing evidence that the petitioner is actually innocent");
State ex rel Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003)
[*29] (en banc) (holding a petitioner asserting a freestanding
claim of actual innocence is required "to make a clear and
convincing showing of actual innocence that undermines
confidence in the correctness of the judgment"); Cole, 765
N.Y.S.2d at 486 (concluding that "a movant making a freestanding
claim of innocence must establish by clear and convincing
evidence (considering the trial and hearing evidence) that no
reasonable juror could convict the defendant of the crimes for
which the petitioner was found guilty"). In describing the clear
and convincing standard, the Missouri Supreme Court stated that
"[e]vidence is clear and convincing when it 'instantly tilts the
scales in the affirmative when weighed against the evidence in
opposition, and the fact finder's mind is left with an abiding
conviction that the evidence is true.'" Amrine, 102 S.W.3d at
548 (quoting In re T.S., 925 S.W.2d 486, 488 (Mo. Ct. App.
1996).
The State argues that the proper standard should require a
petitioner to prove "that no rational jury would have convicted
him, i.e., he proves his innocence beyond a reasonable doubt."
However, like the Texas Court of Appeals, we agree that
if habeas corpus relief is to be [*30] conditioned upon a
finding that no rational juror could convict the applicant after
introduction of the newly discovered evidence, it becomes
theoretically impossible for any habeas applicant to sustain his
burden because exculpatory evidence can never outweigh
inculpatory evidence under this standard of sufficiency.Elizondo,
947 S.W.2d at 205. While the burden on petitioners should not be
so insurmountable that it is practically impossible for a
petitioner to prove his innocence, it should be more rigorous
than the standard imposed on petitioners who are making a motion
for a new trial based on newly discovered evidence. In order to
warrant a new trial on the basis of newly discovered evidence, a
petitioner must show that the evidence "will probably change the
result if a new trial is granted." State v. Garcia, 2005 NMSC
38, P 8, 138 N.M. 659, 125 P.3d 638. We believe this standard,
adopted by the Illinois Supreme Court in Washington, 665 N.E.2d
at 1336, does not go far enough to protect the public's interest
in the finality of a conviction obtained after a petitioner has
been afforded all constitutional rights required by law. See
State v. Duran, 105 N.M. 231, 233, 731 P.2d 374, 376 (N.M. Ct.
App. 1986) [*31] (announcing "[w]e are primarily interested in
the finality of criminal adjudications."); Cole, 765 N.Y.S.2d at
486 (stating "[t]he government has an interest in the finality
of a conviction once it has accorded an accused all of the
constitutional rights required by law"). Additionally, because
the relief extended to habeas petitioners asserting claims of
actual innocence is extraordinary, the standard applied to such
claims should be more demanding than the standard that must be
met by defendants motioning for a new trial.
Thus, the appropriate standard should fall between the "probably
change the result" standard adopted in Washington and the
"beyond a reasonable doubt" standard found in Holmes. Therefore,
a petitioner asserting a freestanding claim of innocence must
convince the court by clear and convincing evidence that no
reasonable juror would have convicted him in light of the new
evidence. See Elizondo, 947 S.W.2d at 209.
Introduction of Newly Discovered Evidence
Having determined the standard of proof to be applied to
petitioners asserting freestanding claims of actual innocence,
we must identify what evidence a petitioner may introduce to
support his innocence claim. Both [*32] the State and Petitioner
devote significant portions of their arguments to the issue of
whether the evidence Petitioner presented at trial constitutes
newly discovered evidence under the standard set forth for a
motion for a new trial. Under the motion for new trial standard,
a defendant must show that the evidence meets six criteria:
1) it will probably change the result if a new trial is granted;
2) it must have been discovered since the trial; 3) it could not
have been discovered before the trial by the exercise of due
diligence; 4) it must be material; 5) it must not be merely
cumulative; and 6) it must not be merely impeaching or
contradictory.Garcia, 2005 NMSC 38, P 8, 138 N.M. 659, 125 P.3d
638. Additionally, in the case of recantation testimony, four
additional factors support a decision granting a new trial:
"(1) the original verdict was based upon uncorroborated
testimony; (2) the recantation occurred under circumstances free
from suspicion of undue influence or pressure from any source;
(3) the record fails to disclose any possibility of collusion
between the defendant and the witness between the time of the
trial and the retraction; and (4) the witness admitted [the]
perjury on the witness stand and [*33] thereby subjected
[himself or] herself to prosecution."See State v. Sena, 105 N.M.
686, 687, 736 P.2d 491, 492 (1987).
We agree with the State's assertion that the evidence presented
by Petitioner at his habeas hearing does not warrant relief
under the standard applicable to motions for a new trial because
the evidence could have been discovered before trial by the
exercise of due diligence, there was clearly collusion between
Petitioner and the witness, and Petitioner's conviction was not
based on the uncorroborated testimony of the recanting witness.
State v. Montoya, Dispositional Order of Affirmance, No. 27,594
(Mar. 17, 2003). However, the fact that the evidence presented
by Petitioner does not fit within our rubric for newly
discovered evidence does not mean that Petitioner's claim will
necessarily fail. When examining a freestanding claim of actual
innocence, we will not be constrained by the requirements
applicable to motions for a new trial. Instead, we examine the
evidence presented and evaluate any reliable evidence. See Cole,
765 N.Y.S.2d at 481, 485 (examining petitioner's claim of actual
innocence despite the fact that he could not meet the criteria
for a new trial on [*34] the grounds of newly discovered
evidence because he could not establish that the evidence could
not have been discovered prior to trial with due diligence).
This is because the focus of our inquiry is on actual innocence
rather than when the evidence could have been discovered or
procedural error. We conclude, however, that the factors which
determine whether evidence is newly discovered under our motion
for a new trial standard remain relevant as we review whether or
not the evidence presented by Petitioner is reliable.
Application
When we originally reviewed the district court's denial of
Petitioner's motion for a new trial on direct appeal, we agreed
with the district court's conclusion that the evidence of
Jeremy's testimony was not so persuasive that it would probably
change the result. Montoya, [*35] Dispositional Order of
Affirmance, No. 27,594, PP 11-12 (Mar. 17, 2003). We see no
significant distinction between the evidence elicited at the
hearing on Petitioner's motion for a new trial and the evidence
presented at the habeas hearing. The crux of the evidence in
support of both Petitioner's motion for new trial and his habeas
petition was that Jeremy, not Petitioner, was the shooter.
Jeremy's testimony at the habeas hearing constitutes the third
version of the events he has testified to under oath. At trial,
Jeremy testified that neither he nor Petitioner returned to the
party and shot the victims. Subsequently, at Petitioner's motion
for new trial, Jeremy testified that after the initial fight he
returned to the party while Petitioner was in the shower. He
claimed that he approached the victims and fired shots in the
air, but never pointed the gun directly at the victims. Jeremy
presented yet another version of events at the habeas hearing,
giving sworn testimony that he intentionally shot the victim.
While Jeremy's testimony that he intentionally shot the victim
would, if believed, expose him to additional culpability, we do
not find that this deviation from his prior testimony [*36] is
enough for this Court to say that the evidence would probably
change the result on retrial, let alone meet the clear and
convincing standard we have outlined for claims of actual
innocence.
Additionally, both Petitioner's and Jeremy's credibility is
suspect in light of the fact that they testified that they
colluded to lie under oath at Petitioner's trial in an effort to
absolve themselves of the charged crimes. Assuming that Jeremy's
testimony given at the habeas hearing is in fact true,
Petitioner chose not to rebut Jeremy's perjured testimony at
trial and instead presented it as part of his defense,
corroborating it with not only his own testimony but that of
several other defense witnesses. Petitioner's and Jeremy's
collusive effort, if true, was an attempt to intentionally
deceive the trial court and manipulate the judicial process. The
result of this alleged manipulation is that this Court is left
with persistent doubt as to the truth of the version of events
Petitioner presented at his habeas hearing. Thus, we cannot say
that Petitioner has established by clear and convincing evidence
that no reasonable juror would have convicted him in light of
the new evidence.
Our holding [*37] that the evidence in this case does not meet
the clear and convincing standard, should not be interpreted as
barring all freestanding claims of innocence based on the
confession of another. We can foresee instances when the
confession of someone other than the habeas petitioner would
establish by clear and convincing evidence that no reasonable
juror could convict the petitioner of the crimes for which he
was found guilty. This case, however, presents a unique factual
scenario involving multiple versions of the events in questions
and significant credibility issues. In light of these issues,
Jeremy's confession does not meet the clear and convincing
standard applicable to claims of actual innocence.
CONCLUSION
For the reasons stated, we affirm the district court's decision
to deny Petitioner's petition for habeas corpus relief.
IT IS SO ORDERED.
PETRA JIMENEZ MAES, Justice
WE CONCUR:
EDWARD L. CHAVEZ, Chief Justice
PAMELA B. MINZNER, Justice
PATRICIO M. SERNA, Justice
RICHARD C. BOSSON, Justice (specially concurring)
CONCUR BY: RICHARD C. BOSSON
CONCUR
BOSSON, J., specially concurring.
I fully concur in both the reasoning and the result of the
majority opinion. I write to emphasize what a close case this is
[*38] and to clarify what more could have been done to support
the petition for habeas corpus relief.
Jeremy's recantation did undermine the evidence presented by the
State at the original trial. And, as the majority notes,
sometimes such a recantation will be enough to warrant habeas
relief. Supra, P 36. However, in this case, the determining
factor was to what degree the recantation undermined the
evidence. In other words, what weight should we give a
recantation when the person giving it had colluded to lie under
oath several times prior to the recantation?
I agree with the majority that because of this history the
recantation, along with Petitioner's testimony that he had lied
as well, was not enough to establish by clear and convincing
evidence that no reasonable juror could convict the Petitioner
of the crimes for which he was found guilty. The majority of the
evidence presented by Petitioner at his habeas hearing came from
two individuals who apparently, if their story is to be
believed, agreed to lie, got other people to agree to lie for
them, then did in fact lie under oath, multiple times. It should
be obvious why such evidence is questionable.
Supposing, however, that Jeremy is [*39] telling the truth, is
there no way to amass sufficient evidence that might persuade a
court? I believe there might be. To do so, the parties must
present as much evidence as is available and explain what is not
available. This is especially true when some of the evidence is
not as strong, such as testimony from a person known to lie
under oath. The troubling thing to me is that, according to
Jeremy and Petitioner's latest version of the story, such
supporting evidence should not have been difficult to produce.
For example, Petitioner could have presented his other brother,
Jason, to testify that he was with Petitioner at the apartment
when Jeremy was missing. Another friend of Petitioner and
Jeremy, Darius Jones, allegedly saw Petitioner at Jason's
apartment when Jeremy was missing. Apparently the twin's uncle
saw Petitioner with Jason when the two were searching for
Jeremy. Why were none of these witnesses called to testify so as
to bolster Jeremy's recantation and provide some undercurrent of
credibility? The testimony of any one of them, or better yet all
of them, would have strengthened Petitioner's claim. And then
there are the eye-witnesses to the shooting who identified
Petitioner [*40] at trial as the shooter. Perhaps one or more
might be persuaded by Jeremy's recantation that they might have
been mistaken in that identification. To date, however, we have
no explanation for the absence of any such testimony.
This Court understands the importance of ensuring that innocent
people, wrongly convicted, have an opportunity to present their
case. But we must also be mindful of the role of the jury in our
system of justice. The majority opinion strikes this balance
well by utilizing a clear-and-convincing-evidence standard. In
this case, Petitioner just failed to meet his burden. But that
is not to say that he might not be able to meet his burden in
the future.
RICHARD C. BOSSON, Justice
Friday, May 21, 2010
Convicted Killer Seeks Clemency
By Rene Romo
Journal Southern Bureau
LAS CRUCES — Having exhausted judicial appeals, a man serving
a 20-year sentence for a killing that his identical twin brother
claims he carried out has turned to the governor in a bid for
clemency. Albuquerque attorney Eric Hannum filed a petition
dated April 28 to Gov. Bill Richardson seeking a full pardon for
31-year-old Joseph Montoya, who has served about 10 1/2 years
for the fatal 1999 shooting of a California man in Las Cruces.
Immediately after Montoya's 2000 conviction on second-degree
murder and two counts of aggravated assault, his twin brother
Jeremy told the defense attorney that he had fired the shots
that killed Robert Williams, a 23-year-old man from Los Angeles.
Since then, in a series of appeals reaching to the state Supreme
Court, Joseph Montoya has sought to gain his freedom by arguing
that the wrong twin was convicted of Williams' slaying.
The twins testified in a 2005 evidentiary hearing that they
committed perjury in the 2000 trial to provide the confessed
shooter, Jeremy, an alibi and prevent Joseph's conviction. The
clemency petition contains a new admission, by older brother
Jason, that he also testified falsely in the same 2000 trial "to
provide a phony alibi" for Jeremy, according to his sworn
affidavit. The twins' father, Los Alamos resident Frank
Montoya, said the clemency request is "more or less our last
solid hope of getting Joseph out." Jeremy Montoya has said he
would plead to the murder charge and serve a sentence.
Joseph Montoya's case was prosecuted by the office of 3rd
Judicial District Attorney Susana Martinez, a Republican
candidate for governor. Martinez's office has consistently
opposed Joseph Montoya's efforts, arguing that the confession
did not constitute new evidence that would warrant another trial
because it could have been discovered earlier.
Speaking on behalf of Martinez's office Thursday, Chief Deputy
District Attorney Susan Riedel also said the twins were not
credible because they have admitted lying under oath. Riedel
said prosecutors are confident the right twin is behind bars.
"If there was doubt about that, we would be ethically obligated to do something," Riedel said. "There's never been any concern in this office if the right person was convicted in this case." In a 2005 court hearing in Las Cruces, Jeremy Montoya said he grabbed a gun from older brother Jason's apartment and returned to a party near the New Mexico State University campus, where the twins had been beaten in a fight with a group of other men. There, Jeremy Montoya said, he shot and killed Williams, while Joseph remained at the apartment. During his two terms in office Richardson has granted 54 pardons but only once, in 2004, commuted a sentence involving a murder conviction. That was for Janet Vigil, who had served nearly 15 years of a life sentence for the murder of her husband. Vigil had no prior criminal history and claimed that she suffered domestic violence prior to the slaying. Jason Montoya said his participation in the twins' misguided attempt to beat the 2000 case was a "dumb decision" born of immaturity and the desire to protect his brothers. A father of two who is employed in Santa Fe, Jason Montoya said he has placed himself at risk of perjury charges to tell the truth. "If you put anybody else in my family's situation, and it (Jeremy's confession) wasn't true, they would have folded a long time ago," he said. "We just want Joe to be free," he added.
Read more: ABQJOURNAL NEWS/STATE: Convicted Killer Seeks Clemency http://www.abqjournal.com/news/state/212359191536newsstate05-21-10.htm#ixzz11e6ljTfc
Albuquerque Journal
March 24, 2001
New Mexico District Judge Stephen Bridgforth ruled in March against a new trial for Joseph Montoya, 22, leaving him to serve the 20-year sentence he was given in a 1999 shooting death, despite the subsequent confession (backed by a polygraph) by Montoya's twin brother, Jeremy, that it was he who committed the crime. The judge reasoned that, after all, several witnesses freely admitted they were confused about which one of the Montoya brothers fired the shots, but that the jury, in its wisdom, decided it was Joseph, and that was that.
TWINS-MURDER
High court gets case of convicted murderer whose twin says he's
guilty
SANTA FE (AP) - Joseph Montoya is in prison for the fatal shooting of a man after a party in Las Cruces in 1999. After he was convicted, his twin brother, Jeremy, alleged he was the shooter. But the brothers haven't been able to convince a court to order a new trial. The latest attempt was rejected three months ago by a state district judge in Las Cruces. Yesterday, Joseph Montoya's lawyer asked the state Supreme Court to review that judge's decision. The lawyer says Jeremy Montoya's confession in April that he intentionally shot the victim amounts to new evidence that requires a new trial would be held. The court made no immediate decision about whether to review the lower court's ruling.
New trial denied in killings involving twin brothers
Posted: Tuesday, June 18, 2002
The Associated Press
SANTA FE, N.M. (AP) - The state Court of Appeals on Monday
declined to order a new trial for a former college student
convicted of a 1999 killing in Las Cruces that his twin brother
later claimed to have committed. In an unanimous ruling, the
court said the latest testimony of the twin brother wasn't
credible and didn't meet legal standards for granting a new
trial. Joseph Montoya of Roswell was convicted of second-degree
murder for the shooting death of Robert Williams on Sept. 2
1999, at a party after a New Mexico State University football
game. Montoya and his twin brother, Jeremy, were students at
NMSU at the time of the killing. After Joseph was sentenced to
20 years in prison for murder and two counts of aggravated
assault, Jeremy recanted his earlier testimony that neither he
nor his brother were near the scene of the killing at the time
it happened. Jeremy said he fired the shots that killed Williams
although he claimed the killing was accidental. He took a
polygraph test that indicated he was being truthful when he
admitted to being the shooter.
Former NMSU student jailed for murder gets new hearing
Issue date: 11/11/04 Section: News
PrintEmail DoubleClick Any Word Page 1 of 2 next > by Argen
Duncan
News reporter
A former New Mexico State University student convicted of murder
four years ago has won a hearing for the district court to
listen to his identical twin brother confess to the crime and to
consider a new trial.
However, the assistant district attorney in charge of the case
dismissed the confession in an interview.
Joseph Montoya, a former criminal justice major, was charged
with the September 1999 shooting death of Robert Williams, 23,
of Los Angeles, according to the Sept. 9, 1999 issue of the
Round Up.
According to a letter Joseph Montoya sent to the Round Up
recently, he was convicted of second degree murder and two
counts of aggravated assault in September 2000.
Since his conviction, his identical twin brother, Jeremy, has
confessed to the crimes, wrote Joseph Montoya, who said he is
incarcerated in Las Cruces.
With his letter, he sent another letter he said his brother
wrote to several government officials in January. The second
letter gives a confession to the murder and expresses a desire
to take responsibility and free Joseph Montoya, who is serving a
20-year sentence. According to his letter, Jeremy Montoya
confessed on local and national television, in district court,
in appeals court and in the state Supreme Court, and he passed a
polygraph test.
However, Tom Clark, assistant district attorney, said that
during the original trial, both twins testified they were
together the night of the shooting and neither did it.
Also, all witnesses who could tell the twins apart said Joseph
Montoya committed the crime, he said.
Clark said the two changed their story after the conviction.
"That's what's truly suspicious," he said.
He said he knows Jeremy Montoya's confession has nothing to
substantiate it because he heard all of the evidence.
Clark said they had a hearing to get a new trial shortly after
the conviction and lost the case in the district court, appeals
court and state Supreme Court.
However, Frank Montoya, the men's father, said that after a long
legal process, the state Supreme Court recently ordered the
local district court to allow Joseph Montoya a hearing on the
issue. Though a date has not been set, the hearing will probably
take place in mid-December, he said.
"This is an opportunity to let justice prevail at this hearing,
and maybe the district attorney will recognize this opportunity
and let justice prevail," he said.
Joseph Montoya wrote that he and his brother would take the
witness stand and expressed ideas similar to his father's.
"We are not asking for favors or sympathy; all we want is
'what's right' and 'just,'" he said in his letter.
Frank Montoya said his twin sons went to a party together the
night of the shooting, a fight started, and they left. Jeremy
Montoya then returned alone and committed the crimes, he said.
While he said stories were conflicting, he also said witnesses
reported a left-handed shooter. Jeremy Montoya is left-handed,
and Joseph Montoya is right-handed, he said.
Clark said since both twins testified neither returned to the
party, the issue of the shooter's dominant hand does not matter.
The Round Up quotes Sgt. Joel Cano of the Las Cruces Police Department as saying the twins returned together, and Joseph Montoya allegedly fired a semi-automatic gun into the small crowd. When asked if Joseph Montoya knew about his brother's alleged crime, Frank Montoya said Jeremy Montoya told him his brother was not with him during the shooting. He added that Joseph Montoya confessed to perjury for covering up for his brother. "But actually knowing that (Jeremy) did, (Joseph) wasn't actually there; he didn't witness it," Frank Montoya said. According to the Round Up, Joseph Montoya was originally charged with first-degree murder and three counts of aggravated assault. The Round Up quoted Cano as saying the counts of aggravated assault came from "people being shot at or the gun being pointed at them." Frank Montoya spoke of his feelings of the situation. "It's just kind of tough on us as parents because I have one twin who's guilty of it and not locked up and one twin who's not guilty of it and locked up," he said. He added he would feel more comfortable as a parent knowing why Jeremy Montoya was in jail rather than not knowing why his brother is in jail. District Attorney Susana Martinez could not be reached for comment.
