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STATE V. NIETO, 2000-NMSC-031, 129 N.M. 688, 12 P.3d 442
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
LAWRENCE NIETO, Defendant-Appellant.

Docket No. 24,787
SUPREME COURT OF NEW MEXICO
2000-NMSC-031, 129 N.M. 688, 12 P.3d 442
October 16, 2000, Filed
APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY. Neil P. Mertz, District Judge.  

Released for Publication November 16, 2000.
COUNSEL
Robert E. Tangora, L.L.C., Robert E. Tangora, Santa Fe, NM, for Appellant.  
Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, for Appellee.  

JUDGES
GENE E. FRANCHINI, Justice. WE CONCUR: PAMELA B. MINZNER, Chief Justice, JOSEPH F. BACA, Justice, PATRICIO M. SERNA, Justice, PETRA JIMENEZ MAES, Justice.  AUTHOR: GENE E. FRANCHINI

OPINION
{*690} FRANCHINI, Justice.
{1} After a jury trial, Lawrence Nieto was found guilty of four counts of felony murder in the first degree, armed robbery with a firearm enhancement, conspiracy to commit murder in the first degree, and tampering with evidence for his involvement in what has come to be known as the Torreon Cabin Murders. On appeal, Defendant asserts: (1) the jury was improperly instructed on the criminal intent necessary to sustain a felony murder conviction; (2) the trial court erred in rejecting Defendant's tendered jury instructions on mistake of fact and duress; (3) the court erroneously refused to suppress his confession on the grounds that Defendant had not received Miranda warnings; (4) evidence of Defendant's gang affiliation improperly suggested guilt by association; (5) there was insufficient evidence to support any of his convictions; and (6) the trial court's errors constituted cumulative error.  
{2} We hold: (1) the jury was properly instructed on the intent element of felony murder; (2) the trial court properly rejected Defendant's instructions on mistake of fact and duress; (3) the court's refusal to suppress Defendant's confession was proper because the court determined that Defendant's statements were not part of a custodial interrogation; (4) evidence of Defendant's gang affiliation was admissible; (5) there was sufficient evidence to support each conviction; and
(6) the trial court did not commit cumulative error. We affirm the convictions.  


FACTS AND PROCEDURE
{3} On April 14, 1996, Ben Anaya Sr. drove to his cabin near Torreon, New Mexico. {*691} Mr. Anaya had not seen his son, Ben Anaya Jr., since December 10, 1995, when Ben Jr. had left for the cabin. Upon arriving at the cabin, Mr. Anaya noticed that trash had been strewn across the yard and the security gate, which his son always locked prior to leaving, had been left wide open. Entering the cabin, Mr. Anaya observed more trash and found evidence of a small fire inside. After turning off the television, Mr. Anaya made his way to the bedroom where he discovered the corpse of a person who would later be identified as his son.
{4} Ben Jr. was not the only body found at the cabin. When Torrance County Deputy Sheriff Susan Encinias entered the cabin, she found the body of Cassandra Sedillo laying face up on the floor. One of Cassandra's children was on the floor, buried in clothes and a sleeping bag, while the other child lay on the top bunk of a bunk bed. The bodies were in various states of decomposition and infested, in varying degrees, with insects. According to the testimony of Medical Investigator, Dr. Patricia McFeeley, Ben's death was caused by a gunshot wound to the head. She also testified that two gunshot wounds, one to the left shoulder and another to the head, resulted in Cassandra's death. Cassandra's two young sons, Matthew Garcia and Johnny Ray Garcia, both died as a result of dehydration and starvation. Based on the bodies' respective degrees of decomposition as well as an entomologist's report, Dr. McFeeley concluded that the two adults died on or around December 12, 1995, and the children died sometime in early January 1996.  
{5} Lawrence Nieto implicated himself in the murders during three separate statements to police on May 11, May 13, and May 15, 1996. At a suppression hearing, the trial court refused to grant Defendant's motions to suppress each of his statements. The Court concluded that although Defendant did not receive Miranda warnings prior to his first statement, such warnings were not required because the statement was not part of a custodial interrogation. The second and third statements were uttered during custodial interrogations, but the court found that Defendant had received Miranda warnings prior to both those statements. Accordingly, the trial court denied Defendant's motion to suppress admission of his statements.  
{6} The State charged Defendant with four open counts of murder, aggravated burglary, armed robbery, two counts of tampering with evidence, and conspiracy. At trial in Torrance County, Defendant offered the following account of the night of the murders. He had been at home with his mother when fellow 18th Street gang members Shawn Wilkins and Roy Buckner came over and convinced him to accompany them to the cabin in Torreon. Defendant rode in the backseat of the car. In the front seat, Mr. Wilkins kept a gun on his lap and revealed that the purpose of the trip would be to kill another gang member, Shawn Popeleski.  
{7} When they arrived at the cabin, Defendant, Mr. Wilkins, and Mr. Buckner joined Ben, Cassandra, Cassandra's two children, and Mr. Popeleski. Defendant drank beer and played with the children until Mr. Wilkins and Mr. Buckner took Defendant aside and divulged their plan to rob the others disguised with ski masks and wearing gloves. Defendant testified that he protested, but fear for his own life prevented him from refusing to cooperate. The three of them announced that they were leaving and left the immediate vicinity of the cabin only to hide in the car. While hiding in the car, Defendant, Mr. Wilkins and Mr. Buckner discussed the plan to rob Ben Jr. Defendant claims that he again objected to the plan at that time.  
{8} Nevertheless, Defendant accompanied Mr. Wilkins and Mr. Buckner as the plan came to fruition. As the three crept back to the cabin, Defendant encountered Mr. Popeleski. With a shotgun given to him by Mr. Wilkins, Defendant held Mr. Popeleski's head to the ground, while Mr. Wilkins and Mr. Buckner continued into the cabin. Upon hearing seven to eight shots emanate from the cabin, Defendant fired the shotgun into the air and permitted Mr. Popeleski to escape. Mr. Popeleski's taped testimony from the preliminary hearings of Mr. Wilkins and Mr. Buckner corroborates this aspect of Defendant's testimony. Defendant also testified that the shots he heard indicated to him {*692} that everyone in the cabin had been shot, including the children. He claimed that after releasing Mr. Popeleski, he too might have run away but he was in fear for his family. Instead, Defendant joined Mr. Wilkins and Mr. Buckner in the car.  
{9} On the drive back to Albuquerque, Defendant testified that Mr. Wilkins and Mr. Buckner stopped to burn the gloves and masks in trash cans. Defendant testified that when Mr. Wilkins and Mr. Buckner returned to the car they laughed and rejoiced in the fact that they had left no witnesses. This apparently supported his belief that no one was left alive in the house. He also testified that he did not call the police because he feared for his life and for the lives of his family. Defendant claimed that he never planned to kill, rob, or otherwise hurt anyone, and reiterated that he did not know that the children were alive. During cross-examination, the State attacked Defendant's credibility based on the multiple contradictory accounts previously offered by him and insisted that Defendant's role in the murders was more significant than he indicated. The State theorized that Defendant's actions were deliberate and motivated by his desire to accommodate the 18th Street Gang, who had ordered a hit on Ben Jr.  
{10} As part of its case in chief, the State called Detective Juan DeReyes of the Albuquerque Police Department's Metro Gang Unit to testify both as an investigating officer and as an expert on gangs. Overruling Defendant's objection, the trial judge qualified Detective DeReyes as an expert in gang subculture, but limited his testimony to matters such as specialized vocabulary, gang rituals and procedures, distinctive clothing, and gang symbolism. The judge further restricted Detective DeReyes from testifying to specific instances of Defendant's prior misconduct unless such evidence was gleaned from Defendant's own admissions.  
{11} Detective DeReyes first defined the word "gang" and listed the criteria used by his unit to identify gangs. After identifying the 18th Street Gang as the largest gang in Albuquerque, Detective DeReyes testified that Defendant was one of its members. Detective DeReyes described the hierarchical structure of gangs, including the violent means of gang initiation and the procedures by which already initiated members rise in the ranks. When the witness began to suggest that the nature of the Torreon murders corresponded with typical gang "hits," the trial court terminated the testimony. The court refused, however, to grant Defendant's motions to declare a mistrial or to request that the jury set aside Detective DeReyes' testimony.  
{12} Defendant was convicted of four counts of felony murder in the first degree, contrary to NMSA 1978,

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