STATE V. SALAZAR, 1997-NMSC-044, 123 N.M. 778, 945 P.2d 996
CASE HISTORY ALERT: see ¶31 - affects
1976-NMCA-091
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
DEAN SALAZAR, Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
1997-NMSC-044, 123 N.M. 778, 945 P.2d 996
September 03, 1997, Filed
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY. Art Encinias, District Judge.
Released for Publication September 19,
1997. As Corrected October 15, 1997. Second Correction February 4, 1998.
Rita LaLumia, Santa Fe, NM, for
Petitioner.
Hon. Tom Udall, Attorney General, Bill
Primm, Assistant Attorney General, Santa Fe, NM, for Respondent.
JOSEPH F. BACA, Justice. WE CONCUR: GENE
E. FRANCHINI, Chief Justice, PAMELA B. MINZNER, Justice, PATRICIO M. SERNA,
Justice, DAN A. McKINNON, III, Justice
{1} Pursuant to Rule
12-102 NMRA 1997, the Defendant-Appellant Dean Salazar ("Defendant")
seeks review of a jury verdict convicting him of first degree murder, shooting
into an occupied vehicle, and felon in possession of a firearm. He was
sentenced to life imprisonment plus ten and one half years. The Defendant died
in prison while the appeal of his conviction was pending before this Court.
{2} As a threshold
matter, we consider whether the Defendant's death requires abatement of all
proceedings had in this prosecution from its inception; ("
ab initio
"). Assuming no abatement is required, we are asked to examine whether the
trial court correctly instructed on jury unanimity requirements and lesser
included offenses. Last, we consider whether the trial court's evidentiary
rulings violated the Defendant's rights.
{3} This Court
declines to abate this case
ab initio, upholding the conviction and
concluding that no error occurred warranting relief.
{4} In the early
morning of November 20, 1994, the Defendant shot and killed Josephine
Manzanares ("Manzanares") while she was driving on Llano Road in
Santa Cruz, New Mexico. Prior to her death, Manzanares had been involved in a
relationship with the Defendant for approximately eight years. The relationship
was a troubled one, characterized by hostility and allegations of drug abuse.
Manzanares and the Defendant had two children together, Willy and Anthony, who
were four and five years old, respectively, at the time of the shooting. The
children lived with Manzanares and her parents, and the Defendant's access to
the children often had been an issue of contention in the relationship.
{5} The defense and
prosecution presented very different versions of the facts surrounding the
shooting. The Defendant testified at trial and alleged the following facts.
After the Defendant spent the night of November 19, 1994, consuming alcohol and
drugs, he encountered Manzanares on Llano Road on the morning of November 20th.
A dispute occurred between them regarding drugs, their relationship, and the
Defendant's access to the children. After the dispute, Manzanares left the area
in her car, driving down Llano Road. The Defendant followed in another vehicle.
The two cars eventually were side by side, driving on Llano Road. Manzanares
{*783} yelled, waved her hands at the
Defendant, and veered her car at his vehicle several times. Then, Manzanares
leaned over while driving as if she was reaching for something. The Defendant
believed that she was reaching for a gun, and he responded by grabbing a pistol
that he had with him in the car. He then held it out the window to show
Manzanares the weapon so that she would "back off." At that point,
the Defendant's weapon accidentally discharged, shooting Manzanares in the neck
and killing her.
{6} The Defendant also
alleged that he did not realize that the bullet had hit Manzanares or that his
sons, Willy and Anthony, as well as Manzanares' five-year-old nephew, Eddie,
were in her car at the time. After the gun discharged, Manzanares' car went to
the side of the road, but the Defendant did not stop because he was afraid Manzanares
or her family would call the police. As a convicted felon, the Defendant knew
that he was not permitted to possess a gun. Instead, the Defendant went to his
brother's house where he was later apprehended by police.
{7} The State
presented evidence suggesting a different series of events than that offered by
the Defendant. Anthony, the Defendant's son, testified that he was a passenger
in Manzanares' car at the time of the incident. He stated that the Defendant
followed Manzanares' vehicle down Llano, and although Manzanares attempted to
drive fast, a truck in the road forced her to slow her car. Anthony further
testified that during the pursuit, he raised his hand to wave at the Defendant
and the Defendant waved back to him. Anthony concluded by testifying that the
Defendant pulled alongside Manzanares' car and "pointed the gun to my mom
and shot her through the neck."
{8} Eddie, who was
also a passenger in Manzanares' car, testified that Manzanares had refused to
talk to the Defendant and drove away with Eddie and the other boys in her car.
Eddie did not see Manzanares with a gun, and he stated that she did not veer
her car at the Defendant's vehicle as she drove away. He also testified that
the Defendant shot Manzanares and then left the scene.
{9} After the
incident, Manzanares' car hit a wall near the home of Fidencio Trujillo.
Trujillo testified that when he went to the crash scene, the boys said,
"My dad shot my mom." Similarly, one of the children later told a
police officer on the scene, "My daddy shot my mom." When asked who
his father was, the child responded "Dean Salazar." Later that same
day, Sgt. Branch of the Espanola Police Department spoke with the Defendant's
son, Anthony, and Manzanares' nephew, Eddie. Branch videotaped these interviews
with the two boys in which he asked them several questions regarding the day's
events and the role of the Defendant.
{10} The Defendant was
unconscious and unresponsive when he was located by the Espanola Police
Department and taken into custody. He was admitted to Espanola Hospital for
treatment of a drug-induced coma. The morning following the arrest, Sgt. Branch
went to the hospital, met with the Defendant, and advised him of his Miranda
rights. The Defendant invoked his right to counsel. Branch left the room, but
Branch testified that the Defendant called him back later because the Defendant
wanted to "tell his side of the story." Branch stated that he then
re-Mirandized the Defendant before proceeding with questions. During this
questioning, the Defendant made incriminating statements involving the shooting
of Manzanares.
{11} Branch recorded
this second encounter, but it is unclear whether the entire interview was
captured on tape. The Defendant alleges that Branch failed to inform him of his
right to remain silent, and the tape does not include the issuance of that
warning. However, Branch testified that he gave that particular warning before
turning on the tape recorder. Branch did not obtain an express waiver of the
Defendant's Fifth or Sixth Amendment rights, either verbally or on a
pre-printed Waiver of Rights form.
{12} Even if adequate
warnings were given, the Defendant contends that the drugs he took made it
impossible for him to knowingly, intelligently, or voluntarily waive his
rights. Conflicting expert testimony was given as to the Defendant's level of
intoxication while in the hospital and the effect of the drugs on
{*784} the Defendant's capacity to waive his
rights. The trial court found that the Defendant's statements were made after advice
of rights, and with a knowing, intelligent, and voluntary waiver of those
rights.
{13} Also during
trial, the State re-called Branch to the stand for the purpose of offering into
evidence the videotapes of the boys' interviews from the day of the shooting.
Over the Defendant's hearsay objection, the State argued that the tapes were
admissible to rebut a defense suggestion of recent fabrication or improper
motive or influence over the children by the family of Manzanares. The trial
court admitted the videotapes and played them for the jury at trial.
{14} At the trial's
conclusion, the judge instructed the jury on two theories of first degree
murder: deliberate murder and depraved mind murder. The defense requested jury
instructions for involuntary and voluntary manslaughter. The judge refused to
give the requested instructions. During deliberations, the jury asked the judge
whether unanimity was required as to a theory of first degree murder. He
answered that the jury need only be unanimous as to a verdict for first degree
murder.
{15} The jury
convicted the Defendant of first degree murder using a general verdict form
which did not indicate whether deliberate murder or depraved mind murder was
the underlying theory of conviction. The jury also convicted the Defendant of
shooting into an occupied vehicle and felon in possession of a firearm under
NMSA 1978, Section
30-3-8(B) (1993) and Section 30-7-16 (1987). He was
acquitted on three counts of child abuse. This appeal of the first degree
murder conviction followed.
{16} Subsequently, on
or about February 7, 1997, the Defendant died in prison while this appeal was
pending. The Defendant's family decided not to move this Court for substitution
of the Defendant under Rule
12-301(A) NMRA 1997. The Defendant's counsel has
since moved for abatement of all proceedings had in this prosecution from its
inception.
{17} We review five
issues on appeal: (1) whether the Defendant's death while his appeal was
pending requires abatement of criminal proceedings in this case to their
inception; (2) whether the trial court erred in instructing the jury that it
need not be unanimous on one theory of first degree murder where alternative
theories of first degree murder were submitted to the jury; (3) whether it was
error for the court to refuse to give jury instructions on voluntary and
involuntary manslaughter; (4) whether the trial court erred in not suppressing
the Defendant's post-arrest statements; and (5) whether it was error to admit
videotaped statements of the children at trial.
{18} First, we hold
that abatement
ab initio is not required in this case. Second, we affirm
the jury's verdict, concluding that there is no requirement of jury unanimity
on a single theory of first degree murder where alternative theories of first
degree murder are submitted and where substantial evidence exists in the record
supporting at least one of the theories presented. Finally, we find that the
trial court's jury instructions and evidentiary rulings did not constitute
error warranting reversal.
{19} As a threshold
matter, we first address whether the Defendant's death in prison requires
abatement of all proceedings in this case
ab initio. We hold that it
does not.
{20} The abatement
issue has been handled differently by various jurisdictions, but the majority
rule is that the prosecution abates from the inception of the case upon death
of a criminal defendant.
See, e.g.,
Jackson v. State, 559 So. 2d
320, 321 (Fla. Dist. Ct. App. 1990);
Gollott v. State, 646 So. 2d 1297,
1299 (Miss. 1994);
People v. Matteson, 75 N.Y.2d 745, 551 N.E.2d 91, 92,
551 N.Y.S.2d 890 (N.Y. 1989).
1
This is also the current rule under existing New Mexico law.
State v. Doak,
89 N.M. 532, 533,
554 P.2d 993, 994 .
{21} {*785} However, several jurisdictions have
adopted substantial changes to this rule or have abandoned it altogether.
See,
e.g.,
State v. Jones, 220 Kan. 136, 551 P.2d 801, 803-04 (Kan. 1976)
(recognizing that the death of a defendant during pendency of an appeal does
not abate the case from the beginning and that the appeal may be prosecuted
notwithstanding death);
Jones v. State, 302 Md. 153, 486 A.2d 184, 187
(Md. 1985) (limiting abatement
ab initio to cases where a statutory
right to appeal has not been exercised or is pending);
People v. Peters,
449 Mich. 515, 537 N.W.2d 160, 164 (Mich. 1995) (holding that an order of
restitution could be enforced notwithstanding defendant's death pending
appeal);
Garcia v. State, 840 S.W.2d 957, 958 (Tex. Crim. App. 1992)
(holding that the death of appellant during pendency of discretionary review
resulted in abatement of the appeal but not in abatement from inception of the
proceedings). A more recent trend offers courts options in deciding how an
appeal should be handled upon the death of an appellant.
See, e.g.,
State
v. McGettrick, 31 Ohio St. 3d 138, 509 N.E.2d 378, 381-82 (Ohio 1987);
State
v. Makaila, 79 Haw. 40, 897 P.2d 967, 972 (Haw. 1995).
{22} In
McGettrick,
the defendant was convicted of bribery, but died while his appeal was pending.
McGettrick,
509 N.E.2d at 380. Defense counsel subsequently sought to have the entire
proceeding abated
ab initio. Id. The court eventually held that
abatement of all proceedings was not required.
Id. In doing so, it invoked
the state's appellate procedure rule governing the substitution of a party.
Id.
at 381. The court reasoned that under certain circumstances, the rule permitted
defendant's personal representative or the State to move for substitution.
Id.
Under such a motion, "proceedings [could] then be had as the court of
appeals directs."
Id. at 381-82. According to the court, such
action could involve substituting any proper party for the decedent, including
his attorney of record.
Id. at 382.
{23} The Supreme Court
of Hawaii followed suit in
State v. Makaila, 897 P.2d at 972. In
Makaila,
the defendant was convicted of murder but died of cancer during the pendency of
his appeal.
Id. at 968. In refusing to strictly apply the abatement
ab
initio rule, the court cited
McGettrick and the similarity of the
Ohio and Hawaii rules governing substitution of parties.
Id. at 970. The
court held that any appropriate party, including the State, could move for
substitution of the decedent.
Id. at 972. However, where no such motion
was made, the appellate court, in its discretion, either could abate the case
to its inception or enter such other order as the appellate court deemed
appropriate under its rules.
Id.
{24} Like the
McGettrick
and
Makaila courts, we reject a strict application of the abatement
ab
initio rule. New Mexico's rule of appellate procedure addressing the death
and substitution of parties is very similar to, if not identical with, its
counterparts in Ohio and Hawaii. The New Mexico Rule states in relevant part:
If a party dies after notice of appeal is filed or
while a proceeding is otherwise pending, the personal representative of the
deceased party may be substituted as a party on motion filed in the appellate
court by the representative or any other party. . . . If the deceased
party has no representative, any party may suggest death on the record and
proceedings shall then be had as the appellate court directs. . . .
Rule 12-301 NMRA 1997 (emphasis added).
The language of the rule clearly permits the personal
representative or "any other party" to seek substitution of the
deceased. As with the earlier cited cases, we conclude that this language
permits the deceased's representative or the State to seek substitution.
{25} Furthermore, the
language "as the appellate court directs" gives the court substantial
discretion in determining how such a substitution should be conducted after
death has been noted on the record. We hold that this broad language permits
the appellate court, on its own initiative, to appoint a substitute for a
deceased party-defendant. Such court action is warranted where (1) the
remaining parties have not tendered a motion for substitution, (2) where the
court determines that continuing the appeal will not prejudice the rights or
interests of the deceased, and (3) where concluding the appeal
{*786} would be in the best interests of the
decedent's estate, the remaining parties, or society. Allowing courts to make
substitutions on their own initiative is necessary for the effective exercise
of discretion in these instances. Without such power, exercise of the court's
discretion would hinge entirely on the motions of the parties, and we do not
read such a limitation in the language of New Mexico's rules.
{26} Permitting the
court, in its sound discretion, to continue an appeal in certain circumstances
provides for more complete consideration of the interests involved than a
strict application of the abatement rule would allow.
See, e.g.,
Jones,
551 P.2d at 804 (concluding that the interests of the family of the defendant
and the public in a final determination of a criminal case, as well as the
possibility that collateral rights might be affected by the criminal
proceeding, warrant permitting the appeal to continue despite the death of the
defendant);
Gollot, 646 So. 2d at 1304 ("Leaving convictions intact
without review by this Court potentially leaves errors uncorrected which will
ultimately work to the detriment of our justice system.");
Commonwealth
v. Walker, 447 Pa. 146, 288 A.2d 741, 742 (Pa. 1972) (rejecting both a
motion for abatement
ab initio and a motion to dismiss the appeal,
concluding that it is in the interests of society and the estate of the
defendant that any challenge initiated against the propriety or
constitutionality of a criminal proceeding be fully reviewed);
State v.
McDonald, 144 Wis. 2d 531, 424 N.W.2d 411, 413-14 (Wis. 1988) (allowing an
appeal to proceed and recognizing that because collateral proceedings could be
affected by the outcome in a criminal case, it is in the interests of society
to have a complete review of the merits; also recognizing that a criminal
defendant's right to direct appeal is an integral part of a final determination
of the merits and serves as a safeguard to protect the defendant against errors).
{27} In this case, we
permit the appeal to move forward and appoint defense counsel of record as the
Defendant's substitute for the remainder of the proceeding. First, no prejudice
is suffered by the deceased or his interests in allowing the appeal to continue.
Before his death, all issues in this case were fully briefed, argued, and
submitted to this Court. The Defendant had an opportunity to participate fully
in his appeal. Nothing in the record indicates that the issues, as presented,
misrepresent the appellate aims or positions of the Defendant. Second, the
final decision in this appeal had been drafted and the filing of the opinion
was imminent at the time of the Defendant's death. The Defendant's death during
pendency of the appeal had no effect on this Court's handling of the issues.
Third, concluding this appeal would be in the best interests of society. The
opinion in this case clarifies important issues involving the law of first
degree murder in New Mexico. Also, substantial collateral rights might be
affected by the conclusion or abatement of this appeal.
{28} Hence, we reject
the notion that, without a motion for substitution by a defendant's
representatives, an appellate court is compelled to abate the entire proceeding
upon the death of a defendant. Instead, once death is suggested on the record,
the court, in its sound discretion, may consider two courses of action. First,
it may allow or provide for substitution of the decedent and permit
continuation of the appeal. Second, where no substitution is sought by either
the court or the parties, the court shall then abate the entire proceeding
ab
initio.
{29} However, where a
court elects to abate a case, it cannot do so in piecemeal fashion, permitting
a trial court verdict to stand and dismissing or abating only the appeal. In
New Mexico, a criminal defendant, like Salazar, who was sentenced to life
imprisonment is entitled to a direct appeal as of right under the New Mexico
Constitution.
N.M. Const. art. VI, § 2. This right is best vindicated by
permitting the courts either (1) to continue the appeal where a party moves for
substitution or where the court deems that the interests involved warrant
completion of the review, or (2) to completely abate the proceedings to their
inception.
{30} This holding
applies only to cases involving the death of a defendant who possesses a direct
appeal as of right to a
{*787} criminal
conviction. It does not apply to defendants who die during pendency of
discretionary post-conviction remedies; where a defendant dies pending such
discretionary actions, the petition will be dismissed as moot, and the verdict
will stand.
See, e.g.,
Dove v. United States, 423 U.S. 325, 46 L.
Ed. 2d 531, 96 S. Ct. 579 (1976).
{31} As noted earlier,
the New Mexico Court of Appeals in
Doak, 89 N.M. at 533, 554 P.2d at
994, adopted a strict application of the abatement
ab initio rule. We
recognize the policy concerns articulated in
Doak but do not find that
the rights and interests involved in cases of this nature are best vindicated through
rigid application of the abatement
ab initio rule. Thus, we hold that
New Mexico is not bound by strict application of the rule, and to the extent
that
Doak conflicts with our above analysis, it is hereby overruled.
{32} In this case, the
State tried the Defendant on dual theories of first degree murder: deliberate
murder and depraved mind murder. The jury returned a general verdict of guilty
of first degree murder. We hold that the trial court correctly instructed the
jury that unanimity is not required as to one theory of first degree murder
where alternative theories are presented to the jury, and furthermore, a jury's
general verdict will not be disturbed in such a case where substantial evidence
exists in the record supporting at least one of the theories of the crime
presented to the jury.
{33} The Defendant
contends that various provisions of New Mexico uniform jury instructions and
judicial rules require that the jury be unanimous on one of the alternative
murder theories presented. We disagree.
{34} The Defendant
correctly asserts that several New Mexico uniform jury instructions and
judicial rules refer to jury unanimity. However, these provisions give little
guidance to the question of whether all jurors must agree on one theory of
murder. The rules and instructions either refer generally to a requirement of
jury unanimity or require only that the jury agree on a verdict.
See, e.g.,
Rule
5-611(A) NMRA 1997. No provision explicitly or implicitly requires jury
unanimity on an underlying theory of murder. Therefore, we are not persuaded by
the Defendant's arguments that these provisions require unanimity on either
deliberate or depraved mind murder.
{35} The Defendant
also asserts that alternative theories of first degree murder should be treated
like step-down instructions for lesser included offenses. More specifically,
the Defendant argues that, the same way a jury is required to consider
step-down instructions in sequence and find unanimously as to lesser included
offenses, a jury is required to find unanimously as to alternative theories of
first degree murder.
{36} We disagree with
this analysis for two reasons. First, Rule
5-611 NMRA 1997, demands only that
the jury be unanimous in order to enter a guilty verdict. The jury is not
required to agree unanimously on one alternative theory of that lesser offense.
Thus, the ambiguity in this section surrounding the meaning of
"unanimous" is similar to that noted in the provisions discussed
earlier and provides little guidance here.
{37} Second, two
alternative theories of first degree murder are very different from a greater
offense and its lesser included offense. NMSA 1978, Section
30-2-1(A) (1994),
states:
A. A murder in the first degree is the killing of one
human being by another without lawful justification or excuse, by any of the
means with which death may be caused:
(1) by any kind of willful, deliberate and
premeditated killing;
(2) in the commission of or attempt to commit any
felony; or
(3) by any act greatly dangerous to the lives of
others, indicating a depraved mind regardless of human life.
Whoever commits murder in the first degree is guilty
of a capital felony.
In considering first degree murder, the degree of offense and
range of punishments is {*788} the same
regardless of the theory. Id. It is not critical which of the theories
is considered first by the jury. However, there is significant difference when
considering lesser included offenses. As one "steps down" from a
greater offense to a lesser offense, the degree of offense and punishment is
less. There is, therefore, good reason with lesser included offenses to
determine at which level of offense the jury has agreed, and we are not
persuaded by the Defendant's analogy between first degree murder instructions
and step down instructions for lesser included offenses.
{38} B. The Defendant
argues that his conviction violates the New Mexico Constitution's guarantee of
due process and that the weight of authority requires that a jury be unanimous
on one of the alternative theories of first degree murder presented. We
disagree.
{39} The New Mexico
Constitution provides that no person shall be deprived of life, liberty, or
property without due process of law.
N.M. Const. art. II, § 18. Case law
clearly demonstrates that a unanimous verdict on the crime charged is required
for conviction in a criminal case.
See, e.g.,
State v. Cavanaugh,
116 N.M. 826, 831,
867 P.2d 1208, 1213 . However, common law analyses of due
process have not required jury unanimity on a particular theory of the crime
charged.
See, e.g.,
Schad v. Arizona, 501 U.S. 624, 641, 115 L.
Ed. 2d 555, 111 S. Ct. 2491 (1991);
State v. James, 698 P.2d 1161, 1165
(Alaska 1985);
People v. Brown, 35 Cal. App. 4th 708, 41 Cal. Rptr. 2d
321, 324 (Ct. App. 1995);
State v. Jones, 257 Kan. 856, 896 P.2d 1077,
1087 (Kan. 1995);
People v. Sullivan, 173 N.Y. 122, 65 N.E. 989, 990
(N.Y. 1903);
Wilson v. State, 737 P.2d 1197, 1204 (Okla. Crim. App.
1987).
{40} In
Schad,
the defendant was tried on dual theories of first degree murder: felony murder
and premeditated intentional murder.
Schad, 501 U.S. at 629. The trial
court instructed the jury on both theories and told the jury that it must be
unanimous in its verdict of guilty or not guilty.
Id. The jury returned
a general verdict of guilty of first degree murder, and the defendant appealed,
arguing that the trial court erred in not requiring the jury to agree on one
theory of first degree murder.
Id. The Supreme Court upheld the
conviction, concluding that the trial court had not violated the defendant's
due process rights by not requiring the jury to agree on one theory of first
degree murder.
Id. at 645 ("The jury's options in this case did not
fall beyond the constitutional bounds of fundamental fairness and
rationality.").
{41} The Supreme Court
reasoned that the two mental states, premeditation and a killing committed
during a felony could "reasonably reflect notions of equivalent
blameworthiness or culpability."
Id. at 643;
State v. Ortega,
112 N.M. 554, 578 n.7,
817 P.2d 1196, 1220 n.7 (1991) (Justice Baca concurring
in part and dissenting in part). The Court also noted the widespread acceptance
of the two theories as alternative means of satisfying the
mens rea element
of the single crime of first degree murder.
Schad, 501 U.S. at 642.
{42} These rationales
also apply to the immediate case. Depraved mind murder involves blameworthiness
and culpability comparable to deliberate premeditated murder.
See Ortega,
112 N.M. at 563, 817 P.2d at 1205 (discussing the required scienter showings
for each of the three available first degree murder theories). This conclusion
is supported by the Legislature's treatment of depraved mind murder. It is
treated and punished in the same manner as deliberate intent and felony murder,
and the theories are all recognized as capital offenses and named explicitly as
forms of first degree murder. NMSA 1978, §
30-2-1(A) (1994). It would make
little sense to insist that somehow depraved mind murder differs significantly
in blameworthiness, depravity, or culpability from other theories like
deliberate and felony murder with which it is similarly labeled, included, and
punished.
2 Thus, as
{*789}
with the cases cited earlier involving theories of felony and deliberate
murder, there was no requirement that the jurors in this case unanimously agree
on one of the alternative theories presented, deliberate or depraved mind
murder.
Unanimity was only required with regard to the overall charge
of first degree murder.
{43} The preceding
cases require some showing of substantial evidence supporting the conviction.
We held in
State v. Olguin that due process does not require a general
verdict of guilt to be set aside so long as
one of the two alternative
bases for conviction is supported by sufficient evidence.
State v. Olguin,
1995-NMSC-79, P2,
120 N.M. 740,
906 P.2d 731;
see also Griffin v. United
States, 502 U.S. 46, 49-51, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1992)
(finding no due process requirement to set aside general guilty verdict where
evidence was inadequate to support a conviction as to one of the alternative
theories of the crime presented);
Turner v. United States, 396 U.S. 398,
420, 24 L. Ed. 2d 610, 90 S. Ct. 642 (1970).
{44} We review the
sufficiency of the evidence presented on the first degree murder theories in
this case under a substantial evidence standard.
State v. Sutphin,
107
N.M. 126, 131,
753 P.2d 1314, 1319 (1988). Under such a standard, sufficient
evidence to uphold a conviction exists where "substantial evidence of
either a direct or circumstantial nature exists to support a verdict of guilt
beyond a reasonable doubt with respect to every element essential to
conviction."
Id. Also, "a reviewing court must view the
evidence in the light most favorable to the state, resolving all conflicts
therein and indulging all permissible inferences therefrom in favor of the
verdict."
Id. "The fact finder may reject a defendant's
version" of the facts.
Id. "Where a jury verdict in a criminal
case is supported by substantial evidence, the verdict will not be disturbed on
appeal."
Id.
{45} The State
presented substantial evidence at trial on deliberate intent murder and
depraved mind murder, therefore satisfying the requirements of
Olguin.
To convict the Defendant on the deliberate intent theory of first degree
murder, the State had to prove beyond a reasonable doubt that:
1. The Defendant killed Josephine Manzanares; and
2. The killing was with the deliberate intention to
take away the life of Josephine Manzanares.
See UJI 14-201 NMRA 1997. To convict the Defendant on
the depraved mind theory of first degree murder, the State had to prove beyond
a reasonable doubt that:
1. The Defendant shot at Josephine Manzanares;
2. The Defendant's act caused the death of Josephine
Manzanares;
3. The act of the Defendant was greatly dangerous to
the lives of others, indicating a depraved mind without regard for human life;
and
4. The Defendant knew that his act was greatly
dangerous to the lives of others.
{46} Substantial
evidence was presented on both of these theories of first degree murder. In
addressing the first theory, there was no question as to whether the Defendant
shot and killed Manzanares. The only element in contention was whether the
Defendant deliberately intended to kill Manzanares. The children's testimony
alleging that the Defendant pursued Manzanares, pointed the gun, and fired
provides an adequate source of direct evidence that the Defendant acted with
deliberation, intending to kill Manzanares.
State v. Hamilton,
89 N.M.
746, 750-51,
557 P.2d 1095, 1099-1100 (1976) (equating express malice and
deliberate intent);
State v. Smith,
26 N.M. 482, 491-92,
194 P. 869, 873
(1921) (holding that express malice, a concept now incorporated in the
"deliberate intention" element of willful and deliberate murder, can
be inferred from the evidence presented). In addition, the jury reasonably
could have decided that the Defendant's past conflicts with Manzanares provided
circumstantial evidence of a motive for intentional killing. The Defendant's
contention that the shooting was accidental or that he could not have formed
specific intent due to his intake of drugs does not make the
{*790}
evidence presented against him insufficient. The jury heard evidence
regarding the Defendant's version of the facts and was free to reject that
testimony.
Sutphin, 107 N.M. at 131, 753 P.2d at 1319.
{47} Similarly, the
State also presented substantial evidence supporting a finding of depraved mind
murder. Only the third and fourth elements of that crime were at issue in this
case, and the State presented evidence that would allow a jury to reasonably
arrive at a guilty verdict. The children testified that they had waved at the
Defendant and that he waved back during the pursuit, so the jury could
reasonably determine that the Defendant knew of the children's presence in the
car when he fired into the vehicle. This act was both dangerous to the driver
and the passengers since a bullet fired from the Defendant's car could have hit
any one of the occupants or could have disabled the car, causing the driver to
lose control. Additionally, once the driver had been shot, the children were
left in a very dangerous situation since the driver was unable to control the
car. Furthermore, at least one other third party driver was on the road at the
time of the shooting, and the Defendant also knew that the area was populated.
Thus, a jury could have found that he acted with a depraved mind and without
regard for human life.
State v. McCrary,
100 N.M. 671, 673,
675 P.2d
120, 122 (1984) (finding that acts involving extreme risk suggest that defendant
knew that his acts were greatly dangerous to the lives of others). Because
substantial evidence was presented on both theories of first degree murder
presented in this case, the Defendant's conviction presents no conflict with
this Court's holding in
Olguin.
Olguin, 1995-NMSC-79, P2,
120
N.M. 740,
906 P.2d 731.
{48} The law in
Olguin
is consistent with the position taken in other jurisdictions on this issue.
See,
e.g.,
State v. Wilson, 220 Kan. 341, 552 P.2d 931 (Kan. 1976)
(holding that if substantial evidence was presented supporting either theory of
first degree murder presented by the State, jury verdict of guilty would not be
disturbed),
overruled on other grounds by State v. Quick, 226 Kan. 308,
597 P.2d 1108 (Kan. 1979);
State v. Hazelett, 8 Ore. App. 44, 492 P.2d
501, 503 (Or. Ct. App. 1972) (requiring that substantial evidence be presented
on at least one of the alternative theories of the crime presented). However,
many jurisdictions demand a higher evidentiary showing where alternative
theories of conviction for the same crime are presented. These jurisdictions
hold that substantial evidence must be presented to support a finding of
commission of
each of the alternative bases submitted for the jury's
consideration.
James, 698 P.2d at 1167;
State v. Arnett, 158
Ariz. 15, 760 P.2d 1064, 1069 (Ariz. 1988). However, even under this more
rigorous evidentiary standard, the facts in the current case would not amount
to a violation of the Defendant's due process rights. As discussed earlier, substantial
evidence was presented at trial as to both deliberate and depraved mind murder.
Thus, not only did the State present substantial evidence to meet the
Olguin
standard in New Mexico, but it also presented enough evidence to satisfy the
more stringent standard adopted by some jurisdictions.
{49} The trial court's
refusal to instruct the jury on voluntary and involuntary manslaughter did not
constitute error warranting relief. The propriety of jury instructions given or
denied is a mixed question of law and fact. Mixed questions of law and fact are
reviewed de novo.
State v. Attaway,
117 N.M. 141, 144,
870 P.2d 103, 106
(1994).
{50} A defendant is
entitled to an instruction on a theory of the case where the evidence supports
the theory.
State v. Benavidez,
94 N.M. 706, 708,
616 P.2d 419, 421
(1980),
overruled on other grounds by Sells v. State,
98 N.M. 786, 788,
653 P.2d 162, 164 (1982);
State v. Diaz, 1995-NMCA-66, P24,
121 N.M. 28,
908 P.2d 258;
State v. Arias,
115 N.M. 93, 96,
847 P.2d 327, 330 ,
overruled
on other grounds by State v. Abeyta, 1995-NMSC-52, P21,
120 N.M. 233,
901
P.2d 164. Failure to give an instruction which is warranted by the evidence is
not harmless error.
Arias, 115 N.M. at 97-98, 847 P.2d at 331-32.
However, sufficient evidence to sustain a conviction on the charge is generally
required before an elements instruction will be required.
Benavidez, 94
{*791} N.M. at 708, 616 P.2d at 421.
Furthermore, to receive a jury instruction on a lesser included offense, there
must be evidence that the lesser offense is the highest degree of crime
committed.
State v. Southerland,
100 N.M. 591, 596,
673 P.2d 1324, 1329
(Ct. App. 1983),
overruled on other grounds by State v. Orosco,
113 N.M.
780,
833 P.2d 1146 (1992).
{51} The evidence did
not warrant a jury instruction on voluntary manslaughter, and therefore, the
trial court did not err by refusing to give such an instruction. The Defendant
requested an instruction for voluntary manslaughter under UJI
14-220 NMRA 1997,
contending that he was provoked. The instruction points out that provocation is
the difference between second degree murder and voluntary manslaughter.
Id.
Sufficient provocation involves "any action, conduct or circumstances
which arouse anger, rage, fear, sudden resentment, terror, or other extreme
emotions." UJI
14-222 NMRA 1997. However, sufficient provocation does not
exist where "an ordinary person would have cooled off before acting."
Id.
{52} The Defendant
alleged at trial that Manzanares had threatened him on several occasions and
that he had been involved in hostile arguments with Manzanares immediately
before the shooting. The Defendant also asserted that while both parties were
driving on Llano Road, Manzanares veered her car at him and reached under the
seat as if to retrieve a gun. The defense argues that a jury, upon hearing this
testimony, could have concluded that Manzanares' actions aroused anger, rage,
fear, or terror such that the Defendant temporarily lost self-control and had
no time to "cool off" before shooting Manzanares. Defendant argues
that it was error for the court not to allow an instruction on voluntary
manslaughter.
{53} We disagree and
conclude that the trial court correctly ruled that the evidence did not warrant
such an instruction. Other testimony by the Defendant precludes the possibility
that he acted out of provocation and therefore eliminates any reason to
instruct on voluntary manslaughter. The Defendant testified that as he waved
the gun out the window, it accidentally discharged. Hence, according to the
Defendant's own testimony, the shooting of Manzanares was accidental, not
voluntary or intentional. Moreover, at no time during trial did the Defendant
testify that he killed Manzanares because she provoked him. As such, the
evidence did not support a jury verdict of voluntary manslaughter, and thus,
the court's decision refusing the instruction was proper.
State v. Manus,
93 N.M. 95, 101,
597 P.2d 280, 286 (1979) (holding voluntary manslaughter
instruction not required where defendant's testimony is exculpatory and does
not indicate provocation or heat of passion). Therefore, we need not address
whether a voluntary manslaughter instruction was warranted as the highest
degree of crime committed.
{54} The trial court's
decision not to give an instruction on involuntary manslaughter did not
constitute reversible error. In
State v. Yarborough, 1996-NMSC-68, P20,
122 N.M. 596,
930 P.2d 131, this Court held that involuntary manslaughter,
whether premised upon a lawful or unlawful act, requires a showing of criminal
negligence. In its holding, the Court noted that involuntary manslaughter is
the killing of a human being without malice by any of three courses of conduct:
1) the commission of an unlawful act not amounting to a felony; 2) the
commission of a lawful act that might produce death, in an unlawful manner; or
3) the commission of a lawful act that might produce death without due caution
and circumspection.
Yarborough,
1996-NMSC-068, P8,
122 N.M. 596,
930
P.2d 131.
{55} In this case, the
Defendant requested an instruction on involuntary manslaughter based on a
lawful act. Yet, in transporting the gun, the Defendant perpetrated an unlawful
act.
See NMSA 1978, Section
30-7-16(A) (1987) (proscribing
transportation or possession of gun by a convicted felon and making such an act
a fourth degree felony). Further, in waving the gun at Manzanares through the
window of a moving vehicle, the Defendant arguably was in violation
{*792} of NMSA 1978, Section
30-7-4(A)(3)
(1993), endangering the safety of another by handling a firearm in a negligent
manner. Finally, if the Defendant intentionally shot at the vehicle, he was
guilty of a third degree felony.
See NMSA 1978, §
30-3-8(B) (1993). On
this basis, the Defendant was not entitled to an instruction on involuntary
manslaughter premised upon a lawful act.
{56} The Defendant
also requested an instruction on involuntary manslaughter committed by an
unlawful act not amounting to a felony. However, in the Defendant's requested
instruction, he asked the jury to find involuntary manslaughter if it
determined that the Defendant "shot at Josephine Manzanares." We do
not believe that the act described in the instruction, shooting at Manzanares,
can be described other than as felonious conduct. Therefore, discharging the
gun does not fit the
Yarborough paradigm of an unlawful act not
amounting to a felony.
{57} Furthermore, the
requested instruction incorrectly characterized the law of involuntary
manslaughter premised upon an unlawful act not amounting to a felony.
"Shooting at Manzanares" suggests, to a certain degree, an
intentional act, and wrongly describes the mens rea associated with involuntary
manslaughter. NMSA 1978, §
30-2-3 (1994) (describing manslaughter as the
killing of a human being without malice);
State v. King,
90 N.M. 377,
380,
563 P.2d 1170, 1173 (stating that the involuntary manslaughter statute
excludes all cases of intentional killing),
overruled on other grounds by
State v. Reynolds,
98 N.M. 527,
650 P.2d 811 (1982). It is not error for a
trial court to refuse instructions which are inaccurate.
Goodman v. Venable,
82 N.M. 450, 452,
483 P.2d 505, 507 (Ct. App. 1971);
cf. State v. Gallegos,
113 N.M. 339, 341,
825 P.2d 1249, 1251 (1992).
{58} In sum, the trial
court did not err in denying either of the instructions offered on involuntary
manslaughter. The court correctly refused the inaccurate instructions tendered
by the Defendant. Moreover, the Defendant's act of "shooting at
Manzanares" was neither a lawful act, nor was it an unlawful act not
amounting to a felony. As such, the evidence on record was insufficient to
warrant an involuntary manslaughter instruction.
State v. Taylor,
107
N.M. 66, 70,
752 P.2d 781, 785 (1988) (holding that the evidence did not
support an instruction for involuntary manslaughter in any of the three ways
provided for by statute),
overruled on other grounds by Gallegos v. Citizens
Insurance Agency,
108 N.M. 722,
779 P.2d 99 (1989).
{59} The trial court
did not err by admitting the Defendant's post-arrest statements into evidence.
Whether a confession is voluntary is reviewed de novo upon appeal.
Attaway,
117 N.M. at 145, 870 P.2d at 107. In reviewing voluntariness, the appropriate
standard applicable to coerced confession claims requires that the appellate
court examine the entire record and circumstances surrounding the confession.
Aguilar
v. State,
106 N.M. 798, 799,
751 P.2d 178, 179 (1988). Here, the Defendant
maintains that he was not properly advised of his rights before being
interrogated and that if he waived his rights or if an implied waiver can be
interpreted from the facts, the waiver was not knowingly and intelligently
given. We disagree, concluding that the trial court properly refused to
suppress the Defendant's statements.
{60} In
Miranda v.
Arizona, 384 U.S. 436, 475, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the
Supreme Court held that the Fifth and Fourteenth Amendments of the United
States Constitution prohibit the use of incriminating statements by an accused
following his arrest or being held in custody, unless all interrogation is
preceded by advice to the defendant that he has the right to remain silent and
to the presence of an attorney furnished free of charge if the defendant cannot
afford one.
Miranda also held that when an accused indicates that he
wishes to remain silent, the interrogation must cease; if he requests counsel,
questioning must cease until an attorney for the defendant is found and
present.
Id. Statements or admissions elicited contrary to the
requirements of
Miranda are subject to suppression on motion of the
defendant.
State v. Boeglin,
{*793} 100
N.M. 127, 132,
666 P.2d 1274, 1279 .
{61} The events
surrounding the questioning of the Defendant were probative of the adequacy of
warnings given to the Defendant, his level of understanding, and whether the
Defendant knowingly, willingly, and intelligently waived his rights under
Miranda.
First, we conclude that the Defendant received adequate notice of rights.
Testimony indicates that Branch gave complete
Miranda warnings to the
Defendant. The Defendant argues that because Branch did not read the warnings
from a card but instead gave the warnings from memory, there is no conclusive
proof that the warnings were complete. However, in addition to Branch's
testimony that the warnings were complete, other evidence also indicates that
the warnings were complete and understood. In Branch's first encounter with the
Defendant, the Defendant immediately invoked his right to counsel upon
receiving the
Miranda warnings from Branch. We believe that this
indicates not only that the warnings were given, but also, that the Defendant
understood what his rights were and that he did not have to talk to the police
if he did not wish to do so. The Defendant had also been convicted on two prior
felony charges; his immediate invocation of his right to counsel might be
interpreted as an indication of the Defendant's familiarity with his rights and
understanding of the process for asserting them.
{62} The Defendant
made a knowing, wilful, and intelligent waiver of his rights when he elected to
speak with the police after his arrest; therefore, the trial court correctly
refused to suppress his statements from evidence. Waiver, after invoking the
right to counsel, "depends upon the totality of the circumstances and the
particular facts, including consideration of the mental and physical condition,
background, experience, and conduct of the accused."
Boeglin, 100
N.M. at 132, 666 P.2d at 1279. The State has the burden of establishing that a
defendant waived his constitutional rights and every reasonable presumption
against waiver is indulged.
State v. Young,
117 N.M. 688, 694,
875 P.2d
1119, 1125 . However, after a suspect invokes his right to counsel, he may be
interrogated if he himself "initiates further communication, exchanges, or
conversations with the police."
Id. (quoting
Edwards v. Arizona,
451 U.S. 477, 484, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981)). When a suspect
initiates a conversation with police knowingly and intelligently, his statement
may be admitted.
Oregon v. Bradshaw 462 U.S. 1039, 1046, 77 L. Ed. 2d
405, 103 S. Ct. 2830 (1983).
{63} The Defendant
initiated the second encounter with Sgt. Branch, waiving his Miranda rights
knowingly and intelligently. Therefore, his subsequent statements were
correctly permitted into evidence at trial. As indicated earlier, after
invoking his right to counsel, the Defendant suggested that he wanted to talk
to the police again. At that point, Branch had already exited from the
Defendant's room, and the Defendant clearly knew that he was under no
obligation to speak with the police. However, after the Defendant suggested
that he wanted to talk, a hospital worker found Branch, who then entered the
Defendant's room for the second time. The Defendant did not object to Branch's
return and the subsequent interrogation, even after Branch again told the
Defendant of his rights under
Miranda. Hence, the interrogation was not
coercive or violative of the Defendant's rights by virtue of Branch's second
visit to the hospital room. The Defendant initiated this encounter.
{64} The Defendant
argues that if there was a waiver of his
Miranda rights which could be
inferred from his initiation of discussion with the police, that waiver was
made unknowingly and unintelligently due to partial incapacitation from his
drug-induced coma. However, significant evidence indicated that the level of
drugs remaining in the Defendant's bloodstream at the time of interrogation was
not so significant as to render the Defendant incapable of fully considering
his actions and statements to authorities. cf.
State v. Setser,
1997-NMSC-4,
122 N.M. 794,
932 P.2d 484 (1997). Furthermore, the Defendant's
actions and statements while in the hospital suggest mastery of his faculties
{*794} and an ability to understand and convey
events of the previous forty-eight hours. In sum, the facts suggest that the
Defendant was informed of his rights, understood those rights, and invoked his
right to counsel. However, after some contemplation, the Defendant chose to
speak with the police by his own volition, and the trial court correctly
refused to suppress those statements.
{65} The trial court
did not err by admitting into evidence the videotaped statements of the boys
who were riding in the back of Manzanares' vehicle at the time of the shooting.
The videotaped statements were admitted over a hearsay objection by the trial
court as prior consistent statements offered to rebut a charge of recent
fabrication or improper influence. We review the trial court's admission of
this evidence under an abuse of discretion standard.
State v. Bell,
90
N.M. 134, 138,
560 P.2d 925, 929 (1977).
{66} Rule
11-801(D)(1)(b) NMRA 1997 states that a prior consistent statement offered to
rebut a charge of recent fabrication or improper influence is not hearsay.
Generally, two conditions must be met before a prior consistent statement may
be admitted.
State v. Sandate,
1995-NMCA-017, P 18,
119 N.M. 235,
889
P.2d 843. "First, the prior statement must be consistent with testimony
given by the declarant at trial. Second, the statement must be admitted to
rebut an express or implied charge of recent fabrication or improper influence
or motive."
Id. In addition to these general requirements, many
courts have adopted a third requirement that "a prior consistent statement
must also have been made before the motive to fabricate existed."
Id.
;
see also Tome v. United States, 513 U.S. 150, 130 L. Ed. 2d 574, 115
S. Ct. 696 (1995);
Nitz v. State, 720 P.2d 55, 64 (Alaska Ct. App. 1986).
New Mexico has followed the lead of the Supreme Court, recently adopting this
third requirement in
State v. Casaus,
1996-NMCA-031, P12,
121 N.M. 481,
913 P.2d 669. We conclude that the videotaped testimony in this instance met
these requirements, and its admission was not an abuse of the trial court's
discretion.
{67} The testimony at
trial was consistent with the videotaped testimony of the boys. The Defendant
contends that the boys' testimony at trial was characterized by less detailed
and less responsive answers than those on the videotape. However, only
negligible differences existed between the videotaped interviews and the trial
testimony of the boys. There is no allegation by the defense that substantial
inconsistencies or changes exist between the live and taped testimonies; the
Defendant only claims that the trial testimony was not as complete as the taped
version. These minor differences can easily be attributed to the passage of
time and the anxiety which often accompanies testifying in court. In sum, the
primary inquiry is whether the taped interview and trial testimony were
substantially similar as to all material facts presented. We believe that to be
the case here.
{68} The record
indicates that defense counsel implied during trial that the boys recently had
altered their testimony due to some improper motive or influence. Citing the
Sandate
case, the Defense contends on appeal that Rule 801(d)(1)(B) is intended to
cover only those situations where the witness deliberately changes his story and
where the witness has been impeached with a prior inconsistent statement.
Sandate,
1995-NMCA-17, P20,
119 N.M. 235,
889 P.2d 843. Under such an interpretation of
the rule, according to the Defendant, the taped interviews of the boys are not
admissible because the boys were never impeached with a prior inconsistent
statement, nor did defense counsel allege that the boys had recently fabricated
or consciously changed their stories.
{69} However, the
issue here does not involve an allegation that a witness is consciously
misleading or changing his story, but instead that a young and impressionable
witness has been improperly influenced. The record indicates that defense
counsel said several times in the opening statement that the boys' feelings
about the Defendant had been negatively influenced by their grandparents and
possibly by their counselor. Defense counsel also sought testimony on
cross-examination
{*795} of the boys
regarding whether others had told them "bad things" about the
Defendant and whether the boys still liked the Defendant. Such tactics by the
defense appeared aimed at demonstrating that the boys' trial testimony might
have been improperly influenced or colored, even subconsciously, by adults with
access to the children during the time prior to trial. We conclude that such a
suggestion constitutes an allegation of improper influence which warranted
admission of the prior taped testimony.
{70} Finally, the
videotaped statements were made prior to the existence of a motive to
improperly influence the children. The videotaped interviews took place almost
immediately after the shooting. Testimony indicates that the children often
heard negative comments regarding the Defendant from family members long before
the incident. The Defendant contends that the influence exerted over the
children predating the shooting precludes admission of the videotaped
interviews. We disagree.
{71} Any motive to
improperly influence the testimony of the children would not have existed until
the shooting took place. While negative comments about the Defendant predated
the shooting, there would have been no reason or opportunity for the family or
counselor to influence testimony regarding the shooting until the incident had
actually taken place. No evidence indicates that the children's counselor or
grandparents had an opportunity to improperly influence the children between
the time of the shooting and the interview. Moreover, no evidence suggests that
the children would be motivated to wrongly implicate the Defendant in murder
based merely on past negative comments. Hence, the trial court did not err by
admitting the videotaped testimony to rebut a suggestion of improper influence.
{72} The Defendant's
appeal should not be abated
ab initio. We also affirm the conviction,
holding that the trial court correctly instructed the jury that unanimity is
not required as to one particular theory of first degree murder where
alternative theories are presented and substantial evidence exists to support
at least one of the theories of the crime. In addition, the trial court did not
err by rejecting the jury instructions requested by the Defendant for lesser
included offenses. Furthermore, the Defendant is not entitled to relief based
upon the trial court's refusal to suppress his post-arrest statements to
police. Finally, we conclude that the trial court correctly admitted the
videotaped interviews of the children to rebut a suggestion by the defense of
improper influence.
GENE E. FRANCHINI, Chief Justice
PAMELA B. MINZNER, Justice
PATRICIO M. SERNA, Justice
DAN A. McKINNON, III, Justice
1
For a complete list of jurisdictions following the abatement ab initio
rule, see Tim A. Thomas, Annotation, Abatement of State Criminal Case by
Accused's Death Pending Appeal of Conviction, 80 A.L.R.4th 189, 191 (1990).
2
Defendant does not raise, and we do not address, whether the Legislature's
decision to include depraved mind murder as a form of first degree murder was
proper.