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State v. Suazo

Supreme Court of New Mexico

January 26, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
MARCOS SUAZO, Defendant-Appellant.


          Bennett J. Baur, Chief Public Defender William A. O'Connell, Assistant Appellate Defender Santa Fe, NM for Appellant

          Hector H. Balderas, Attorney General John Kloss, Assistant Attorney General Santa Fe, NM for Appellee


          EDWARD L. CHÁVEZ, Justice

         {1} Defendant Marcos Suazo became agitated while roughhousing with his friend

         Matthew Vigil. Suazo retrieved his shotgun and pointed it at Vigil. Vigil grabbed the shotgun and placed the barrel in his mouth. Suazo pulled the trigger, killing Vigil and severely injuring his friend Roger Gage, who was standing behind Vigil. A key contested issue in this case was whether Suazo knew the shotgun was loaded when he pulled the trigger.

         {2} Two potentially reversible errors occurred during trial. First, at trial Suazo sought to introduce testimony from two witnesses who saw him approximately one hour after the shooting and heard him claim that he did not know the shotgun was loaded. The district court excluded the testimony as inadmissible hearsay. Second, over Suazo's objection, the prosecution persuaded the court to depart from the uniform jury instruction regarding second-degree murder, which has existed since 1981, [1] by modifying the mens rea element. Instead of requiring the jury to find beyond a reasonable doubt that "[Suazo] knew that his acts created a strong probability of death or great bodily harm, " the modified instruction changed the mens rea element to "knew or should have known." See UJI 14-210 NMRA.

         {3} Among other crimes, Suazo was convicted of second-degree murder and aggravated battery with a deadly weapon. He appealed his second-degree murder conviction to the Court of Appeals, contending that the district court erred by excluding the witness testimony and by modifying the uniform jury instruction for second-degree murder. The Court of Appeals certified his case to this Court pursuant to Rule 12-606 NMRA and NMSA 1978, Section 34-5-14(C) (1996) due to the significant public importance of the jury instruction issue. State v. Suazo, order at 3 (N.M. Ct. App. Sept. 4, 2015) (non-precedential). We accepted certification and address both issues.

         {4} First, we affirm the district court's exclusion of the hearsay evidence because the district court did not abuse its discretion in finding that Suazo's statements, which were overheard one hour after the shooting, were neither excited utterances nor present sense impressions. Second, we hold that the district court erred by modifying the uniform jury instruction for second-degree murder because in 1980 the Legislature amended the definition of second-degree murder to specifically require proof that the accused knew that his or her acts created a strong probability of death or great bodily harm. 1980 N.M. Laws, ch. 21; see NMSA 1978, § 30-2-1(B) (1980). Because the modified instruction misstated an essential element, we reverse Suazo's conviction for second-degree murder and remand for a new trial. See State v. Dowling, 2011-NMSC-016, ¶ 17, 150 N.M. 110, 257 P.3d 930 ("When a jury instruction is facially erroneous, as when it directs the jury to find guilt based upon a misstatement of the law, a finding of juror misdirection is unavoidable.").

         I. BACKGROUND (

         {5} Suazo had spent most of the day drinking and visiting with his longtime friends, Vigil and Gage, at the trailer where he lived and in other locations in and around Talpa, New Mexico. Vigil and Suazo were roughhousing throughout most of the day. The two friends often wrestled this way when they were together.

         {6} Sometime in the early afternoon, Vigil remarked that Suazo had a nice shotgun, and Gage asked to see it. When Suazo brought out the shotgun, Gage opened it to make sure that it was not loaded. At Gage's request, Suazo disassembled and reassembled the gun. When they finished with the gun, Gage saw Suazo place it against the wall near the back door of the trailer. Gage was certain that the gun was not loaded at that point.

         {7} Later that afternoon, Suazo and Vigil were wrestling outside again. Suazo told Vigil not to mess with him because he had just lost his brother. The roughhousing continued. Vigil tried to push Suazo against a car, and then Suazo rushed into the trailer. Suazo's girlfriend, Shania Lujan, heard him cock the shotgun. At trial she testified that she told Suazo to be careful with the gun and that he responded "Don't worry, it's not loaded." However, she had previously given a statement that Suazo had only responded "Leave me alone." She testified that Suazo then held the shotgun with one hand and pointed it at Vigil while standing in the doorway of the trailer. She said that Vigil laughed and then grabbed the barrel of the gun and stuck it into his own mouth. At this point, Gage was standing almost directly behind Vigil. Suazo pulled the trigger and the gun fired. Vigil was killed and Gage was seriously injured. It is not clear when the gun was loaded and who loaded it.


         A. The district court did not abuse its discretion by excluding certain statements by Suazo as hearsay

         {8} Suazo sought to elicit testimony from two witnesses at trial regarding statements he made approximately an hour after the shooting, between 4:40 and 5:00 p.m. Elaine Medina and Rosemary Cruz, Suazo's stepmother, testified that Suazo told them he had killed his best friend, he did not know the gun was loaded, and he did not understand what had happened. Medina testified that when Suazo made these statements he was curled up in a ball and crying hard, and she had never seen him cry like that. Similarly, Cruz testified that he appeared drunk, he seemed "very upset, " and he was crying "a lot" when he made the statements. The State objected to the witnesses' statements as hearsay, but defense counsel argued that the statements should be admitted under the excited utterance and present sense impression exceptions to the hearsay rule. See Rule 11-803(1)-(2) NMRA. The district court sustained the State's objections and excluded the evidence.

         {9} Although the Court of Appeals only certified the jury instruction issue to this Court, we take this opportunity to resolve Suazo's claim that the district court erroneously excluded the witness testimony about statements that he made after the shooting. See State v. Orosco, 1992-NMSC-006, ¶ 2 n.2, 113 N.M. 780, 833 P.2d 1146 (stating that this Court has jurisdiction over the entire case following acceptance of certification). "We examine the admission or exclusion of evidence for abuse of discretion, and the trial court's determination will not be disturbed absent a clear abuse of that discretion." State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85. "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize [the ruling] as clearly untenable or not justified by reason." State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citations omitted). We conclude that there was no abuse of discretion in this case.

         {10} There is no doubt that Suazo's anguished statements to Medina and Cruz were hearsay because they were out-of-court statements offered to prove what they asserted-that Suazo did not realize the shotgun was loaded and he did not mean to kill Vigil. See Rule 11-801 NMRA (defining as hearsay out-of-court statements offered to prove the truth of what they assert). Such statements are inadmissible unless an exception applies. Rule 11-802 NMRA.

         {11} A statement that would otherwise be hearsay can be admitted under the excited utterance exception when it "relat[es] to a startling event or condition" and is "made while . . . under the stress or excitement" caused by that event or condition. Rule 11-803(2). "[T]he theory underlying the excited utterance exception is that the exciting event induced the declarant's surprise, shock, or nervous excitement which temporarily stills capacity for conscious fabrication and makes it unlikely that the speaker would relate other than the truth." State v. Flores, 2010-NMSC-002, ¶ 47, 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citations omitted). Thus, "to constitute an excited utterance, the declaration should be spontaneous, made before there is time for fabrication, and made under the stress of the moment." Id. (internal quotation marks and citations omitted). In determining whether to admit a statement under the excited utterance exception, the district court should consider the totality of the circumstances and

consider a variety of factors in order to assess the degree of reflection or spontaneity underlying the statement. These factors include, but are not limited to, how much time passed between the startling event and the statement, and whether, in that time, the declarant had an opportunity for reflection and fabrication; how much pain, confusion, nervousness, or emotional strife the declarant was experiencing at the time of the statement; whether the statement was self-serving[; and whether the statement was] made in response to an inquiry[.]

State v. Balderama, 2004-NMSC-008, ¶ 51, 135 N.M. 329, 88 P.3d 845 (alterations in original) (internal quotation marks and citations omitted).

         {12} Under the totality of the circumstances, in this case the district court did not abuse its discretion by excluding testimony regarding Suazo's statements to Medina and Cruz after the shooting. Prior to making the statements, Suazo drove away from the crime scene with his girlfriend and asked her to take the batteries out of his phone. He told her during the drive that he was "gonna go away for a long time." He made several stops, including at his stepmother's house, where he hid the shotgun. The approximately one hour that elapsed between the shooting and the statements, coupled with Suazo's intervening actions and statements, could reasonably be interpreted to indicate that he reflected on what had ...

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