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State v. Baroz

Supreme Court of New Mexico

October 5, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
BENJAMIN DAVID BAROZ III, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Jerry H. Ritter, Jr., District Judge

          Bennett J. Baur, Chief Public Defender J. K. Theodosia Johnson, Assistant Appellant Defender Santa Fe, NM for Appellant

          Hector H. Balderas, Attorney General Tonya Noonan Herring, Assistant Attorney General Santa Fe, NM for Appellee

          OPINION

          BARBARA J. VIGIL, JUSTICE

         I. INTRODUCTION

         {1} A jury convicted Benjamin David Baroz III (Defendant)[1] of felony murder based on the predicate felony of shooting at or from a motor vehicle, two counts of aggravated assault with a deadly weapon, and possession of drug paraphernalia. The conviction of shooting at or from a motor vehicle was vacated on double jeopardy grounds. See State v. Frazier, 2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1 (holding that the predicate felony is always subsumed into a felony murder conviction). Defendant appeals his convictions, arguing that he is entitled to a new trial because: (1) shooting at or from a motor vehicle cannot serve as a predicate felony for felony murder; (2) the evidence was insufficient to support a conviction of second-degree murder; (3) the district court erred in denying his request for a jury instruction on self-defense; (4) the one-year firearm enhancements on his sentences for aggravated assault with a deadly weapon violate double jeopardy; and (5) the State should not have been allowed to impeach his trial testimony with a statement obtained in violation of his Miranda rights.

         {2} We vacate Defendant's felony murder conviction and order that a conviction of second-degree murder be entered instead. We affirm the district court's holdings that (1) Defendant was not entitled to a self-defense instruction; (2) the imposition of a one-year firearm enhancement on an aggravated assault with a deadly weapon conviction does not violate double jeopardy; and (3) the statements Defendant made after invoking his right to remain silent were voluntary and could be used for impeachment.

         II. BACKGROUND

         {3} On August 30, 2011, in Alamogordo, New Mexico, Defendant's father drove his truck past Vangie Cordova's house, where she lived with her grandsons, Matthew Cordova and Daniel Cordova, with Defendant in the passenger seat. The truck passed the house at least once, went around the block, and came back again, very slowly, with the windows partially rolled down. Matthew Cordova, Daniel Cordova, and a friend were in the backyard. At that point, multiple shots were fired from the passenger side window of the truck into the yard, hitting and ultimately killing Matthew Cordova (Victim).

         {4} The State presented the theory that Defendant fired the gun that killed Victim. Defendant claimed that his father was responsible, and that Defendant did not know that or intend for the shooting to occur. Additional facts are provided below as necessary for the analysis.

         III. DISCUSSION

         A. Felony Murder Conviction

         {5} Defendant contends that shooting at or from a motor vehicle cannot serve as the underlying felony sustaining a felony murder conviction. See NMSA 1978, § 30-2-1(A)(2) (1994); NMSA 1978, § 30-3-8(B) (1993). We agree.

         {6} We clarified in State v. Marquez that "shooting at or from a motor vehicle is an elevated form of aggravated battery, and thus cannot be used as a predicate for felony murder." 2016-NMSC-025, ¶ 23, 376 P.3d 815 (internal quotation marks and citations omitted). In Marquez, the defendant was convicted of first-degree felony murder predicated on the underlying felony of shooting at or from a motor vehicle. Id. ¶ 1. Like the defendant in Marquez, the underlying felony supporting Defendant's felony murder conviction was the felony of shooting at or from a motor vehicle. Thus, Defendant's use of a motor vehicle to commit the killing does not automatically elevate his crime of second-degree murder to first-degree murder. Because shooting at or from a motor vehicle cannot serve as the predicate to felony murder, we vacate Defendant's conviction of felony murder and order that a conviction of second-degree murder should be entered instead.

         B. Sufficiency of the Evidence for a Second-Degree Murder Conviction

         {7} Next, we address whether there was sufficient evidence presented at trial to support a conviction of second-degree murder. See State v. Meadors, 1995-NMSC-073, ¶¶ 1, 45, 121 N.M. 38, 908 P.2d 731 (upholding a defendant's conviction of a lesser included offense); see also § 30-2-1(B) (defining second-degree murder as a lesser included offense of first-degree murder). Defendant contends that the evidence presented at trial was insufficient to support a conviction of second-degree murder. Defendant argues that his father was the actual perpetrator of the killing and Defendant did not know that or intend for anyone to be killed that day.

         {8} Although Defendant was not indicted for second-degree murder, he was on notice to defend against it because it is a lesser included offense of first-degree murder. See State v. Hernandez, 1999-NMCA-105, ¶¶ 25-28, 127 N.M. 769, 987 P.2d 1156 (determining whether an offense was a lesser included offense when a court considers a charge sua sponte). Second-degree murder is a lesser included offense of felony murder from a strict elements standpoint because a defendant cannot commit the greater charge without also committing the lesser: all of the elements necessary to prove second-degree murder are also necessary to prove felony murder. See Hernandez, 1999-NMCA-105, ¶ 25. Because Defendant was on notice to defend against second-degree murder based on the elements of the crime charged, we need not consider the pleadings or the evidence presented at trial. Id. ¶ 26 ("The test aims to avoid the inflexibility of the strict elements test while providing notice to the defendant of the crime against which he must defend." (citation omitted)); see also Meadors, 1995-NMSC-073, ¶ 12 (listing additional factors for determining whether a crime is a lesser included offense). In this case, by convicting Defendant of felony murder, the jury convicted Defendant of each of the elements necessary to prove second-degree murder.

         {9} "The test for sufficiency of the evidence is whether 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 a conviction." State v. Flores, 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citation omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted). "In reviewing whether there was sufficient evidence to support a conviction, we resolve all disputed facts in favor of the State, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary." Id. (internal quotation marks and citation omitted). "The jury is free to reject [the d]efendant's version of the facts." State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citations omitted).

         {10} To support a conviction of second-degree murder, the State had to prove beyond a reasonable doubt that Defendant killed Victim and knew that his acts created a strong probability of death or great bodily harm to Victim or any other human being. See Section 30-3-8(B). At trial, the jury heard evidence that Defendant was in the passenger seat when his father drove past the Cordova residence. Daniel Cordova testified that he saw the "muzzle flash" from shots fired from the passenger side window of the truck. He also testified that, after the shots were fired, he saw his cousin, Victim, lying on the ground. Dr. Michelle Aurelius testified at trial that Victim died from the gunshot wound. Because Defendant was in the passenger seat and the shots were fired out of the passenger side window, a jury could reasonably conclude that Defendant was the shooter. Based on the testimony that the shots fired resulted in Victim's death, we conclude there was sufficient evidence for a jury to find beyond a reasonable doubt that Defendant killed Victim.

         {11} We now turn to Defendant's mens rea. To be guilty of second-degree murder, Defendant must have had knowledge that his acts created a strong probability of death or great bodily harm. State v. Ortega, 1991-NMSC-084, ¶ 25, 112 N.M. 554, 817 P.2d 1196, abrogated on other grounds as recognized by State v. Suazo, 2017-NMSC-011, ¶ 23, 390 P.3d 674. Defendant testified that there were five or six people in the yard when he passed by in the truck. On cross-examination, Defendant admitted that he knew that shooting in the direction of a group of people in a residential area presented a danger to human life. If the jury determined that Defendant was the shooter, it would be reasonable to conclude that he "knew that his acts created a strong probability of death or great bodily harm to [Victim] or any other human being." Accordingly, the evidence was sufficient to support a conviction of second-degree murder or felony murder. See State v. Campos, 1996-NMSC-043, ¶ 29, 122 N.M. 148, 921 P.2d 1266 ("[I]n order for the felony murder doctrine to apply to a defendant, the State must prove that the defendant acted with the mens rea for at least second-degree murder.").

         C. Self-Defense Instruction

         {12} We next address whether the district court erred by refusing Defendant's requested self-defense instruction for murder, felony murder, and the aggravated assaults. The district court denied the self-defense instruction, reasoning that "seeing someone approaching, even in an angry manner, with an arm behind the back is insufficient as a matter of law to justify deadly force." Defendant preserved this issue by requesting ...


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