State v. Swick

I attest to the accuracy and

integrity of this document

New Mexico Compilation

Commission, Santa Fe, NM

'00'04- 14:40:08 2012.07.05

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-018

Filing Date: June 1, 2012

Docket No. 32,510

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

MICHAEL SWICK,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI

Louis P. McDonald, District Judge

Jacqueline Cooper, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender

Santa Fe, NM

for Petitioner

Gary K. King, Attorney General

Joel Jacobsen, Assistant Attorney General

Santa Fe, NM

for Respondent

OPINION

CHÁVEZ, Justice.

{1} On the morning of January 21, 2006, Michael Swick, along with his cousin, Benito

Lopez, and the victim, Alex Ogle, began a day of cruising and drinking alcohol in a

borrowed Jeep. The three rode around for most of the day getting the Jeep stuck. Late in

the afternoon, Swick and his cousin also consumed cocaine. They decided to walk because

the Jeep was stuck and it was getting dark. Shortly thereafter, Swick’s cousin returned to

the Jeep to get warmer clothes.

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{2} After getting a jacket from the Jeep, Swick’s cousin walked back toward the place

where he had left Swick and Ogle. When he arrived, he found Swick standing, holding a

large 15-pound rock, with Ogle lying on the ground beneath him. Swick had stabbed Ogle

and bludgeoned him on the head with the rock. Swick and his cousin walked from the crime

scene and had agreed to steal a car as they approached the home of Carlos and Rita Atencio.

Mrs. Atencio answered the door, and they told her that their Jeep was stuck. She let them

in so that they could use the telephone. When they entered the house, Swick stabbed Mrs.

Atencio, and both men continued to beat, stab, and slash her and her husband. Swick and

his cousin left with $14.00 and a van owned by the Atencios.

{3} Swick was indicted with first-degree murder for Ogle’s killing. The indictment also

charged him with 25 additional counts for the offenses at the Atencio home, including

conspiracies, attempted first-degree murders, aggravated batteries with a deadly weapon,

aggravated burglaries with a deadly weapon, and aggravated burglaries based on the battery

of Mr. and Mrs. Atencio.

{4} During the second day of trial, Swick had an outburst in court and had to be

restrained by court security officers. Some of the jurors witnessed the incident. The trial

court attempted to remedy the situation by extensively polling the jurors and asking whether

they could be fair after the incident, to which all of the jurors answered yes. Swick moved

for a mistrial, which was denied by the trial court.

{5} At the close of the State’s case, defense counsel tendered an instruction to the trial

court for voluntary manslaughter as a result of sufficient provocation and, in the alternative,

an instruction for self-defense. The trial court declined to give an instruction for self-

defense. The trial court did instruct the jury on voluntary manslaughter, concluding that it

was for the jury to determine whether Swick acted with sufficient provocation. However,

without objection, the trial court instructed the jury on second-degree murder, although it

neglected to include “without sufficient provocation” as an element of the crime.

{6} The jury found Swick guilty of second-degree murder of Ogle as a step-down from

first-degree murder and guilty of all of the remaining charges against him related to the

Atencios. Swick appealed to the New Mexico Court of Appeals, raising issues regarding

double jeopardy, jury instructions, and challenging the trial court’s denial of his motion for

a mistrial. The Court of Appeals upheld all of his convictions, holding that (1) Swick’s

convictions for two counts of attempted murder and two counts of aggravated battery with

a deadly weapon did not violate the double jeopardy prohibition pursuant to State v.

Armendariz, 2006-NMSC-036, ¶¶ 24-25, 140 N.M. 182, 141 P.3d 526; see State v. Swick,

2010-NMCA-098, ¶¶ 20-21, 148 N.M. 895, 242 P.3d 462; (2) Swick’s convictions for one

count of aggravated burglary (deadly weapon) and two counts of aggravated burglary

(battery) did not violate the double jeopardy prohibition, Swick, 2010-NMCA-098, ¶¶ 28-29;

(3) it was not fundamental error to issue an erroneous jury instruction on second-degree

murder when subsequent proper instructions corrected the error, id. ¶¶ 7-8; (4) an instruction

on self-defense was not warranted in this case, id. ¶¶ 17-18; and (5) the trial court did not

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abuse its discretion by denying Swick’s motion for a mistrial, id. ¶ 34. We granted Swick’s

petition for writ of certiorari, and we (1) vacate both of Swick’s convictions for aggravated

battery with a deadly weapon and his two convictions for aggravated burglary based on

battery because these convictions violate the constitutional prohibition against double

jeopardy; (2) remand to the trial court for a new trial on the second-degree murder conviction

because the instruction regarding second-degree murder was erroneous; (3) affirm the trial

court’s rejection of the self-defense jury instruction; and (4) affirm the trial court’s denial

of the motion for a mistrial. Accordingly, we affirm the Court of Appeals in part and reverse

in part.

I. DOUBLE JEOPARDY

{7} After leaving the scene of Ogle’s killing, Swick and his cousin decided to steal a car

and ended up at the home of the Atencios. When they arrived they found several vehicles

in the Atencio yard, but none were operable. Swick’s cousin then knocked on the door, and

Mrs. Atencio answered. They asked if they could come in and use the phone, to which Mrs.

Atencio responded, “Yeah, come in.” As soon as she let them in the house, Swick rushed

past his cousin and stabbed Mrs. Atencio in the back. Swick then went to Mr. Atencio, who

was sitting on the couch, and began to beat and stab him. They left with $14.00 and a van

owned by the Atencios.

{8} Swick was convicted of eleven felony counts arising from his conduct at the Atencio

residence and contends that four counts must be vacated. He contends that the prohibition

against double jeopardy was violated when he was convicted of (1) two counts of first-

degree attempted murder and two counts of third-degree aggravated battery arising out of

unitary conduct, and (2) two counts of aggravated burglary (battery) and one count of

aggravated burglary (deadly weapon) arising out of unitary conduct. Regarding the first

claim, the Court of Appeals affirmed Swick’s convictions without reaching the merits, citing

State v. Glascock, 2008-NMCA-006, ¶ 26, 143 N.M. 328, 176 P.3d 317, for the proposition

that the Court of Appeals is bound by Supreme Court precedent established in Armendariz.

Swick, 2010-NMCA-098, ¶ 21.

{9} The Court of Appeals also rejected Swick’s second double jeopardy claim regarding

the aggravated burglary convictions. The Court of Appeals assumed that the conduct

underlying the two convictions was unitary and therefore limited its analysis to whether the

Legislature authorized multiple punishments for aggravated burglary under different

theories. Id. ¶¶ 25, 29. The Court of Appeals held that the Legislature authorized multiple

punishments because NMSA 1978, Sections 30-16-4(B) (burglary involving a deadly

weapon) and 30-16-4(C) (burglary involving battery) (1963) addressed different social evils

that required separate punishments—to deter criminals from using deadly weapons in

burglaries versus to address actual physical injury to persons during burglaries. Swick,

2010-NMCA-098, ¶¶ 26, 29. The Court of Appeals acknowledged that the same quantum

of punishment is prescribed for each subsection, suggesting that separate punishments may

3

be inappropriate.1 Id. ¶ 29. Despite this acknowledgment, the Court of Appeals concluded

that the Legislature intended multiple punishments. Id. ¶¶ 28-29.

{10} A double jeopardy challenge is a constitutional question of law which we review de

novo. See State v. Gallegos, 2011-NMSC-027, ¶ 51, 149 N.M. 704, 254 P.3d 655. The Fifth

Amendment of the United States Constitution prohibits double jeopardy and is made

applicable to New Mexico by the Fourteenth Amendment. U.S. Const. amends. V & XIV,

§ 1; Benton v. Maryland, 395 U.S. 784, 787 (1969). It functions in part to protect a criminal

defendant “against multiple punishments for the same offense.” State v. Gutierrez, 2011-

NMSC-024, ¶ 49, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citations

omitted). There are two classifications of double jeopardy multiple-punishment cases. The

first is the double-description case, where the same conduct results in multiple convictions

under different statutes. Gallegos, 2011-NMSC-027, ¶ 31. The second is the unit-of-

prosecution case, where a defendant challenges multiple convictions under the same statute.

Id. As will be explained below, Swick’s first double jeopardy challenge is a double-

description case, while his second is a unit-of-prosecution case.

A. SEPARATE CONVICTIONS FOR ATTEMPTED MURDER AND

AGGRAVATED BATTERY ARISING FROM THE SAME CONDUCT

VIOLATE THE PROHIBITION AGAINST DOUBLE JEOPARDY.

{11} Double-description claims are subject to the two-part test set forth in Swafford v.

State, 112 N.M. 3, 810 P.2d 1223 (1991). First we consider whether the conduct underlying

the two convictions was unitary (the same conduct). If it is not, then there is no double

jeopardy violation. If it is unitary, we consider whether it was the Legislature’s intent to

punish the two crimes separately. Id. at 13, 810 P.2d at 1233. In analyzing legislative intent,

we first look to the language of the statute itself. State v. Frazier, 2007-NMSC-032, ¶ 21,

142 N.M. 120, 164 P.3d 1. If the statute does not clearly prescribe multiple punishments,

then the rule of statutory construction established in Blockburger v. United States, 284 U.S.

299 (1932) applies. Swafford, 112 N.M. at 14, 810 P.2d at 1234.

{12} Under Blockburger, “the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which the other does

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This Court and the Court of Appeals have used the quantum of punishment to

support the proposition that the Legislature did not intend to punish the two crimes

separately, both when the amount of punishment is the same and when the amount differs.

Compare Swick, 2010-NMCA-098, ¶ 29 (“The quantum of punishment under either

subsection is the same, which might suggest that separate punishments are inappropriate.”),

with Armendariz, 2006-NMSC-036, ¶ 25 (“In comparing the quantum of punishment for

each offense, the difference in the amount of punishment is arguably an indication that the

Legislature did not intend [the offenses] to be separately punishable.”).

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not.” 284 U.S. at 304. If the statute is “vague and unspecific,” Gutierrez, 2011-NMSC-024,

¶ 59 (internal quotation marks omitted), or written in the alternative, courts must consider

the State’s legal theory in assessing whether each provision requires proof of a fact which

the other does not. Id. ¶ 58.

{13} If each statute requires proof of a fact that the other does not, it may be inferred that

the Legislature intended to authorize separate punishments under each statute. Swafford, 112

N.M. at 9, 14, 810 P.2d at 1229, 1234. However, this is only an inference that leads to an

examination of other indicia of legislative intent. Id. at 14, 810 P.2d at 1234. “Legislative

intent may be gleaned from the statutory schemes by identifying the particular evil addressed

by each statute; determining whether the statutes are usually violated together; comparing

the amount of punishment inflicted for a violation of each statute; and examining other

relevant factors.” State v. Pedro Gonzales, 113 N.M. 221, 225, 824 P.2d 1023, 1027 (1992).

If after examining the relevant indicia the legislative intent remains ambiguous, the rule of

lenity requires us to presume that the Legislature did not intend multiple punishments for the

same conduct. Swafford, 112 N.M. at 15, 810 P.2d at 1235.

{14} We previously held in Armendariz that the Legislature authorized multiple

punishments for attempted murder and aggravated battery,2 even when they arise from the

same conduct. Armendariz, 2006-NMSC-036, ¶¶ 24-25. In Armendariz, as in this case, the

defendant was convicted of attempted first-degree murder and aggravated battery arising

from the same conduct. Id. ¶ 5. After a “chaotic altercation” between the two victims and

the defendant outside a bar, the defendant left the scene. However, the defendant returned

with a gun and shot both victims. One of the victims survived. Id. ¶ 4. The defendant

challenged his convictions, arguing that the Legislature did not intend to punish each crime

separately when the underlying conduct for both charges was unitary. See id. ¶ 23. The

State did not dispute that the conduct underlying the offense was unitary, so the Armendariz

Court proceeded to the second prong of the Swafford analysis. Armendariz, 2006-NMSC-

036, ¶ 23.

{15} The Armendariz Court first applied the Blockburger test and found that each crime

contained an element that the other did not. Armendariz, 2006-NMSC-036, ¶ 24. Attempted

murder requires proof of an overt act, intent to commit murder, and failure to complete the

crime, which are not elements required to prove aggravated battery. Id. Aggravated battery

requires an unlawful application of force, which is not an element of attempted murder. Id.

Therefore, the Court concluded that a presumption arose that the Legislature intended

separate punishments under these two statutes. Id.

{16} The Armendariz Court then looked to other indicia of legislative intent. Id. ¶ 25.

2

NMSA 1978, § 30-2-1 (1963, as amended through 1994) (murder); NMSA 1978,

§ 30-28-1 (1963) (attempt to commit a felony); and aggravated battery, NMSA 1978, § 30-3-

5 (1969) (aggravated battery).

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First, the Court recognized that attempted murder and aggravated battery were enacted to

address different social harms, punishing the state of mind in attempted murder and

punishing actual harm in aggravated battery. Id. Second, the Court reasoned that there was

no language in either statute which indicated an intent that these crimes were alternative

ways of committing the same crime. Id. Third, the Court explained that the two crimes do

not necessarily have to be violated at the same time. Id. In other words, a defendant can

commit attempted murder without also committing battery. The Armendariz Court used

these three indicia to find a presumption of legislative intent to allow separate punishments.

Id. The Armendariz Court also recognized that the Legislature may not have intended

separate punishments because the punishment for attempted first-degree murder is triple the

punishment for aggravated battery.3 Id. However, the Court held that this disparity in

punishment was insufficient to overcome what it considered to be a presumption of

legislative intent to punish both crimes separately. Id. Despite legislative intent remaining

ambiguous, the Armendariz Court did not apply the rule of lenity, and therefore it upheld the

defendant’s convictions for both attempted murder and aggravated battery arising from the

same conduct. See id.

{17} Swick has asked this Court to overrule our holding in Armendariz. The factors we

consider before overruling a prior decision are:

1) whether the precedent is so unworkable as to be intolerable; 2) whether

parties justifiably relied on the precedent so that reversing it would create an

undue hardship; 3) whether the principles of law have developed to such an

extent as to leave the old rule no more than a remnant of abandoned doctrine;

and 4) whether the facts have changed in the interval from the old rule to

reconsideration so as to have robbed the old rule of justification.

State v. Riley, 2010-NMSC-005, ¶ 34, 147 N.M. 557, 226 P.3d 656 (quoting State v. Pieri,

2009-NMSC-019, ¶ 21, 146 N.M. 155, 207 P.3d 1132). “[W]hen one of the aforementioned

circumstances convincingly demonstrates that a past decision is wrong, the Court has not

hesitated to overrule even recent precedent.” Pieri, 2009-NMSC-019, ¶ 21 (internal

quotation marks and citations omitted).

{18} Three of the Riley factors do not apply to this case. The second factor, justifiable

reliance, which is most important in cases implicating property and contract rights, and least

important in cases involving procedural and evidentiary rules, is not present in this case. See

Payne v. Tennessee, 501 U.S. 808, 828 (1991); see also Arizona v. Gant, 556 U.S. 332, 349-

50 (2009) (rejecting the State’s argument in that case that police officers relied on the

3

Attempted first-degree murder is a second-degree felony punishable by

imprisonment for nine years. See NMSA 1978, § 31-18-15(A)(6) (2007); § 30-28-1(A).

Aggravated battery is a third-degree felony punishable by imprisonment for

three years. See § 31-18-15(A)(9).

6

“Belton rule,” and therefore developed a cognizable reliance interest that justified upholding

the rule). The State could not have relied on Armendariz to its detriment because the double

jeopardy prohibition is applied at the conclusion of a case to prevent multiple punishments.

The third factor, which analyzes whether the rule is only a remnant of an abandoned

doctrine, is likewise inapplicable. The test established in Swafford, 112 N.M. at 13, 810 P.2d

at 1233, is hardly “a remnant of abandoned doctrine,” although the principles of double

jeopardy have developed since Swafford and have been modified by Gutierrez, 2011-NMSC-

024, ¶ 58. Subject to subsequent modifications, Swafford remains the test to be applied in

every case challenging convictions on double jeopardy grounds. Finally, the fourth and final

factor does not apply because the Legislature has not modified the statutes defining Swick’s

crimes since Armendariz was decided.

{19} However, the first Riley factor, which examines whether the rule is so unworkable

so as to be intolerable, does apply. While the precedent established in Armendariz is

efficient and predictable, stare decisis is neither an “inexorable command,” Lawrence v.

Texas, 539 U.S. 558, 577 (2003), nor “a mechanical formula of adherence to the latest

decision.” Helvering v. Hallock, 309 U.S. 106, 119 (1940). We conclude that the

modifications to double jeopardy jurisprudence make this Court’s opinion in Armendariz so

unworkable as to be intolerable. We therefore overrule Armendariz. We will show how the

modifications to our double jeopardy jurisprudence since deciding Armendariz lead us to

conclude that the Legislature did not intend multiple punishments for attempted murder and

aggravated battery arising from the same conduct because the latter is subsumed by the

former. See Gutierrez, 2011-NMSC-024, ¶ 56.

{20} The parties in this case do not dispute that the underlying conduct supporting both

convictions was unitary. Swick explicitly asserted in his opening brief that the conduct

underlying these two convictions was unitary. The State did not challenge this assertion in

its answer brief. Thus, the question before this Court is whether the Legislature authorized

multiple punishments under the statutes for attempted murder and aggravated battery with

a deadly weapon for the same conduct. We conclude that it did not.

{21} Since we decided Armendariz, this Court has modified the Blockburger analysis to

be used in New Mexico. See Gutierrez, 2011-NMSC-024, ¶ 58. In Gutierrez, we rejected

the approach used in Armendariz, which is a strict elements test, in order to be more in line

with United States Supreme Court precedent. Gutierrez, 2011-NMSC-024, ¶ 58. We

clarified that, in the abstract, the application of Blockburger should not be so mechanical that

it is enough for two statutes to have different elements. Gutierrez, 2011-NMSC-024, ¶ 58.

Instead, we held in Gutierrez that when a statute is “vague and unspecific,” id. ¶ 59 (internal

quotation marks omitted), our courts must evaluate legislative intent by considering the

State’s legal theory independent of the particular facts of the case, id. ¶ 58. Our courts may

do this by examining the charging documents and the jury instructions given in the case. Id.

¶ 53.

{22} According to Counts III and IV of the indictment in this case, to prove first-degree

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attempted murder, the State had to prove:

That on or about the 21st day of January, 2006, in Sandoval County,

New Mexico, the above named defendant, did attempt to commit Murder, in

that the defendant intended to commit Murder, and began to do an act which

constituted a substantial part of Murder, but failed to commit the offense,

contrary to §30-28-01, and §30-02-01, NMSA 1978, as amended.

Although the indictment, the jury instructions, and the verdict forms are silent as to the

identity of the attempted-murder victims, it is clear that the victims are Carlos and Rita

Atencio.

{23} Counts V and VI, which charge third-degree aggravated battery with a deadly

weapon, read:

That on or about the 21st day of January, 2006, in Sandoval County,

New Mexico, the above-named defendant, did touch or apply force to Carlos

Atencio, [Count V or Rita Atencio, Count VI] with [a] knife, [a] cane, and a

leg from a chair or table, which was a deadly weapon, intending to injure

Carlos Atencio, [Count V or Rita Atencio, Count VI], or another, contrary to

§30-3-5, NMSA 1978, as amended.4

{24} As this Court recognized in Armendariz, attempted murder and aggravated battery

are not always committed together. 2006-NMSC-036, ¶ 25. However, under Gutierrez,

when the two statutory crimes are committed together, as they were in this case, the trial

court must look to the State’s theory of the case and the elements of the crime charged if one

of the statutes is a generic, multi-purpose statute that is “vague and unspecific.” 2011-

NMSC-024, ¶ 59 (internal quotation marks omitted). The Legislature is always free to

express its intent to punish the same conduct under more than one statute. However, if

legislative expression is absent and one statute is subsumed by the other, then convictions

for both cannot stand. Swafford, 112 N.M. at 14, 810 P.2d at 1234.

{25} Under the attempted murder statutes, §§ 30-28-1 & 30-2-1, many forms of conduct

can support the “began to do an act which constituted a substantial part of Murder” element.

Therefore, attempted murder is a generic, multipurpose statute that is “vague and

unspecific,” and we must look to the State’s theory of the case to inform what “began to do

an act which constituted a substantial part of Murder” means in this case. When doing so,

we are persuaded that the State used the aggravated batteries to prove the element of “began

to do an act which constituted a substantial part of Murder.” The State argues that, even

after an examination of the charging document and the jury instructions, the elements of the

4

The jury instructions substantially mirrored the language of the charging document

for both crimes.

8

attempt statute are still vague. It is true that one must infer what the “began to do an act”

element is after reading the charging document or the jury instructions. However, the State

does not offer an alternative act that could have been the basis for this element. As Justice

Bosson stated in his special concurrence in Gutierrez, “[a] prosecutor should not be allowed

to defeat the constitutional protections afforded by the double jeopardy clause” by clever

indictment drafting. 2011-NMSC-024, ¶ 79 (Bosson, J., specially concurring).

{26} The State’s legal theory at the outset of trial was that after Swick entered the

Atencios’ home, he “proceed[ed] to try [to] kill them.” Moreover, the State proffered the

same testimony to prove the aggravated batteries as it did to prove the attempted murders,

which was that Swick beat, stabbed, and slashed Mr. and Mrs. Atencio after entering their

home. Finally, the State, in its closing argument, after giving the elements of attempted

murder, asked the jury, “[w]hy is this attempted murder and not just aggravated battery?”

After a recitation of the same evidence that the State used to support the aggravated battery

charge earlier in its closing, it concluded with “[t]his kind of excessive violence is supportive

of an intent to kill.”

{27} The theory of the State’s case to support the charges of aggravated battery with a

deadly weapon and also the charges of attempted murder was that Swick beat, stabbed, and

slashed the Atencios. In other words, considering the State’s theory of the case, the

aggravated battery elements were subsumed within the attempted murder elements. When

this occurs, the double jeopardy prohibition is violated, and “punishment cannot be had for

both.” Swafford, 112 N.M. at 14, 810 P.2d at 1234.

{28} We find Brown v. Ohio, 432 U.S. 161, 167 (1977), instructive on this point. In

Brown, the United States Supreme Court recognized that each state court has the “final

authority” to interpret its state’s legislation. See id. Consistent with this principle, the Court

in Brown upheld the Ohio Court of Appeals’ holding construing joyriding as a lesser-

included offense of auto theft, where the statutory language left ambiguous whether the

greater offense included all of the elements of the lesser offense. See id. at 162 & n.1, 163

& n.2. The Brown Court recognized that state courts may properly conclude that one offense

subsumes another, despite ambiguous language, through statutory construction. See id. at

166-68. By looking to the legal theory of the case, that is precisely what we do here. See

Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002) (vacating a conviction for aggravated battery

when there was a reasonable possibility that the jury relied on the same act by the defendant

to convict the defendant of aggravated battery as it did to convict the defendant of attempted

murder); People ex rel. Walker v. Pate, 292 N.E.2d 387, 390 (Ill. 1973) (observing that it

was error for a district court to impose sentences for both aggravated battery and attempted

murder because the convictions arose from the same conduct and aggravated battery is a

lesser-included offense of attempted murder).

{29} Even if the elements of attempted murder do not subsume the elements of aggravated

battery, an examination of these statutes leads us to conclude that Swick’s convictions

violate the double jeopardy prohibition, contrary to the holding in Armendariz, for two

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reasons. First, the social harms addressed by each statute do not conclusively indicate an

intent to punish separately. Regarding social harms, the Armendariz Court concluded that

“[t]he prohibition against attempted murder is directed at protecting a person’s life and the

statute is directed at punishing a person’s state of mind, whereas the prohibition against

aggravated battery is directed at protecting a person from bodily injury and the statute is

directed at punishing actual harm.” 2006-NMSC-036, ¶ 25. Another reasonable assessment

of the social harms is that both statutes address the social evil of harmful attacks on a

person’s physical safety and integrity. Both statutes punish overt acts against a person’s

safety but take different degrees into consideration. The aggravated battery statute concerns

itself with the intent to harm and the attempted murder statute concerns itself with the intent

to harm fatally. However, this is only one factor to consider in the analysis. Even if we

accept as true that different social harms may be addressed by each statute, Swafford

explained that “[i]f the punishment attached to an offense is enhanced to allow for kindred

crimes, these related offenses may be presumed to be punished as a single offense.” 112

N.M. at 15, 810 P.2d at 1235. Aggravated battery committed with an intent to cause great

bodily harm is punishable by three years in prison. NMSA 1978, §§ 31-18-15(A)(9) (2007),

30-3-5(C). However, when the aggravated battery is committed with an intent to kill

(attempted murder), the Legislature has enhanced the punishment to nine years. See §§ 31-

18-15(A)(6), 30-2-1, 30-28-1. In other words, the Legislature intended that Swick be

punished more harshly when he stabbed the Atencios with the intent to kill them rather than

with the intent merely to injure them.

{30} Second, the rule of lenity should have been applied in Swick’s favor. The United

States Supreme Court has held that when doubt regarding legislative intent remains,

ambiguity “must be resolved in favor of lenity.” Whalen v. United States, 445 U.S. 684, 694

(1980). We apply the rule of lenity in this case because reasonable minds can differ as to the

Legislature’s intent in punishing these two crimes. Santillanes v. State, 115 N.M. 215, 221,

849 P.2d 358, 364 (1993). And when we apply the rule of lenity to convictions under the

attempted murder and aggravated battery with a deadly weapon statutes arising from unitary

conduct, we must hold that multiple convictions cannot stand.

{31} Because our application of Blockburger has been modified to bring it closer in line

with United States Supreme Court precedent, we overrule Armendariz and vacate the

convictions that carry the lesser punishment. See State v. Santillanes, 2001-NMSC-018, ¶¶

28, 30, 130 N.M. 464, 27 P.3d 456 (“‘[T]he general rule requires that the lesser offense be

vacated’ in the event of impermissible multiple punishments. . . . We believe that the degree

of felony . . . is an appropriate measure of legislative intent regarding which of two offenses

is a greater offense.” (internal citation omitted)); see also Jones v. Thomas, 491 U.S. 376,

387 (1989) (“[W]here concurrent sentences are imposed, unlawful imposition of two

sentences may be cured by vacating the shorter of the two sentences.”); People v. Fuentes,

258 P.3d 320, 326 (Colo. App. 2011) (“[W]e must maximize the effect of the jury’s verdict

and retain the greatest number of convictions and longest sentence.”); State v. Polson, 145

S.W.3d 881, 897 (Mo. Ct. App. 2004) (“[W]e can cure the violation [of the double jeopardy

prohibition] by ordering that the shorter of the [two] sentences be vacated.” (internal

10

quotation marks and citation omitted)); State v. Valenzona, 2007-Ohio-6892, ¶ 36 (“Public

policy suggests that where two charges are allied offenses of similar import, the offense with

the longer sentence should be preferred over the offense with the shorter sentence.” (internal

quotation marks and citation omitted)); State v. Scribner, 746 A.2d 145,147-48 (Vt. 1999)

(“Vacating the shorter sentence fully vindicates defendant’s rights.”). Therefore, because

the two convictions for third-degree aggravated battery and the two convictions for

attempted murder violate the prohibition against double jeopardy, we remand this case to the

trial court to vacate the two convictions for aggravated battery with a deadly weapon.

B. TWO CONVICTIONS FOR AGGRAVATED BURGLARY WHILE

COMMITTING A BATTERY AND ONE CONVICTION FOR

AGGRAVATED BURGLARY WITH A DEADLY WEAPON ARISING FROM

A SINGLE UNAUTHORIZED ENTRY VIOLATE THE PROHIBITION

AGAINST DOUBLE JEOPARDY.

{32} Swick’s second double jeopardy argument challenges his two convictions for

aggravated burglary while committing a battery, § 30-16-4(C), and one conviction for

aggravated burglary with a deadly weapon, § 30-16-4(A). The Court of Appeals upheld

Swick’s convictions, Swick, 2010-NMCA-098, ¶ 29, assuming without deciding that the

convictions were based on the same conduct, id. ¶¶ 23-25. However, the Court of Appeals

held that the convictions constituted separate and distinct offenses because a separate

underlying theory regarding the protected social interests supports each of the two offenses,

and because Subsections A and C have different elements and different purposes. Swick,

2010-NMCA-098, ¶¶ 24-29. We agree that these subsections have different elements.

However, we conclude that the Legislature has clearly defined the unit of prosecution to be

based on an unauthorized entry with the intent to commit a felony therein.

{33} We apply a unit-of-prosecution analysis because we are examining multiple

convictions under the same statute. See Gallegos, 2011-NMSC-027, ¶ 31. This analysis

requires courts to determine the unit of prosecution intended by the Legislature by

employing a two-part test, both parts of which are concerned with legislative intent. Id. ¶¶

31-32. First, courts must analyze the statute at issue to determine whether the Legislature

has defined the unit of prosecution. If the unit of prosecution is clear from the language of

the statute, the inquiry is complete. If the unit of prosecution is not clear from the statute at

issue, including its wording, history, purpose, and the quantum of punishment that is

prescribed, courts must determine whether a defendant’s acts are separated by sufficient

“indicia of distinctness” to justify multiple punishments. Id. ¶ 31 (internal quotation marks

and citation omitted). In this case, we do not reach the second part of the test because we

conclude that the Legislature defined the unit of prosecution to be an unlawful entry with

intent to commit a felony therein.

{34} Section 30-16-4 defines the relevant elements for aggravated burglary as follows:

Aggravated burglary consists of the unauthorized entry of any . . .

11

dwelling . . . , with intent to commit any felony or theft therein and the

person either:

A. is armed with a deadly weapon;

B. after entering, arms himself with a deadly weapon;

C. commits a battery upon any person while in such

place, or in entering or leaving such place.

{35} The State’s theory is that Swick committed three aggravated burglaries, and that the

first aggravated burglary occurred when he entered the Atencios’ home without authority

and armed with a knife. The State argues that the crime of aggravated burglary under

Section 30-16-4(A) was complete the instant Swick entered the dwelling with a deadly

weapon. The State also contends that the second and third aggravated burglaries occurred

when Swick used the knife to commit battery upon the Atencios while he was inside the

dwelling. However, these contentions are not supported or contemplated by the statute and

we therefore decline to divide one offense into separate means used to accomplish the

ultimate goal, which was the unlawful entry into the dwelling with the intent to commit a

felony therein. State v. LeFebre, 2001-NMCA-009, ¶¶ 18, 23, 130 N.M. 130, 19 P.3d 825

(vacating one of the defendant’s convictions for resisting, evading, or obstructing an officer

under several subsections of the same statute, NMSA 1978, § 30-22-1 (1981) (providing that

evading could take place either on foot or in a vehicle, because it was all part of the unitary

conduct to evade officers). See also Gallegos, 2011-NMSC-027, ¶ 55 (inferring that “the

Legislature established what we will call a rebuttable presumption that multiple crimes are

the object of only one, overarching, conspiratorial agreement subject to one, severe

punishment set at the highest crime conspired to be committed”). This is particularly true

when the State concedes that the conduct underlying Swick’s three convictions for

aggravated burglary was unitary because Swick “could not have committed [the aggravated

burglaries based on the batteries] without first arming himself with the knife.”

{36} Nonetheless, the State argues that threatening a homeowner with a deadly weapon

is one social evil that Section 30-16-4 addresses, and battering a homeowner during a

burglary is another. Even assuming this to be an accurate characterization of the social evils

to be addressed by the statute, it is clear from the structure of the statute alone that each

aggravated burglary requires an unauthorized entry. When there is only one entry, only one

of these aggravating factors is needed to support punishing the burglary as a second-degree

felony instead of a third-degree felony. See NMSA 1978, §§ 30-16-3 (1971), 30-16-4.

Therefore, we need not go on to the second step of the unit-of-prosecution analysis and hold

that when there is only one unauthorized entry, there can only be one aggravated burglary.

Section 30-16-4.

{37} Courts in other jurisdictions with similar aggravated burglary statutes have also held

that a defendant cannot be convicted of more than one aggravated burglary when there is

12

only one unauthorized entry. For example, in Fuentes, two men, including the defendant,

forced their way into a house and assaulted two victims. 258 P.3d at 322. The defendant

was found guilty of assault and two counts of first-degree burglary based upon the two

assaults. Id. at 321. The defendant argued that the double jeopardy clause precluded his

conviction of the two counts of first-degree burglary because there was only one entry,

although two people were assaulted. Id. at 322.

{38} The Colorado Court of Appeals phrased the question as follows: “we must determine

whether defendant’s assault on two people in the course of a single unlawful entry of an

occupied structure constitutes the same offense or multiple offenses under the first degree

burglary statute.” Id. at 323. Colorado’s first-degree burglary statute provides:

A person commits first degree burglary if the person knowingly enters

unlawfully, or remains unlawfully after a lawful or unlawful entry, in a

building or occupied structure with intent to commit therein a crime, other

than trespass as defined in this article, against another person or property, and

if in effecting entry or while in the building or occupied structure or in

immediate flight therefrom, the person or another participant in the crime

assaults or menaces any person, or the person or another participant is armed

with explosives or a deadly weapon.

Id. (quoting Colo. Rev. Stat. § 18-4-202(1) (2010) (internal quotation marks omitted).

{39} The court noted that the Colorado first-degree burglary statute encompassed the same

elements as the second-degree burglary statute, which is violated when a person “knowingly

breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or

unlawful entry in a building or occupied structure with intent to commit therein a crime

against another person or property.” Id. (quoting Colo. Rev. Stat. § 18-4-203(1) (2010)

(internal quotation marks omitted). The Colorado Court of Appeals noted that burglary is

a form of trespass coupled with an intent to commit a crime in a building. Id.

{40} The prosecution contended that even if the second-degree burglary statute is

primarily concerned with property interests, the “first degree burglary [statute] is primarily

intended to protect persons because the additional elements proscribe conduct that poses

great danger to others.” Id. at 324. The Colorado Court of Appeals rejected this argument

because although the additional elements address risk to persons, these elements only

“modify and aggravate the principal crime of burglary; they do not change the gravamen of

the crime.” Id. Thus, the court held that “a single entry can support only one conviction of

first degree burglary, even if multiple assaults occur.” Id. at 325.

{41} The Fuentes Court also cited other state court opinions that were in accord with its

holding and which had burglary statutes similar to the burglary statutes in Colorado. Id. at

325. See, e.g., State v. DeWitt, 101 P.3d 277, 285 (Mont. 2004) (holding that it was error for

the district court not to dismiss one count of aggravated burglary because there was only one

13

unauthorized entry); State v. Brooks, 53 P.3d 1048, 1050 (Wash. Ct. App. 2002)

(recognizing that it was improper to analogize burglary to robbery, making the number of

victims the focus of the analysis, because the focus should be on the number of entries). The

Fuentes Court acknowledged that the state was free to charge a defendant with assaultive

crimes if the evidence supports such a charge, but that the state cannot do so under the

aggravated burglary statute if there was only one unlawful entry. Fuentes, 258 P.3d at 325.

{42} The approach taken in these cases is persuasive and consistent with New Mexico

jurisprudence. To summarize, the simple burglary statute in New Mexico provides, in

relevant part, that “[b]urglary consists of the unauthorized entry of any . . . dwelling . . . with

the intent to commit any felony or theft therein.” Section § 30-16-3. The aggravated

burglary statute encompasses the same elements as simple burglary but increases the

punishment if the defendant “A. is armed with a deadly weapon; B. after entering, arms

himself with a deadly weapon; [or] C. commits a battery upon any person while in such

place . . . .” Section 30-16-4; see State v. DeGraff, 2006-NMSC-011, ¶ 28, 139 N.M. 211,

131 P.3d 61 (recognizing the implied “or” in the aggravated burglary statute, § 30-16-4).

When there is only one entry into a dwelling, only one of these aggravating factors is needed

to support punishing the burglary as a second-degree felony instead of a third-degree felony.

See §§ 30-16-3, -4.

{43} In this case, there was only one unlawful entry with the intent to commit a felony

therein, and thus there was only one burglary that could be enhanced to an aggravated

burglary. Both Mr. and Mrs. Atencio testified that Swick entered their home only once.

Swick’s cousin also testified that he and Swick entered the home only once in order to steal

a vehicle. The State attempted to justify the two charges of aggravated burglary based on

battery by pointing to two victims and then attempted to justify the aggravated burglary

because Swick “had a knife from the time he killed . . . Ogle.” Although the facts that Swick

battered the Atencios and that Swick was armed with a knife before the unauthorized entry

support enhancing the burglary to an aggravated burglary, it is clear that the Legislature

intended that only one subsection enhance the punishment for a single unauthorized entry.

This approach is logical and consistent with the principles of double jeopardy because Swick

was also convicted of two counts of armed robbery, NMSA 1978, § 30-16-2 (1973); two

counts of aggravated battery with a deadly weapon, § 30-3-5(C); and two counts of

attempted murder, §§ 30-2-1 & 30-28-1, for the same assaultive conduct that took place after

the unlawful entry.

{44} Because Swick’s convictions under three subsections of Section 30-16-4 violate the

prohibition against double jeopardy, we remand to the trial court to vacate Swick’s two

convictions for aggravated burglary based on battery.

II. JURY INSTRUCTIONS

{45} At the close of the State’s case, defense counsel tendered two different instructions

to the trial court regarding Ogle’s death, one for voluntary manslaughter as a result of

14

sufficient provocation, and, in the alternative, a self-defense instruction. The defense

maintained that Ogle stabbed Swick before Swick stabbed Ogle. Detective Traxler and

Officer Wiese both testified during trial that Swick’s knife wound could have been defensive

in nature. Defense counsel argued that this type of injury would cause fear in an ordinary

person and that it made Swick fearful for his life. The State contended that Swick could not

have been acting in self-defense resulting from fear and “be sufficiently provoked at the

same time.” The trial court refused to give an instruction on self-defense, but it did instruct

the jury on voluntary manslaughter. However, the trial court gave the jury the second-degree

murder instruction that applies when voluntary manslaughter is not a lesser-included offense,

even though the trial court had determined that voluntary manslaughter was a lesser-included

offense in this case. The instruction that was given to the jury, UJI 14-211 NMRA, omits

the element of the statute that requires the State to prove beyond a reasonable doubt that the

defendant did not act with sufficient provocation. Section 30-2-1(B). Compare UJI 14-210

NMRA with UJI 14-211. Neither party objected to this instruction.

{46} Because this issue was not raised below, we will review for fundamental error, State

v. Sosa, 1997-NMSC-032, ¶ 23, 123 N.M. 564, 943 P.2d 1017, “or if substantial justice has

not been done.” State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991) (internal

quotation marks and citation omitted). The exacting standard of review for reversal for

fundamental error requires “the question of guilt [be] so doubtful that it would shock the

conscience [of the court] to permit the verdict to stand.” Sosa, 1997-NMSC-032, ¶ 24. With

regard to jury instructions, fundamental error occurs when, because an erroneous instruction

was given, a court has no way of knowing whether the conviction was or was not based on

the lack of the essential element. Osborne, 111 N.M. at 662-63, 808 P.2d at 632-33.

A. THE TRIAL COURT ERRED IN ISSUING AN INSTRUCTION ON

SECOND-DEGREE MURDER THAT OMITTED THE ESSENTIAL

ELEMENT “WITHOUT SUFFICIENT PROVOCATION.”

{47} The trial court gave the following jury instruction, based on UJI 14-211, for second-

degree murder:

For you to find the defendant, Michael Swick, guilty of second degree

murder, the State must prove to your satisfaction beyond a reasonable doubt

each of the following elements of the crime:

1. The defendant, Michael Swick, killed Alex Ogle;

2. The defendant, Michael Swick knew that his acts created a strong

probability of death or great bodily harm to Alex Ogle;

3. This happened in New Mexico, on or about the 21st day of January,

2006.

15

See UJI 14-211.

{48} The title of this jury instruction indicates that it is applicable when “voluntary

manslaughter [is] not [a] lesser-included offense” of second-degree murder, id. (emphasis

added), and its Use Note states that the instruction applies “only when second-degree murder

is the lowest degree of homicide to be considered by the jury,” id. Use Note 1. When

voluntary manslaughter is a lesser-included offense, an additional element is added to the

instruction between elements 2 and 3 of UJI 14-211. Swick points out that UJI 14-210, the

instruction that should have been given to the jury, provides the following:

For you to find the defendant Michael Swick guilty of second degree

murder, the state must prove to your satisfaction beyond a reasonable doubt

each of the following elements of the crime:

1. The defendant, Michael Swick, killed Alex Ogle;

2. The defendant, Michael Swick, knew that his acts

created a strong probability of death or great bodily

harm to Alex Ogle;

3. The defendant, Michael Swick, did not act as a result

of sufficient provocation;

4. This happened in New Mexico, on or about the 21st

day of January, 2006.

See UJI 14-210.

{49} Although the trial court incorrectly instructed the jury regarding second-degree

murder, the trial court correctly instructed the jury regarding voluntary manslaughter with

UJI 14-220. Instruction 14-220 includes an explanation of the difference between second-

degree murder and voluntary manslaughter, which is sufficient provocation. The jury was

also given UJI 14-222 NMRA, which defines “sufficient provocation.”

{50} The State contends that because the jury was instructed to consider the instructions

as a whole, the voluntary manslaughter instruction and the instruction defining “sufficient

provocation” provided the jury with enough guidance to cure the defect in the second-degree

murder instruction. Swick counters that notwithstanding the instructions regarding voluntary

manslaughter, it is not valid to presume the jury understood that an element, which the State

had the burden of proving beyond a reasonable doubt, was missing from the second-degree

murder instruction.

{51} Swick also asserts that the trial court’s step-down instruction based on UJI 14-250

NMRA prevented the jury from moving on to voluntary manslaughter after reaching a

16

unanimous guilty verdict on second-degree murder without considering the missing element.

UJI 14-250 requires the jury to first address the highest degree of the crime charged, which

in this case is first-degree murder. If the jury had found Swick guilty of first-degree murder,

their deliberations regarding murder would have ended, and the jury would have returned

a verdict of guilty of first-degree murder. However, under the step-down instruction, if

unable to agree that Swick was guilty of first-degree murder, the jury was to consider

second-degree murder next, and if unable to agree that Swick was guilty of second-degree

murder, the jury was to consider voluntary manslaughter. Because the jury in this case

agreed that Swick was guilty of second-degree murder, defense counsel argues that, under

the step-down instruction, the jury never would have reached either the voluntary

manslaughter instruction or the instruction defining “sufficient provocation.”

{52} The State disagrees that the step-down instruction prevented the jury from properly

considering voluntary manslaughter. The State asserts that the procedural, nonsubstantive

step-down instruction does not direct the jury to disregard any elements in the voluntary

manslaughter instruction and concludes that “there is no reason to believe the jury did so.”

Finally, the State argues that evidence to convict Swick of second-degree murder was not

so doubtful that it would shock the conscience of this Court to allow the second-degree

murder conviction to stand. See State v. Cunningham, 2000-NMSC-009, ¶ 13, 128 N.M.

711, 998 P.2d 176 (“The doctrine of fundamental error is to be resorted to in criminal cases

only for the protection of those whose innocence appears indisputabl[e], or open to such

question that it would shock the conscience to permit the conviction to stand.”(internal

quotation marks and citation omitted)).

{53} The Court of Appeals agreed with the State, relying on Cunningham, in which this

Court held that a failure to include an essential element in the elements section of an

instruction is not fundamental error if other instructions given to the jury adequately address

the excluded element. Swick, 2010-NMCA-098, ¶¶ 7-10 (citing Cunningham, 2000-NMSC-

009, ¶ 21). Among other claims, the defendant in Cunningham appealed his conviction of

first-degree murder based on the trial court’s issuance of an instruction that was missing an

essential element. 2000-NMSC-009, ¶¶ 1, 8. The defendant argued that when a trial court

instructs the jury on self-defense, the trial court must add the language “[t]he defendant did

not act in self defense” to the elements section of the instruction for the homicide crime

being charged. Cunningham, 2000-NMSC-009, ¶ 9 (internal quotation marks omitted). In

Cunningham, the trial court failed to add either that language or any reference to

unlawfulness or self-defense in the essential elements section of the instruction. See id. ¶¶

8-9.

{54} However, the trial court in Cunningham did give a separate self-defense instruction

that included both the three elements of self-defense and the following language: “The

burden is on the State to prove beyond a reasonable doubt that the defendant did not act in

self defense. If you have a reasonable doubt as to whether the defendant acted in self

defense you must find the defendant not guilty.” Id. ¶ 7 n.2 (internal quotation marks

omitted). The Cunningham Court reviewed for fundamental error rather than reversible error

17

because the issue was not preserved below by the defendant. Id. ¶¶ 10-11. We distinguished

Cunningham from State v. Parish, 118 N.M. 39, 878 P.2d 988 (1994), which found that it

was reversible error when an elements instruction omits a reference to self-defense or

unlawfulness. Cunningham, 2000-NMSC-009, ¶¶ 16-17; see also Parish, 118 N.M. at 42,

878 P.2d at 991 (explaining that reversible error review only asks whether “a reasonable

juror would have been confused or misdirected”). Unlike the instruction given in

Cunningham, the self-defense instruction given in Parish failed to properly place the burden

on the State to prove that the defendant did not act in self-defense. Cunningham, 2000-

NMSC-009, ¶ 17. After explaining the difference between fundamental error standard of

review and reversible error standard of review, we affirmed the defendant’s first-degree

murder conviction, reasoning that the defendant failed to meet the high burden of proving

fundamental error, and that the instruction adequately placed the burden of disproving self-

defense on the State. Id. ¶¶ 17, 20-21, 24.

{55} However, when the jury instructions have not informed the jury that the State had the

burden to prove an essential element, such as unlawfulness or an absence of self-defense,

convictions have been reversed for fundamental error. State v. Armijo, 1999-NMCA-087,

¶ 25, 127 N.M. 594, 985 P.2d 764. The controlling question, which we answer affirmatively

in this case, is whether “without sufficient provocation” is an essential element of second-

degree murder when the jury is instructed on voluntary manslaughter as a potential lesser-

included offense.

{56} “In determining what is or is not an essential element of an offense, we begin with

the language of the statute itself, seeking of course to give effect to the intent of the

legislature.” State v. Green, 116 N.M. 273, 276, 861 P.2d 954, 957 (1993) (internal

quotation marks and citation omitted). The language of the second-degree murder statute

provides, “Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the

heat of passion, a person who kills another human being without lawful justification or

excuse commits murder in the second degree . . . .” Section 30-2-1(B). A plain reading of

the statute indicates that “without sufficient provocation” is an essential element of the

crime. See Green, 116 N.M. at 276, 861 P.2d at 957. Therefore, the State must prove

beyond a reasonable doubt that the defendant acted without sufficient provocation.

{57} Unlike the other instructions given in Cunningham that placed the burden on the

State to prove that the defendant did not act in self-defense, the instruction defining

“sufficient provocation” in this case did not specify that it was the State’s burden to prove

that Swick acted without sufficient provocation. The instruction only provided:

“Sufficient provocation” can be any action, conduct or circumstances

which arouse anger, rage, fear, sudden resentment, terror or other extreme

emotions. The provocation must be such as would affect the ability to reason

and to cause a temporary loss of self control in an ordinary person of average

disposition. The “provocation” is not sufficient if an ordinary person would

have cooled off before acting.

18

UJI 14-222. Like unlawfulness, “without sufficient provocation” is an essential element, and

it should have been included in the instruction on second-degree murder. Because this

element was missing from the instruction, there was no way for the jury to know that the

State had the burden of proving beyond a reasonable doubt that Swick acted without

sufficient provocation in order to prove that he committed second-degree murder.

{58} Because we have no way of knowing whether the jury understood that it was the

State’s burden to prove that Swick acted without sufficient provocation, allowing the

conviction to stand would “shock the conscience of this Court and constitute a clear

miscarriage of justice.” Osborne, 111 N.M. at 663, 808 P.2d at 633. Therefore, we reverse

Swick’s conviction for second-degree murder, and this case is remanded to the trial court for

a new trial consistent with this opinion.

B. THE TRIAL COURT DID NOT ERR IN DENYING SWICK’S PROPOSED

SELF-DEFENSE INSTRUCTION.

{59} Swick also argues that the jury should have been instructed on self-defense because

enough evidence was presented at trial to allow reasonable minds to differ on the issue of

self-defense. Swick maintains that his trial attorney detailed all of the evidence that

supported instructing the jury on self-defense. The State responds that, given the extent and

severity of Ogle’s injuries, reasonable minds could not differ regarding all of the elements

of self-defense. The Court of Appeals held that Swick’s response, which ultimately caused

Ogle’s death, “cannot be regarded as objectively reasonable” and affirmed the decision of

the trial court not to give the instruction. Swick, 2010-NMCA-098, ¶ 18.

{60} “The propriety of denying a jury instruction is a mixed question of law and fact that

we review de novo.” State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438.

In order to warrant jury instructions on self-defense, evidence must be sufficient to allow

reasonable minds to differ regarding all elements of the defense. See State v. Jacob

Gonzales, 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162. “If any reasonable minds

could differ, the instruction should be given.” State v. Rudolfo, 2008-NMSC-036, ¶ 27, 144

N.M. 305, 187 P.3d 170. An instruction on self-defense requires that “(1) the defendant was

put in fear by an apparent danger of immediate death or great bodily harm, (2) the killing

resulted from that fear, and (3) the defendant acted reasonably when he or she killed.” Id.

¶ 17 (internal quotation marks and citations omitted). “When considering a defendant’s

requested instructions, we view the evidence in the light most favorable to the giving of the

requested instruction[s].” State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d

355 (alteration in original) (internal quotation marks and citations omitted).

{61} The State asserts that Swick did not offer enough evidence to support a self-defense

instruction, analogizing this case to State v. Lopez, 2000-NMSC-003, 128 N.M. 410, 993

P.2d 727. In Lopez, the defendant appealed his conviction for first-degree murder, claiming

that the trial court erred in not giving the jury an instruction on self-defense. Id. ¶ 22. After

a night of drinking and taking drugs with the victim, Lopez stabbed the victim multiple times

19

and crushed his skull with a rock. Id. ¶ 3. Lopez claimed that he murdered the victim after

the victim drew a knife. Id. Lopez’s story was corroborated by several witnesses, including

one who testified that she saw Lopez after the murder and he had what could have been a

stab wound on his cheek. Id. ¶ 24. Another witness testified that he also saw Lopez after

the murder and he had a cut and a scar on his face. Id. We held that this was enough

evidence to meet the first requirement because evidence of an appearance of immediate

danger supports an inference of a defendant’s fear. Id. ¶ 25.

{62} However, we went on to hold that there was not enough evidence of the second and

third requirements to allow reasonable minds to differ when the defendant responded to the

alleged attack by stabbing the victim fifty-four times. Id. ¶¶ 25-26. We concluded that this

type of killing was more consistent with rage or hatred than with fear and that there was not

sufficient evidence to support a finding that it was reasonable for Lopez to respond in such

a manner. Id. ¶ 26.

{63} In this case, there is enough evidence to support the first element of self-defense.

Like the defendant in Lopez, Swick supported the first requirement with evidence that he

sustained a “serious, defensive-type stab wound to his hand that required medical attention.”

Moreover, Swick also offered the testimony of Officer Wiese and Detective Traxler that

Swick told them Ogle was the person who stabbed him and that the wound on Swick’s hand

could possibly be defensive, as opposed to self-inflicted. Swick’s cousin also testified that

Swick told him Ogle stabbed him. Under Lopez, such evidence would be enough to support

the first element of self-defense.

{64} However, Swick does not point to any evidence in the record that his fear motivated

the killing, other than a request to draw such an inference. On the other hand, the State

introduced evidence that would make such an inference appear to be unreasonable. Dr.

Michelle Berry, who performed the autopsy on Ogle, testified that there were at least seven

distinct stab wounds in the upper left area of the chest with the possibility of additional

overlapping stab wounds in this area, a stab wound in the middle of the chest, one on the

face, and one on the back. She also testified that there were multiple injuries to Ogle’s face

consistent with blunt force trauma that could have been caused by the 15-pound rock that

was in evidence. This evidence, like the evidence of the victim’s injuries in Lopez, does not

support a reasonable inference that fear caused Swick to kill Ogle.

{65} Even assuming that Swick initially attacked Ogle out of fear, the evidence could not

support a finding that Swick acted reasonably. Several cases hold that a defendant is not

entitled to a self-defense instruction when the defendant’s response to the threat was

unreasonable. For example, in State v. Martinez, 95 N.M. 421, 423, 622 P.2d 1041, 1043

(1981), holding limited on other grounds by Sells v. State, 98 N.M. 786, 788, 653 P.2d 162,

164 (1982), we held that “if the defendant was in fact acting in self-defense, it would not

have been necessary for him to shoot the victim through the arm and chest, wrap a cord

around the victim’s neck, and beat the victim [in] the head” until his skull was smashed. In

contrast, in State v. Branchal, 101 N.M. 498, 503-04, 684 P.2d 1163, 1168-69 (Ct. App.

20

1984), the Court of Appeals held that a self-defense jury instruction was warranted when the

defendant testified that she shot the victim once because she was afraid he would shoot her

or one of her children. Id. at 501-02, 684 P.2d at 1166-67. Because we do not find evidence

on which reasonable minds can differ as to the second and third elements of self-defense in

Swick’s case, we agree with the Court of Appeals that the trial court did not err in rejecting

Swick’s self-defense instruction.

III. THE TRIAL COURT DID NOT ERR IN DENYING THE MOTION FOR

MISTRIAL.

{66} During the second day of trial, Swick had an outburst in court where he abruptly

stood up and stated, “I’m going to have to go somewhere, man. I can’t handle this.” This

outburst occurred just as the trial court was recessing the trial. Court security officers had

to restrain Swick in order to control him. Some jurors witnessed this incident.

{67} The next morning the trial court polled the jurors individually to determine what they

saw and heard, and then asked them whether what they witnessed, if anything, would impact

their ability to be fair and impartial. More than half of the fifteen jurors saw Swick’s

outburst or the security guards restraining him or both. Each juror indicated in turn that

neither the outburst incident nor shackling Swick in the courtroom during the remainder of

the trial would affect the juror’s fairness and impartiality in deciding the case based on the

evidence presented. The trial court proceeded with the trial and also ordered that Swick be

bound and shackled for the remainder of the trial. Defense counsel moved for a mistrial,

explaining that because many of the jurors had witnessed the outburst incident on the

previous day and would now see Swick bound and shackled, Swick would be unfairly

prejudiced. The trial court denied the motion without explanation. Swick’s final argument

is that the trial court erred in denying his motion for a mistrial following this incident.

{68} “A denial of a motion for mistrial is reviewed under an abuse of discretion standard.”

State v. Johnson, 2010-NMSC-016, ¶ 49, 148 N.M. 50, 229 P.3d 523. “An abuse of

discretion occurs when the ruling is clearly against the logic and effect of the facts and

circumstances of the case.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d

829 (internal quotation marks and citations omitted).

{69} Swick contends that, notwithstanding the voir dire conducted by the trial court, he

was prejudiced because the jurors could not forget the incident and might have improperly

used it as proof of a propensity for violence. The State responds that the trial court did not

abuse its discretion because the trial court promptly dealt with the outburst to ensure that the

jurors could be impartial after witnessing the incident. The State also emphasizes that a

defendant should not be able to benefit from his or her own misbehavior. To support its

position, the State cites State v. Paul, 83 N.M. 527, 529, 494 P.2d 189, 191 (Ct. App. 1972),

in which the Court of Appeals held that a defendant should “not . . . be permitted to gain

from his outbursts.”

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{70} The trial court decided to have Swick bound and shackled because it concluded that

it would be the best way to handle the situation consistent with the trial court’s firmly held

belief in having the criminal defendant present at trial. The trial court’s precautions

themselves, emphasizing that restraining Swick during the trial did not indicate his guilt or

innocence and asking each juror whether Swick’s appearance in shackles during the trial

would affect that juror’s ability to remain impartial, reflected the court’s impartiality in this

case. The trial court did not abuse its discretion in denying the motion for mistrial, and thus

we affirm the Court of Appeals’ holding.

IV. CONCLUSION

{71} Consistent with this opinion, we (1) remand to the trial court to vacate Swick’s two

convictions for aggravated battery and his two convictions for aggravated burglary based on

battery; (2) affirm the rulings of the trial court regarding the self-defense jury instruction and

the motion for a mistrial; and (3) remand to the trial court for a new trial on the second-

degree murder conviction.

{72} IT IS SO ORDERED.

____________________________________

EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________

PETRA JIMENEZ MAES, Chief Justice

____________________________________

PATRICIO M. SERNA, Justice

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

CHARLES W. DANIELS, Justice

Topic Index

APPEAL AND ERROR

Remand

Standard of Review

CONSTITUTIONAL LAW

Double Jeopardy

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CRIMINAL LAW

Aggravating or Mitigating Circumstances

Attempt

Battery

Elements of Offense

Homicide

Murder

Self-defense

Voluntary Manslaughter

Weapons Offences

CRIMINAL PROCEDURE

Conduct of Defendant

Double Jeopardy

Jury Instructions

Mistrial

New Trial

Self-defense

JURY INSTRUCTIONS

Criminal Jury Instructions

Failure to Give or Request

Improper Jury Instructions

23