holding that the district court’s failure to instruct the jury on unlawfulness in a first-degree murder case did not result in fundamental error because the element of unlawfulness “was decided by the jury when [it] contemplated [a] separate self-defense instruction” and a reasonable juror could not have “found [a different] lawful justification” for a homicide in “the evidence presented at trial”
How later courts described this case
- holding that the district court’s failure to instruct the jury on unlawfulness in a first-degree murder case did not result in fundamental error because the element of unlawfulness “was decided by the jury when [it] contemplated [a] separate self-defense instruction” and a reasonable juror could not have “found [a different] lawful justification” for a homicide in “the evidence presented at trial”
- stating that in reviewing the sufficiency of the 18 evidence, “the relevant question is whether, after viewing the evidence in the light 19 most favorable to the prosecution, any rational trier of fact could have found the 6 1 essential elements of the crime beyond a reasonable doubt” (alteration, internal 2 quotation marks, and citation omitted)
- concluding that “when the jury receive[s] a separate . . . instruction on self-defense that provide[s] the jury with the opportunity to decide the issue of unlawfulness the omission from the elements section of a reference to self- defense or unlawfulness . . . does not constitute fundamental error”
- stating that the party “alleging fundamental error must demonstrate the existence of circumstances that shock the conscience or implicate a fundamental unfairness within the system that would undermine judicial integrity if left unchecked” (internal quotation marks and citation omitted)
Written by the judges who cited it.
The opinion
FRANCHINI, Justice. (Dissenting).
{33} I must dissent from the Court’s opinion affirming the conviction of the Defendant for first degree murder under NMSA 1978, § 30-2-l-(A)(l) (1994). 1 I cannot agree that there was sufficient evidence of deliberate intent to permit the jury to find the Defendant guilty of first degree murder.
{34} The majority opinion correctly describes the fight between the Defendant and the victim as a “shootout.” Mr. Yasquez’s death resulted from a chance encounter between two armed men with a history of bad blood between them. When the fight was over both men had emptied their weapons at each other; Mr. Vasquez was fatally wounded and the Defendant was shot in the chest. Under New Mexico law, this is second degree murder — a killing based on an unconsidered and rash impulse. See State v. Garcia, 114 N.M. 269, 273 , 837 P.2d 862, 866 (1992).
{35} This Court has previously grappled with the challenge of creating a meaningful distinction between first and second degree murder. Garcia, 114 N.M. 269 , 837 P.2d 862 . In Garcia, Justice Montgomery carefully crafted an opinion to provide guidance to New Mexico’s appellate and trial courts in making that distinction. Id. The Garcia Court noted that both murder in the first degree and in the second degree involve intentional killings, but that the law divides along the line of intent in order to separate the most heinous and reprehensible killings — those that are willful, deliberate, and premeditated — from those that are committed without such deliberation. Id. at 272-73 , 837 P.2d at 865-66 . Second degree murder was described as an intentional killing, but one that was committed without deliberation; a rash or impulsive killing. Id. at 273 , 837 P.2d at 866 .
{36} The deliberate intent that separates first degree murder from second is described in the uniform jury instructions in the following manner:
A deliberate intention refers to the state of mind of the defendant. A deliberate intention may be inferred from all of the facts and circumstances of the killing. The word deliberate means arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. A calculated judgment and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intention to kill. To constitute a deliberate killing, the slayer must weigh and consider the question of killing and his reasons for and against such a choice.
Uniform Jury Instruction (UJI) 14-201 NMRA 1999 (emphasis added).
{37} First degree murder requires evidence of deliberate intent and it is sufficient evidence of deliberation that this case lacks. The only testimony in the case regarding deliberation and premeditation is found in the prosecutor’s argument in support of first degree murder. But the opening and closing arguments of attorneys are not evidence. See UJI 14-101 NMRA 1999 (opening statement is not evidence) and UJI 14-104 NMRA 1999 (argument of attorneys is not evidence). Completely missing in this case is evidence that the Defendant weighed and considered “the question of killing and his reasons for and against such a choice.” See UJI 14-201.
{38} In reviewing the evidence presented below, this Court must defer to the fact-finder for resolution of factual conflicts in the evidence, but it retains the responsibility of making the legal determination of whether the evidence in the record supports the conviction. Garcia, 114 N.M. at 273-74 , 837 P.2d at 866-67 . The burden is on the State to prove that a defendant had not only the opportunity to form a deliberate intent to kill, but actually formed that intent. State v. Motes, 118 N.M. 727, 729 , 885 P.2d 648, 650 (1994).
{39} The prosecutor argued that intent could be inferred from a chase between Mr. Vasquez’s truck and another pickup truck before the shootout. The eyewitness to the chase, Carlos Perez, was shown a photograph of the Defendant’s truck during direct examination. However, he stated that the Defendant’s truck was not the pursuing truck that he had seen the night of the shooting. The prosecutor argued that intent could be inferred from a death threat made during the course of a heated argument between the two men which had occurred several months earlier. This Court determined in Garcia that a threat made some 15 minutes before a fatal attack was not sufficient to show whether that defendant had formed the requisite deliberate intent. What can a threat made several months earlier tell us about this Defendant’s state of mind the night of the shooting? The testimony of an eyewitness to the shooting, Jean Jones, and the investigating officer, Detective Ballard, fails to support the State’s argument that the Defendant stood in close proximity to Mr. Vasquez’s truck when he was shooting. Ms. Jones testified that she saw the Defendant get out of his truck, walk briefly toward the front, and then get back in his truck to drive away. She did not see a muzzle flash from a gun being fired then and could not say whether there had been any further shots. Detective Ballard testified that the Defendant’s .380 pistol and spent .380 casings were found in the dirt near the stone wall where the Defendant’s truck stopped after colliding with Mr. Vasquez’s truck.
{40} Garcia presented this court with more compelling facts in support of first degree murder than this case. I regretfully conclude that, here, the Court has further blurred the distinction between murder in the first degree and second degree. I fear that once again, we have returned to the situation described in Garcia in which “ ‘virtually all intentional killings will result in jury instructions on first degree murder and the jury will be left to apply its own conception of what deliberate intention means.’ ” Id. at 272, 837 P.2d at 865 (quoting Leo M. Romero, A Critique of the Willful, Deliberate, and Premeditated Formula for Distinguishing Betiveen First and Second Degree Murder in New Mexico, 18 N.M. L.Rev. 73, 86 (1988).
{41} I conclude, the facts in this case and the applicable law establish murder in the second degree, i.e. a rash or impulsive intentional killing as a result of a “shootout.” The verdict of first degree murder, in my opinion, is not supported by substantial evidence. The majority holding otherwise, I respectfully dissent.
. I concur in the majority’s resolution of the jury instruction question, but note, with some significant concern, that the judge, prosecutor, and defense attorney either did not know or ignored the Use Note to UJI 14-5171 (self defense), as well as the New Mexico case law embodied by Parish and its progeny. See State v. Parish, 118 N.M. 39 , 878 P.2d 988 (1994). As this Court has previously observed, “Attorneys and judges have an obligation to keep abreast of current changes in the law.” State v. Lopez, 122 N.M. 63 , 66 n. 1, 920 P.2d 1017 , 1020 n. 1 (1996).