State v. Carrasco

2007 NMCA 152, 172 P.3d 611, 143 N.M. 62
CourtNew Mexico Court of Appeals
DecidedOctober 3, 2007
DocketNo. 25,669
StatusPublished
Cited by6 cases

This text of 2007 NMCA 152 (State v. Carrasco) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carrasco, 2007 NMCA 152, 172 P.3d 611, 143 N.M. 62 (N.M. Ct. App. 2007).

Opinion

OPINION

WECHSLER, Judge.

{1} Defendant Jerry Carrasco appeals his conviction of attempted second degree murder. He argues that fundamental error occurred because the jury convicted him on the theory that he intended to cause an unintended result, resulting in his conviction of the legally inadequate charge of attempted second degree reckless, unintentional murder. We conclude that the instruction to the jury that Defendant must have intended to commit the crime of second degree murder to be guilty of attempted second degree murder enabled the jury to properly reach its verdict in this case. We therefore affirm.

BACKGROUND

{2} On March 13, 2004, Defendant telephoned his ex-wife at her employment at a car dealership. She was busy. When he later came to the dealership, she was again busy and would not talk to him. He followed her inside, and she still would not talk to him. Someone at the dealership called the police, who arrived after Defendant had left. Later that day, when Defendant’s ex-wife was driving home from work, she saw Defendant on the road as a passenger in a friend’s car, a Nissan Maxima. She was driving a four-door Lincoln LS. She was stopped at a traffic light when the other car approached. Defendant got out of the Nissan and approached the passenger side of the Lincoln. Defendant’s ex-wife testified that he wanted her to open the passenger door, but she would not. He went around to the driver’s side, the light turned green, and she left.

{3} When Defendant’s ex-wife next saw the Nissan, it was behind her on Texas Street. Defendant was driving. She saw the Nissan in her rear-view mirror. It hit the rear of her Lincoln three times. After the first time, Defendant’s ex-wife dialed 9-1-1 on her cell phone. Defendant’s ex-wife testified that the third time she was hit, she lost control of the ear, went onto some gravel, and lost consciousness.

{4} A witness testified that he observed a Lincoln speed past him while he was stopped for a stop sign on Texas Street. He saw a Nissan behind the Lincoln push the Lincoln into a wall. The Lincoln hit the wall on its passenger side, rolled into the middle of the street, and came to a complete stop. At that time, the driver of the Nissan also came to a complete stop, turned around, drove around the witness’s car at the stop sign, and accelerated into the driver’s side of the Lincoln. The witness then observed the driver of the Nissan go to the Lincoln, open the passenger door, and flee the scene. The witness assisted Defendant’s ex-wife, who, after the police were called, was transported to the hospital, where she remained for about two hours. She did not sustain any serious injury.

{5} Defendant testified that he loved his ex-wife, with whom he was reunited at the time of trial. He stated that he bumped the rear of the Lincoln so that his ex-wife would stop. He testified that he hit the Lincoln in order to tear up the car so that “we wouldn’t have to mess with the ear no more.” He claimed that he did not try to kill her.

ATTEMPTED SECOND DEGREE MURDER

{6} Second degree murder is the killing of a person, without sufficient provocation, lawful justification or excuse, and in the absence of a sudden quarrel or the heat of passion, with the knowledge that one’s acts created “a strong probability of death or great bodily harm” to the person killed or another. NMSA 1978, § 30-2-KB) (1994); see also UJI 14-211 NMRA. It can be committed either intentionally or unintentionally. See State v. Johnson, 103 N.M. 364, 370, 707 P.2d 1174, 1180 (Ct.App.1985) (stating that the definition of second degree murder does not exclude intentional killing). Although it is generally considered a general intent crime, in limited circumstances it can be treated as a specific intent crime. See State v. Jernigan, 2006-NMSC-003, ¶ 18, 139 N.M. 1, 127 P.3d 537; see also Johnson, 103 N.M. at 370, 707 P.2d at 1180.

{7} Attempt to commit a felony is the commission of “an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission.” NMSA 1978, § 30-28-1 (1963). It is a specific intent crime. Jernigan, 2006-NMSC-003, ¶ 18, 139 N.M. 1, 127 P.3d 537. Attempted second degree murder, however, is not a valid crime in all circumstances because second degree murder can be committed either intentionally or unintentionally. See Johnson, 103 N.M. at 368-70, 707 P.2d at 1178-80. When second degree murder is committed as a general intent crime, it requires that the defendant kill the victim with the knowledge that the defendant’s acts “create a strong probability of death or great bodily harm.” Section 30-2-l(B). As a general intent crime, it does not require an intent to kill; a reckless killing satisfies the statutory requirements. Defendant contends that the prospect that the jury could have convicted him of attempted second degree murder without determining that he acted with an intent to kill requires reversal of his conviction. We agree with Defendant that if the jury could have found him guilty of attempted second degree murder without determining that he intended to kill his ex-wife, it could have convicted him of an attempt to commit reckless or unintentional second degree murder, a crime that does not exist.

JURY INSTRUCTIONS ON ATTEMPTED SECOND DEGREE MURDER

{8} To determine whether the jury could have convicted Defendant of a legally inadequate crime, we look to the manner in which the district court instructed the jury. See State v. Perea, 1999-NMCA-138, ¶¶ 11-13, 128 N.M. 263, 992 P.2d 276 (examining jury instructions to determine whether the defendant could have been convicted “on a legally inadequate basis”). Defendant contends that the district court did not properly instruct the jury because it did not instruct that the jury had to find that Defendant intended to kill his ex-wife in order to return a guilty verdict on the attempted second degree murder charge. Because Defendant did not request such an instruction, we review for fundamental error. We conduct such review under a de novo standard. State v. Marshall, 2004-NMCA-104, ¶ 6, 136 N.M. 240, 96 P.3d 801. Fundamental error can result from an omission in jury instructions if the omission confuses or misdirects a reasonable juror. State v. Gee, 2004-NMCA-042, ¶ 8, 135 N.M. 408, 89 P.3d 80. Confusion that could cause a jury to convict a defendant of a legally inadequate crime constitutes fundamental error. Perea, 1999-NMCA-138, ¶ 13, 128 N.M. 263, 992 P.2d 276.

{9} The district court instructed the jury on attempted second degree murder using the uniform jury instructions as follows:

INSTRUCTION NO. 6
For you to find the defendant guilty of an attempt to commit the crime 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 intended to commit the crime of second degree murder;
2. The defendant began to do an act which constituted a substantial part of second degree murder but failed to commit second degree murder;
3. This happened in New Mexico on or about the 13th day of March, 2004.
INSTRUCTION NO. 7

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Cite This Page — Counsel Stack

Bluebook (online)
2007 NMCA 152, 172 P.3d 611, 143 N.M. 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carrasco-nmctapp-2007.