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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 30,301
5 ELI GERMAN FLORES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 8 Daniel Viramontes, District Judge
9 Gary K. King, Attorney General 10 Santa Fe, NM 11 M. Victoria Wilson, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Trace L. Rabern 15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VIGIL, Judge. 1 I. Introduction
2 Convicted by a jury of three counts of homicide by vehicle and one count of
3 great bodily injury by vehicle, Defendant appeals. Because this is a memorandum
4 opinion and the parties are familiar with the procedural and factual background, we
5 discuss only pertinent facts within the analysis of the issues. Concluding that no
6 reversible error was committed, we affirm.
7 II. The Evidence Is Sufficient to Support the Guilty Verdicts of Homicide by 8 Vehicle Due to Reckless Driving
9 Defendant argues that the evidence only proved that Defendant was speeding
10 or careless driving and is therefore insufficient, as a matter of law, to prove vehicular
11 homicide by reckless driving. We disagree.
12 When reviewing a claim of insufficiency of the evidence, we determine whether
13 substantial evidence, either direct or circumstantial, will support a verdict of guilt
14 beyond a reasonable doubt with respect to every element essential of the crime. State
15 v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). On appeal, we do not
16 weigh the evidence or substitute our judgment for that of the jury as long as there is
17 sufficient evidence to support the verdict. State v. Mora, 1997-NMSC-060, ¶ 27, 124
18 N.M. 346, 950 P.2d 789, abrogated on other grounds as recognized in Kersey v.
19 Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. “Substantial evidence is
20 relevant evidence that a reasonable mind might accept as adequate to support a
2 1 conclusion.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.
2 Further, when reviewing whether the evidence is sufficient to support a conviction,
3 we resolve all disputed facts in favor of the verdict, indulge all reasonable inferences
4 in support of the verdict, and disregard all evidence and inferences to the contrary.
5 Id. We then determine as a matter of law “whether the evidence viewed in this
6 manner could justify a finding by any rational trier of fact that each element of the
7 crime charged has been established beyond a reasonable doubt.” Apodaca, 118 N.M.
8 at 766, 887 P.2d at 760 (internal quotation marks and citation omitted).
9 NMSA 1978, Section 66-8-101(C) (2004), sets forth the elements of homicide
10 and great bodily harm by vehicle as follows:
11 A person who commits homicide by vehicle or great bodily harm 12 by vehicle while under the influence of intoxicating liquor or while 13 under the influence of any drug or while violating Section 66-8-113 14 NMSA 1978 is guilty of a third degree felony and shall be sentenced 15 pursuant to the provisions of Section 31-18-15 NMSA 1978, provided 16 that violation of speeding laws as set forth in the Motor Vehicle Code 17 [66-1-1 NMSA 1978] shall not per se be a basis for violation of 18 Section 66-8-113 NMSA 1978.
19 (Emphasis added.) In this case, we are concerned with homicide by vehicle while
20 driving in a reckless manner because NMSA 1978, Section 66-8-113 (1987), defines
21 reckless driving. Section 66-8-113(A) states: “Any person who drives any vehicle
22 carelessly and heedlessly in willful or wanton disregard of the rights or safety of
23 others and without due caution and circumspection and at a speed or in a manner so
3 1 as to endanger or be likely to endanger any person or property is guilty of reckless
2 driving.”
3 The jury was instructed on the elements of homicide by vehicle while operating
4 a motor vehicle in a reckless manner as defined in UJI 14-241 NMRA. In Instruction
5 No. 9, the jury was also instructed, “For you to find that the defendant operated a
6 motor vehicle in a reckless manner, you must find that the defendant drove with
7 willful disregard of the safety of others and at a speed or in a manner that endangered
8 or was likely to endanger any person.” This is the instruction on reckless driving
9 prescribed by UJI 14-241.
10 In contrast to the foregoing elements of homicide by vehicle, the statutory
11 elements of careless driving are the following:
12 A. Any person operating a vehicle on the highway shall give 13 his full time and entire attention to the operation of the vehicle.
14 B. Any person who operates a vehicle in a careless, inattentive 15 or imprudent manner, without due regard for the width, grade, curves, 16 corners, traffic, weather and road conditions and all other attendant 17 circumstances is guilty of a misdemeanor.
18 NMSA 1978, § 66-8-114 (1978).
19 Viewed in the light required under our standard of review, the evidence
20 presented was that a permanent speed limit sign changed the speed limit from seventy-
21 five miles per hour to sixty-five miles per hour on the interstate approaching Deming,
4 1 and a series of six temporary highway department signs further reduced the speed
2 limit down to forty-five miles per hour as one approached the construction zone where
3 the accident occurred. In the construction zone there was a blinking arrow board and
4 cones closing the right lane and directing the traffic to the left lane. The accident itself
5 occurred while Defendant was driving the fully loaded 18-wheeler truck seventy to
6 seventy-five miles per hour in the clearly marked construction zone where the speed
7 limit was clearly posted at forty-five miles per hour. Prior to the crash site, a sign on
8 the road indicated that the right lane ends. Further, Defendant was not merely
9 speeding in the construction zone, Defendant failed to pay attention to traffic or to
10 maintain a safe distance from the vehicles in front of him. Defendant admitted this
11 was important and was evidenced by his inability to avoid the crash when the victims’
12 vehicles had already reduced their speed in front of him to thirty-five to forty miles
13 per hour to exit the interstate. In fact, there was evidence that Defendant did not know
14 how fast he was going at the time of the impact, Defendant was not aware that he ran
15 over the motorcycle until he discovered it after the crash, and that Defendant did not
16 even see the victims’ Tahoe in front of him before he hit it. There was no evidence
17 of dynamic braking by Defendant, indicating that Defendant did not hit his brakes
18 hard before or after hitting the motorcycle or the Tahoe.
5 1 We conclude that the foregoing evidence and inferences from that evidence are
2 sufficient for a jury to conclude that Defendant was driving recklessly at the time of
3 the accident; specifically, that he “drove with willful disregard of the safety of others
4 and at a speed or in a manner that endangered or was likely to endanger any person”
5 as required by Instruction No. 9.
6 Defendant asserts that no New Mexico case has determined that inattention and
7 speed without the element of intoxication was sufficient to uphold a homicide by
8 vehicle conviction. However, the plain language of Section 66-8-101(C) does not
9 limit the offense of homicide by vehicle to reckless driving while intoxicated.
10 Speeding which is accompanied by other conduct that is sufficient to constitute
11 reckless driving is sufficient. See State v. Simpson, 116 N.M. 768, 773, 867 P.2d
12 1150, 1155 (1993) (concluding that the jury was properly instructed that it could not
13 convict based on speeding alone where the jury instruction that stated that in addition
14 to speeding, it had to find that the defendant “drove with willful disregard of the rights
15 or safety of others”).
16 We conclude that sufficient evidence was presented for the jury to find that
17 Defendant drove recklessly and not that he was merely speeding or driving carelessly.
18 III. Jury Instruction Issues
6 1 Defendant argues that the jury instructions were flawed in that: (1) the jury
2 instructions did not correctly define the intent required for homicide by vehicle, (2)
3 the jury should have been given an instruction on proximate cause, and (3) there was
4 no instruction on the lesser-included offense of careless driving.
5 The record on appeal does not indicate that Defendant preserved errors in the
6 instructions for review by objecting or tendering alternative curative instructions. See
7 Rule 1-051(I) NMRA; see State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393,
8 981 P.2d 1211 (“There is a presumption of correctness in the district court’s rulings.
9 Accordingly, it is Defendant’s burden on appeal to demonstrate any claimed error
10 below.” (alterations, internal quotation marks, and citation omitted)). Thus, we review
11 Defendant’s arguments only for fundamental error. See State v. Mascarenas, 2000-
12 NMSC-017, ¶ 7, 129 N.M. 230, 4 P.3d 1221.
13 “The doctrine of fundamental error applies only under exceptional
14 circumstances and only to prevent a miscarriage of justice.” State v. Reed, 2005-
15 NMSC-031, ¶ 52, 138 N.M. 365, 120 P.3d 447. “Error that is fundamental must go
16 to the foundation of the case or take from the defendant a right which was essential
17 to his defense and which no court could or ought to permit him to waive.” Id.
18 (internal quotation marks and citation omitted). In determining whether failure to give
19 a jury instruction constitutes fundamental error, we evaluate under the same standard
7 1 as reversible error: whether the instructions as a whole would have confused or
2 misdirected a reasonable juror. See State v. Gee, 2004-NMCA-042, ¶ 8, 135 N.M.
3 408, 89 P.3d 80. If we determine that the jury instructions confused or misdirected
4 the jury, we then take the next step in fundamental error review by reviewing “the
5 entire record, placing the jury instructions in the context of the individual facts and
6 circumstances of the case, to determine whether the [d]efendant’s conviction was the
7 result of a plain miscarriage of justice.” See State v. Barber, 2004-NMSC-019, ¶ 19,
8 135 N.M. 621, 92 P.3d 633 (internal quotation marks and citation omitted).
9 A. Failure to Adequately Define the Intent Required for Homicide by Vehicle
10 Defendant argues that the court failed to properly instruct the jury regarding
11 the intent required for criminal negligence. Generally, the failure to instruct on a
12 definition or amplification of an essential element does not rise to the level of
13 fundamental error. Id. ¶ 20. However, it is ordinarily fundamental error when the
14 court fails to instruct the jury on an essential element, as opposed to a definition. Id.
15 Defendant asserts that there was a failure to instruct on the requisite knowledge for
16 willful disregard, which potentially confused the jury on what constitutes criminal
17 negligence, and that this constituted a failure to instruct on an essential element of the
18 crime.
8 1 Defendant cites Mascarenas, where the Court held that an instruction which
2 failed to properly define reckless disregard and could have caused the jury to
3 criminalize careless conduct constituted fundamental error. 2000-NMSC-017, ¶¶ 12-
4 13. However, unlike the child abuse statute at issue in Mascarenas, the mens rea
5 element for homicide by reckless driving requires “a mental state of conscious
6 wrongdoing . . . requir[ing] only that a defendant purposefully engage in an unlawful
7 act.” State v. Marquez, 2010-NMCA-064, ¶ 12, 148 N.M. 511, 238 P.3d 880 (internal
8 quotation marks and citations omitted), cert. quashed, 2010-NMCERT-006, 148 N.M.
9 584, 241 P.3d 182. Here, the jury was instructed on general criminal intent, which we
10 have determined sufficiently defines the “conscious wrongdoing” state of mind for the
11 jury. State v. Sheets, 94 N.M. 356, 366, 610 P.2d 760, 770 (Ct. App. 1980) (stating
12 that the district court did not err in refusing tendered instructions on willfulness and
13 conscious wrongdoing because the general criminal intent instruction given
14 adequately defined these terms in a criminal securities prosecution), modified on other
15 grounds by White v. Solomon, 105 N.M. 366, 732 P.2d 1389(Ct. App. 1986).
16 Defendant further argues that giving the general intent instruction injected a
17 misdemeanor/manslaughter theory into the case and improperly allowed a conviction
18 for mere civil negligence. Defendant overlooks the fact that reckless driving, which
19 the jury was required to find, requires driving “carelessly and heedlessly in willful or
20 wanton disregard of the rights or safety of others and without due caution and
9 1 circumspection and at a speed or in a manner so as to endanger or be likely to
2 endanger any person or property.” Section 66-8-113(A) (emphasis added). In
3 accordance with the statute, Instruction No. 9 told the jury that in order to find that
4 Defendant drove recklessly, it had to find Defendant drove “with willful disregard
5 of the safety of others and at a speed or in a manner that endangered or was likely to
6 endanger any person.” (Emphasis added.) “When the statute sets forth the requisite
7 intent, instructions in the language of the statute sufficiently instruct on the required
8 intent.” State v. Gonzales, 86 N.M. 556, 557, 525 P.2d 916, 917 (Ct. App. 1974),
9 overruled on other grounds by State v. Bender, 91 N.M. 670, 671, 579 P.2d 796, 797
10 (1978). The jury was properly instructed in the intent required to commit homicide
11 by vehicle by driving recklessly, and the general intent instruction did not detract from
12 this necessary finding.
13 B. Failure to Instruct as to Proximate Cause
14 An instruction on proximate cause must be given if there is an issue of
15 causation in the case. See UJI 14-134 NMRA Use Note 1. However, failing to give
16 the proximate cause instruction where causation is at issue does not automatically
17 constitute fundamental error where the defendant has failed to preserve the issue. See
18 State v. Stephens, 93 N.M. 458, 462, 601 P.2d 428, 432 (1979), overruled on other
19 grounds by State v. Contreras, 120 N.M. 486, 491, 903 P.2d 228, 233 (1995).
10 1 Further, the parties did not dispute at trial whether Defendant’s actions caused
2 the actual accident, but whether they rose to the required level of recklessness. Thus,
3 the failure to give a proximate cause instruction was not fundamental error.
4 C. Instruction on the Lesser-Included Offense of Careless Driving
5 Defendant’s final jury instruction argument is that failure to instruct the jury on
6 the lesser-included offense of careless driving constituted fundamental error. We
7 disagree.
8 Defendant’s counsel made the following argument during his closing statement:
9 “Was it careless? Was he negligent? Yes. But if you find he was careless and
10 negligent in this accident, then the law says you must acquit him because that does not
11 rise to the level of recklessness.” We have repeatedly held that a defendant is not
12 entitled to complain on appeal after he has made a tactical decision not to seek an
13 instruction on a lesser-included offense. See State v. Boeglin, 105 N.M. 247, 249-50,
14 731 P.2d 943, 945-46 (1987). “[T]he defendant is free to make strategic choices
15 regarding the manner in which he will or will not avail himself of procedural
16 safeguards afforded by the law, and he generally will be bound by those choices.” Id.
17 at 251, 731 P.2d at 947.
18 In Boeglin, the defendant waived a lesser-included second degree murder
19 instruction to which he was entitled even though he was instructed by both his counsel
20 and the court on the record that his decision would put the jury in the position of
11 1 finding him guilty of first degree murder or acquitting him completely. Id. at 249, 731
2 P.2d at 945. The defendant was convicted of first degree murder, and appealed,
3 arguing that the district court was required to give the instruction sua sponte in spite
4 of his waiver, because the failure to give the instruction deprived him of a fair trial.
5 Id. The Court concluded that the district court was not required to give the instruction
6 sua sponte, because the defendant’s right to the lesser-included offense instruction was
7 not a fundamental right, and the conviction was affirmed. Id. at 250, 731 P.2d at 946.
8 Here, we have no record on appeal of whether a careless driving instruction was
9 requested or voluntarily waived by Defendant. However, based on Defendant’s
10 counsel’s statement in closing argument encouraging acquittal if the jury did not find
11 reckless driving, and the inadequate record of a requested jury instruction on careless
12 driving, it appears that Defendant made a tactical decision to go for “all or nothing”
13 on the reckless driving charge and did not request the instruction. See Rojo, 1999-
14 NMSC-001, ¶ 53 (“Where there is a doubtful or deficient record, every presumption
15 must be indulged by the reviewing court in favor of the correctness and regularity of
16 the [trial] court’s judgment.” (alteration in original) (internal quotation marks and
17 citation omitted)); State v. Villa, 2004-NMSC-031, ¶ 14, 136 N.M. 367, 98 P.3d 1017
18 (determining that the state and the defendant’s choice to not request instructions on
19 a lesser-included offense of attempt represented the pursuit of an “all-or-nothing trial
20 strategy,” and stating that “[o]n appeal, we do not second-guess the tactical decisions
12 1 of litigants . . . . [and] both parties are entitled to the benefits and should be liable for
2 the risks of their respective trial strategies”). Thus, based on Boeglin, if this was a
3 tactical decision by Defendant, the absence of the lesser-included instruction is not
4 fundamental error. See Boeglin, 105 N.M. at 249-50, 731 P.2d at 945-46.
5 Furthermore, Defendant has failed to establish that the failure to give the
6 instruction rose to the level of fundamental error even if it was not a tactical decision.
7 Assuming Defendant was entitled to the instruction, Defendant has failed to show how
8 the absence of the careless driving instruction at trial rose to the level of fundamental
9 error by confusing or misdirecting the jury resulting in a plain miscarriage of justice.
10 See id. at 250, 731 P.2d at 946 (determining that failure to give a lesser-included
11 instruction was not fundamental error). The jury was entitled to acquit Defendant if
12 it found that his conduct did not meet the elements of the homicide by vehicle statute,
13 and the failure to have the instruction on the lesser-included offense did not preclude
14 the jury from making this determination. Thus, the failure to instruct as to the lesser-
15 included instruction was not fundamental error.
16 IV. Miranda Issues
17 Defendant argues that the district court erred in denying his motion to suppress
18 statements he made at the scene of the accident because he was not given Miranda
19 warnings. See Miranda v. Ariz., 384 U.S. 436, 479 (1966). Law enforcement officers
20 are required to give Miranda warnings when a suspect is subject to a “custodial
13 1 interrogation.” State v. Nieto, 2000-NMSC-031, ¶ 20, 129 N.M. 688, 12 P.3d 442.
2 However, Miranda warnings are not required for non-custodial interrogations. Id.
3 To determine whether a person is in custody for Miranda purposes, “the court
4 must apply an objective test to resolve the ultimate inquiry: was there a formal arrest
5 or restraint of freedom of movement of the degree associated with a formal arrest.”
6 State v. Wilson, 2007-NMCA-111, ¶ 23, 142 N.M. 737, 169 P.3d 1184 (internal
7 quotation marks and citation omitted). Factors considered by the court in determining
8 whether an interrogation is custodial include: “the purpose, place, and length of
9 interrogation[,] the extent to which the defendant is confronted with evidence of guilt,
10 the physical surroundings of the interrogation, the duration of the detention, and the
11 degree of pressure applied to the defendant.” State v. Olivas, 2011-NMCA-030, ¶ 10,
12 149 N.M. 498, 252 P.3d 722 (alteration in original) (internal quotation marks and
13 citation omitted), cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.
14 The district court denied Defendant’s motion to suppress on the grounds that
15 the officers were acting within the scope of their duties in investigating the scene of
16 an accident. On appeal from a district court’s ruling on a motion to suppress, we
17 review findings of fact to determine if they are supported by substantial evidence and
18 legal conclusions are reviewed de novo. State v. Leyba, 1997-NMCA-023, ¶ 8, 123
19 N.M. 159, 935 P.2d 1171.
14 1 The relevant facts are as follows. Officer Gonzales testified that he
2 approached Defendant at the scene of the accident, where Defendant told him that he
3 had been traveling between seventy to seventy-five miles per hour. Officer Gonzales
4 testified that Defendant was not arrested, handcuffed, or told he could not leave at
5 anytime during the investigation on the scene, but that in fact, Defendant was not
6 entitled to leave the scene of the accident. The time that Defendant was present at the
7 scene after the accident, during which the relevant questioning occurred, was around
8 thirty minutes. Multiple officers were present at the scene including state police,
9 sheriff’s deputies, Deming Police Department officers, and the brand inspector.
10 In general, roadside questioning by police in a traffic stop is not a custodial
11 interrogation for purposes of Miranda, in spite of the fact that the individual
12 questioned is not entitled to leave. See State v. Javier M., 2001-NMSC-030, ¶ 19, 131
13 N.M. 1, 33 P.3d 1; State v. Sanchez, 2001-NMCA-109, ¶ 22, 131 N.M. 355, 36 P.3d
14 446. Defendant cites State v. Snell in support of his proposition that he was the subject
15 of a custodial investigation under these circumstances. 2007-NMCA-113, 142 N.M.
16 452, 166 P.3d 1106. In Snell, this Court affirmed the district court’s suppression of
17 a defendant’s statements to police officers at the scene of a traffic accident. Id. ¶ 11.
18 The defendant in Snell was subject to a custodial interrogation because he was placed
19 in the back of a locked police car when he was questioned. Id. ¶ 16. On the other
20 hand, in State v. Greyeyes, we determined that an officer’s questioning of two
15 1 individuals present at the scene of a one-car accident was not a custodial interrogation,
2 as nothing in the record in that case indicated that the questioning was “anything more
3 than purely investigatory.” 105 N.M. 549, 551, 734 P.2d 789, 791 (Ct. App. 1987).
4 Defendant argues that because the accident was clearly the scene of a homicide,
5 the officers’ investigation was directly intended to elicit incriminating statements,
6 thereby making the interrogation custodial. We do not agree. While it was clear to
7 officers that individuals had been killed, this does not mean of itself that the accident
8 was the scene of a homicide. Further, “[t]he mere fact that police may have focused
9 their investigation on a defendant at the time of the interview does not raise
10 questioning to a level required to warrant Miranda warnings.” Id. at 551, 734 P.2d
11 at 791. There, the evidence reflects that the officers were gathering information from
12 the individuals involved in the accident, which we stated was non-custodial in
13 Greyeyes. Further, Defendant was not physically restricted or coerced while
14 answering questions, distinguishing this case from Snell. The questioning lasted
15 around thirty minutes, and although Defendant was not actually free to leave the scene
16 of the accident, he was not told that he could not leave, and his movement was not
17 restricted. See Wilson, 2007-NMCA-111, ¶ 22 (noting that freedom to leave is
18 relevant to the determination, but not the ultimate factor in determining if a suspect
19 is in custody).
16 1 The record does not evidence anything more than investigatory actions by the
2 officers, and no evidence was presented that Defendant was physically restrained or
3 confined during the questioning. We therefore determine that under these facts,
4 Defendant was not subject to a custodial interrogation requiring the giving of his
5 Miranda rights. Thus, the district court did not err in denying the motion to suppress
6 the statements Defendant made to the officers at the scene.
7 V. Denial of Counsel of Choice
8 Defendant argues that his trucking company refused to provide him an attorney,
9 thereby denying him counsel of his choice because he had to use public defender
10 representation. On appeal, Defendant does not establish that his employer was
11 required to pay for litigation costs, only that the employer “may” have had a duty to
12 do so. Defendant did not raise this issue below, so we review only for fundamental
13 error. See In re Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431
14 (stating that we do not review issues not preserved in the district court unless they
15 constitute fundamental error).
16 To establish a violation of the Sixth Amendment the violation must be
17 committed by a “state agent.” See generally State v. Gamlen, 2009-NMCA-073, ¶ 9,
18 146 N.M. 668, 213 P.3d 818 (assuming without deciding that an Albuquerque Police
19 Department officer was a state agent for purposes of the Sixth Amendment right to
20 counsel of choice). Defendant has not persuaded us on appeal that his private
17 1 company’s decision to withhold financial resources for his defense constitutes state
2 action for purposes of violation of the Sixth Amendment. In addition, Defendant cites
3 no case law entitling this Court to reverse a jury verdict on the grounds that
4 Defendant’s employer failed to provide him the counsel of his choice by refusing to
5 pay for his litigation costs when Defendant could not afford to hire counsel on his
6 own. We therefore decline to reverse on these grounds.
7 VI. Conclusion
8 The judgment and sentence is affirmed.
9 IT IS SO ORDERED.
10 ______________________________ 11 MICHAEL E. VIGIL, Judge
12 WE CONCUR:
13 _________________________________ 14 CELIA FOY CASTILLO, Chief Judge
15 _________________________________ 16 MICHAEL D. BUSTAMANTE, Judge