State v. Gaitan

2001 NMCA 004, 18 P.3d 1056, 130 N.M. 103
CourtNew Mexico Court of Appeals
DecidedDecember 14, 2000
DocketNo. 20,493
StatusPublished
Cited by7 cases

This text of 2001 NMCA 004 (State v. Gaitan) 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. Gaitan, 2001 NMCA 004, 18 P.3d 1056, 130 N.M. 103 (N.M. Ct. App. 2000).

Opinion

OPINION

WECHSLER, Judge.

{1} A jury convicted Defendant Frederieo Gaitan of second degree murder as an accessory, aggravated assault with a deadly weapon, tampering with evidence as an accessory, and aggravated battery with a deadly weapon. Defendant raises two issues on appeal: (1) whether the trial court erred in failing to instruct the jury on voluntary and involuntary manslaughter; and (2) whether the trial court erroneously admitted evidence of a pri- or bad act. We affirm.

Facts

{2} The deceased, Steven Zotigh, was stabbed after an altercation with Defendant and his companions Viento Herrera and Richard Padilla. Defendant and Viento were friends, and Richard was Viento’s cousin. Defendant and Richard met for the first time the night of the incident. The three had been drinking at a party and were driving to another party when they approached Steven and his cousin, Wesley Zotigh, walking home from a convenience store.

{3} According to Defendant’s testimony, he drove toward the two and stopped his ear. Viento asked the Zotighs if they wanted a ride. The Zotighs expressed that they did not want a ride and walked away. Defendant decided he “wanted to mess around with them a little bit after they started walking.” He drove up slowly behind them, “revved” up his engine, and then stopped “real close” to Steven. In response, Steven jumped on the hood of the car, took off his shirt, and angrily approached Defendant.

{4} Defendant testified that he feared Steven was going to break his window, so he got out of the ear to explain that he was just “playing around.” Steven began pushing Defendant toward the road. Fearing that Steven, who was much larger than Defendant, was going to “pound” him, Defendant told him “I have a gat, leave me alone. I have a gat.” Both Defendant and the State elicited testimony that “gat” is a slang term for a gun. Viento and Richard then got out of the car and began fighting with Steven. Defendant got back into his car and started the engine. After Viento and Richard returned to the car, Defendant drove away.

{5} Defendant testified that as they drove away, Richard announced that he had stabbed Steven. He also testified that he did not know Richard had a knife and did not know Steven had been stabbed until after they drove away. Richard’s testimony was similar, except he denied having a knife or doing the stabbing. Richard also testified that he and Viento participated in the fight with Steven, that he never witnessed Defendant and Steven fighting, and that Defendant was the last person to get in the car when they left the scene.

{6} Wesley’s version of the incident was somewhat different. He testified that after refusing their offer for a ride, someone asked them their names, asked if they were Indian, and then asked them for money. Wesley testified that he had a bad feeling something was going to happen and urged Steven to leave. As they walked away, he heard the engine rev up, and felt a “little push.” He moved out of the way, and as he turned around, the car hit Steven, throwing him on the hood of the car. He further testified that after the shoving match between Defendant ■and Steven, Defendant turned to the car and said, “Let’s get out the gat,” as he gestured with both hands. Viento and Richard got out of the car and they, together with Defendant, began fighting with Steven. He heard one of the young men say, “Let’s go. Let’s go,” and the three ran back to the car laughing and drove away.

{7} Teresa Padilla, Richard’s mother, testified that Viento told her that when they approached the Zotighs in the street, Defendant was acting crazy, and kept saying, “Should I run the fuckers over?” Viento responded, “Go for it,” and Defendant hit Steven with his car, angering him.

{8} Steven was stabbed four times and died as a result of two of the wounds. The State charged Defendant with first degree murder as an accessory, conspiracy to commit first degree murder, aggravated assault with a deadly weapon, tampering with evidence as an accessory, and aggravated battery with a deadly weapon. The jury acquitted him of the first degree murder and conspiracy charges, but convicted him of second degree murder as an accessory, tarnpering with evidence as an accessory, and aggravated assault. Defendant appeals those convictions.

Jury Instructions

{9} The State charged Defendant with first degree murder as an accessory. The indictment listed the principals, in the alternative, as either Viento or Richard. At trial, the trial court instructed the jury on second degree murder as a lesser included offense of first degree murder. Defendant argues on appeal that he was also entitled to instructions on voluntary and involuntary manslaughter, as lesser included offenses of second degree murder.

{10} A defendant is entitled to an instruction on a lesser included offense when (1) evidence exists which “tend[s] to establish the lesser offense,” and (2) there is “some view of the evidence which could sustain a finding that the lesser offense was the highest degree of the crime committed.” State v. Fish, 102 N.M. 775, 779, 701 P.2d 374, 378 (Ct.App.1985).

{11} The difference between second degree murder and voluntary manslaughter is that voluntary manslaughter requires sufficient provocation. See UJI 14-220 NMRA 2000. Otherwise, the elements for both offenses are the same. Compare UJI 14-211 NMRA 2000 (listing elements of second degree murder) with UJI 14-220 (listing elements of voluntary manslaughter). “Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion.” NMSA 1978, § 30-2-3(A) (1994). The jury instruction defining sufficient provocation, required when instructing on the lesser included offense of voluntary manslaughter, states:

“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.

UJI 14-222 NMRA 2000.

{12} Defendant was charged as an accessory, which is defined as one who “procures, counsels, aids or abets” in the commission of a crime. See NMSA 1978, § 30-1-13 (1972). The State therefore had the burden to prove beyond a reasonable doubt that:

1. The defendant intended that the crime be committed;

2. The crime was committed; [and]

3. The defendant helped, encouraged or caused the crime to be committed.

UJI 14-2822 NMRA 2000.

{13} Thus, the question for our review is whether there is some view of the evidence that supports the proposition that voluntary manslaughter as an accessory was the highest degree of crime committed. See Fish, 102 N.M. at 779, 701 P.2d at 378.

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Bluebook (online)
2001 NMCA 004, 18 P.3d 1056, 130 N.M. 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gaitan-nmctapp-2000.