1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: January 26, 2017
4 NO. S-1-SC-35508
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 MARCOS SUAZO,
9 Defendant-Appellant.
10 CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS 11 Jeff F. McElroy, District Judge
12 Bennett J. Baur, Chief Public Defender 13 William A. O’Connell, Assistant Appellate Defender 14 Santa Fe, NM
15 for Appellant
16 Hector H. Balderas, Attorney General 17 John Kloss, Assistant Attorney General 18 Santa Fe, NM
19 for Appellee 1 OPINION
2 CHÁVEZ, Justice.
3 {1} Defendant Marcos Suazo became agitated while roughhousing with his friend
4 Matthew Vigil. Suazo retrieved his shotgun and pointed it at Vigil. Vigil grabbed
5 the shotgun and placed the barrel in his mouth. Suazo pulled the trigger, killing Vigil
6 and severely injuring his friend Roger Gage, who was standing behind Vigil. A key
7 contested issue in this case was whether Suazo knew the shotgun was loaded when
8 he pulled the trigger.
9 {2} Two potentially reversible errors occurred during trial. First, at trial Suazo
10 sought to introduce testimony from two witnesses who saw him approximately one
11 hour after the shooting and heard him claim that he did not know the shotgun was
12 loaded. The district court excluded the testimony as inadmissible hearsay. Second,
13 over Suazo’s objection, the prosecution persuaded the court to depart from the
14 uniform jury instruction regarding second-degree murder, which has existed since
15 1981,1 by modifying the mens rea element. Instead of requiring the jury to find
16 beyond a reasonable doubt that “[Suazo] knew that his acts created a strong
17 probability of death or great bodily harm,” the modified instruction changed the mens
1 18 NMSA 1978, UJI Crim. 2.11 (1981), committee commentary (“Element 2 of 19 UJI 2.10 and of UJI 2.11 were . . . revised in 1981 to be consistent with the 1980 20 amendment to Section 30-2-1 NMSA 1978.”); see also UJI 14-211 NMRA (1989). 1 rea element to “knew or should have known.” See UJI 14-210 NMRA.
2 {3} Among other crimes, Suazo was convicted of second-degree murder and
3 aggravated battery with a deadly weapon. He appealed his second-degree murder
4 conviction to the Court of Appeals, contending that the district court erred by
5 excluding the witness testimony and by modifying the uniform jury instruction for
6 second-degree murder. The Court of Appeals certified his case to this Court pursuant
7 to Rule 12-606 NMRA and NMSA 1978, Section 34-5-14(C) (1996) due to the
8 significant public importance of the jury instruction issue. State v. Suazo, order at 3
9 (N.M. Ct. App. Sept. 4, 2015) (non-precedential). We accepted certification and
10 address both issues.
11 {4} First, we affirm the district court’s exclusion of the hearsay evidence because
12 the district court did not abuse its discretion in finding that Suazo’s statements, which
13 were overheard one hour after the shooting, were neither excited utterances nor
14 present sense impressions. Second, we hold that the district court erred by modifying
15 the uniform jury instruction for second-degree murder because in 1980 the
16 Legislature amended the definition of second-degree murder to specifically require
17 proof that the accused knew that his or her acts created a strong probability of death
18 or great bodily harm. 1980 N.M. Laws, ch. 21; see NMSA 1978, § 30-2-1(B) (1980).
2 1 Because the modified instruction misstated an essential element, we reverse Suazo’s
2 conviction for second-degree murder and remand for a new trial. See State v.
3 Dowling, 2011-NMSC-016, ¶ 17, 150 N.M. 110, 257 P.3d 930 (“When a jury
4 instruction is facially erroneous, as when it directs the jury to find guilt based upon
5 a misstatement of the law, a finding of juror misdirection is unavoidable.”).
6 I. BACKGROUND
7 {5} Suazo had spent most of the day drinking and visiting with his longtime
8 friends, Vigil and Gage, at the trailer where he lived and in other locations in and
9 around Talpa, New Mexico. Vigil and Suazo were roughhousing throughout most of
10 the day. The two friends often wrestled this way when they were together.
11 {6} Sometime in the early afternoon, Vigil remarked that Suazo had a nice shotgun,
12 and Gage asked to see it. When Suazo brought out the shotgun, Gage opened it to
13 make sure that it was not loaded. At Gage’s request, Suazo disassembled and
14 reassembled the gun. When they finished with the gun, Gage saw Suazo place it
15 against the wall near the back door of the trailer. Gage was certain that the gun was
16 not loaded at that point.
17 {7} Later that afternoon, Suazo and Vigil were wrestling outside again. Suazo told
18 Vigil not to mess with him because he had just lost his brother. The roughhousing
3 1 continued. Vigil tried to push Suazo against a car, and then Suazo rushed into the
2 trailer. Suazo’s girlfriend, Shania Lujan, heard him cock the shotgun. At trial she
3 testified that she told Suazo to be careful with the gun and that he responded “Don’t
4 worry, it’s not loaded.” However, she had previously given a statement that Suazo
5 had only responded “Leave me alone.” She testified that Suazo then held the shotgun
6 with one hand and pointed it at Vigil while standing in the doorway of the trailer. She
7 said that Vigil laughed and then grabbed the barrel of the gun and stuck it into his
8 own mouth. At this point, Gage was standing almost directly behind Vigil. Suazo
9 pulled the trigger and the gun fired. Vigil was killed and Gage was seriously injured.
10 It is not clear when the gun was loaded and who loaded it.
11 II. DISCUSSION
12 A. The district court did not abuse its discretion by excluding certain 13 statements by Suazo as hearsay
14 {8} Suazo sought to elicit testimony from two witnesses at trial regarding
15 statements he made approximately an hour after the shooting, between 4:40 and 5:00
16 p.m. Elaine Medina and Rosemary Cruz, Suazo’s stepmother, testified that Suazo
17 told them he had killed his best friend, he did not know the gun was loaded, and he
18 did not understand what had happened. Medina testified that when Suazo made these
19 statements he was curled up in a ball and crying hard, and she had never seen him cry
4 1 like that. Similarly, Cruz testified that he appeared drunk, he seemed “very upset,”
2 and he was crying “a lot” when he made the statements. The State objected to the
3 witnesses’ statements as hearsay, but defense counsel argued that the statements
4 should be admitted under the excited utterance and present sense impression
5 exceptions to the hearsay rule. See Rule 11-803(1)-(2) NMRA. The district court
6 sustained the State’s objections and excluded the evidence.
7 {9} Although the Court of Appeals only certified the jury instruction issue to this
8 Court, we take this opportunity to resolve Suazo’s claim that the district court
9 erroneously excluded the witness testimony about statements that he made after the
10 shooting. See State v. Orosco, 1992-NMSC-006, ¶ 2 n.2, 113 N.M. 780, 833 P.2d
11 1146 (stating that this Court has jurisdiction over the entire case following acceptance
12 of certification). “We examine the admission or exclusion of evidence for abuse of
13 discretion, and the trial court’s determination will not be disturbed absent a clear
14 abuse of that discretion.” State v. Stanley, 2001-NMSC-037, ¶ 5, 131 N.M. 368, 37
15 P.3d 85. “An abuse of discretion occurs when the ruling is clearly against the logic
16 and effect of the facts and circumstances of the case. We cannot say the trial court
17 abused its discretion by its ruling unless we can characterize [the ruling] as clearly
18 untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M.
5 1 438, 971 P.2d 829 (internal quotation marks and citations omitted). We conclude that
2 there was no abuse of discretion in this case.
3 {10} There is no doubt that Suazo’s anguished statements to Medina and Cruz were
4 hearsay because they were out-of-court statements offered to prove what they
5 asserted—that Suazo did not realize the shotgun was loaded and he did not mean to
6 kill Vigil. See Rule 11-801 NMRA (defining as hearsay out-of-court statements
7 offered to prove the truth of what they assert). Such statements are inadmissible
8 unless an exception applies. Rule 11-802 NMRA.
9 {11} A statement that would otherwise be hearsay can be admitted under the excited
10 utterance exception when it “relat[es] to a startling event or condition” and is “made
11 while . . . under the stress or excitement” caused by that event or condition. Rule 11-
12 803(2). “[T]he theory underlying the excited utterance exception is that the exciting
13 event induced the declarant’s surprise, shock, or nervous excitement which
14 temporarily stills capacity for conscious fabrication and makes it unlikely that the
15 speaker would relate other than the truth.” State v. Flores, 2010-NMSC-002, ¶ 47,
16 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citations omitted). Thus,
17 “to constitute an excited utterance, the declaration should be spontaneous, made
18 before there is time for fabrication, and made under the stress of the moment.” Id.
6 1 (internal quotation marks and citations omitted). In determining whether to admit a
2 statement under the excited utterance exception, the district court should consider the
3 totality of the circumstances and
4 consider a variety of factors in order to assess the degree of reflection or 5 spontaneity underlying the statement. These factors include, but are not 6 limited to, how much time passed between the startling event and the 7 statement, and whether, in that time, the declarant had an opportunity for 8 reflection and fabrication; how much pain, confusion, nervousness, or 9 emotional strife the declarant was experiencing at the time of the 10 statement; whether the statement was self-serving[; and whether the 11 statement was] made in response to an inquiry[.]
12 State v. Balderama, 2004-NMSC-008, ¶ 51, 135 N.M. 329, 88 P.3d 845 (alterations
13 in original) (internal quotation marks and citations omitted).
14 {12} Under the totality of the circumstances, in this case the district court did not
15 abuse its discretion by excluding testimony regarding Suazo’s statements to Medina
16 and Cruz after the shooting. Prior to making the statements, Suazo drove away from
17 the crime scene with his girlfriend and asked her to take the batteries out of his phone.
18 He told her during the drive that he was “gonna go away for a long time.” He made
19 several stops, including at his stepmother’s house, where he hid the shotgun. The
20 approximately one hour that elapsed between the shooting and the statements,
21 coupled with Suazo’s intervening actions and statements, could reasonably be
22 interpreted to indicate that he reflected on what had happened and the gravity of his
7 1 situation, and therefore his later statements were not sufficiently spontaneous so as
2 to assure their reliability and qualify them as excited utterances.
3 {13} We likewise reject Suazo’s claim that it was error for the district court not to
4 admit the statements under the present sense impression hearsay exception. The
5 present sense impression exception applies to statements “describing or explaining
6 an event or condition, made while or immediately after the declarant perceived it.”
7 Rule 11-803(1). Again, given the length of time and Suazo’s intervening actions
8 between the shooting and the statements, the district court properly exercised its
9 discretion to refuse to apply this exception and exclude the testimony as hearsay. See
10 Flores, 2010-NMSC-002, ¶¶ 51-53 (explaining that the contemporaneity of the event
11 with the timing of the statement is the critical consideration in analyzing whether a
12 hearsay statement qualifies as a present sense impression).
13 B. The district court erred by including “should have known” in the jury 14 instruction for second-degree murder
15 {14} At the conclusion of Suazo’s trial, the State tendered a modified jury
16 instruction for second-degree murder. New Mexico’s uniform jury instruction for
17 second-degree murder would require the jury to find beyond a reasonable doubt that
18 Suazo “knew that his acts created a strong probability of death or great bodily harm”
19 to Vigil or another. UJI 14-210. The State’s modified jury instruction in this case
8 1 inserted “knew or should have known” in place of the word “knew,” but was
2 otherwise consistent with the model instruction. The distinction between “knew” and
3 “should have known” was central to this case because if the jurors believed that
4 Suazo did not realize that the shotgun was loaded and the shooting was therefore an
5 accident, as he claimed, they could have reasonably found that he should have known
6 of the probability of death or great bodily harm to Vigil because he obviously did not
7 inspect the gun to determine if it was loaded. The district court gave the State’s
8 proposed jury instruction over defense counsel’s objection. Suazo contends that the
9 district court erred by adding the phrase “or should have known” in instructing the
10 jury on the mens rea required for second-degree murder.
11 {15} We review the jury instruction in this case for reversible error because Suazo
12 preserved his objection at trial. State v. Cabezuela, 2011-NMSC-041, ¶ 21, 150 N.M.
13 654, 265 P.3d 705. We conclude that there is reversible error when the jury
14 instructions, taken as a whole, cause juror confusion by “fail[ing] to provide the
15 juror[s] with an accurate rendition of the relevant law.” Id. ¶ 22 (internal quotation
16 marks and citation omitted); see also Rule 5-608(A) NMRA (“The court must instruct
17 the jury upon all questions of law essential for a conviction of any crime submitted
18 to the jury.”). “When a jury instruction is facially erroneous, as when it directs the
9 1 jury to find guilt based upon a misstatement of the law, a finding of juror misdirection
2 is unavoidable.” Dowling, 2011-NMSC-016, ¶ 17. To ascertain whether the
3 challenged instruction in this case accurately stated the law, we must determine
4 whether the requisite mens rea for second-degree murder is satisfied by a jury finding
5 that Suazo should have known that his acts created a strong probability of death or
6 great bodily harm to Vigil. This inquiry requires us to interpret the mens rea
7 component of our second-degree murder statute. “Our primary goal when
8 interpreting a statute is to determine and give effect to the Legislature’s intent.” Cook
9 v. Anding, 2008-NMSC-035, ¶ 7, 144 N.M. 400, 188 P.3d 1151.
10 {16} We begin with the plain language of the statute, which is “[t]he primary
11 indicator of legislative intent.” State v. Johnson, 2009-NMSC-049, ¶ 10, 147 N.M.
12 177, 218 P.3d 863. Pursuant to Section 30-2-1(B),
13 Unless he is acting upon sufficient provocation, upon a sudden quarrel 14 or in the heat of passion, a person who kills another human being 15 without lawful justification or excuse commits murder in the second 16 degree if in performing the acts which cause the death he [or she] knows 17 that such acts create a strong probability of death or great bodily harm 18 to that individual or another.
19 (Emphasis added.) Under the statute, a defendant must know that his or her acts
20 create a strong probability of death or great bodily harm; there is no express
21 requirement that a defendant “should have known.” Id.; see also UJI 14-210
10 1 (instructing jurors that they must find that “[t]he defendant knew that his [or her] acts
2 created a strong probability of death or bodily harm” to convict for second-degree
3 murder). The statute’s plain language and New Mexico’s uniform jury instruction
4 require that the defendant possess knowledge of the probable consequences of his or
5 her acts. See § 30-2-1(B); UJI 14-210. By contrast, neither the statute nor the jury
6 instruction explicitly mentions whether a reasonable person “should have known” of
7 the probable consequences as a mens rea standard. We must give effect to this plain
8 language unless we detect some ambiguity in the statute that requires a different
9 interpretation. State v. Maestas, 2007-NMSC-001, ¶ 14, 140 N.M. 836, 149 P.3d
10 933.
11 {17} We are not persuaded by the State’s reliance on State v. Brown as a source of
12 ambiguity in the statute that requires us to read the statutory term “knows” to
13 encompass an objective knowledge of the risk through a “should have known”
14 standard. 1996-NMSC-073, ¶ 16, 122 N.M. 724, 931 P.2d 69. In Brown, this Court
15 determined that a jury may consider evidence of intoxication when a defendant has
16 been charged with first-degree depraved mind murder because the defendant’s
17 “subjective or actual knowledge of the high degree of risk involved in his conduct”
18 is an essential element of that offense. Id. ¶¶ 13, 19, 35. As part of our analysis in
11 1 Brown, we distinguished between the culpable mental states required by first- and
2 second-degree murder. Id. ¶¶ 14, 16. To that end, we opined that a defendant’s
3 “subjective knowledge” of the risk under depraved mind murder constituted proof of
4 a “wicked or malignant heart” and “utter disregard for human life,” while second-
5 degree murder only required an “objective knowledge of the risk” without any
6 showing that the act was performed with a wicked or malignant heart. Id. ¶ 16
7 (internal quotation marks omitted). Our Court’s discussion of the mens rea
8 requirement for second-degree murder in Brown was unnecessary to the resolution
9 of that case and was therefore dicta.
10 {18} Our differentiation between a defendant’s subjective and objective knowledge
11 of the risk was intended to draw a principled distinction between first-degree
12 depraved mind murder and second-degree murder. See id. ¶ 16. This issue has vexed
13 New Mexico courts since 1980, when New Mexico’s current statutory definitions of
14 the mens reas for murder in the first- and second-degree were enacted. 1980 N.M.
15 Laws, ch. 21. The amended statute changed the mens rea for second-degree murder
16 from “malice aforethought” to knowledge that a defendant’s acts created a strong
17 probability of death or great bodily harm. Compare id. with NMSA 1953, § 40A-2-1
18 (1963). After this new language was enacted, courts and commentators alike noted
12 1 the difficulty in distinguishing between the knowledge requirements for first-degree
2 depraved mind murder (knowledge that an act is greatly dangerous to the lives of
3 others, indicating a depraved mind without regard for human life) and second-degree
4 murder (knowledge that an act creates a strong probability of death or great bodily
5 harm to the victim or another person). See Leo M. Romero, Unintentional Homicides
6 Caused by Risk-Creating Conduct: Problems in Distinguishing Between Depraved
7 Mind Murder, Second Degree Murder, Involuntary Manslaughter, and Noncriminal
8 Homicide in New Mexico, 20 N.M. L. Rev. 55, 61-69 (1990) (identifying potential
9 distinctions between depraved mind murder and second-degree murder and
10 discussing the efforts of New Mexico courts to differentiate between the two).
11 {19} This Court first grappled with this thorny distinction in State v. McCrary,
12 which was decided more than a decade prior to Brown. McCrary, 1984-NMSC-005,
13 100 N.M. 671, 675 P.2d 120. In McCrary we determined that first-degree depraved
14 mind murder required proof of the defendant’s subjective knowledge that his or her
15 act was greatly dangerous to the lives of others. Id. ¶¶ 8-10. We relied on the
16 committee commentary to the uniform jury instruction on first-degree depraved mind
17 murder which existed at that time, which asserted that second-degree murder required
18 an objective test of a defendant’s knowledge, presumably implying that a “should
13 1 have known” standard would satisfy the mens rea requirement for second-degree
2 murder. Id. ¶ 8, referring to NMSA 1978, UJI Crim. 2.05, committee commentary
3 (Repl. Pamp. 1982).
4 {20} However, the committee commentary to a jury instruction is only persuasive
5 to the extent that it correctly states the law. See State v. Johnson, 2001-NMSC-001,
6 ¶ 16, 130 N.M. 6, 15 P.3d 1233 (disapproving of a uniform jury instruction and its
7 commentary because it was a “misstatement of [the] law”), holding limited on other
8 grounds by State v. Sims, 2010-NMSC-027, ¶¶ 31-32, 148 N.M. 330, 236 P.2d 642.
9 The passage in the commentary relied on by the McCrary Court is “doubtful
10 authority” that objective knowledge is sufficient for second-degree murder. Romero,
11 supra, at 65; see UJI Crim. 2.05, committee commentary (Repl. Pamp. 1982) (citing
12 Wayne R. LaFave & Austin W. Scott, Handbook On Criminal Law 544 (1972)). As
13 Professor Romero has noted, it appears that the drafters of the committee commentary
14 “lifted a sentence out of context and mistakenly assumed that the treatise supports an
15 objective standard for second degree murder.” Romero, supra, at 65-67. Instead, the
16 quoted portion of LaFave and Scott states that under first-degree depraved mind
17 murder, it is “unusual” that a defendant’s subjective realization of the risk will be at
18 issue, and argues that attendant circumstances known to a reasonable person will
14 1 often be sufficient to establish that the defendant knew that his or her acts were
2 greatly dangerous to the lives of others. Id.; see also UJI Crim. 2.05, committee
3 commentary (quoting LaFave & Scott at 544). Indeed, in the next paragraph the
4 treatise argues that a subjective realization of the risk should be required to convict
5 for any degree of murder due to the drastic penal consequences of a murder
6 conviction. LaFave & Scott, supra, at 544.
7 {21} To further confuse matters, a little over a year after McCrary was decided, we
8 held in State v. Beach that second-degree murder contained a specific “element of
9 subjective knowledge.” 1985-NMSC-043, ¶ 12, 102 N.M. 642, 699 P.2d 115. Beach
10 was later overruled in Brown “[t]o the extent that . . . Beach . . . holds that second-
11 degree murder contains the same ‘subjective knowledge’ element as [first-degree]
12 depraved mind murder.” Brown, 1996-NMSC-073, ¶ 16.
13 {22} The Brown Court overruled Beach in dicta, which likely explains why since
14 Brown was decided, neither our case law nor our uniform jury instructions have
15 applied the Brown dicta to second-degree murder cases. But cf. State v. Reed,
16 2005-NMSC-031, ¶ 81, 138 N.M. 365, 120 P.3d 447 (Serna, J., concurring in part and
17 dissenting in part) (advocating for a “should have known” standard to be incorporated
18 into the uniform jury instruction for second-degree murder based on Brown in a case
15 1 discussing first-degree depraved mind murder); State v. Baca, 1997-NMSC-059, ¶ 35,
2 124 N.M. 333, 950 P.2d 776 (referring to the objective test for second-degree murder
3 in analyzing an ineffective assistance of counsel claim in the context of a conviction
4 for aiding and abetting first-degree depraved mind murder). Reed clarified that first-
5 degree depraved mind murder can be differentiated from second-degree murder
6 because depraved mind murder requires a jury finding that the defendant’s act
7 “indicated a depraved mind without regard for human life.” 2005-NMSC-031, ¶ 21.
8 We laid out several indicators of a depraved mind in Reed, including (1) the number
9 of persons subjected to the risk, (2) subjective knowledge that the defendant’s act was
10 greatly dangerous to human life, and (3) an element of “intensified malice or evil
11 intent.” Id. ¶¶ 22-24 (internal quotation marks and citation omitted). Notably, the
12 majority opinion in Reed did not adopt the subjective-objective dichotomy urged by
13 the dissent in that case and the Brown dicta. See Reed, 2005-NMSC-031, ¶ 81 (Serna,
14 J., concurring in part and dissenting in part). However, the Reed majority stayed true
15 to Brown by clarifying how the knowledge standard for first-degree depraved mind
16 murder was distinct from the knowledge standard for second-degree murder. Reed,
17 2005-NMSC-031, ¶ 21; see Brown, 1996-NMSC-073, ¶ 16. The uniform jury
18 instructions have since been revised to elaborate upon the meaning of a “depraved
16 1 mind” and further distinguish first-degree depraved mind murder from second-degree
2 murder; however, the second-degree murder instruction has never been revised to
3 incorporate an objective “should have known” knowledge standard. See UJI 14-203,
4 14-210 to -213 NMRA.
5 {23} This Court’s hesitancy to adopt the mens rea for second-degree murder
6 advocated by the Brown dicta is commensurate with our consistent statements that a
7 negligent or accidental killing could not satisfy the elements of second-degree
8 murder. See, e.g., State v. Ortega, 1991-NMSC-084, ¶ 25, 112 N.M. 554, 817 P.2d
9 1196 (holding that an “unintentional or accidental killing will not suffice” to establish
10 the mens rea element of second-degree murder), abrogation recognized on other
11 grounds by State v. Marquez, 2016-NMSC-025, ¶ 14, 376 P.3d 815; State v. Campos,
12 1996-NMSC-043, ¶ 18, 122 N.M. 148, 921 P.2d 1266 (“[A] negligent or accidental
13 killing would not constitute second-degree murder . . . .”); see also State v.
14 McGruder, 1997-NMSC-023, ¶ 21, 123 N.M. 302, 940 P.2d 150 (same), abrogated
15 on other grounds by State v. Chavez, 2009-NMSC-035, ¶ 26, 146 N.M. 434, 211 P.3d
16 891. Our longstanding refusal to endorse a theory of negligent murder forecloses the
17 implication in Brown that to convict of second-degree murder it would be sufficient
18 for the jury to find that a defendant should have known of the risk of his or her
17 1 conduct without anything more, because that is essentially a civil negligence
2 standard. See State v. Consaul, 2014-NMSC-030, ¶ 39, 332 P.3d 850 (noting the
3 close association between the phrase “knew or should have known” and principles
4 of civil negligence (internal quotation marks omitted)); see also Romero, supra, at 65
5 (“To say that a person should have known of the risk imposes a negligence standard
6 based on an objective test of what the reasonable person would have known under the
7 circumstances.”). Indeed, it is a “concept firmly rooted in our jurisprudence [that
8 w]hen a crime is punishable as a felony, civil negligence ordinarily is an
9 inappropriate predicate by which to define such criminal conduct” in the absence of
10 some contrary indication from the Legislature. Santillanes v. State, 1993-NMSC-012,
11 ¶¶ 30-31, 115 N.M. 215, 849 P.2d 358.
12 {24} Further, if we were to adopt a “should have known” standard for second-degree
13 murder, we would render inconsistent the culpability requirements under New
14 Mexico’s various homicide statutes. For example, the lesser offense of involuntary
15 manslaughter requires that a defendant have acted “without due caution and
16 circumspection.” NMSA 1978, § 30-2-3(B) (1994). In State v. Yarborough, we
17 clarified that “the State must show at least criminal negligence to convict . . . of
18 involuntary manslaughter.” 1996-NMSC-068, ¶ 20, 122 N.M. 596, 930 P.2d 131.
18 1 The uniform jury instruction for involuntary manslaughter requires proof that a
2 defendant “should have known of the danger involved” in his or her actions and also
3 “acted with a willful disregard for the safety of others.” UJI 14-231 NMRA. It would
4 be incongruent to interpret our second-degree murder statute to require a less culpable
5 mental state (ordinary negligence) than the minimum level of culpability required by
6 involuntary manslaughter (criminal negligence). See State v. Nick R.,
7 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (“We must take care to avoid
8 adoption of a construction that would render the statute’s application absurd or
9 unreasonable or lead to injustice or contradiction.” (internal quotation marks and
10 citation omitted)).
11 {25} We detect no ambiguity in Section 30-2-1(B) that would require us to interpret
12 the knowledge requirement to extend to situations where a defendant did not know
13 of the risk created by his or her act, but instead merely should have known of that
14 risk. Despite some confusing language in our case law regarding first-degree
15 depraved mind murder, we have never incorporated an objective “should have
16 known” standard into our cases analyzing second-degree murder, or otherwise
17 implied that ordinary negligence could be a sufficiently culpable mental state to
18 support any kind of murder conviction. Our uniform jury instructions, to which the
19 1 State’s tendered instruction added a “should have known” component, have also
2 never incorporated an ordinary negligence standard for second-degree murder.
3 Accordingly, the instruction in this case misstated the mens rea element of second-
4 degree murder, and it was therefore error for the district court to provide this
5 instruction to the jury.2
6 C. The district court’s misstatement of the essential mens rea element is 7 reversible error requiring a new trial
8 {26} “[I]f an instruction is facially erroneous it presents an incurable problem and
9 mandates reversal.” State v. Parish, 1994-NMSC-073, ¶ 4, 118 N.M. 39, 878 P.2d
10 988; see also State v. Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186 P.3d 245 (“A
11 jury instruction which does not instruct the jury upon all questions of law essential
12 for a conviction of any crime submitted to the jury is reversible error.” (internal
13 quotation marks and citations omitted)).
14 {27} Our rules require lawyers to object to erroneous instructions, as defense
15 counsel did in this case. Rule 5-608(D). The purpose of this requirement is to alert
16 the trial court to the problem with the instruction and to allow the court an
17 opportunity to correct the error. Id. In this case, a uniform jury instruction has been
2 18 We note that the current committee commentary to UJI 14-203 states that 19 second-degree murder requires proof of objective knowledge, citing Reed and Brown. 20 The committee should revisit this commentary in light of our opinion in this case.
20 1 available for second-degree murder since 1981. NMSA 1978, UJI Crim. 2.10 (1981)
2 (“Second Degree Murder: voluntary manslaughter lesser included offense; essential
3 elements”); UJI Crim. 2.11 (1981) (“Second Degree Murder: voluntary manslaughter
4 not lesser included offense; essential elements”). “[W]hen a uniform instruction is
5 provided for the elements of a crime, . . . the uniform instruction should be used
6 without substantive modification . . . [unless] alteration is adequately supported by
7 binding precedent . . . and where the alteration is necessary in order to accurately
8 convey the law to the jury.” Uniform Jury Instructions—Criminal, Contents, General
9 Use Note (2015). For the essential elements of crimes not contained in a uniform jury
10 instruction, the court must draft an instruction, and ordinarily that instruction is
11 adequate if it substantially follows the language of the statute. See State v. Doe,
12 1983-NMSC-096, ¶ 8, 100 N.M. 481, 672 P.2d 654 (“[I]f the jury instructions
13 substantially follow the language of the statute or use equivalent language, then they
14 are sufficient.”), holding modified by Beach, 1985-NMSC-043, ¶ 12. The
15 modification of the uniform jury instruction in this case was not supported by binding
16 precedent, and it neither accurately conveyed the law to the jury nor substantially
17 followed the language of Section 30-2-1(B). This was not a case where the mens rea
18 element was not at issue or where the evidence was undisputed and indisputable.
21 1 Instructing the jury with a non-uniform jury instruction compromised Suazo’s
2 “fundamental right . . . to have the jury determine whether each element of the
3 charged offense has been proved by the state beyond a reasonable doubt,” and it was
4 therefore reversible error. Cabezuela, 2011-NMSC-041, ¶ 39 (internal quotation
5 marks and citations omitted).
6 {28} The State argues that we should not reverse because the jury found beyond a
7 reasonable doubt that Suazo “intended to injure Roger Gage or another,” which the
8 State contends no reasonable juror would have found while also finding that Suazo
9 did not know of the strong probability of death or great bodily harm to Vigil. Indeed,
10 in a prior case we held that a failure to instruct on an essential element of an offense
11 does not warrant reversal under a reversible error standard “[w]hen there can be no
12 dispute that the essential element was established.” Santillanes, 1993-NMSC-012,
13 ¶ 32 (concluding that in conducting its analysis, a court must consider whether there
14 is some evidence, no matter how slight, or a reasonable inference from such evidence,
15 that proves the element in issue) (citing Orosco, 1992-NMSC-006, ¶¶ 10-12)).
16 {29} In Santillanes we upheld the defendant’s conviction for child abuse under a
17 reversible error standard despite a jury instruction erroneously requiring the jurors to
18 find a civil negligence mens rea rather than the requisite statutory mens rea of
22 1 criminal negligence. 1993-NMSC-012, ¶¶ 32-34. In that case, the defendant was
2 accused of cutting his seven-year-old nephew’s throat with a knife during a scuffle,
3 but he claimed that his nephew had injured himself by jumping into a fishing line
4 strung between two trees, and notably did not argue that he had inadvertently caused
5 the boy’s throat to be cut. Id. ¶¶ 2, 33. The contested issue was whether the
6 defendant cut his nephew’s throat, not whether he cut his nephew’s throat with
7 criminal or civil negligence. We relied on the jury’s finding that the defendant had
8 cut his nephew’s throat with a knife, and concluded that under those facts “no rational
9 jury” could have determined that the nephew’s throat had been cut “without satisfying
10 the standard of criminal negligence” that should have been applied in that case. Id.
11 ¶ 34. Put another way, the element at issue in Santillanes was whether the defendant
12 had committed a specific act, not his mens rea. Thus, the jury’s finding beyond a
13 reasonable doubt that the defendant cut his nephew’s throat with a knife was also
14 necessarily a finding beyond a reasonable doubt that the defendant acted with at least
15 a mental state of criminal negligence in so doing.
16 {30} According to the dissent and the State, we should view this case similarly
17 because the jury found beyond a reasonable doubt that Suazo intended to injure Gage
18 or another by shooting a shotgun in Vigil’s mouth, which the State contends was
23 1 effectively a finding beyond a reasonable doubt that Suazo knew the gun was loaded
2 and that shooting it would create a strong probability of death or great bodily harm
3 to Vigil. That Suazo pulled the trigger of the shotgun was not at issue in the case.
4 Instead, the issue was whether he pulled the trigger of a shotgun that he knew was
5 loaded. Therefore, unlike in Santillanes, where the instructional error related to what
6 was essentially an uncontested issue, the mens rea element was a central aspect of this
7 case. We cannot say with certainty whether the jury found that Suazo knew the
8 shotgun was loaded, or whether jurors merely found that he should have known
9 because a simple inspection of the shotgun would have revealed whether it was
10 loaded. The latter finding cannot support a second-degree murder conviction
11 because, as we have previously discussed, mere negligence is not enough to prove
12 second-degree murder. The misstatement of the mens rea element misdirected the
13 jury, potentially allowing the jurors to convict Suazo based upon a finding that could
14 not support a second-degree murder conviction under the appropriate legal standard.
15 {31} It is tempting to agree with the dissent and the State that the intent to injure
16 element of aggravated battery satisfies the mens rea requirement for second-degree
17 murder because New Mexico criminalizes intent-to-injure battery, see State v.
18 Vasquez, 1971-NMCA-182, ¶ 12, 83 N.M. 388, 492 P.2d 1005 (recognizing that
24 1 aggravated battery requires proof of an intent to injure). If a jury finds that a
2 defendant intended to injure a person by pulling the trigger of a firearm, it is
3 reasonable to conclude that the jury found that the defendant knew that the firearm
4 was loaded, that it would discharge, and that pulling the trigger created a strong
5 probability of great bodily harm or death. Alternatively, if the jury was misled into
6 believing that the intent to injure element of aggravated battery is satisfied if the jury
7 finds that the defendant should have known that pulling the trigger created a strong
8 probability of great bodily harm or death, then it cannot be indisputable that the jury
9 found that the defendant knew the firearm was loaded and would discharge. The
10 latter situation is what occurred in this case. When discussing the instruction for
11 aggravated battery, the prosecutor told the jurors,
12 If you believe that [Suazo] committed second-degree murder, and that 13 he knew or should have known that his actions created great bodily harm 14 or death, towards Matthew Vigil, injuring Matthew Vigil, and as a result 15 he injures Roger Gage, that’s transferred intent. That’s where we get to 16 that element on Roger Gage.
17 (Emphasis added.) Thus, not only did the prosecution—perhaps negligently—
18 mislead the district court into issuing an erroneous instruction, the prosecution also
19 misled the jury into believing that the erroneous mens rea element for second-degree
20 murder—negligence—was sufficient to support a finding of aggravated battery. We
25 1 need not decide whether New Mexico recognizes the crime of criminal-negligence
2 battery because in this case the prosecution did not try to make a case for criminal-
3 negligence battery; instead, the prosecution argued a case for negligence battery. The
4 prosecution’s errant statement to the jury further undermines the State’s premise that
5 the jurors must have believed that Suazo knew that the gun was loaded to convict him
6 of aggravated battery against Gage. Despite the State’s contentions in this case, the
7 jury’s intent finding under aggravated battery is simply not enough for us to say with
8 certainty that the jury necessarily found a different, and highly contested, mens rea
9 for the offense of second-degree murder.3
10 {32} Having concluded that the error in this case mandates reversal, to avoid double
11 jeopardy concerns, we must examine whether sufficient evidence in this case supports
12 retrying Suazo. Dowling, 2011-NMSC-016, ¶ 18. Under a sufficiency of the
13 evidence test, we view the evidence in the light most favorable to the verdict and
14 draw all inferences in favor of the verdict to determine “whether substantial evidence
3 15 Although we cannot state with certainty how the jurors deliberated with 16 respect to each offense, there is at least a possibility that the jurors first considered 17 the second-degree murder charge, and determined Suazo’s guilt prior to considering 18 the battery charge. Therefore, the erroneous instruction may have influenced their 19 thinking with respect to battery. After all, once the jurors concluded that Suazo 20 committed second-degree murder, how could they not convict him of the lesser 21 offense of injuring Gage with the same shot?
26 1 of either a direct or circumstantial nature exists to support a verdict of guilty beyond
2 a reasonable doubt with respect to every element essential to a conviction.” State v.
3 Samora, 2016-NMSC-031, ¶ 34, ___ P.3d ___ (internal quotation marks and citations
4 omitted). In this case, to retry Suazo for second-degree murder with manslaughter as
5 a lesser-included offense, substantial evidence must exist to support the following
6 elements: (1) Suazo killed Vigil, (2) Suazo knew that his acts created a strong
7 probability of death or great bodily harm to Vigil or any other human being, (3) Suazo
8 did not act as a result of sufficient provocation, and (4) this happened in New Mexico.
9 Section 30-2-1(B); UJI 14-210. The first and fourth elements were undisputed in this
10 case, so the only issue is whether the mens rea and lack of sufficient provocation
11 components of the State’s case were met.
12 {33} Viewing the evidence in the light most favorable to a guilty verdict, we
13 conclude that there was sufficient evidence to support a reasonable jury’s conclusion
14 that the mens rea and lack of sufficient provocation elements were met in this case.
15 First, the jury could have reasonably inferred from Suazo’s statements, the ambiguous
16 evidence regarding who loaded the gun and when it was loaded, and the steps Suazo
17 took after the crime to conceal evidence, that Suazo knew the gun was loaded and
18 knew that pulling the trigger would cause great bodily harm or death to Vigil.
27 1 Second, the jurors could have reasonably concluded that the roughhousing between
2 Suazo and Vigil, an activity in which they frequently engaged and had been engaged
3 in throughout that day, was not enough to constitute sufficient provocation to reduce
4 the crime to manslaughter. See UJI 14-222 NMRA (“ ‘Sufficient provocation’ can
5 be any action, conduct or circumstances which arouse anger, rage, fear, sudden
6 resentment, terror or other extreme emotions. The provocation must be such as would
7 affect the ability to reason and to cause a temporary loss of self control in an ordinary
8 person of average disposition. The ‘provocation’ is not sufficient if an ordinary
9 person would have cooled off before acting.”).
10 III. CONCLUSION
11 {34} Suazo’s evidentiary arguments lack merit. The second-degree murder
12 instruction misstated the mens rea element for second-degree murder, and it therefore
13 requires reversal. We reverse Suazo’s conviction for second-degree murder and
14 remand for a new trial.
15 {35} IT IS SO ORDERED.
16 _____________________________ 17 EDWARD L. CHÁVEZ, Justice
28 1 WE CONCUR:
2 ___________________________________ 3 CHARLES W. DANIELS, Chief Justice
4 ___________________________________ 5 PETRA JIMENEZ MAES, Justice
6 ___________________________________ 7 BARBARA J. VIGIL, Justice
8 JUDITH K. NAKAMURA, Justice, concurring in part and dissenting in part
29 1 NAKAMURA, Justice (concurring in part; dissenting in part).
2 {36} This case is destined for the criminal law treatises. A shoots C. B is standing
3 between A and C. In order for A to shoot C, A must fire through B’s head. If we
4 accept these facts as true, what must A have known were the likely consequences for
5 B of A’s shooting C? There can be only one conclusion: A must have known that
6 there was a strong probability B would die. These, of course, are the facts of this
7 case.
8 {37} Suazo pointed the shotgun at Vigil, and Vigil inexplicably placed the barrel of
9 the shotgun into his mouth. Gage was standing behind Vigil. When Suazo pulled the
10 trigger and fired the shotgun, the shotgun pellets exploded from the cartridge, fired
11 out of the barrel of the shotgun, traveled into Vigil’s mouth, passed through Vigil’s
12 head killing him, and entered Gage’s body causing Gage serious injuries. For
13 perpetrating this act against Gage, Suazo was convicted of aggravated battery with
14 a deadly weapon. Suazo did not challenge the propriety of either the aggravated-
15 battery instruction or his conviction for aggravated battery.
16 {38} At trial, the jury was instructed that
17 For you to find [Suazo] guilty of aggravated battery with a deadly 18 weapon . . . the [S]tate must prove to your satisfaction beyond a 19 reasonable doubt each of the following elements of the crime:
30 1 1. [Suazo] touched or applied force to Roger Gage by shooting at 2 him with a firearm.
3 [Suazo] used a 12 gauge shotgun.
4 2. [Suazo] intended to injure Roger Gage or another;
5 3. This happened in New Mexico on or about the 21st day of May, 6 2013. 7 This instruction mirrors the uniform instruction. See UJI 14-322 NMRA.
8 {39} Aggravated battery is a specific intent crime. State v. Crespin,
9 1974-NMCA-104, ¶ 8, 86 N.M. 689, 526 P.2d 1282. “Specific intent to injure a
10 person is an essential element of the crime. The state must prove beyond a reasonable
11 doubt that the defendant knowingly committed an aggravated battery, purposely
12 intending to violate the law.” Id. (citation omitted). A firearm is a deadly weapon.
13 NMSA 1978, § 30-1-12(B) (1963) (“‘deadly weapon’ means any firearm . . . .”).
14 When, as in this case, aggravated battery is committed with a deadly weapon, the jury
15 need not be instructed that the weapon used was likely to cause death or great bodily
16 harm. See State v. Murillo, 2015-NMCA-046, ¶ 21, 347 P.3d 284 (explaining that the
17 jury need not find that a switchblade could cause death or great bodily harm because
18 a switchblade is per se a deadly weapon). Deadly weapons necessarily inflict great
19 bodily harm or fatal wounds.
20 {40} I agree with the majority that the instruction submitted to Suazo’s jury on
31 1 second-degree murder was incorrect. Maj. Op. ¶ 25. But we have previously
2 recognized that requiring reversal in every circumstance where a jury is misinstructed
3 would not only be unwise but would lead to undesirable results. See State v. Orosco,
4 1992-NMSC-006, ¶ 13, 113 N.M. 780, 833 P.2d 1146 (“Applying a rule of automatic
5 reversal is not required by the relevant constitutional principles and fails to take into
6 account our role as an appellate tribunal.”). Accordingly, we have held that, even
7 where a jury is misinstructed, the conviction may be affirmed so long as the omitted
8 or misstated element was properly and indisputably established. Id. ¶ 12; see also
9 Santillanes v. State, 1993-NMSC-012, ¶ 32, 115 N.M. 215, 849 P.2d 358.
10 {41} The jury’s decision to convict Suazo of aggravated battery against Gage
11 indisputably establishes that the jury must also have found that Suazo acted with the
12 required mens rea for second-degree murder. Suazo necessarily knew that, if he
13 committed aggravated battery against Gage with the shotgun, then Vigil would almost
14 certainly die. This must be true because, in order to commit aggravated battery
15 against Gage, Suazo had to fire the shotgun into Vigil’s mouth and through his head.
16 Because Suazo necessarily acted with the mens rea required to convict him of second
17 degree murder, the error in the second-degree murder instruction was not reversible.
18 Santillanes does not compel a different result.
32 1 {42} In Santillanes, the jury was misinstructed on the mens rea requirement for child
2 abuse, id. ¶¶ 29, 32, but we concluded that the error was not reversible. Id. ¶ 34. We
3 noted that “the defendant cut his nephew’s throat with a knife” from “just below his
4 right ear across to the left side of his neck below his jaw,” and that the jury found the
5 defendant cut the boy during a scuffle. Id. ¶¶ 33-34. We concluded that “no rational
6 jury” could have concluded that the defendant perpetrated these acts without also
7 necessarily concluding that the defendant acted with criminal negligence, the mens
8 rea requirement that the state was required to establish. Id.
9 {43} As the majority observes, Maj. op. ¶ 29, we expressly noted in Santillanes that
10 the defendant “did not argue that he inadvertently caused the boy’s throat to be cut.”
11 1993-NMSC-012 ¶ 33. According to the majority, this indicates that the mens rea
12 element of the offense for which the defendant in Santillanes was convicted was not
13 contested. Maj. op. ¶¶ 29-30. By contrast, Suazo maintained at trial that he did not
14 know the gun he fired into Vigil’s mouth and through his head was loaded, which was
15 an attempt to show he did not possess the necessary mens rea for second-degree
16 murder. For the majority, this distinction is crucial. Id. ¶ 29. The majority contends
17 that Suazo’s trial theory sufficiently distinguishes his case from Santillanes and
18 precludes this Court from resolving “whether the jury found that Suazo knew the
33 1 shotgun was loaded, or whether jurors merely found that he should have known
2 because a simple inspection of the shotgun would have revealed whether it was
3 loaded.” Id. ¶ 30. I do not concur.
4 {44} Unlike in Santillanes, Suazo was convicted of multiple offenses. Suazo’s jury
5 was correctly instructed that it had to find that the aggravated battery was
6 intentionally committed, and it so found. Therefore, the jury necessarily rejected
7 Suazo’s theory of the case. Only one shot was fired; it killed Vigil and grievously
8 injured Gage. That single shot could not be both intentional and accidental. Thus,
9 if Suazo intentionally fired the shot which injured Gage, he could not have
10 accidentally shot Vigil. Because Suazo’s jury found that Suazo intentionally fired the
11 shot that injured Gage, the jury necessarily rejected Suazo’s claim that he accidentally
12 killed Vigil.
13 {45} Lastly, I see no reason to conclude that the erroneous second-degree murder
14 instruction somehow infected the jury’s deliberation with respect to aggravated
15 battery. Maj op. ¶ 31 n.3. The district court properly instructed the jury on
16 aggravated battery. See State v. Privett, 1986-NMSC-025, ¶ 9, 104 N.M. 79, 717
17 P.2d 55 (instructing district courts to use uniform instructions when they exist). “The
18 jury is presumed to follow the court’s instructions.” State v. Gonzales,
34 1 1992-NMSC-003, ¶ 35, 113 N.M. 221, 824 P.2d 1023, overruled on other grounds
2 by State v. Montoya, 2013-NMSC-020, 306 P.3d 426. And as noted, Suazo did not
3 challenge the propriety of the aggravated-battery instruction or his conviction for that
4 offense. Nor am I persuaded that the prosecution’s statement about transferred intent
5 misled the jury. Maj op. ¶ 31. Suazo did not object to the prosecutor’s statement and
6 the issue was not argued on appeal. Moreover, instruction number one informed
7 Suazo’s jury that “[t]he law governing this case is contained in instructions that I am
8 about to give you. It is your duty to follow the law as contained in these
9 instructions.” If misdirection occurred, it was cured by proper instructions.
10 {46} For the reasons set out above, I would affirm Suazo’s second-degree murder
11 conviction. I concur that the district court did not abuse its discretion in excluding
12 the statements Suazo made after the shooting.
13 _____________________________ 14 JUDITH K. NAKAMURA, Justice