State v. Herrera
2014 NMCA 007
N.M. Ct. App.2013Background
- Herrera shot the victim and then hid the gun in a crawlspace after the killing.
- He was charged with first-degree murder and third-degree tampering; the jury convicted him of second-degree murder and third-degree tampering.
- Tampering with evidence under NM statute depends on the underlying crime; Subsection (B) elevates punishment based on the related crime.
- The jury was not instructed that tampering had to relate to a capital, first-, or second-degree crime; issue was preserved only as to fundamental error.
- The court held the non-instruction was not fundamental error given the trial evidence showed the tampering related to a second-degree murder and the other evidence supported the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the omission of the related-crime element for third-degree tampering constitutional? | State argues element is not required. | Herrera contends it violated due process and jury-trial rights. | Not fundamental error; evidence linked tampering to second-degree murder. |
| Did the prosecutor's witness comment on silence require reversal? | State argues no error. | Herrera argues it violated due-process protections against comment on silence. | No reversible error; isolated remark did not compromise due process. |
| Was imperfect self-defense instruction required? | State contends no instruction needed. | Herrera sought imperfect self-defense instruction. | Correct to decline; imperfect self-defense is mitigated under voluntary manslaughter instructions. |
| Was there sufficient evidence for second-degree murder and third-degree tampering? | State asserts sufficient evidence. | Herrera argues insufficiency. | Yes, evidence supported both convictions under the record. |
Key Cases Cited
- Jones v. United States, 526 U.S. 227 (U.S. 1999) (holding that facts increasing penalty are elements that must be found by a jury)
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (holding any fact increasing a mandatory minimum is an element and must be found by a jury)
- In re Winship, 397 U.S. 358 (U.S. 1970) (due process requires proof beyond a reasonable doubt for every element)
- State v. Alvarado, 2012-NMCA-089 (N.M. Ct. App. 2012) (discusses jury findings on elements when tampering relates to a crime)
- United States v. Cotton, 535 U.S. 625 (U.S. 2002) (upholds non-reversal when the omitted element was proven by the record)
- Jones v. United States, 526 U.S. 227 (U.S. 1999) (cited above; repeated for emphasis on elements vs. sentencing factors)