State v. Suazo, 35,508

Background

On May 21, 2013, after a day of drinking and roughhousing, Marcos Suazo pointed a shotgun at his friend Matthew Vigil; Vigil put the barrel in his mouth, Suazo fired, killing Vigil and seriously injuring Roger Gage, who stood behind Vigil.
Key factual dispute at trial: whether Suazo knew the shotgun was loaded when he pulled the trigger.
After the shooting, Suazo made statements (about an hour later) to two witnesses that he had not known the gun was loaded; the district court excluded those statements as hearsay (relevant exceptions claimed: excited utterance and present sense impression).
At trial the prosecution successfully substituted New Mexico’s uniform second-degree murder jury instruction language "knew" with "knew or should have known;" the jury convicted Suazo of second-degree murder and aggravated battery with a deadly weapon.
On appeal (case certified from the Court of Appeals), the Supreme Court considered (1) whether excluding Suazo’s post-shooting statements was an abuse of discretion and (2) whether modifying the mens rea element of the second-degree murder instruction to include "should have known" misstated the law and required reversal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Suazo’s post-shooting statements (excited utterance / present sense impression)	State: statements were hearsay and not within the exceptions because they were not contemporaneous/spontaneous.	Suazo: statements were excited utterances or present sense impressions and therefore admissible.	Court affirmed exclusion: one hour’s lapse plus intervening actions/statements undermined spontaneity and contemporaneity; exclusion not an abuse of discretion.
Proper mens rea for second-degree murder ("knew" v. "should have known")	State: instruction may include objective "should have known" standard; Brown dicta and some commentary support objective knowledge.	Suazo: statute requires subjective knowledge that acts created a strong probability of death or great bodily harm; "should have known" lowers mens rea to negligence and is inconsistent with statute and homicide scheme.	Court reversed: statute and uniform instruction require that defendant "knew" the strong probability of death or great bodily harm; inserting "should have known" misstated an essential element and was reversible error.
Whether instructional error was harmless given aggravated-battery conviction	State/Dissent: aggravated-battery conviction (intent to injure) irrefutably shows requisite mens rea for murder; error harmless.	Majority: aggravated-battery finding does not necessarily prove defendant knew the gun was loaded; prosecutor’s statements possibly conflated standards; cannot be certain jury found the required subjective knowledge.	Court held error was not harmless: misstatement could have allowed conviction on negligence standard; reversal and new trial required for second-degree murder.
Double jeopardy / sufficiency for retrial	State: retrial permissible if sufficient evidence supports elements under correct standard.	Suazo: (implicitly) retrial barred only if insufficient evidence.	Court found sufficient evidence (viewing evidence in light most favorable to verdict) to support retrial on second-degree murder.

Key Cases Cited

State v. Dowling, 257 P.3d 930 (N.M. 2011) (facially erroneous jury instructions require reversal)
State v. Brown, 931 P.2d 69 (N.M. 1996) (discussed subjective vs. objective knowledge in murder contexts; dicta regarding second-degree murder)
State v. McCrary, 675 P.2d 120 (N.M. 1984) (treatment of knowledge standards distinguishing depraved mind murder and second-degree murder)
Santillanes v. State, 849 P.2d 358 (N.M. 1993) (instructional error may be harmless where omitted element is indisputably established)
State v. Orosco, 833 P.2d 1146 (N.M. 1992) (appellate review of entire case after certification; discussion of when misinstruction may be harmless)
State v. Reed, 120 P.3d 447 (N.M. 2005) (further clarifies differences between depraved mind murder and second-degree murder)