390 P.3d 674
N.M.2017Background
- On May 21, 2013, Marcos Suazo and friend Matthew Vigil were roughhousing; Suazo retrieved a 12-gauge shotgun, Vigil grabbed the barrel and placed it in his mouth, and Suazo pulled the trigger — Vigil died and Roger Gage (standing behind Vigil) was seriously injured. It was unclear who or when the gun was loaded.
- At trial Suazo claimed the shooting was accidental and that he did not know the shotgun was loaded; the State prosecuted him for second-degree murder and aggravated battery with a deadly weapon, among other charges.
- Suazo sought to admit statements he made ~1 hour after the shooting (to two witnesses) that he did not know the gun was loaded; the court excluded them as hearsay, rejecting excited-utterance and present-sense-impression exceptions.
- At sentencing the State successfully proposed a non-uniform modification to the UJI second-degree murder instruction, replacing the statutory mens rea "knew" with "knew or should have known." The district court gave that modified instruction over defense objection.
- Suazo was convicted; he appealed. The New Mexico Supreme Court (accepting certification from the Court of Appeals) affirmed exclusion of the post-event statements but reversed the second-degree murder conviction and ordered a new trial because the jury instruction misstated the mens rea element.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Suazo) | Held |
|---|---|---|---|
| Admissibility of Suazo’s post-shooting statements | Statements were admissible as excited utterances or present sense impressions (thus not hearsay) | Statements were spontaneous and reflective of stress from the event; admissible under Rule 11-803(1)-(2) | Court: Exclusion affirmed — ~1 hour delay and intervening acts permitted reflection; not admissible as excited utterance or present sense impression |
| Mens rea standard for 2nd-degree murder | Instruction may include objective component ("should have known") and evidence could show constructive knowledge | Statute requires subjective knowledge that acts create a strong probability of death or GREAT bodily harm; adding "should have known" lowers required mens rea to negligence | Court: Reversed — statutory text and legislative amendment require proof that defendant knew the strong probability of death or great bodily harm; "should have known" is unavailable substitute |
| Whether erroneous instruction was harmless given aggravated-battery conviction | The jury’s aggravated-battery finding (specific intent to injure) shows jury necessarily found the knowledge required for murder; thus error harmless | Erroneous instruction could have allowed conviction on negligence; aggravated-battery verdict does not establish the higher, contested mens rea beyond reasonable doubt | Court: Error not harmless — misstatement of an essential element was reversible because jury may have convicted on an improper "should have known" standard |
| Double jeopardy / sufficiency to retry | Retrial is permissible if sufficient evidence supports elements including required mens rea | Retrial barred if insufficient evidence of required mens rea or error harmless | Court: Retrial allowed — viewing evidence in light most favorable to verdict, sufficient evidence existed to support required mens rea and lack of sufficient provocation |
Key Cases Cited
- State v. Dowling, 150 N.M. 110, 257 P.3d 930 (N.M. 2011) (facially erroneous jury instructions mandate reversal)
- State v. Flores, 147 N.M. 542, 226 P.3d 641 (N.M. 2010) (excited-utterance reliability factors and totality-of-circumstances test)
- State v. Balderama, 135 N.M. 329, 88 P.3d 845 (N.M. 2004) (factors for assessing spontaneity under excited-utterance exception)
- State v. Brown, 122 N.M. 724, 931 P.2d 69 (N.M. 1996) (distinction between subjective and objective knowledge in depraved-mind murder; discussed as dicta)
- Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (N.M. 1993) (misinstruction may be harmless if the omitted element was indisputably established)
- State v. Reed, 138 N.M. 365, 120 P.3d 447 (N.M. 2005) (distinguishing depraved-mind murder from second-degree murder and listing indicators of depravity)