State v. Swick
242 P.3d 462
N.M. Ct. App.2010Background
- Defendant Michael Swick was convicted of second degree murder, attempted murder (two counts), aggravated battery (deadly weapon, two counts), aggravated burglary (battery, two counts, and deadly weapon, one count), armed robbery (two counts), conspiracy (two counts), and unlawful taking of a motor vehicle.
- On January 21, 2006, Swick and others consumed alcohol, stole a Jeep, engaged in violent acts including stabbing and blunt-force injuries, and Ogle died from multiple stab wounds and blunt trauma.
- Swick and Benito Lopez later assaulted Rita and Carlos Atencio, stabbing and beating them and taking cash and car keys.
- Swick sought medical treatment for a hand wound, and police responded to a 911 call; he was ultimately tried on thirteen counts.
- The Court of Appeals affirmed, addressing jury instructions, self-defense instruction requests, double jeopardy challenges, and a mistrial motion, and upheld the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Second degree murder instruction error | Swick | Swick | No fundamental error; cured by other instructions. |
| Self-defense instruction warranted | Swick | Swick | Self-defense instruction not warranted; not objectively reasonable. |
| Double jeopardy—attempted murder vs aggravated battery | State | Swick | No double jeopardy violation for attempted murder and aggravated battery with deadly weapon. |
| Double jeopardy—aggravated burglary (battery) vs (deadly weapon) | State | Swick | Two offenses under separate subsections not double jeopardy; legislative intent to punish separately. |
| Motion for mistrial properly denied | State | Swick | No abuse of discretion; jurors adequately instructed to remain fair. |
Key Cases Cited
- State v. Cunningham, 128 N.M. 711, 998 P.2d 176 (2000-NMSC-009) (fundamental error analysis; curative effect of proper instructions considered as a whole)
- State v. Sandoval, 147 N.M. 465, 225 P.3d 795 (2010-NMCA-025) (distinguishable self-defense curing instruction scenario)
- State v. Armendariz, 140 N.M. 182, 141 P.3d 526 (2006-NMSC-036) (double jeopardy and separate offenses; elements not subsumed; legislative intent to punish separately)
- State v. Franco, 137 N.M. 447, 112 P.3d 1104 (2005-NMSC-013) (statute written in the alternative treated as separate offenses for double jeopardy)
- State v. Rodriguez, 113 N.M. 767, 833 P.2d 244 (1992-Ct.App.) (treating alternative statutory subsections as separate offenses for double jeopardy)