State v. Swick
2012 NMSC 018
N.M.2012Background
- Swick killed Alex Ogle by stabbing and bludgeoning with a rock, after which he and an accomplice fled with valuables from the Atencios’ home.
- Swick and an accomplice entered the Atencios’ home to steal a vehicle, where Swick stabbed Mrs. Atencio and attacked Mr. Atencio.
- Swick was charged with first-degree murder for Ogle’s death and 25 related counts for the Atencios’ offenses, including aggravated burglaries and batteries.
- During trial, Swick had an in-court outburst; the court polled jurors and denied a mistrial.
- The court instructed on second-degree murder but omitted the “without sufficient provocation” element; Swick moved for relief and the jury found him guilty of second-degree murder and other counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether separate convictions for attempted murder and aggravated battery violate double jeopardy | Swick argues unitary conduct should not support both convictions | State argues separate punishments are authorized by statute | Convictions for attempted murder and aggravated battery arising from the same conduct cannot stand; convictions vacated |
| Whether two aggravated-burglary convictions based on one unauthorized entry violate double jeopardy | Swick contends multiple counts for aggravated burglary arise from a single entry | State contends distinct theories justify separate counts | Only one aggravated burglary conviction can stand for a single unauthorized entry; remand to vacate two battery-based counts |
| Whether the second-degree murder instruction was fundamental error for omitting 'without sufficient provocation' | Second-degree murder instruction omitted essential element; could mislead jury | Other instructions could cure error; no fundamental error | Second-degree murder vacated; remanded for new trial consistent with the opinion |
| Whether the denial of self-defense instruction was proper | Self-defense should have been instructed due to evidence of fear and possible defense | Evidence did not support reasonable fear or reasonable response | Court did not err in denying self-defense instruction |
| Whether the mistrial denial was proper given juror exposure to Swick’s outburst | Mistrial should have been granted due to potential prejudice | Judge adequately protected impartiality; no abuse of discretion | denial of mistrial affirmed; no abuse of discretion |
Key Cases Cited
- State v. Armendariz, 2006-NMSC-036 (NMSC 2006) (held separate punishments may exist for attempted murder and aggravated battery arising from same conduct (before overruling))
- State v. Gutierrez, 2011-NMSC-024 (NMSC 2011) (modified Blockburger analysis for vague statutes; consider legislative intent via charging documents and instructions)
- Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (NM 1991) (two-part test for double-description offenses; unitary conduct then legislative intent)
- State v. Riley, 2010-NMSC-005 (NMSC 2010) (overruling Armendariz factors; four Riley factors for overruling precedent)
- Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (NM 1993) (discusses rule of lenity in double jeopardy context)
- Brown v. Ohio, 432 U.S. 161 (U.S. 1977) (joyriding as potentially lesser included offense; aids interpretation of subsumption)
- Whalen v. United States, 445 U.S. 684 (U.S. 1980) (federal lenity principle when legislative intent is ambiguous)
- Cunningham v. State, 2000-NMSC-009 (NMSC 2000) (reversal or not based on fundamental vs reversible error in missing elements)
- Parish v. State, 118 N.M. 39, 878 P.2d 988 (NM 1994) (reversible error framework for self-defense/unlawfulness instructions)