305 P.3d 944
N.M.2013Background
- Defendant Orlando Torrez attended a house party near Taos, NM, on Oct. 31, 2003, and claimed to have been threatened after an altercation; threats followed him as he left with others.
- Torrez discovered his car window broken and his sawed-off .22 rifle missing, prompting him to return toward the house amid gunfire.
- Torrez and Alfredo retrieved multiple firearms and returned to the party; testimony about actions on return was conflicting, with some evidence suggesting he fired toward the house.
- Two partygoers inside the house were shot: Naarah Holgate injured and Danica Concha killed; Concha died, Holgate survived.
- Torrez was tried and convicted of felony murder predicated on shooting at a dwelling resulting in Concha’s death, and he was also convicted of shooting at a dwelling and tampering with evidence; he appealed on several grounds including double jeopardy and trial errors.
- The Court remanded or addressed the convictions, affirming most but remanding with instruction to amend the shooting-at-dwelling conviction to a fourth-degree felony in light of statutory classification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy on depraved mind murder vs. felony murder in second trial | Torrez contends implicit acquittal of depraved mind murder bars retry | State argues no implicit acquittal; retrial allowed | No double jeopardy violation; retrial permitted under theories |
| Double jeopardy from felony murder with the predicate shooting at a dwelling | Conviction for felony murder and predicate felony violates DJ if same conduct | Convictions arise from different prosecutions; no same-element double jeopardy | Not a DJ violation; separate counts and unit-of-prosecution approach avoid duplication |
| Failure to give uncollected-evidence jury instruction | Missing evidence should allow inference against State | Instruction warranted only for gross negligence; not shown | District court did not err; Ware standard applied and instruction rejected |
| Compulsory process denial when subpoenaed witness did not appear | Defendant denied right to compulsory process | Bench warrant remedy appropriate; no mistrial required | No violation; bench-warrant remedy not abused and no mistrial needed |
| Sufficiency of evidence for felony murder, shooting at a dwelling, and tampering with evidence | Evidence supports all verdicts | Insufficient evidence for one or more counts | Evidence sufficient for all verdicts; specific elements satisfied |
Key Cases Cited
- State v. Davis, 97 N.M. 745, 643 P.2d 614 (Ct. App. 1982) (rejecting stipulation that would alter jury verdict)
- State v. Soliz, 79 N.M. 263, 442 P.2d 575 (1968) (judgment must conform to jury verdict; no override by court)
- Commonwealth v. Carlino, 865 N.E.2d 767 (Mass. 2007) (silence on felony murder not an acquittal; retrial allowed for multiple theories)
- Green v. United States, 355 U.S. 184 (1957) (acquittal implied only when guilt logically excludes other crimes (limited scope))
- State v. Frazier, 2007-NMSC-032, 142 P.3d 1 (N.M. 2007) (vacating predicate felony to cure double jeopardy; but not needed here due to instructions)