305 P.3d 944
N.M.2013Background
- On Oct. 31, 2003, Torrez attended a house party, left, returned armed, and fired multiple shots at the house; one person (Danica Concha) died and another (Naarah Holgate) was injured.
- Torrez claimed self-defense (and alternatively defense of others); the State asserted he returned and fired into the occupied dwelling.
- At first trial Torrez was convicted of first-degree murder (general verdict), shooting at a dwelling, and tampering; convictions were reversed on appeal for evidentiary error and remanded for a new trial.
- On retrial Torrez was convicted of felony murder (predicated on shooting at a dwelling resulting in Concha’s death), a separate count of shooting at a dwelling (related to Holgate’s injury), and tampering with evidence (hiding guns).
- Torrez appealed raising: double jeopardy claims (two theories and predicate felony), denial of requested jury instructions, denial of compulsory process (subpoenaed witness failed to appear), and insufficiency of evidence.
Issues
| Issue | State's Argument | Torrez's Argument | Held |
|---|---|---|---|
| Whether retrial on both depraved-mind and felony-murder theories violated double jeopardy | No; first-trial general guilty verdict did not constitute an acquittal of depraved-mind murder and retrial on both theories is permissible because both are first-degree offenses | First-trial judgment labeled conviction as felony murder, so depraved-mind murder was implicitly acquitted and cannot be retried | Court: No double jeopardy violation; judge cannot rewrite jury’s general verdict into a dispositive acquittal, and retrial on both first-degree theories was allowed |
| Whether convicting Torrez of felony murder and of the predicate felony (shooting at a dwelling) violated double jeopardy | No; the predicate felony for felony murder related to Concha’s death while the separate shooting count related to Holgate’s injury — distinct conduct/victims | Convictions punish same conduct twice (felony murder plus the same shooting) | Court: No violation — jury was instructed and found felony murder based on the shooting causing Concha’s death and separately convicted for a distinct shooting (Holgate); court avoided double jeopardy by not requiring a separate verdict on the predicate felony tied to the murder |
| Whether trial court erred by refusing a jury instruction permitting adverse inference from uncollected/photographed casings | State: Casings were not shown to be material beyond existing testimony and there was no basis to find gross negligence or bad faith by police | Torrez: Failure to collect/produce casings warranted inference that evidence would be unfavorable to prosecution | Court: No error — under State v. Ware a two-step test applies; Torrez did not show materiality plus gross negligence/bad faith required for an adverse-inference instruction |
| Whether trial court erred by refusing instruction on defense-of-others | State: Evidence did not show Torrez acted to protect another; self-defense instruction sufficient | Torrez: Retrial court was bound to give same instruction as first trial; facts supported instruction by inference | Court: No error — retrial is a new trial; no sufficient evidence that Torrez acted to defend others, so no duty to give defense-of-others instruction |
Key Cases Cited
- State v. Frazier, 142 N.M. 120, 164 P.3d 1 (N.M. 2007) (predicate felony subsumed in felony-murder conviction generally must be vacated unless separate conduct/victims support distinct convictions)
- State v. Ware, 118 N.M. 319, 881 P.2d 679 (N.M. 1994) (two-step test for remedy when prosecution fails to collect/criminalize physical evidence: materiality then officer misconduct standard)
- Green v. United States, 355 U.S. 184 (U.S. 1957) (silence on a greater charge with conviction of a lesser included offense can imply acquittal only when conviction logically excludes the greater)
- Commonwealth v. Carlino, 865 N.E.2d 767 (Mass. 2007) (silence of jury on a theory does not necessarily operate as acquittal; no double jeopardy when retried on same theories absent logical exclusion)
- State v. Soliz, 79 N.M. 263, 442 P.2d 575 (N.M. 1968) (judgment must conform to the jury’s verdict)
- State v. Lynch, 134 N.M. 139, 74 P.3d 73 (N.M. 2003) (new trial cannot involve an offense of a greater degree than that of which defendant was convicted)