State v. Torrez, 2013 NMSC 034

Background

Torrez fired multiple shots at a house party, killing one person and injuring another; a jury rejected self-defense and convicted of felony murder predicated on shooting at a dwelling, plus shooting at a dwelling and tampering with evidence.
First trial included alternative theories of first-degree murder: felony murder and depraved mind murder; the jury returned a general verdict without specifying the theory.
The district court later labeled the first-trial verdict as felony murder, but the State re-filed and retried Torrez on both felony murder and depraved mind murder theories; the jury again convicted of felony murder, but did not render a depraved mind murder verdict.
Count 2 charged shooting at a dwelling resulting in injury to Naarah Holgate; Count 1 charged felony murder for the death of Danica Concha; the district court framed instructions to tie the predicate shooting to the felony murder.
The court’s instruction structure allowed a single predicate shooting to support felony murder while separately addressing the Holgate injury in Count 2, avoiding a double jeopardy problem.
Torrez challenged jury instructions, compulsory process rights, and sufficiency of the evidence, but the Supreme Court affirmed on all issues.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy due to retrial on felony murder theory	Torrez implicitly acquitted depraved mind murder in the first trial.	Retrial on felony murder after acquittal of depraved mind murder violated double jeopardy.	No double jeopardy violation; retrial permitted under multiple first-degree murder theories.
Double jeopardy from felony murder and its predicate shooting at a dwelling	Conviction for felony murder with the predicate felony should require vacating the predicate.	Multiple convictions for the same offense violate double jeopardy.	No violation; separate verdicts were permissible due to different harms and unit-of-prosecution approach.
Jury instruction on uncollected evidence	Uncollected shell casings could have favored the State.	Instruction should have allowed inference that missing evidence was unfavorable to State.	District court did not err; evidence not shown to be material or the officers' gross negligence to warrant instruction.
Defense of another instruction	Instruction was proper and required based on first trial law of the case.	Evidence supported defense of another instruction for protecting Alfredo/Ernestina.	No error; evidence supported self-defense only, not defense of another.
Compulsory process right: witness subpoena nonappearance	Court should compel appearance or grant mistrial.	Bench warrant should have been used; denial violated compulsory process.	No violation; bench warrant remedy available and district court did not abuse discretion.

Key Cases Cited

State v. Lynch, 134 N.M. 139 (2003-NMSC-020) (new trial should not involve greater offense than prior conviction)
State v. Soliz, 442 P.2d 579 (1968) (judgment must conform to jury verdict; retroactive correction rules)
State v. Davis, 643 P.2d 614 (Ct. App. 1982) (verdicts must match jury findings; no stipulation overruling jury)
Commonwealth v. Carlino, 865 N.E.2d 767 (Mass. 2007) (silence on certain theories not acquittal; retrial may include theories not previously resolved)
State v. Ware, 881 P.2d 679 (1994) (two-step test for lost evidence: materiality and officer conduct; suppression only if appropriate)
State v. Bernal, 146 P.3d 289 (2006-NMSC-050) (two victims may support multiple offenses without double jeopardy)
State v. Jernigan, 127 P.3d 537 (2006-NMSC-003) (failure to instruct on defense of another when not supported by evidence)
State v. Cabezuela, 150 N.M. 654 (2011-NMSC-041) (felony murder elements and related instructions; self-defense vs. other defenses)
State v. Montoya, P.3d (2013-NMSC-) (felony murder elevates to first degree when during commission of other dangerous felony)