OPINION
{1} Defendant Jacob Gonzales was convicted of first-degree murder, shooting at a motor vehicle resulting in great bodily harm, and tampering with evidence. He raises three arguments on appeal. First, the jury verdict of guilty of murder in the first degree without specifying whether the jury relied on the theory of willful and deliberate murder or felony murder subjected Defendant to double jeopardy when the jury also found him guilty of the predicate felony, shooting at a motor vehicle resulting in great bodily harm. Second, that he was denied effective assistance of counsel because trial counsel neither moved for a continuance to pursue a missing witness nor requested an imperfect self-defense jury instruction. Finally, that the trial court committed reversible error by denying jury instructions on self-defense and defense of habitation. We hold that Defendant was subjected to double jeopardy, and we thus vacate his felony conviction of shooting at a motor vehicle resulting in great bodily harm. We also find that Defendant has not made a prima facie case of ineffective assistance of counsel, but Defendant may pursue habeas corpus proceedings on this issue. Finally, we reject Defendant’s argument that the trial court erred in denying self-defense and defense of habitation jury instructions.
I. BACKGROUND
{2} On Thanksgiving Day, Defendant Jacob Gonzales and his brother, Mario Rudolfo, were involved in a violent altercation with family members of Defendant’s girlfriend, Sara Montour. Sara and Defendant lived together in a trailer, and they had been arguing throughout Thanksgiving Day. In the midst of the argument, Sara went to her parents’ home and told some of her family members about the argument. Sara asked her family for help in retrieving some of her belongings from the trailer. That evening, the Montour family, including Sara’s father, Angelo; her mother, Darlene; her brother, Eli; and Eli’s girlfriend, Pamela Martinez, drove together to Defendant’s trailer to help recover Sara’s belongings. When they arrived, Angelo and Eli Montour went inside the trailer, while Darlene and Pamela waited in the family van.
{3} An altercation then took place in the trailer between Angelo, Eli, Defendant, and Defendant’s brother, the details of which are disputed. It is clear, however, that Angelo and Defendant’s brother were involved in a struggle for a rifle, which discharged inside the trailer. Subsequently, Angelo and Eli left the trailer and returned to the van. As they were driving away from the trailer, several gunshots were fired at the van. Angelo and Eli sustained non-fatal gunshot wounds, and Pamela died from a gunshot wound to the back of her head.
{4} Defendant was charged with first-degree murder of Pamela Martinez based on willful and deliberate murder under NMSA 1978, Section 30-2-l(A)(l) (1994), or, in the alternative, based on felony murder under Section 30-2-l(A)(2). As a predicate to felony murder, Defendant was also charged with shooting at a motor vehicle resulting in great bodily harm to Pamela Martinez under NMSA 1978, Section 30-3-8(B) (1993). 1 The alternative bases for convicting Defendant of first-degree murder were set forth in the jury instructions. The jury returned a general verdict of guilty of first-degree murder, but did not indicate on which theory it relied in convicting Defendant. The trial judge, however, sentenced Defendant to life imprisonment for willful and deliberate murder under Section 30-2-l(A)(l). Defendant was also convicted of and sentenced to nine years’ imprisonment for shooting at a motor vehicle resulting in great bodily harm. 2
II. DISCUSSION
A. Double Jeopardy
{5} Defendant contends that his right to be free from double jeopardy was violated when the jury returned a general verdict of guilty of first-degree murder and also found him guilty of shooting at a motor vehicle resulting in great bodily harm. Defendant argues that there was insufficient evidence for the jury to find first-degree murder based on willful and deliberate murder, and thus the jury must have relied on felony murder. Accordingly, Defendant maintains that he was subjected to double jeopardy by being convicted of both felony murder and the underlying felony, shooting at a motor vehicle resulting in great bodily harm. The State disagrees, contending that any double jeopardy problem was resolved when the trial judge sentenced Defendant to willful and deliberate first-degree murder. We review Defendant’s double jeopardy claim de novo. State v. Bernal,
{6} A jury can return a first-degree murder conviction even if the jurors do not agree on the underlying theory. State v. Salazar,
{7} Our responsibility on appeal, when a double jeopardy issue is raised involving a general verdict, is to determine whether any of the alternative theories violates double jeopardy. State v. Foster, 1999—NMSC-007, ¶ 27,
{8} On review, the Court determined that they were required to “reverse a conviction if one of the alternative bases for the conviction provided in the jury instructions is legally inadequate because it violates a defendant’s constitutional right to be free from double jeopardy.” Id. ¶2. The Court reasoned, “ ‘Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law____’” Id. ¶28 (quoting State v. Olguin,
{9} The Court then reviewed the aggravated kidnaping and armed robbery charges under the theories that the defendant claimed subjected him to double jeopardy. After reviewing the aggravated kidnaping charge, the Court determined that there was no double jeopardy problem. Id. ¶ 35. However, after reviewing the armed robbery charge, the Court determined that a double jeopardy problem existed under one of the alternative theories. Id ¶ ¶ 37, 40. For purposes of a double jeopardy analysis, the Court presumed that the jury relied on the problematic theory, and thus the Court reversed the conviction for armed robbery. Id. ¶ 40.
{10} In the present ease, we must examine whether either of the alternative theories of first-degree murder would subject Defendant to double jeopardy. See id. ¶ 27. If double jeopardy is violated, we must vacate the conviction for the lesser offense. Id. We begin our analysis with the felony murder conviction, which is dispositive of this issue. The double jeopardy clause of the Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb....” U.S. Const, amend. Y; see also N.M. Const, art. II, § 15 (providing for double-jeopardy protection). The clause is applicable to the States through the due process clause of the Fourteenth Amendment. Benton v. Maryland,
{11} Among its protections, the double jeopardy clause protects a defendant against multiple punishments for the same offense. State v. Lynch,
{12} When examining Defendant’s conviction for murder in the first degree based on the theory of felony murder, we find that, under Frazier, Defendant was subjected to double jeopardy. The predicate felony of shooting at a motor vehicle is subsumed into the felony murder conviction, and Defendant cannot be convicted of both. See Frazier,
B. Ineffective Assistance of Counsel
{13} Defendant also argues that he was denied effective assistance of counsel because (1) trial counsel failed to move for a continuance so they could attempt to locate a missing witness, and (2) trial counsel failed to request an imperfect self-defense jury instruction. The State contends that Defendant has not made a prima facie case for ineffective assistance of counsel, and thus such a claim should be brought through habeas corpus proceedings. We agree with the State.
{14} In order to prevail on an ineffective assistance of counsel claim, a defendant must show deficiency on the part of counsel and that such deficiency resulted in prejudice. State v. Bernal,
{15} Defendant has failed to establish a deficiency on trial counsel’s part. Based on the record, the defense’s overall trial strategy was to maintain Defendant’s innocence. During closing argument, trial counsel stated that Defendant “didn’t shoot anybody,” that he “never fired a weapon at the van,” and that Defendant was “innocent.” Both of Defendant’s arguments for ineffective assistance of counsel would require us to second-guess this trial strategy, which we will not do. Defendant contends on appeal that the missing witness was present inside the trailer during the altercation and would have testified that Defendant and his brother were “attacked by the Montour family.” This testimony would support a theory of justifiable homicide, not a theory of innocence. In addition, had the jury been instructed on imperfect self-defense, it would have been in direct conflict with the defense trial strategy of maintaining Defendant’s innocence. Thus, it appears that trial counsel did not move for a continuance to pursue the missing witness and did not request a jury instruction on imperfect self-defense because such actions did not support the defense trial strategy.
{16} While Defendant has failed to establish a prima facie ease of ineffective assistance of counsel, Defendant can still pursue habeas proceedings on this issue. State v. Martinez,
C. Self-Defense and Defense of Habitation
{17} Defendant contends that he was entitled to jury instructions on self-defense and defense of habitation, and that the trial court committed reversible error in denying such instructions. The State points out that Defendant never requested jury instructions on self-defense or defense of habitation, and that trial counsel explicitly rejected such instructions. Accordingly, the State maintains that Defendant did not preserve his claim of error, and in addition, that such instructions were not supported by the evidence.
{18} We initially note that Defendant did not request jury instructions on either self-defense or defense of habitation. Defendant first raised these issues in a post-trial motion for a new trial. However, we find that even if Defendant had requested and been denied such jury instructions by the trial court, there would be no error because there was insufficient evidence to warrant such instructions.
{19} In order to warrant jury instructions on self-defense and defense of habitation, there must be evidence to support such instructions. See State v. Gaines,
{20} An instruction on self-defense requires evidence that (1) “the defendant was put in fear by an apparent danger of immediate death or great bodily harm,” (2) “the killing resulted from that fear,” and (3) the defendant acted reasonably when he or she killed. Id. ¶ 23 (citation and quotation marks omitted).
{21} An instruction on defense of habitation requires evidence that (1) defendant believed that the commission of a felony in defendant’s home was immediately at hand, (2) defendant believed it was necessary to kill the intruder to prevent the commission of the felony, and (3) the defendant acted reasonably. UJI14-5170 NMRA.
{22} Despite the State’s and Defendant’s dispute over the details of the facts leading up to the shootings, it is clear that the victims were shot while they were in their van, driving away from Defendant’s trailer. If at any point Defendant was put in fear by an appearance of immediate death or great bodily harm, that fear could not have been present when the victims were fleeing in their van. Additionally, the victims could not have been attempting to commit a felony inside Defendant’s home while they were fleeing in their van. State v. Niewiadowski,
III. CONCLUSION
{23} For the foregoing reasons, we vacate Defendant’s conviction for shooting at a motor vehicle resulting in great bodily harm. We find that Defendant has not made a prima facie case for ineffective assistance of counsel. We also reject Defendant’s argument that the trial court erred in not issuing jury instructions on self-defense and defense of habitation. We therefore affirm Defendant’s convictions of first-degree murder and tampering with evidence.
{24} IT IS SO ORDERED.
Notes
. In addition, Defendant was charged with conspiracy to commit murder in the first degree, two counts of attempt to commit murder in the first degree, and tampering with evidence.
. Defendant was also convicted of tampering with evidence, for which he was sentenced to eighteen months’ imprisonment.