Lead Opinion
{1} The State appeals from the trial court’s order dismissing Defendant’s pending second-degree murder charge. The basic question in this case is whether Defendant can be retried for second-degree murder in connection with one killing when the jury signed two verdict forms: one acquitting Defendant of second-degree murder and the other finding him guilty of second-degree murder. The State argues that double jeopardy does not apply to a valid conviction of second-degree murder and that the trial court therefore erred in dismissing the case based on double jeopardy. Defendant contends that the acquittal verdict governs and that he cannot be retried for the same offense. Based on the jury instructions and verdict forms in this ease, the jury rejected one theory of second-degree murder but found Defendant guilt on the other theory. As to the theory on which the jury found guilt, Defendant can be retried. Accordingly, we reverse.
I. BACKGROUND
{2} After fighting with two men, Defendant armed himself with a rifle. Then, together with two codefendants, Defendant went to the home of Cecilia Gonzales, the mother of the two men with whom he had been fighting. Gonzales lived with her sister Maria Martinez. Defendant and Juan Meraz, one of the two codefendants, entered the mother’s residence. Although Defendant denies making the statement, and the dissent does not mention it, Martinez testified that Defendant told Meraz, “Shoot them. Shoot them. Kill them[.]” Meraz shot and killed Gonzales as she stood in the kitchen. Defendant then left the scene, without assisting Gonzales or calling the police, to continue “partying” at his uncle’s home.
{3} The grand jury indicted Defendant on seven criminal counts stemming from this incident. Count 1 of the indictment charged Defendant with first-degree murder, willful and deliberate killing, or, in the alternative, first-degree murder, felony murder. The willful and deliberate murder charge stated that Defendant did kill Gonzales with the deliberate intention to take away her life. The felony murder charge stated that Defendant did intentionally cause the death of Gonzales during the commission or attempted commission of aggravated burglary, a felony offense, under circumstances or in a manner dangerous to human life and that Defendant intended to kill or knew that his acts created a strong probability of death or great bodily harm.
{4} At trial, the jury was instructed on the elements of two theories of first-degree murder: first-degree willful and deliberate murder and felony murder. The jury was also
{5} The jury reached unanimous verdicts on all counts. The trial court read the verdicts into the record and then asked the attorneys if they wished to poll the jury; both parties stated that they did not want to poll the jury. The attorneys neither questioned the verdicts nor asked that the verdicts be clarified.
{6} The jury acquitted Defendant on first-degree murder by willful and deliberate killing, on second-degree murder “as charged as an included offense of first[-] degree murder by a deliberate killing” (second-degree deliberate intent murder), and on felony murder. The jury found Defendant guilty of second-degree murder “as an included offense of felony murder,” as charged in the alternative to Count 1 (second-degree felony murder).
{7} Defendant appealed his conviction to this Court and raised nine issues in his docketing statement, none of which related to the two second-degree murder step-down instructions or verdict forms. This Court issued a memorandum opinion reversing and remanding the second-degree murder conviction on the ground that it was reversible error for the trial court to refuse to give Defendant’s proposed lesser included instruction on involuntary manslaughter.
{8} After remand, the parties began to prepare for retrial. Defendant then filed a motion claiming that the State’s prosecuting Defendant on the second-degree murder charge would violate his right to be free from double jeopardy because he had been acquitted of second-degree murder in the first trial. The State responded by arguing that the jury had convicted Defendant of second-degree murder and that there was no issue regarding innocence on that count. The State further argued that if error had occurred, it had been invited by the defense — in that the defense had agreed to the jury instructions and verdict forms, had heard the verdicts read in open court, and had made no objection or argument. Among other contentions, the State maintained that the instructions and the verdict forms made it clear that the State was proceeding under two distinct theories of murder and that the jury’s verdicts indicated its understanding of that distinction.
{9} After the hearing, the trial court issued a written order dismissing the case with prejudice, which stated, “[Tjhere is unitary conduct in this matter, the essential elements to be re-tried are identical to those for which the Defendant was acquitted, and there was not a waiver of the double jeopardy claim, if it is subject to such waiver.” The State appeals from that order.
II. DISCUSSION
{10} The State contends that double jeopardy does not apply because the jury returned a conviction for second-degree murder and because acquittal cannot be implied from that conviction. The State further argues that the only way double jeopardy can be found in this case is by implying an acquittal from the conviction — that is, we must assume that the jury must have also meant to acquit on the second-degree felony murder
A. Standard of Review
{11} Double jeopardy claims are not waived and can be raised at any time before or after entry of a judgment. NMSA 1978, § 30-1-10 (1963). We review double jeopardy claims de novo. See State v. Schoonmaker,
B. New Mexico Constitution
{12} Defendant recognizes that the double jeopardy clause of the Fifth Amendment protects “a defendant against a second prosecution for the same offense after acquittal.” Citing to State v. Gomez,
{13} We decline to address Defendant’s argument because he did not properly preserve it. See State v. Vaughn,
C.Double Jeopardy and Conviction of Second-Degree Murder
{14} In general, the federal double jeopardy clause protects against (1) a second prosecution for the same offense after an acquittal, (2) a second prosecution for the same offense after a conviction, and (3) multiple punishments for the same offense. State v. Angel,
{15} There is no question that jeopardy attached in this case; jeopardy terminates upon an acquittal, upon a conviction, or with certain types of mistrial. County of Los Alamos v. Tapia,
is not to be controlled by the form of the judge’s action. Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged and the focus is on substance as well as form.
Vaughn,
{16} Although there is no New Mexico case law directly on point, we look to recent case law that addresses, in a variety of contexts, what is or is not an acquittal. These cases support our resolution that the fact that the jury signed a not guilty verdict is not controlling when the jury had not finished its deliberations on all of the charges submitted to it in this one proceeding and when none of the important policies protected by the double jeopardy clause was implicated. In State v. Rodriguez,
{17} In another recent case, Vaughn,
{18} Our task here is to consider whether the substance of the jury verdict acquitting Defendant of second-degree deliberate intent murder represented a resolution, correct or not, of some or all of the factual elements of the second-degree felony murder theory, under which Defendant was convicted. Id. ¶ 9. We agree that the jury verdict finding Defendant not guilty under the deliberate intent theory is a resolution of guilt for that particular theory of the step-down for Count 1, first-degree deliberate intent murder. Those verdicts, however, did not terminate jeopardy for Count 1 because the jury was also instructed on the alternative for felony murder and its lesser offense of second-degree murder during the same proceeding. The jury’s acquittal of first-degree felony murder was a final resolution for that degree of the crime, but there remained the question of Defendant’s guilt under the alternative theory of second-degree murder.
{19} In this case, the State was entitled to charge Defendant in the alternative,
{20} We do not disagree with Defendant’s statement of the general rule that “when a defendant has been acquitted at trial[,] he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.” Sanabria v. United States,
{21} First, finality, or the defendant’s legitimate expectation of repose, is one of the most fundamental policies on which the acquittal rule is based. See County of Los Alamos v. Tapia,
{22} Second, double jeopardy prevents the government from simply trying a case repeatedly until it gets a conviction. Green v. United States,
{23} Finally, the acquittal prong of double jeopardy jurisprudence protects jury nullification, or the right of the jury to acquit against the weight of the evidence. Westen
{24} The jury was presented with two separate theories of murder; the members rejected one theory and convicted Defendant of a lesser offense on the other. This method of having the jury consider the charges resulted in two second-degree murder verdict forms. The jury found Defendant guilty of second-degree murder under the step down to felony murder. Retrial on this conviction does not violate double jeopardy.
D. Failure to Object and Fundamental Error
{25} Because Defendant’s double jeopardy claim is without merit, any remaining or related claim that the verdicts were inconsistent or confusing has been waived, and there is no other valid claim on appeal. While Defendant would have preferred another approach to the organization of the instructions, he never objected to the instructions or questioned the verdicts. See Rule 5-611(E), (F) NMRA (stating that any party may request that the jury be polled after a verdict is returned but before it is recorded and that no irregularity in the verdict may be raised, unless it is raised before the jury is discharged).
{26} Although Defendant urges this Court to rely on fundamental error in the event that this Court finds that he did not properly object to the verdicts or instructions, reliance on fundamental error is not appropriate under the circumstances of this case. According to State v. Cunningham,
{27} Defendant does not make any claim that his conviction of second-degree murder is dubious or that there was not sufficient evidence for the conviction. Defendant does not provide any support for the idea that the jury was confused by the instructions or verdict forms. While it appears Defendant would have preferred that the jury been instructed on the two theories of first-degree murder and then been given one instruction on second-degree murder, Defendant had no questions about the instructions at the time they were given to the jury, he did not question the verdict forms, and he did not request that the jury be polled. There is no contention that the jury was improperly instructed on the elements of the offenses or that the instructions were contradictory; it appears that juries elsewhere have been instructed in a similar fashion. See State v. Montoya, No. 28,404, slip op. ¶¶ 23-24 (N.M.Sup.Ct. Mar. 8, 2006).
{28} The evidence presented at trial established that Defendant armed himself with a rifle and went to Gonzales’s residence. There was evidence that he entered the residence and told his codefendant, “Shoot them. Shoot them. Kill them[.]” The codefendant shot and killed Gonzales, and Defendant left the scene. This provides sufficient evidence to convict Defendant of second-degree murder, a conviction he appealed, and the circumstances of the guilty verdict for second-degree murder do not “shock the conscience.” See Cunningham,
III. CONCLUSION
{29} There is no double jeopardy violation. The trial court’s order dismissing the charge against Defendant is reversed, and the ease is remanded for retrial.
{30} IT IS SO ORDERED.
Dissenting Opinion
(dissenting).
{31} The fundamental flaw in the reasoning of the majority is its premise that two separate theories of second-degree murder were presented to the jury. This is not correct. While the first-degree murder charge was in the alternative, the lesser included offense to each alternative was the same second-degree murder. Because the jury instructions were structurally flawed, it superficially appears the jury was allowed to consider two separate theories of second-degree murder. The jury found Defendant not guilty of second-degree murder. In my view, the constitutional prohibition against double jeopardy precluded the jury from subsequently finding Defendant guilty of the same second-degree murder. Since the majority concludes otherwise, I dissent.
{32} Defendant encountered Lorenzo Martinez and Victor Gonzales, and got into a fist fight with them following an argument. Defendant and codefendant then went to the home of Defendant’s uncle and retrieved a rifle. When they could not figure out how to load it, they picked up a third individual, who loaded the rifle. The three then proceeded to the home of Cecilia Gonzales, who was the mother of Lorenzo Martinez and Victor Gonzales. Upon arriving, Defendant went to the house unarmed and knocked on the door while codefendant and the third person remained in the car with the rifle. As Defendant and Mrs. Gonzales were talking on the porch, codefendant went running into the house with the loaded rifle, looking for Lorenzo Martinez and Victor Gonzales. Mrs. Gonzales and her sister, Maria Martinez, who lived with her, got hysterical and started screaming. When Mrs. Gonzales started going towards the kitchen, codefendant shot her, killing her. He also shot and wounded Mrs. Martinez when she started running to the rear of the home. Defendant and codefendant then ran to the car outside and drove away.
{33} The indictment in pertinent part charged Defendant with first-degree murder by a deliberate killing or, in the alternative, first-degree murder in the commission or attempt to commit a felony. The jury was instructed to consider whether Defendant was guilty of first-degree murder by a deliberate killing. The jury was then told it could consider whether Defendant was guilty of second-degree murder “as an included offense of first-degree murder by a deliberate killing.” A separate instruction then told the jury it could consider whether Defendant was guilty of felony murder “which is first degree murder, as charged in the alternative” to deliberate first-degree murder. In a fourth separate instruction, the jury was told to consider whether Defendant was guilty of second-degree murder “as an included offense of felony murder.” Prior to its deliberations, the trial court orally instructed the jury that it was first to consider first-degree murder by a deliberate killing, then second-degree murder as an included offense of first-degree murder by a deliberate killing. After considering these offenses, the jury was told it could then consider whether Defendant was guilty of felony murder as the alternative to murder by a deliberate killing and then second-degree murder as an included offense of felony murder. These oral instructions on the sequence in which the jury was to consider the offenses mirrored the written instructions.
{34} The jury found Defendant not guilty of first-degree murder by a deliberate killing “as charged in Count 1,” not guilty of second-degree murder “as an included offense of first[-]degree murder by a deliberate killing as charged in Count 1,” not guilty of felony murder “as charged in the alternative to Count 1,” and guilty of second-degree murder
{35} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states, “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” and it applies to the states through the Fourteenth Amendment. U.S. Const, amend. V; Benton v. Maryland,
Under the doctrine of double jeopardy, a verdict of acquittal is given absolute protection to guarantee finality of that verdict because the defendant’s interest in such finality is at its zenith. Also, once an accused is actually, and in express terms, acquitted by a court, the finality of that judgment will not yield to any attempts to dilute it.
{36} Defendant was found not guilty of second-degree murder. Once that occurred, he was no longer subject to being convicted or punished for that same second-degree murder. Stated another way, once Defendant received an acquittal on second-degree murder, the double jeopardy clause prohibited him from being placed in jeopardy for that “same offense.” There is no question that there was only one first-degree murder charge and one second-degree murder charge as a lesser included offense to first-degree murder in this case. Although NMSA 1978, Section 30-2-1(A) (1994), sets forth alternative theories of first-degree murder (willful, deliberate, and premeditated killing; felony murder; and depraved mind murder), our Supreme Court has specifically held that these are not separate offenses, but alternative ways of committing the same offense. State v. Lucero,
{37} The jury determined that Defendant was not guilty of second-degree murder. The only reason the jury was then allowed to find Defendant guilty of the same degree murder was because of the structural flaw in the jury instructions. Cf. Rule 5-611(D) (setting
{38} In an unpublished opinion, our Supreme Court was presented with similar instructions. For one victim, the jury was presented with two theories of first-degree murder, followed in each instance by the lesser included offenses of second-degree murder and voluntary manslaughter. Montoya, No. 28,404, slip op. ¶23. Unlike this ease, the defendant was found guilty of both theories of first-degree murder, so the Supreme Court did not have to address his argument that only one “step-down” instruction, rather than two, should have been given. Id. ¶24. Nevertheless, the Supreme Court acknowledged there was possible error in the instructions in giving the jury the two “step-down” instructions “because of the theoretical possibility of inconsistent verdicts.” Id. In this case, the verdicts are not merely “inconsistent.” The jury was allowed to find Defendant guilty of second-degree murder after it found him not guilty of that identical second-degree murder. This violated double jeopardy.
{39} An acquittal is entitled to “ ‘special weight’” under double jeopardy analysis. See Vaughn,
{40} For the foregoing reasons, I respectfully dissent.