STATE OF NEW MEXICO v. GUADALUPE MURILLO
NO. 32,708
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
January 21, 2015
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM
for Appellee
The Appellate Law Office of Scott M. Davidson
Scott M. Davidson
Albuquerque, NM
for Appellant
OPINION
WECHSLER, Judge.
{1} Defendant Guadalupe Murillo appeals his convictions of two counts of aggravated battery with a deadly weapon, contrary to
BACKGROUND
{2} Defendant used a switchblade knife to stab two customers at the Wal-Mart in Clovis, New Mexico, where he worked in the tire and lube department. The two victims, Carlos Lopez and Celestino Owen (Owen), were part of a group of shoppers that included Anna Owen, who was Carlos Lopez‘s sister and Owen‘s wife, Owen‘s twelve year-old brother, and the three Owen children, ages six years, two years, and eight months. Conflicting testimony was presented as to whether the victims and their family members went to the store to purchase supplies for an outing or with the specific intention to attack Defendant or his brother-in-law and co-worker, Daniel Lopez. In any case, there was prior animosity between the parties, and the encounter led to an altercation between Defendant and Carlos Lopez in the grocery aisle. Conflicting testimony was presented as to who initiated the fight. Defendant used a switchblade knife to stab Carlos Lopez multiple times, while Carlos Lopez fought without a weapon. Owen, also weaponless, was stabbed in the neck by Defendant while trying to break up the fight.
CONSTITUTIONALITY OF SECTION 30-7-8
{3} Defendant did not raise his three facial challenges to
{4} In evaluating a facial challenge to the constitutionality of a statute, we examine whether there is any potential set of facts to which the statute can be constitutionally applied. Bounds v. State ex rel. D‘Antonio, 2011-NMCA-011, ¶ 34, 149 N.M. 484, 252 P.3d 708, aff‘d 2013-NMSC-037, 306 P.3d 457. Put another way, “we consider only the text of the statute itself, not its application[.]” Bounds, 2013-NMSC-037, ¶ 14 (alteration, internal quotation marks, and citation omitted). We do not question the wisdom, policy, or justness of an act of the
Article II, Section 6 Challenge
{5} Defendant argues that
{6}
No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.
The ban on possession of switchblade knives pursuant to
{7} Defendant does not argue for a particular level of scrutiny that should apply to the challenged legislation in his argument on this issue. Our cases that have addressed a challenge to a statute under
{8} The United States Supreme Court has declared that the right to keep and bear arms for self-defense is a fundamental right but abstained from specifying standards of scrutiny that apply to challenges under that right. McDonald v. City of Chicago, 561 U.S. 742, 790-91 (2010). That said, the Court has rejected rational basis review as an overly deferential standard. District of Columbia v. Heller (Heller I), 554 U.S. 570, 628 n.27 (2008); see also United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010) (“[T]he [Supreme] Court indicated . . . that the rational basis test is not appropriate for assessing Second Amendment challenges to federal laws.“); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1256 (D.C. Cir. 2011) (”Heller [I] clearly does reject any kind of ‘rational basis’ or reasonableness test[.]“). The Court also has identified certain longstanding regulatory measures as “presumptively lawful[,]” offering an explicitly non-exhaustive list. Heller I, 554 U.S. at 626-627, 627 n.26. The lack of specific guidance from the Court as to the appropriate analytical framework for a right to bear arms challenge left a void, or, as the
{9} Given only general direction by the Supreme Court, federal circuits have developed a consensus to the extent that some form of intermediate scrutiny is appropriate. See, e.g., Reese, 627 F.3d at 798, 802 (applying intermediate scrutiny to analyze a Second Amendment challenge to a federal statute that prohibited possession of a firearm while subject to a domestic protection order); Heller II, 670 F.3d at 1247, 1256-58, 1262 (applying intermediate scrutiny to District of Columbia laws requiring registration of firearms, prohibiting assault weapons, and prohibiting magazines that hold more than ten rounds); United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010) (applying intermediate scrutiny to the prohibition of unmarked firearms); Skoien, 614 F.3d at 639, 641-42 (applying intermediate scrutiny to federal statute prohibiting firearm possession by persons convicted of domestic violence); see also Allen Rostron, Justice Breyer‘s Triumph in the Third Battle Over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 752 (2012) (noting consensus “emerging from the confusion and uncertainty” that intermediate scrutiny is the correct standard of review for Second Amendment claims). We have found only one court reviewing a right to bear arms challenge that has based its holding on a strict scrutiny analysis.1 See Rostron, supra, at 753 (writing prior to the Sixth Circuit decision in 2014 that applied strict scrutiny under a right to bear arms challenge, one commentator wrote that “courts . . . have been remarkably unanimous in rejecting the strict scrutiny standard of review.“).
{10} We are not persuaded that we should depart from the post-Heller I consensus for intermediate scrutiny to evaluate the statute in question. Viewed from any approach, the switchblade statute is a modest infringement. Because
{11} Defendant argues that the New Mexico Constitution affords more protection under
{12} Defendant argues that we should follow the reasoning of the Oregon Supreme Court, that, in State v. Delgado, invalidated an Oregon statute that prohibited possession of switchblade knives on the basis that the statute violated the right to bear arms guaranteed by the
{13} We turn now to an analysis of
{14} Defendant points out that
{15} Defendant also argues that the Legislature acted impermissibly because, in enacting
{16} We are not satisfied beyond a reasonable doubt that the Legislature violated
Equal Protection
{17} Defendant also contends that
Substantive Due Process
{18} Both the
{19} The
JURY INSTRUCTIONS
{20} Defendant contends that he was denied due process because he was convicted without the jury having found all elements necessary to constitute aggravated battery with a deadly weapon. He argues that the jury should have been instructed that “[a] knife is a deadly weapon only if you find that a knife, when used as a weapon, could cause death or great bodily harm.” Defendant further argues that he requested this instruction and that it conforms with the appropriate instruction for aggravated battery with a deadly weapon. See
{21} Defendant‘s requested instruction is, indeed, part of
OPENING STATEMENT
{22} Defendant argues that his trial was unfair and his convictions should be overturned because he was prevented from making any reference to self-defense in his opening statement. We review the decision of the district court for abuse of discretion. See State v. Reynolds, 1990-NMCA-122, ¶ 11, 111 N.M. 263, 804 P.2d 1082 (stating that the latitude of counsel at opening argument is subject to the discretion of the district court and appellate courts review for abuse of that discretion). A district court abuses its discretion when a ruling is “clearly untenable or not justified by reason.” State v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citation omitted).
{23} Defendant has not provided any citation to the record, and we found no reference to a ruling by the district court, that Defendant
{24} Although Defendant‘s assertion that the court prevented all reference to self-defense is too broad, the court did prevent Defendant from referring in his opening statement to an incident that supposedly occurred between one of the victims, Carlos Lopez, and one of the defense witnesses, Daniel Lopez, and to photographs that purportedly showed injuries to Daniel Lopez caused by Carlos Lopez. Defendant wanted to introduce the photographs to show that he was fearful of Carlos Lopez and acted in self-defense when he stabbed Carlos Lopez. Defendant has not made any argument or cited to any authority that the ruling of the district court that prevented mention of this incident or using the photographs in his opening statement was an abuse of discretion. In fact, Defendant did not even mention this ruling in particular in his briefing to this Court. We will not construct Defendant‘s argument for him. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that we will not develop an unclear argument on behalf of a party). The district court did not abuse its discretion in so limiting Defendant‘s opening argument.
CONCLUSION
{25} For the foregoing reasons, we affirm the judgment of the district court and uphold
{26} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
MICHAEL E. VIGIL, Chief Judge
LINDA M. VANZI, Judge