1997 -NMSC- 23, State v. McGruder

• Citation: 123 N.M. 302,940 P.2d 150,1997 NMSC 23
• Decision Date: 05 May 1997
• Docket Number: No. 23002,23002
• Court: Supreme Court of New Mexico
• Parties: , 1997 -NMSC- 23 STATE of New Mexico, Plaintiff-Appellee, v. Paul E. McGRUDER, Defendant-Appellant.

Page 150

940 P.2d 150

123 N.M. 302, 1997 -NMSC- 23

STATE of New Mexico, Plaintiff-Appellee, v. Paul E. McGRUDER, Defendant-Appellant.

No. 23002.

Supreme Court of New Mexico.

May 5, 1997.

[123 N.M. 303] T. Glenn Ellington, Chief Public Defender, Sue A. Herrmann, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

Tom Udall, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

OPINION

MINZNER, Justice.

¶1 Defendant Paul McGruder appeals from a judgment and sentence of life imprisonment plus ten years following a jury trial at which he was convicted of a number of offenses, including felony murder. This Court has jurisdiction of his direct appeal under Rule 12-102(A)(1) NMRA 1997 (direct appeal from life sentence). McGruder argues on appeal that the district court erred by (1) denying his request for a lesser included instruction on second degree murder; (2) sentencing him for both armed robbery and unlawful taking of a vehicle; and (3) permitting testimony of a prior identification on the ground that the photo array was impermissibly suggestive; he further argues that (4) his conviction of child abuse was not supported by substantial evidence. We affirm.

I.

¶2 Facts. On the afternoon of April 24, 1994, Defendant McGruder indicated to an acquaintance, Robert Witt, that he was interested in purchasing a truck that was parked at a nearby apartment complex. McGruder had heard that the truck had a "for sale" sign and asked Witt and another acquaintance to get the phone number from the sign. McGruder then called that phone number and left a message that he wanted the truck and could pay $700 for it. Later that afternoon, McGruder and Witt went to the apartment complex parking lot to see if they could locate the truck's owner. There they met Kathie Brazfield, Jeff Villanueva, and Brazfield's two-year-old daughter. After Brazfield identified herself as the owner of the truck, she and her daughter returned to the apartment while Villanueva accompanied McGruder on a test drive.

¶3 Villanueva and McGruder returned from the test drive and parked the truck near the window of Brazfield's apartment. When Brazfield saw they were having difficulty opening the hood of the truck, she went out to open the hood for them. McGruder told her that he wanted to buy the truck, then shook hands with Villanueva and left. When Villanueva and Brazfield returned to her apartment, he told her that during the test drive he had been afraid McGruder was going to take the truck forcibly because McGruder had displayed a gun.

¶4 Later that same evening, Brazfield heard a knock on the door of her apartment. At the time she was dressing her daughter after a bath. Unable to answer the door, she asked Villanueva, "Who is it?" and he answered, "That black guy." Brazfield understood the answer as identifying the man with whom Villanueva had taken the test drive earlier in the day. Villanueva answered the door. Brazfield heard the door open, and she heard a loud bang a few seconds later. By then she and her daughter were in the bedroom.

¶5 McGruder came into the bedroom. Brazfield recognized him as the same man with whom Villanueva had driven earlier that day. McGruder pointed a gun at her, from a distance of about six feet, and demanded the keys to the truck. She had difficulty locating the keys and, while she was looking, going from room to room, McGruder continued to hold the gun and point it at her. She first found Villanueva's car keys. She offered these, but McGruder responded that he did not want the car, just the truck. After a few minutes, she found the keys to the truck. As she gave them to McGruder, he held the gun to her temple, threatening to kill her. She pleaded with him to let her live because of her daughter. In her testimony Brazfield described her daughter as "behind" her, although not "right behind her." She said her daughter was crying.

¶6 McGruder began to walk out of the apartment, but he returned. He again held a gun to Brazfield's temple and again threatened to kill her. He also said that if she "said anything" members of his gang would "get her." McGruder left the apartment without physically injuring either Brazfield or her daughter. However, he kicked Villanueva's body in the stomach and called him a "punk." Brazfield also testified that she thought McGruder took a wallet out of Villanueva's pocket but dropped it as he left the apartment.

¶7 Villanueva was killed by a single gunshot wound to the forehead from a distance of less than two feet. McGruder was found later that evening hiding in a closet in Robert Witt's apartment. Also found in the closet under some clothes was a gun, later shown to be the murder weapon.

¶8 Brazfield described her assailant to police as a black male with his hair done in braids. The next day, she identified McGruder from a photo array a detective brought to her. The photo array consisted of several photos of African-American males. All of them appeared to be darker-skinned than McGruder and he was the only one whose hair was braided. At trial Brazfield again identified McGruder. The State also introduced testimony that when Brazfield identified McGruder in the array, she appeared certain of her identification, and that she identified him after only a few seconds.

¶9 At the close of trial, McGruder requested a lesser included offense instruction on second degree murder. The trial court denied his request, stating that there was no view of the evidence that would support a verdict of second degree murder. The court charged the jury on first degree, deliberate-intent murder as well as on felony murder. The instruction on felony murder, as given in this case, informed the jury that, in order to find the defendant guilty of felony murder, the State was required to prove the elements of the crime beyond a reasonable doubt, including:

1. The defendant committed the crime of armed robbery, attempt to commit armed robbery or aggravated burglary under circumstances or in a manner dangerous to human life;

2. The defendant caused the death of Jeff Villanueva during the commission of armed robbery, attempt to commit armed robbery or aggravated burglary;

....

The jury was charged on attempt to commit armed robbery based on the evidence of attempted theft of cash from Villanueva's wallet, on armed robbery based on the evidence of the taking of Brazfield's keys, and on aggravated burglary based on several alternatives all arising out of the evidence of entry into Brazfield's apartment. The various alternatives combined the elements of intent to commit theft, the intent to commit murder, entry while armed with a deadly weapon, and commission of a battery while entering or leaving, into four different but similar charges.

¶10 The jury convicted McGruder of felony murder, aggravated burglary, armed robbery, attempted armed robbery, bribery of a witness, aggravated assault, unlawful taking of a vehicle, tampering with evidence and child abuse. The trial judge initially sentenced him to life plus twenty-seven years, but on motion to reconsider the sentence, the judge imposed the sentences for aggravated burglary, armed robbery and attempted armed robbery concurrently with the felony murder charge. On appeal, McGruder argues that he is entitled to a new trial both because he was denied a lesser included instruction on second degree murder and because of the prejudicial nature of the trial identification arising out of the photo array. He also argues that his sentences for both unlawful taking of a motor vehicle and armed robbery violated his right to be free from double jeopardy, and he asks that we order the district court to vacate his sentence for unlawful taking. Finally, he argues that his conviction for child abuse should be reversed and the cause remanded with directions to dismiss the charge.

II.

¶11 Lesser included offense instruction on second degree murder. In determining whether the trial court properly refused the instruction on second degree murder, we must determine whether the evidence supported a conviction for second degree murder. Cf. State v. Reynolds, 98 N.M. 527, 529-30, 650 P.2d 811, 813-14 (1982) (reversing conviction of first degree murder for failure to instruct on voluntary manslaughter). If the evidence would support a conviction for second degree murder, Defendant was entitled to have the jury instructed on that theory as a lesser included offense. State v. Southerland, 100 N.M. 591, 594, 673 P.2d 1324, 1327 (Ct.App.1983), overruled on other grounds, State v. Orosco, 113 N.M. 780, 783, 833 P.2d 1146, 1149 (1992). "Instructions on lesser included offenses should only be given when there is evidence that the lesser offense is the highest degree of the crime committed." Southerland, 100 N.M. at 596, 673 P.2d at 1329.

¶12 In this case, the trial court concluded that the evidence did not support a determination that second degree murder was the highest degree of offense committed. The district court believed that the issue was identity and that the evidence did not present the jury with a question on any element that distinguished felony murder from second degree murder. We agree with the trial court's conclusion.

¶13 In reviewing the defendant's entitlement, we "must be able to articulate an analysis the jury might have used to determine guilt, and that analysis must be reasonable." State v. Sizemore, 115 N.M. 753, 758, 858 P.2d 420, 425 (Ct.App.1993). Defendant offers two scenarios by which a jury might reasonably find him guilty of second-degree murder. He argues that the evidence did not show what happened in the seconds between the time Villanueva opened the door and Brazfield heard the gunshot. Therefore, he reasons, the jury was entitled to infer that a disagreement arose, McGruder fired in anger, and McGruder then decided to take the keys to the truck in order to escape. Alternatively, he argues that...