1997 -NMSC- 44, State v. Salazar

• Decision Date: 03 September 1997
• Docket Number: No. 22891,22891
• Parties: , 1997 -NMSC- 44 STATE of New Mexico, Plaintiff-Appellee, v. Dean SALAZAR, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 996

945 P.2d 996

123 N.M. 778, 1997 -NMSC- 44

STATE of New Mexico, Plaintiff-Appellee, v. Dean SALAZAR, Defendant-Appellant.

No. 22891.

Supreme Court of New Mexico.

Sept. 3, 1997.

[123 N.M. 782] Rita LaLumia, Santa Fe, for Petitioner.

Tom Udall, Attorney General, Bill Primm, Assistant Attorney General, Santa Fe, for Respondent.

OPINION

BACA, Justice.

¶1 Pursuant to Rule 12-102 NMRA 1997, the Defendant-Appellant Dean Salazar ("Defendant") seeks review of a jury verdict convicting him of first degree murder, shooting into an occupied vehicle, and felon in possession of a firearm. He was sentenced to life imprisonment plus ten and one half years. The Defendant died in prison while the appeal of his conviction was pending before this Court.

¶2 As a threshold matter, we consider whether the Defendant's death requires abatement of all proceedings had in this prosecution from its inception ("ab initio "). Assuming no abatement is required, we are asked to examine whether the trial court correctly instructed on jury unanimity requirements and lesser included offenses. Last, we consider whether the trial court's evidentiary rulings violated the Defendant's rights.

¶3 This Court declines to abate this case ab initio, upholding the conviction and concluding that no error occurred warranting relief.

I.

¶4 In the early morning of November 20, 1994, the Defendant shot and killed Josephine Manzanares ("Manzanares") while she was driving on Llano Road in Santa Cruz, New Mexico. Prior to her death, Manzanares had been involved in a relationship with the Defendant for approximately eight years. The relationship was a troubled one, characterized by hostility and allegations of drug abuse. Manzanares and the Defendant had two children together, Willy and Anthony, who were four and five years old, respectively, at the time of the shooting. The children lived with Manzanares and her parents, and the Defendant's access to the children often had been an issue of contention in the relationship.

¶5 The defense and prosecution presented very different versions of the facts surrounding the shooting. The Defendant testified at trial and alleged the following facts. After the Defendant spent the night of November 19, 1994, consuming alcohol and drugs, he encountered Manzanares on Llano Road on the morning of November 20th. A dispute occurred between them regarding drugs, their relationship, and the Defendant's access to the children. After the dispute, Manzanares left the area in her car, driving down Llano Road. The Defendant followed in another vehicle. The two cars eventually were side by side, driving on Llano Road. Manzanares yelled, waved her hands at the Defendant, and veered her car at his vehicle several times. Then, Manzanares leaned over while driving as if she was reaching for something. The Defendant believed that she was reaching for a gun, and he responded by grabbing a pistol that he had with him in the car. He then held it out the window to show Manzanares the weapon so that she would "back off." At that point, the Defendant's weapon accidentally discharged, shooting Manzanares in the neck and killing her.

¶6 The Defendant also alleged that he did not realize that the bullet had hit Manzanares or that his sons, Willy and Anthony, as well as Manzanares' five-year-old nephew, Eddie, were in her car at the time. After the gun discharged, Manzanares' car went to the side of the road, but the Defendant did not stop because he was afraid Manzanares or her family would call the police. As a convicted felon, the Defendant knew that he was not permitted to possess a gun. Instead, the Defendant went to his brother's house where he was later apprehended by police.

¶7 The State presented evidence suggesting a different series of events than that offered by the Defendant. Anthony, the Defendant's son, testified that he was a passenger in Manzanares' car at the time of the incident. He stated that the Defendant followed Manzanares' vehicle down Llano, and although Manzanares attempted to drive fast, a truck in the road forced her to slow her car. Anthony further testified that during the pursuit, he raised his hand to wave at the Defendant and the Defendant waved back to him. Anthony concluded by testifying that the Defendant pulled alongside Manzanares' car and "point[ed] the gun to my mom and shot her through the neck."

¶8 Eddie, who was also a passenger in Manzanares' car, testified that Manzanares had refused to talk to the Defendant and drove away with Eddie and the other boys in her car. Eddie did not see Manzanares with a gun, and he stated that she did not veer her car at the Defendant's vehicle as she drove away. He also testified that the Defendant shot Manzanares and then left the scene.

¶9 After the incident, Manzanares' car hit a wall near the home of Fidencio Trujillo. Trujillo testified that when he went to the crash scene, the boys said, "My dad shot my mom." Similarly, one of the children later told a police officer on the scene, "My daddy shot my mom." When asked who his father was, the child responded "Dean Salazar." Later that same day, Sgt. Branch of the Espanola Police Department spoke with the Defendant's son, Anthony, and Manzanares' nephew, Eddie. Branch videotaped these interviews with the two boys in which he asked them several questions regarding the day's events and the role of the Defendant.

¶10 The Defendant was unconscious and unresponsive when he was located by the Espannola Police Department and taken into custody. He was admitted to Espan[ ]nola Hospital for treatment of a drug-induced coma. The morning following the arrest, Sgt. Branch went to the hospital, met with the Defendant, and advised him of his Miranda rights. The Defendant invoked his right to counsel. Branch left the room, but Branch testified that the Defendant called him back later because the Defendant wanted to "tell his side of the story." Branch stated that he then re-Mirandized the Defendant before proceeding with questions. During this questioning, the Defendant made incriminating statements involving the shooting of Manzanares.

¶11 Branch recorded this second encounter, but it is unclear whether the entire interview was captured on tape. The Defendant alleges that Branch failed to inform him of his right to remain silent, and the tape does not include the issuance of that warning. However, Branch testified that he gave that particular warning before turning on the tape recorder. Branch did not obtain an express waiver of the Defendant's Fifth or Sixth Amendment rights, either verbally or on a pre-printed Waiver of Rights form.

¶12 Even if adequate warnings were given, the Defendant contends that the drugs he took made it impossible for him to knowingly, intelligently, or voluntarily waive his rights. Conflicting expert testimony was given as to the Defendant's level of intoxication while in the hospital and the effect of the drugs on the Defendant's capacity to waive his rights. The trial court found that the Defendant's statements were made after advice of rights, and with a knowing, intelligent, and voluntary waiver of those rights.

¶13 Also during trial, the State re-called Branch to the stand for the purpose of offering into evidence the videotapes of the boys' interviews from the day of the shooting. Over the Defendant's hearsay objection, the State argued that the tapes were admissible to rebut a defense suggestion of recent fabrication or improper motive or influence over the children by the family of Manzanares. The trial court admitted the videotapes and played them for the jury at trial.

¶14 At the trial's conclusion, the judge instructed the jury on two theories of first degree murder: deliberate murder and depraved mind murder. The defense requested jury instructions for involuntary and voluntary manslaughter. The judge refused to give the requested instructions. During deliberations, the jury asked the judge whether unanimity was required as to a theory of first degree murder. He answered that the jury need only be unanimous as to a verdict for first degree murder.

¶15 The jury convicted the Defendant of first degree murder using a general verdict form which did not indicate whether deliberate murder or depraved mind murder was the underlying theory of conviction. The jury also convicted the Defendant of shooting into an occupied vehicle and felon in possession of a firearm under NMSA 1978, Section 30-3-8(B) (1993) and Section 30-7-16 (1987). He was acquitted on three counts of child abuse. This appeal of the first degree murder conviction followed.

¶16 Subsequently, on or about February 7, 1997, the Defendant died in prison while this appeal was pending. The Defendant's family decided not to move this Court for substitution of the Defendant under Rule 12-301(A) NMRA 1997. The Defendant's counsel has since moved for abatement of all proceedings had in this prosecution from its inception.

¶17 We review five issues on appeal: (1) whether the Defendant's death while his appeal was pending requires abatement of criminal proceedings in this case to their inception, (2) whether the trial court erred in instructing the jury that it need not be unanimous on one theory of first degree murder where alternative theories of first degree murder were submitted to the jury; (3) whether it was error for the court to refuse to give jury instructions on voluntary and involuntary manslaughter; (4) whether the trial court erred in not suppressing the Defendant's post-arrest statements; and (5) whether it was error to admit videotaped statements of the children at trial.

¶18 First, we hold that abatement ab initio is not required in this case. Second, we affirm the jury's verdict, concluding that there is no requirement of jury unanimity on a single theory of first degree murder where alternative theories of first degree murder are submitted and where substantial evidence exists in the record...