306 P.3d 426 (N.M. 2013), 32,279, State v. Montoya

Docket Nº:32,279.
Citation:306 P.3d 426, 2013 -NMSC- 020
Opinion Judge:DANIELS, Justice.
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Benjamin MONTOYA, Defendant-Appellant.
Attorney:Bennett J. Bauer, Acting Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant. Gary K. King, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Appellee.
Case Date:May 16, 2013
Court:Supreme Court of New Mexico

Page 426

306 P.3d 426 (N.M. 2013)

2013 -NMSC- 020

STATE of New Mexico, Plaintiff-Appellee,


Benjamin MONTOYA, Defendant-Appellant.

No. 32,279.

Supreme Court of New Mexico.

May 16, 2013

Page 427

[Copyrighted Material Omitted]

Page 428

Bennett J. Bauer, Acting Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Gary K. King, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Appellee.


DANIELS, Justice.

{1} Criminal prosecutions with multiple charges arising from a common fact situation often create difficult challenges, both in evaluating the offenses separately and in determining whether multiple punishments are permissible or appropriate under statutory and constitutional requirements. Among the issues we consider in this direct appeal are two matters of significant precedential value.

{2} One issue involves the interrelationship between the theoretically separate offenses of causing great bodily harm to a person by shooting at a motor vehicle and the homicide resulting from the penetration of the same bullet into the same person. We hold that current New Mexico jurisprudence precludes cumulative punishment for both crimes, and we therefore overrule State v. Gonzales, 113 N.M. 221, 824 P.2d 1023 (1992), and the cases that have followed it, including the divided opinions in State v. Dominguez, 2005 -NMSC- 001, 137 N.M. 1, 106 P.3d 563, and State v. Riley, 2010 -NMSC- 005, 147 N.M. 557, 226 P.3d 656.

{3} In addition, we hold that in a felony murder prosecution where the evidence will support a conviction for either second-degree murder or voluntary manslaughter, it is fundamental error for the felony murder essential elements jury instruction to omit the defining requirement that the accused did not act in the heat of passion as a result of the legally adequate provocation that would reduce murder to manslaughter.


A. Facts

{4} This case, like all too many that come before our courts, erupted from a toxic mixture of testosterone and guns. On the evening of July 15, 2007, Defendant Benjamin Montoya, his girlfriend, his seventeen-year-old brother, and several companions were gathered in the front yard of Defendant's family home. Defendant's parents were inside the house. A group of young men in a Cadillac automobile drove by, honking, yelling " Brewtown" (an Albuquerque gang name), and displaying gang signs. At least some of Defendant's group belonged to a rival gang, the Northside Locos.

{5} A few minutes later, the Cadillac returned and, along with a Ford Expedition and a third car, stopped at a nearby vacant lot. When the occupants continued yelling " Brewtown" and called Defendant's group over, Defendant and his friends started walking toward the vacant lot to confront approximately fifteen people who got out of the three stopped cars. Guns were pulled on both sides, and Defendant's brother was severely wounded by gunshots to his leg and abdomen. One of the Brewtown group also was shot.

{6} Defendant and his friends retreated to his home, dragging Defendant's brother to their driveway. The Brewtown group briefly chased Defendant and his friends before going back to their cars. The three cars initially left the area, but the Expedition turned around and came back toward Defendant's house. The person who had been shooting at Defendant and his friends was in the Expedition. When Defendant's mother saw the Expedition approach and saw gunfire coming out of the car, she yelled, " Here they come and they're still shooting."

{7} Defendant ran into his house and retrieved an AK-47 rifle. While his friends were trying to help his brother in the driveway and stop the bleeding from the gunshot wounds, Defendant ran outside and began shooting at the Expedition. The driver, victim Diego Delgado, was shot seven times and died of multiple gunshot wounds, including one shot to the back of the head.

B. Proceedings

{8} Among the nine felony counts on which Defendant was indicted, including shooting at

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a motor vehicle resulting in great bodily harm, was a homicide count charging a theory of deliberate first-degree murder of Diego Delgado or, in the alternative, a theory of first-degree felony murder, which was explained in the jury instructions as predicated on the felony of shooting at a motor vehicle.

{9} At the conclusion of the trial, the jurors were given elements instructions on deliberate first-degree murder, with step-down instructions to consider second-degree murder if they could not find first-degree murder and then to consider voluntary manslaughter if they could not find second-degree murder. After those instructions, the jurors were next instructed to consider a separate theory of felony murder committed " during the commission of Shooting at a Motor Vehicle." While the second-degree murder instruction submitted as a step-down alternative to deliberate first-degree murder included the essential provocation element that distinguishes murder from manslaughter, the felony murder instruction made no reference to the provocation element, and the jury was not instructed in any other fashion that lack of sufficient provocation was an element of felony murder.

{10} During its deliberations, the jury sent out a note to the court: " We need some clarification on whether we must find guilty or not guilty on felony murder if we have already decided on manslaughter." With the acquiescence of trial counsel, the court wrote a response that simply quoted the wording of an instruction previously given to the jury: " Each crime charged in the indictment should be considered separately." No further response was given to the jury's question.

{11} The jury ultimately returned verdicts finding Defendant guilty of both voluntary manslaughter, as a lesser included offense of first-degree deliberate murder, and first-degree felony murder based on the felony of shooting into a motor vehicle, in addition to a separate conviction of shooting at a motor vehicle resulting in great bodily harm. The district court vacated the voluntary manslaughter and shooting at a motor vehicle convictions, leaving only the first-degree felony murder conviction, as required by New Mexico double jeopardy jurisprudence establishing that cumulative punishment may not be imposed for both felony murder and its lesser included predicate felony, see State v. Frazier, 2007 -NMSC- 032, ¶¶ 1, 40, 142 N.M. 120, 164 P.3d 1; see also id. ¶ 72 (Chávez, J., specially concurring), and that multiple homicide convictions may not be imposed on a defendant for a single death, see State v. Santillanes, 2001 -NMSC- 018, ¶ 5, 130 N.M. 464, 27 P.3d 456.

{12} Raising a number of issues, Defendant appealed his convictions and life sentence directly to this Court. See N.M. Const. art. VI, § 2 (" Appeals from a judgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the supreme court." ); accord Rule 12-102(A)(1) NMRA.


A. Because Lack of Provocation Was an Essential Element That Distinguished Felony Murder from Voluntary Manslaughter, Failure to So Instruct the Jury Was Fundamental Error

{13} We first address whether Defendant's conviction for felony murder should be reversed because the felony murder essential elements jury instruction omitted any reference to the concept of legally sufficient provocation that distinguishes heat-of-passion voluntary manslaughter from cold-blooded second-degree murder.

{14} Because Defendant's trial counsel made no objection to the jury instruction, we review for fundamental error. See State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991) (explaining that the failure to instruct the jury on the essential elements of an offense may constitute fundamental error, even if the defendant failed to object to an inadequate instruction). Under fundamental error review, we will not reverse the jury verdict unless it is necessary to prevent a " miscarriage of justice." State v. Silva, 2008 -NMSC- 051, ¶ 13, 144 N.M. 815, 192 P.3d 1192 (internal quotation marks and citation omitted). In applying the fundamental error analysis to deficient jury instructions,

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we are required to reverse when the misinstruction leaves us with " no way of knowing whether the conviction was or was not based on the lack of the essential element." State v. Swick, 2012 -NMSC- 018, ¶¶ 46, 58, 279 P.3d 747 (holding that it was fundamental error to fail to instruct on the second-degree murder element of lack of sufficient provocation). In this case, it is highly likely that the felony murder guilty verdict was based on the lack of an essential element in the definitional jury instruction.

{15} Under New Mexico law, felony murder is a second-degree murder that is elevated to first-degree murder when the murder was committed during the commission or attempted commission of some other dangerous felony. See NMSA 1978, § 30-2-1(A)(2) (1994); Frazier, 2007 -NMSC- 032, ¶ 8, 142 N.M. 120, 164 P.3d 1 (observing that " in order to convict a defendant of felony murder, the State must prove that the defendant had a culpable state of mind sufficient to support a conviction for second-degree murder" ). Accordingly, a determination of whether an accused has committed felony murder necessarily requires a factfinder to determine whether the accused has committed second-degree murder; simply stated, if there is no second-degree murder, there can be no felony murder.

{16} The Legislature has textually defined second-degree murder as excluding killings committed in the heat of passion:

Unless he is...

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