State v. Varela
| Decision Date | 13 December 1999 |
| Docket Number | No. 24,669.,24,669. |
| Citation | 128 N.M. 454,993 P.2d 1280 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Mauricio "Archie" VARELA, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Phyllis H. Subin, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, for Appellant.
Hon. Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, for Appellee.
{1} Defendant appeals from a judgment and sentence entered following a jury trial at which he was convicted of felony murder, contrary to NMSA 1978, § 30-2-1(A)(2) (1963) and NMSA 1978, § 30-1-13 (1963), shooting at a dwelling, contrary to NMSA 1978, § 30-3-8 (1993) and NMSA 1978, § 30-1-3 (1963), and conspiracy, contrary to NMSA 1978, § 30-28-2 (1963). On appeal, Defendant claims that (1) the Legislature did not intend to punish causing death by shooting at a dwelling under Section 30-3-8; the trial court erred (2) in admitting the State's gang expert testimony and (3) in admitting impermissible impeachment and hearsay evidence; (4) his convictions for both felony murder and the predicate felony constitute a double jeopardy violation; (5) the trial court erred in enhancing his convictions for use of a firearm; (6) causing death by shooting at a dwelling is not a crime one can conspire to commit; (7) the trial court erred in submitting to the jury a second degree murder instruction that failed to incorporate accessory language; and (8) his convictions are not supported by sufficient evidence. We conclude the State properly relied on Section 30-3-8 in charging Defendant with felony murder, but that Defendant's right to be protected from double jeopardy was violated by his convictions for both felony murder and shooting at a dwelling. We also conclude that firearm enhancement on these facts is improper multiple punishment. Defendant's other claims provide no basis for reversal. We affirm his convictions for felony murder and conspiracy, vacate his conviction for shooting at a dwelling, and remand for resentencing.
{2} On July 31, 1996, just before midnight, someone fired several rounds into a mobile home in Silver City. After firing the shots, the persons responsible sped off in a car. One round hit Louis Martinez, the owner, as he slept. Louis Martinez got out of bed, turned on the light, and collapsed in an attempt to call 911. He died shortly thereafter.
{3} The police received a number of telephone tips, one of which led to Ruben Olivas. Olivas eventually admitted to having been in the car, identified Defendant as the driver, and identified two other young men, Jaime Perez and Michael Gonzales, as passengers. Defendant was twenty-seven years old. Olivas, Perez, and Gonzales were between the ages of fourteen and seventeen. Olivas, Perez, and Gonzales all admitted to participating in the incident. Defendant maintained he was home with family and friends the night of the shooting.
{4} The State argued that all four men were members of the Chinatown Locos (CTL), a local gang. CTL had been in conflict with the Folk gang, to which Nick Martinez, Louis Martinez's son, belonged. The State reasoned that the shooter fired into the trailer in response to an earlier confrontation between Nick Martinez and Gonzales. The three younger men admitted to being members of CTL; Defendant testified he was not. Four admitted members of CTL, Perez, and Gonzales testified that Defendant was not a member of CTL. A "gang expert" testified gang members often lie to law enforcement to protect other gang members.
{5} Olivas testified for the State that he, Defendant, Perez, and Gonzales were all members of CTL at the time of the shooting and that they had spent the evening of July 31 together, drinking beer and cruising. At some point, they picked up a shotgun and shells and went to Little Walnut picnic ground. There Defendant suggested a "jale" or job. The group drove to the Martinez home, fired four shots into the trailer, and then sped off.
{6} The State called Gonzales to testify as a hostile witness and questioned him about a prior written statement he had given to the police, which identified "Archie" as the driver. Gonzales denied any memory of writing the statement, but he said its content was accurate. At the conclusion of Gonzales' testimony, Defendant moved for a mistrial or, in the alternative, to strike the testimony on the grounds that the State called Gonzales merely to impeach him. The trial court denied the motion. When Detective Villegas, who allegedly witnessed the statement, subsequently testified, the trial court admitted the statement itself. Defendant objected on the ground it was inadmissible hearsay.
{7} Perez also testified for the State. He testified "some other guy," not Defendant, was driving the car. Perez admitted he shot the gun in order to get even with Nick Martinez. He also admitted he had previously told the police the driver was Archie Varela, but he insisted the earlier statement was a result of police harassment.
{8} The trial court instructed the jury, based on UJI 14-341 NMRA 1999, on the following felony as predicate for felony murder:
There was no objection.
{9} The trial court instructed the jury on felony murder, depraved mind murder, and second degree murder. The jury found Defendant guilty of accessory to first degree felony murder, accessory to shooting at a dwelling, and conspiracy to commit shooting at a dwelling. The jury also found that a firearm was used in the commission of second degree murder and shooting at a dwelling. Defendant was sentenced to life imprisonment plus eighteen years which included two, one-year firearm enhancements and two enhancements pursuant to the Habitual Offender Act. See NMSA 1978, § 31-18-17(D) (1993).
{10} NMSA 1978, § 30-3-8(A) (1993) provides:
Shooting at a dwelling or occupied building consists of willfully discharging a firearm at a dwelling or occupied building. Whoever commits shooting at a dwelling or occupied building that does not result in great bodily harm to another person is guilty of a fourth degree felony. Whoever commits shooting at a dwelling or occupied building that results in injury to another person is guilty of a third degree felony. Whoever commits shooting at a dwelling or occupied building that results in great bodily harm to another person is guilty of a second degree felony.
Defendant contends that Section 30-3-8(A), properly construed, does not include a shooting at a dwelling that results in death. Section 30-3-8(A) does not mention "causing death" and death is not included as a type of "great bodily harm" as that term is defined by NMSA 1978, § 30-1-12(A) (1963). He argues the crime for which he was convicted was intended to be prosecuted only as a homicide rather than as a felony or as felony murder. Defendant's arguments raise questions of law, which we review de novo. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995)
.
habeas corpus relief granted on other grounds by Clark v. Tansy, 118 N.M. 486, 492-93, 882 P.2d 527, 533-34 (1994)). We agree with Defendant that it would be fundamental error to substitute "death" for "great bodily harm" if the legislature did not intend for a shooting at a dwelling that results in death to be prosecuted under Section 30-3-8. Nevertheless, we do not believe any error occurred.
{12} Section 30-1-12(A) defines great bodily harm as "an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body." The trial court instructed the jury pursuant to a uniform jury instruction promulgated by this Court. See UJI 14-341 NMRA 1999. Defendant challenges the jury instruction's equation of "death" and "great bodily harm." He argues the Legislature did not equate the two terms and the jury instruction incorrectly stated the law by authorizing a conviction under Section 30-3-8 for "causing death."
{13} Defendant's argument requires a strained construction of Section 30-3-8.
The main goal of statutory construction is to give effect to the intent of the legislature. To do this, we look to the object the legislature sought to accomplish and the wrong it sought to remedy. The words of a statute ... should be given their ordinary meaning, absent clear and express legislative intention to the contrary....
Rowell, 121 N.M. at 114,908 P.2d at 1382 (citations and internal quotation marks omitted). We note that the first sentence of Section 30-3-8 appears to prohibit any shooting at a dwelling or occupied building. This sentence indicates that the wrong the legislature sought to remedy is any...
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