State v. Escamilla

• Decision Date: 17 August 1988
• Docket Number: No. 16849,16849
• Citation: 1988 NMSC 66,107 N.M. 510,760 P.2d 1276
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Melvin ESCAMILLA, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1276

760 P.2d 1276

107 N.M. 510

STATE of New Mexico, Plaintiff-Appellee, v. Melvin ESCAMILLA, Defendant-Appellant.

No. 16849.

Supreme Court of New Mexico.

Aug. 17, 1988.

As Amended on Denial of Rehearing Sept. 22, 1988.

Jacquelyn Robins, Chief Public Defender, Deborah A. Moll, Asst. Appellant Defender, Santa Fe, for defendant-appellant.

Grant L. Foutz, Gallup, Trial Counsel.

Hal Stratton, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

RANSOM, Justice.

Melvin Escamilla appeals his convictions for first degree murder of Regina Dahozy, attempted first degree murder of Jimmy Samuels, aggravated burglary, and larceny. His claim that the trial court erred in failing to submit to the jury his tendered instruction on aggravated battery of Samuels requires a recapitulation of the facts relied upon by defendant.

For two years, defendant had lived in harmony with Dahozy. He was described as thoughtful and conscientious, a good worker, and not the type to get into trouble with the law. On Sunday, May 5, 1986, however, following an argument with Dahozy, he moved out of the apartment they shared with their son and Dahozy's mother and brother at 310 East Logan, Gallup, New Mexico.

During the evening of May 7, defendant visited his good friend Samuels who lived at 310 1/2 East Logan. From Samuels, defendant obtained five ephedrine pills, a stimulant available in over-the-counter drug products. Following defendant's departure, Samuels received a call from Dahozy asking for a ride home from work. Samuels left his apartment at about 10:30 p.m. to pick up Dahozy at her place of employment. In the meantime, at the apartment of his friend Gregory Ball, defendant learned from Ball that Dahozy had been seeing Samuels. At that disclosure, defendant put his head in his hands, began to cry and told Ball that he was "going to get him." He returned to Samuels' apartment and took a rifle and bullets that had been on a chair in the living room during defendant's earlier visit.

Shortly after defendant's departure, Ball left his apartment in search of defendant. At about 11:30 p.m., Ball located defendant on the roof of the apartment complex at 310 East Logan. Defendant told Ball that he was going "to get" Samuels. Defendant's conversation with Ball was not coherent and he appeared drugged. Thinking that defendant was going to shoot at Samuels and Dahozy with a BB gun, Ball walked up the street looking for Dahozy and Samuels in hopes of warning them.

Upon their return to the apartment complex, Samuels heard what he thought was a "pop" from the car's heater and understood Dahozy to say "ouch." He then realized that defendant was shooting at them from the roof. Samuels put himself over Dahozy while defendant fired about five shots at the car. Samuels got out of the car, ran toward the defendant and stood by the stairs. Samuels then ran away from the apartment complex and down the street. Dahozy left the car and started to run down the street. Defendant left the roof in pursuit and continued to take aim and to shoot at Dahozy numerous times.

Dahozy was taken to the hospital where she was pronounced dead on arrival. After an autopsy, it was determined that Dahozy had small wounds in her cheek, neck, and shoulder due to windshield fragments, that she had other non-fatal gunshot wounds in the arm and abdomen, and that she had suffered a single fatal bullet wound to the lungs. Samuels walked into the hospital emergency room and was treated by the physician on duty. Samuels had not realized he had been wounded until the police told him that he was bleeding. The emergency room physician bandaged several gunshot wounds and Samuels was discharged a day later in good condition. The physician testified that although Samuels' wounds were potentially life-threatening they did not, in actuality, pose any such danger to Samuels.

Defendant surrendered to police at his aunt's home without incident. In defendant's car was found a rifle and a bag upon which a suicide note had been written by defendant to his son. The "bag" had been alluded to by defendant in his earlier conversation with Ball.

Aggravated Battery.

Defendant tendered to the trial court an instruction on aggravated battery which in essence required the State to prove that defendant intended to injure Samuels. The tender of this lesser included offense to the attempted murder of Samuels was refused by the trial court. ¹ In support of his claim of error, defendant argues that, because his shots through the window of the car were deflected by the glass, they were less likely to cause death or great bodily harm than if they had been fired when Samuels was outside the protection of the car. He points to the testimony of the forensic pathologist who observed that the wounds inflicted upon Dahozy while in the car were less significant because the bullets had passed through the glass. When Samuels left the car and stood by the apartment he was not hit. He was able to run down the street without injury even though defendant was on a roof and presumably able to survey a wide area. Once Samuels left the car, defendant did not pursue him further, but rather turned his attention solely upon Dahozy. Defendant argues this evidence would support a conclusion that defendant had not intended to kill Samuels but had, if anything, intended only to injure him.

The test for determining whether a crime is a lesser included offense has been set out recently in State v. Hernandez, 104 N.M. 268, 720 P.2d 303 (Ct.App.), cert. denied, 104 N.M. 201, 718 P.2d 1349 (1986):

[T]o permit an instruction to a lesser included offense, there must be evidence tending to establish the lesser offense * * *. Second, to permit an instruction on a lesser included offense, there must be some view of the evidence which could sustain a finding that the lesser offense was the highest degree of the crime committed.

Id. at 276, 720 P.2d at 311 (citing State v. Fish, 102 N.M. 775, 779, 701 P.2d 374, 378 (Ct.App.1985)); see also State v. Southerland, 100 N.M. 591, 673 P.2d 1324 (Ct.App.), cert. denied, 100 N.M. 689, 675 P.2d 421 (1983).

Defendant relies upon the above-described evidence as tending to establish the lesser offense and, citing State v. Omar-Muhammad, 102 N.M. 274, 694 P.2d 922 (1985), argues that it is error for a trial court not to submit an instruction on a lesser included offense when there is some evidence introduced tending to reduce the offense. However, defendant does not consider the second prong of the Hernandez test which has been stated to be "whether the evidence showed anything less than intent to inflict an injury which created a high probability of death." Southerland, 100 N.M. at 596, 673 P.2d at 1329. In the case of defendant, the evidence of several potentially life-threatening gunshot wounds showed nothing less than intent to inflict an injury which created a high probability of death.

But, what is determinative, the jury found that defendant had a deliberate intention to take the life of Samuels, not that he simply had knowledge that his acts created a strong probability of great bodily harm. The jury having failed to find the lesser included offense of attempted murder in the second degree, we deem the failure to instruct on aggravated battery to have been harmless. See SCRA 1986, 5-113(A) (error in any ruling by the court is not grounds for setting aside a verdict unless inconsistent with substantial justice); accord Christie v. State, 580 P.2d 310, 320 (Alaska 1978).

Mandatory Life Imprisonment as Cruel and Unusual Punishment.

Defendant challenges as unconstitutional NMSA 1978, Section 31-20A-1 (Repl.Pamp.1987), that mandates life imprisonment upon the conviction of first degree murder where the death penalty is not sought. This Court has held the mandatory imposition of a life sentence for an habitual offender convicted of commercial burglary does not constitute cruel and unusual punishment. State v. Archibeque, 95 N.M. 411, 622 P.2d 1031 (1981). We find no good reason to hold otherwise in the instant case. In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the Supreme Court adopted a proportionality analysis of objective factors bearing upon cruel and unusual punishment. These factors include the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for commission of the same crime in other jurisdictions. 463 U.S. at 292, 103 S.Ct. at 3010. Solem was acknowledged in State v. Burdex, 100 N.M. 197, 668 P.2d 313 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983), wherein it was appropriately observed that the length of sentence is purely a matter of legislative prerogative, unless the statutory sentence is disproportionate to the offense involved. Id. at 202, 668 P.2d at 318. We find no disproportionality. Intentional murder warrants the harshest of penalties, and thirty years is mandated uniformly in first degree murder cases where death is not imposed. See NMSA 1986, Sec. 31-21-10 (Repl.Pamp.1987) (defendant sentenced to life imprisonment as result of commission of capital felony becomes eligible for parole hearing after serving thirty years). It is uncontested that this mandatory sentence is not disproportionately harsh when compared to those in other states.

Jury Irregularity.

Background and Issues. During jury deliberation, defense counsel was informed that a member of the jury did not understand English. The juror in question had given no indication during voir dire that he was unable to understand English. After the jury rendered its verdict and was excused, defense counsel moved for a mistrial. Claiming error in the court's denial of a mistrial, defendant argues that his constitutional rights to a fair and impartial jury and to a unanimous verdict were abridged by allowing an unqualified juror to remain...