State v. Garcia, 2005 NMCA 042 (NM 4/26/2005)

• Decision Date: 26 April 2005
• Docket Number: Consolidated with Docket No. 24,065.,Docket No. 24,072.
• Citation: 2005 NMCA 042
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. HECTOR NICHOLAS GARCIA, Defendant-Appellant. STATE OF NEW MEXICO, Plaintiff-Appellee, v. JUAN CARLOS MUNOZ, Defendant-Appellant.
• Court: New Mexico Supreme Court

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2005 NMCA 042

STATE OF NEW MEXICO, Plaintiff-Appellee, v.HECTOR NICHOLAS GARCIA, Defendant-Appellant.

STATE OF NEW MEXICO, Plaintiff-Appellee, v.JUAN CARLOS MUNOZ, Defendant-Appellant.

Docket No. 24,072.

Consolidated with Docket No. 24,065.

Court of Appeals of New Mexico.

Filing Date: February 28, 2005.

Corrected April 26, 2005.

Certiorari Denied, No. 29,135, April 12, 2005, No. 24,072.

Certiorari Denied, No. 29,130, April 12, 2005, No. 24,965.

Appeal from the District Court of Dona Ana County, Stephen Bridgforth, District Judge.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.

Liane E. Kerr, Albuquerque, NM, for AppellantHector Nicholas Garcia.

John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for AppellantJuan Carlos Munoz.

OPINION

SUTIN, Judge.

{1}These cases arose out of a melee at an apartment complex in Las Cruces, New Mexico, consisting of serious altercations between two groups of young men.One group consisted of Alex Medina(Victim) and his friends, and the other consisted of DefendantJuan Carlos Munoz, DefendantHector Nicholas Garcia, and their friends.Munoz and Garcia fired shots from Munoz's apartment at Victim's vehicle as the vehicle was either leaving the area, or had left and was coming back to the apartment complex.A bullet hit and killed Victim.We affirm Defendants' convictions.

PROCEDURAL BACKGROUND

{2} Based on uncertainty as to who fired the fatal bullet, Defendants were charged: in Count 1 of their indictments with felony murder or, alternatively, depraved mind murder, each a first degree murder charge, seeNMSA 1978, § 30-2-1(A)(2), (3)(1994); in Count 2 with shooting at or from a motor vehicle resulting in great bodily harm, seeNMSA 1978, § 30-3-8(B)(1993); in Count 3 with aggravated battery (deadly weapon), seeNMSA 1978, § 30-3-5(A), (C)(1969); and in Counts 4 and 5 with aggravated assault (deadly weapon), seeNMSA 1978, § 30-3-2(A)(1963).The jury was instructed on second degree murder and voluntary manslaughter as lesser offenses of Count 1.

{3} The jury found Defendants guilty of the crimes charged in Counts 2 through 5.The jury informed the court that it could not reach a verdict on the charge in Count 1 as to each Defendant.Based on the jury's inability to reach a verdict on the first degree murder charges in Count 1, the court declared a mistrial as to each Defendant.

{4} As the State was preparing for a second trial on the first degree murder charges, Defendants entered no contest pleas to second degree murder.Defendants reserved their right to appeal.The district court entered judgments showing Defendants convicted of, and sentencing Defendants on, Count 1, second degree murder; Count 2, shooting at or from a motor vehicle (great bodily harm); Count 3, aggravated battery (deadly weapon); and Counts 4 and 5, aggravated assault (deadly weapon).

{5} On appeal, Munoz asks this Court to determine that his plea was not knowing, intelligent, and voluntary because he was not advised that the most serious charge he faced at retrial was voluntary manslaughter, not second degree murder.He claims that he should have been advised of this because the district court failed to properly poll the jury, resulting in an implied acquittal on the second degree murder charge.He asserts he should therefore be permitted to withdraw his plea to second degree murder.He claims ineffective assistance of counsel as the basis for this relief.

{6} In addition, Munoz appeals on the further grounds that: on double jeopardy grounds, his conviction of shooting at a motor vehicle resulting in death barred retrial on the murder charge; the court erred in excluding Victim's blood alcohol content; and the court erred in admitting evidence of weapons that were not used in the commission of any crime.

{7} Garcia raises six issues on appeal, three of which are ones Munoz has also raised, namely: his convictions for shooting at a motor vehicle resulting in death and second degree murder violate double jeopardy; the court erred in excluding Victim's blood alcohol content; and the court erred in admitting evidence of weapons that were not used in the commission of any crime.Garcia's other appellate issues are that the district court: erred in excluding evidence of a prior altercation involving Victim; erred in excluding evidence of a witness's prior convictions; and erred by improperly admitting certain photos of Victim.

DISCUSSION

{8}We have consolidated these two appeals, State v. Garcia, DocketNo. 24,072, andState v. Munoz, DocketNo. 24,065, for purposes of disposition of these cases on appeal.We discuss the facts material to Defendants' appellate points under our separate discussions of the points.

Ineffective Assistance of Counsel—Munoz Only

{9} Garcia did not raise ineffective assistance of counsel on appeal.Munoz contends he did not receive effective assistance of counsel, because his counsel failed to advise him at the time of his plea to second degree murder that the highest degree of crime on which he could be retried was voluntary manslaughter.Underlying this contention is Munoz's further assertion that, based on the district court's failure in the first trial to poll the jury as to its deliberations on the second degree murder charge, there was an implied acquittal as to second degree murder and the State was legally precluded from retrying Munoz on the first degree murder charge under principles of double jeopardy.

{10} Munoz's point on appeal requires us to determine whether the district court was required to poll the jury in regard to its deliberations on second degree murder.We view this issue as dispositive on Munoz's claim of ineffective assistance of counsel.The issue is one of law; we review issues of law de novo.SeeState v. Moore, 2004-NMCA-035, ¶ 12, 135 N.M. 210, 86 P.3d 635;State v. Galaz, 2003-NMCA-076, ¶ 4, 133 N.M. 794, 70 P.3d 784.

{11} For his implied acquittal and double jeopardy arguments, Munoz relies on State v. Castrillo, 90 N.M. 608, 566 P.2d 1146(1977), State v. Wardlow, 95 N.M. 585, 624 P.2d 527(1981), andRule 5-611(D) NMRA.We discuss Castrillo and Wardlow at the outset.We then recite in more detail what occurred at trial.Following that, we discuss the legal effect of what occurred in court.

{12} In Castrillo, charges of first and second degree murder and voluntary manslaughter were, as in the present case, submitted to the jury.Id. at 610, 566 P.2d at 1148.The jury stated it was unable to reach a verdict, and the court declared a mistrial without inquiring into the jury's deliberations.Id. at 610, 613, 566 P.2d at 1148, 1151.The defendant was retried and found guilty of second degree murder.Id. at 610, 566 P.2d at 1148.The defendant appealed on double jeopardy grounds.Id.The Castrillo Court noted that "[a] manifest necessity for the declaration of a mistrial is shown since the jury could not agree to at least one of the included offenses within the murder charge."Id. at 613, 566 P.2d at 1151.However, the Court also noted that the record was "silent upon which, if any, of the specific included offenses the jury had agreed and upon which the jury had reached an impasse."Id.The Court further noted that "[t]he record is clear . . . that the jury did not acquit the defendant on all offenses."Id.The Court stated that its holding in State v. Spillmon, 89 N.M. 406, 553 P.2d 686(1976), "dictates a dismissal upon double jeopardy grounds as to such offenses on which the record is unclear."Castrillo, 90 N.M. at 613, 566 P.2d at 1151.The Supreme Court further stated:

[T]he record is not clear as to which of the included offenses the jury was considering at the time of its discharge.Without inquiry by the trial court into the jury's deliberations on the greater, included offenses, no necessity is manifest to declare a mistrial as to those offenses and thus jeopardy has attached.Jeopardy did not attach to the offense of voluntary manslaughter which was the least of the included offenses.Had the jury reached a unanimous decision on that offense it could not have been in the posture it announced to the court.

Id. at 613-14, 566 P.2d at 1151-52.

{13} In Spillmon, the jury deadlocked on first and second degree murder, and found the defendant guilty of attempted robbery and not guilty of burglary.89 N.M. at 407, 553 P.2d at 687.No mistrial was declared.Id.The district court set the case for retrial on the murder charge and the defendants moved to dismiss on double jeopardy grounds.Id.Our Supreme Court held that: "to try these defendants again on the murder charge would constitute double jeopardy because the trial court concluded the proceedings without declaring a mistrial and without reserving the power to retry those issues upon which the jury could not agree.If a mistrial had been properly declared, . . . the State would be free to assert its claims before another jury."Id.According to the Court, when the district court finds "there is a reasonable probability that the jury could not agree," a manifest necessity exists to discharge the jury.Id.(internal quotation marks and citation omitted).In Spillmon, apparently because the district court failed to make such a finding and declare a mistrial, "the record [did] not disclose a `manifest necessity' for the discharge of the jury and a final termination of the trial," requiring our Supreme Court to hold that further proceedings were barred because the defendants had already been placed in "jeopardy."Id. at 408, 553 P.2d at 688.

{14}The Court in Castrillo seems to have equated the district court's failure in Castrillo to inquire of the jury as to its deliberations with the court's failure in Spillmon to make a finding that there was a reasonable probability that the jury could not agree, thus, in effect, reading Spillmon to...