State v. Herrera

• Decision Date: 07 October 2013
• Docket Number: No. 31,874.,31,874.
• Citation: 315 P.3d 343
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Israel HERRERA, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

315 P.3d 343

STATE of New Mexico, Plaintiff–Appellee,

v.Israel HERRERA, Defendant–Appellant.

No. 31,874.

Court of Appeals of New Mexico.

Oct. 7, 2013.

Gary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Baur, Acting Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

KENNEDY, Chief Judge.

{1} Israel Herrera (Defendant) raises a number of challenges to his convictions for second-degree murder and third-degree tampering with evidence. Defendant's most substantive argument is his contention that his conviction for third-degree tampering with evidence violated his constitutional rights to due process and trial by jury because the jury was not instructed that it must find that the evidence Defendant tampered with related to a capital, first- or second-degree crime, which is an essential element of the crime of third-degree tampering. However, Defendant failed to preserve this claim of error, and we conclude the error was not fundamental where it was undisputed that the evidence he tampered with related to the second-degree murder that the jury found him guilty of committing. Thus, finding no other error, we affirm Defendant's convictions.

I. BACKGROUND

{2} Defendant was at home one evening with his girlfriend and her child when someone began pounding on their front door. It was a friend of Defendant, who demanded that he be let in. Defendant and his girlfriend testified that the friend was shouting and swearing. They testified that they told the friend to go away, but he continued to pound on the door and shout for several minutes. Defendant claimed that his friend was angry and agitated and was behaving in a way that Defendant had never seen him behave before. Defendant stated he heard the friend say that he was going to spray Defendant's house with bullets. When Defendant heard this, he picked up a gun. Defendant watched his friend leave and go back to a van parked out on the street. Defendant stated he saw that his friend did not have a gun, but, as his friend got into the van and started backing out, he leaned over in a way that made Defendant believe that he was reaching under the seat. Defendant assumedthat his friend was reaching for a gun, and Defendant fired one shot at him. Defendant went back inside and told his girlfriend to leave. Then, he went outside to the backyard and put the gun in a crawlspace underneath the house. He was walking around outside when the police arrested him and informed him that his friend was dead.

{3} Defendant was charged with first-degree murder and third-degree tampering with evidence, which involves tampering with evidence of a capital crime or of a first- or second-degree felony. At trial, Defendant did not dispute that he shot his friend, but argued that the killing was justified by self-defense. In the alternative, he argued that the killing was mitigated by sufficient provocation, such that he could only be found guilty of manslaughter. The jury found him guilty of second-degree murder and guilty of third-degree tampering with evidence. Defendant appeals.

II. DISCUSSIONA. Defendant's Right to Have the Jury Find All Elements of the Offense of Third–Degree Tampering With Evidence

{4} Based on Defendant's act of attempting to hide the gun involved in the shooting, he was charged with third-degree tampering with evidence, which applies when a defendant has tampered with evidence relating to a capital crime or of a first- or second-degree felony. NMSA 1978, § 30–22–5(A), (B)(1) (2003). At trial, the jury was provided with an instruction on tampering that required it to find that Defendant hid the gun in an effort to avoid being prosecuted, but did not require it to find that the evidence that was tampered with related to a first- or second-degree felony. Defendant contends that because the jury did not find that his act of hiding evidence related to a first- or second-degree felony, his conviction for third-degree tampering with evidence violated his Sixth Amendment right to have a jury find all facts necessary to the conviction. “We review this constitutional issue de novo.” State v. Alvarado, 2012–NMCA–089, ¶ 5, ––– P.3d ––––, 2012 WL 8467506. However, because Defendant concedes that this issue was not preserved, we will reverse only if any error rose to the level of fundamental error. See State v. Sandoval, 2011–NMSC–022, ¶ 15, 150 N.M. 224, 258 P.3d 1016. We conclude that, although the jury instruction omitted an essential element of the crime, the error was not fundamental under the circumstances of this case.

{5} New Mexico's statute criminalizing tampering with evidence imposes different sentences depending on the type of crime that the tampering was done to conceal. Subsection (A) sets out the elements common to all degrees of tampering. Subsection (A) describes the conduct that constitutes the basic act of tampering with evidence and states:

Tampering with evidence consists of destroying, changing, hiding, placing [,] or fabricating any physical evidence with intent to prevent the apprehension, prosecution[,] or conviction of any person or to throw suspicion of the commission of a crime upon another.

Section 30–22–5(A).

{6} Subsection (B) provides that tampering with evidence may be a petty misdemeanor, a misdemeanor, or a third- or fourth-degree felony, depending on the crime that the tampered-with evidence relates to. Subsection (B) states:

Whoever commits tampering with evidence shall be punished as follows:

(1) if the highest crime for which tampering with evidence is committed is a capital or first[-]degree felony or a second[-]degree felony, the person committing tampering with evidence is guilty of a third[-]degree felony;

(2) if the highest crime for which tampering with evidence is committed is a third[-]degree felony or a fourth[-]degree felony, the person committing tampering with evidence is guilty of a fourth[-] degree felony;

(3) if the highest crime for which tampering with evidence is committed is a misdemeanor or a petty misdemeanor, the person committing tampering with evidence is guilty of a petty misdemeanor; and (4) if the highest crime for which tampering with evidence is committed is indeterminate, the person committing tampering with evidence is guilty of a fourth[-]degree felony.

Section 30–22–5(B). The determination pursuant to Subsection (B) that the act of tampering is a petty misdemeanor, a misdemeanor, or a third- or fourth-degree felony determines the sentence that is authorized by law. SeeNMSA 1978, § 31–18–15 (2007) (establishing the basic sentences and fines for felonies); NMSA 1978, § 31–19–1 (1984) (establishing the sentences and fines for petty misdemeanors and misdemeanors).

{7} Defendant was charged with tampering with evidence of a capital crime or first- or second-degree felony as prohibited by Section 30–22–5(B)(1). At trial, the district court instructed the jury that, in order to convict Defendant of tampering with evidence, it had to find the basic facts that constitute tampering under Subsection (A). The instruction did not require the jury to find that Defendant's act of tampering with evidence related to a capital crime or a first- or second-degree felony. The instruction, which tracked Uniform Jury Instruction 14–2241 NMRA, simply stated:

For you to find ... [D]efendant guilty of tampering with evidence as charged ..., the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1.[D]efendant hid a firearm;

2. [D]efendant intended to prevent the apprehension, prosecution[,] or conviction of himself;

3. This happened in Chaves County, New Mexico, on or about the 22nd day of November[ ] 2010.

The issue on appeal is whether the omission of the element that the gun was evidence of a capital crime or a first- or second-degree felony violated Defendant's right to have a jury find all elements of the offense beyond a reasonable doubt where the conviction and sentence entered by the district court was for the offense of third-degree tampering with evidence.

{8} The right to a trial by jury is guaranteed by the Sixth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment. State v. Grace, 1999–NMCA–148, ¶ 5, 128 N.M. 379, 993 P.2d 93. The Fourteenth Amendment's Due Process Clause prohibits a conviction, except upon a finding of every element of the offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “Taken together, these rights indisputably entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (alteration, internal quotation marks, and citation omitted). A fact is an element of a crime when it increases the legally prescribed punishment. Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013) ( “Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.”).

{9} The United States Supreme Court has held that, when a statute provides a general definition of prohibited conduct and then lists a set of stepped sentences that increase based on additional factors, any factor listed in the sentencing section of the statute that increases the prescribed sentence is an element of the offense that must be found by a jury beyond a reasonable doubt. In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court examined the federal carjacking statute to determine whether the portions of the statute setting different punishments were elements that must be found beyond a reasonable doubt by a jury, or mere sentencing...