State v. Lopez, 22631

Citation122 N.M. 63, 1996 NMSC 36, 920 P.2d 1017
Case DateMay 29, 1996
CourtSupreme Court of New Mexico

FROST, Chief Justice.

1. Defendant-Appellant Reis Lopez appeals his convictions for felony murder, attempted armed robbery, and aggravated battery. Lopez contends that the trial court erred in failing to instruct the jury on an essential element of felony murder, that he was denied effective assistance of counsel, and that his conviction and sentence for both felony murder and the predicate felony of attempted armed robbery violated the Double Jeopardy Clause. We affirm in part, reverse in part, and remand.


2. On April 16, 1993, Marion Ionita, a Romanian immigrant, was working at a gas station in Belen, New Mexico. Mihai Ciup, the uncle of Ionita's brother-in-law, was also at the station, keeping Ionita company. Ionita was standing behind a counter near the cash register when, shortly after 1:00 p.m., Lopez entered the gas station armed with a rifle. Lopez pointed the rifle at Ionita and demanded money. Ionita asked Ciup in Romanian whether he thought the gunman was serious. Lopez then fired a shot into the wall behind Ionita.

3. The testimony of the two sides differs as to what happened next. Ionita, testifying for the Prosecution, stated that, after the first shot, he threw himself to the floor and crouched behind a chair. Ionita testified that Lopez continued shooting at him, wounding him in the arm and wrist. Ionita stated that Lopez then turned, pointed the gun toward the front door and fired two or three times. While Lopez was looking at the front door, Ionita stated that he attempted to throw the chair at Lopez and then rushed from behind the counter and grabbed for the gun. During the ensuing struggle, Ionita was shot again, this time in the leg. The struggle ended when Lopez lost possession of the rifle and fell through a plate-glass window at the front of the station. Lopez then fled into a nearby alley. Ciup was found dead, just outside the doorway, shot twice in the chest. Ionita testified that he did not know how Ciup ended up outside the doorway, but speculated that when Lopez came in, Ciup exited the station through the adjoining garage, circled around, and attempted to reenter the station through the front door to surprise Lopez.

4. Lopez presented a different account of the events. He testified that he fired the first shot into the wall behind Ionita to prove that he was serious about the robbery. He stated that Ionita immediately picked up and threw the chair at him and then rushed him. He stated that he then shot at Ionita as Ionita came at him. He further testified that he could not remember what happened during the struggle with Ionita, but he suggested that any other shots fired occurred accidentally as he and Ionita struggled over the gun. Lopez testified that he saw Ciup when he first entered the station, but that Ciup disappeared, and Lopez did not remember seeing him again during the robbery attempt.

5. Several witnesses were driving by the station at the time and noticed the struggle. They testified that they saw Ciup collapse outside the doorway a few moments before Lopez fell through the plate-glass window. The witnesses then saw Lopez flee down a nearby alley. These witnesses were able to direct the police who found Lopez sitting down in the alley in a stupor. The police found shell casings inside the station indicating that a total of nine shots had been fired. The police also determined that at least one wild shot was fired into the ceiling, presumably during the struggle over the gun.

6. Lopez was subsequently arrested, and, in November 1994, he was tried for first-degree felony murder, attempted armed robbery, and aggravated battery. After both sides presented evidence, the State tendered an instruction on felony murder for the court to give to the jury. This instruction provided that, to convict Lopez for felony murder, the jury need only find the following elements:

1. The defendant attempted to commit the crime of Armed Robbery under circumstances or in a manner dangerous to human life;

2. During the attempt to commit Armed Robbery, the defendant caused the death of Mihai Ciup;

3. This happened in New Mexico on or about the 16th day of April, 1993.

This instruction did not contain any mens-rea element. In reviewing this instruction, the trial judge asked both attorneys if there should be an intent instruction for felony murder, to which the prosecutor replied no. Defense counsel for Lopez did not object to this instruction. Lopez's counsel did tender additional instructions on all lesser-included offenses to murder, which the trial court rejected on the grounds that the instructions were not supported by the evidence.

7. The jury convicted Lopez of first-degree felony murder, for which Lopez received a sentence of life imprisonment, and of attempted armed robbery and aggravated battery, for which no sentences have yet been entered. Lopez now appeals his conviction, arguing (1) that the trial court failed to instruct the jury on an essential element of felony murder; (2) that he was denied effective assistance of counsel because his attorney failed to object to the felony-murder instruction; and (3) that his conviction for both felony murder and attempted armed robbery violated the Double Jeopardy Clause. We note proper jurisdiction over this appeal, SCRA 1986, 12-102(A)(2) (Cum.Supp.1995) (appeal from sentence of life imprisonment), and we affirm Lopez's felony-murder and aggravated battery convictions and reverse his attempted armed robbery conviction.

A. Felony-Murder Doctrine

8. In 1991 this Court, in State v. Ortega, 112 N.M. 554, 563, 817 P.2d 1196, 1205 (1991), imposed a mens rea requirement for felony murder. We explained:

Under the [felony-murder statute], proof that a killing occurred during the commission or attempted commission of a felony will no longer suffice to establish murder in the first degree. In addition to proof that the defendant caused (or aided and abetted) the killing, there must be proof that the defendant intended to kill (or was knowingly heedless that death might result from his conduct). An unintentional or accidental killing will not suffice.

Id. (citations omitted). We reaffirmed this holding in State v. Griffin, 116 N.M. 689, 695, 866 P.2d 1156, 1162 (1993), in which we held, "The felony murder [mens rea] requirement is satisfied if there is proof that the defendant intended to kill, knew that his actions created a strong probability of death or great bodily harm ..., or acted in a manner greatly dangerous to the lives of others." In other words, the mens rea necessary to support a conviction for another type of murder generally would also support a felony-murder conviction. Id. Consequently, because of this mens-rea requirement, our felony-murder rule is best described as elevating the crime of second-degree murder to first-degree murder when the murder is committed during the course of a dangerous felony.

9. In the present case, the felony-murder instruction omitted this essential mens-rea requirement as set out in the Ortega line of cases. Accordingly, we must determine whether this omission of an essential element mandates reversal. 1

B. Omission of an Essential Element in a Jury Instruction

10. In State v. Osborne, 111 N.M. 654, 661-62, 808 P.2d 624, 631-32 (1991), this Court addressed the issue of failure to instruct the jury on an essential element of the offense. We explained that this failure generally will constitute fundamental error mandating reversal. Id. at 662, 808 P.2d at 632. The State is quick to point out that, in this case, Lopez failed to object to the tendered instruction. However, we held in Osborne that reversal may be appropriate regardless of whether or not the defendant objected to the erroneous instruction. Id. We noted:

First, although a defendant may have contributed to the error by his own failures at trial, the defendant may not be held to have "created" the error.... [Under Rule 5-608(A) ] it is the duty of the court, not the defendant, to instruct the jury on the essential elements of a crime. Second, it simply does not contravene the "orderly and equitable administration of justice" to ensure that the state has met its burden of proving each of the essential elements of a crime required for conviction. On the contrary, the orderly and equitable administration of justice requires that we correct any such error notwithstanding the defendant's responsibility for or complicity in the error.

Id. (citations omitted); see SCRA 1986, 5-608(A) (Repl.Pamp.1992) ("The court must instruct the jury upon all questions of law essential for a conviction of any crime submitted to the jury.").

11. There is, however, an exception to this general rule that failure to include an essential element in an instruction for a crime constitutes fundamental error. This exception applies when the element that was omitted from the instruction was not at issue in the trial. State v. Orosco, 113 N.M. 780, 782, 833 P.2d 1146, 1148 (1992).

C. Omitted Element Not at Issue

12. In Orosco, we revisited the issue of whether failure to instruct on an essential element constituted fundamental error. Orosco, 113 N.M. at 783-84, 833 P.2d at 1149-50. We declined to hold that Osborne created a per se rule that omission of an essential element always mandated reversal. Instead we explained:

The rule of fundamental error applies only if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience...

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