State v. Lucero
| Decision Date | 09 October 1975 |
| Docket Number | No. 10154,10154 |
| Citation | 541 P.2d 430,88 N.M. 441,1975 NMSC 61 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Joe Pat LUCERO and Susan Sena, Defendants-Appellants. |
| Court | New Mexico Supreme Court |
Defendant Lucero was convicted of first degree murder and defendant Sena of harboring or aiding a felon, to wit, Lucero. Both have appealed. We affirm.
Lucero and Sena lived together. Sena, the decedent and decedent's wife were receiving treatments of methadone under a drug rehabilitation program operated by El Vicio Incorporated. On December 27, 1972, a meeting was called at El Vicio headquarters. Sena, decedent and decedent's wife appeared at the headquarters for the meeting, which, for some reason, was aborted. Lucero accompanied Sena.
There are differences in the testimonies of witnesses as to what actually occurred leading up to the shooting of decedent and his wife by Lucero, but the wife testified to a brief exchange of words between her and Sena; a verbal charge by Lucero that decedent was a 'rat' (meaning a police informer); the drawing of a gun by Lucero and shooting decedent twice; and the shooting of her in the back by Lucero as she sought to escape and go for help. The shootings were admitted by Lucero. He claimed he did so in defense of himself and Sena. However, Sena denied having seen a gun or having witnessed the shootings.
Some time later in the evening the police went to the home of another person in the immediate area of El Vicio headquarters looking for Lucero. There is evidence that one of the officers knew Lucero and as he approached the house from the rear he saw Lucero and Sena together in a doorway leading from the outside into a rear bedroom. As soon as they saw the officer, Sena began to close the door. The officer identified himself as an officer and ordered them to halt. Sena closed the door, and the officer immediately heard someone running inside the house. The door had not been fully closed, so the officer pushed it open and entered the bedroom. He noticed Sena running into another part of the house and cautiously pursued her.
Upon entering the living room at the front of the house, the officer found Sena, two or three other police officers who had entered from the front, and several other persons. Although this was not the residence of Sena, she so claimed and protested her removal from her home. Another officer later found Lucero crouched in a closet near the bedroom door in which the first officer had seen defendants and which, as above stated, had been closed upon him by Sena after being ordered to halt.
Lucero first contends the evidence against him was insufficient to support his conviction of first degree murder, because 'he did not have sufficient time to weigh his actions and consider their consequences.' This court views the evidence on appeal in the light most favorable to the verdict, resolving all conflicts therein and indulging all permissible inferences therefrom. State v. Romero, 67 N.M. 82, 352 P.2d 781 (1960); State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App.), cert. denied, 82 N.M. 377, 482 P.2d 241 (1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 688, 30 L.Ed.2d 662 (1972); State v. Favela, 79 N.M. 490, 444 P.2d 1001 (Ct.App.1968); State v. Manlove, 79 N.M. 189, 441 P.2d 229 (Ct.App.), cert. denied, 79 N.M. 159, 441 P.2d 57 (1968).
Murder in the first degree is a willful, deliberate and premeditated killing. Section 40A--2--1, N.M.S.A., 1953 (2d Repl.Vol. 6, 1972). The precise issue raised is that of the time required to formulate a deliberate intention to kill. Although a deliberate intention means an intention or decision arrived at after careful thought and after a weighing of the reasons for the commission of the killing, such a decision may be reached in a short period of time. Here there is evidence clearly supporting a deliberate intention on the part of Lucero to kill decedent as well as decedent's wife. Although he was receiving no treatments at El Vicio, Lucero went there armed with a loaded pistol, which was concealed on his person; there was a suspected informer or informers among the group who patronized El Vicio; Sena, with whom Lucero lived, was a member of this group; Sena and decedent's wife, in the presence of Lucero, exchanged some unpleasant words; Lucero then charged decedent with being a 'rat'; decedent asked Lucero why he was called a 'rat'; and Lucero thereupon drew his gun and proceeded top shoot both decedent and his wife.
Under these circumstances, the issue of deliberation, as well as all other issues of fact, was for the jury to decide. State v. Riggsbee, 85 N.M. 668, 515 P.2d 964 (1973). The issue of deliberation and all other issues were resolved against defendant.
Lucero also questions the correctness of the district court's action in instructing the jury on first degree murder. However, his objection was that there was insufficient evidence to submit the question of first degree murder to the jury, and this was based upon his claim that there was insufficient evidence to support a finding of a deliberate intention on his part to kill decedent. We have already disposed of this contention.
He also contends he was prejudiced because the district court failed to instruct the jury that implied malice was insufficient upon which to find him guilty of first degree murder. However, he raised no such objection at trial. The instructions defined murder in the first degree as a 'willful, deliberate and premediatated killing' and instructed that 'premeditated malice exists where the intention to take human life unlawfully is deliberately formed in the mind, and that determination is meditated upon before the fatal stroke is given.' Express malice was defined as a 'deliberate intention, unlawfully to take the life away of a fellow creature, which is manifested by external circumstances capable of proof.'
Even if defendant had properly raised the question he now presents for the first time on appeal, and even if we agreed with his claim that the jury should have been instructed that implied malice was insufficient to sustain a conviction of first degree murder, we would still feel compelled to reject his contention. The instructions can be construed only as requiring express malice as an element of first degree murder, and the evidence clearly supports a finding of express malice.
Lucero next complains that the district court erred in admitting evidence as to the shooting of decedent's wife. He relies upon State v. Aragon, 82 N.M. 66, 475 P.2d 460 (Ct.App.1970); State v. Lindsey, 81 N.M. 173, 464 P.2d 903 (Ct.App.1969), cert. denied, 81 N.M. 140, 464 P.2d 559, cert. denied, 398 U.S. 904, 90 S.Ct. 1692, 26 L.Ed.2d 62 (1970), and State v. Mason, 79 N.M. 663, 448 P.2d 175 (Ct.App.), cert. denied, 79 N.M. 688, 448 P.2d 489 (1968). The opinions in those cases afford him no comfort under the facts and circumstances of this case.
The shooting of decedent's wife occurred within a second or so after the shooting of decedent and as she sought to escape. Shooting her under the circumstances here present obviously had real probative value upon the issues of deliberation and intent. Her shooting immediately following the shooting of her husband constituted evidence of a preconceived plan by Lucero to kill her as well as her husband.
Sena claims the evidence failed to support her conviction of harboring or aiding Lucero. In fact, she urges that there is a complete absence of evidence to support her conviction and relies upon our decisions in State v. Salazar, 78 N.M. 329, 431 P.2d 62 (1967); State v. Armijo, 35 N.M. 533, 2 P.2d 1075 (1931), and State v. Garcia, 19 N.M. 414, 143 P. 1012 (1914). Nothing said in our decisions in any of those cases supports her contention. It is true that in the Salazar and Armijo cases, and particularly in the Salazar case, we considered and applied the doctrine of fundamental error by which we are compelled to reverse a conviction if there is a total absence of evidence to support it as well as evidence...
To continue reading
Request your trial
-
State v. Ramirez
...evidence in the record to support the finding of the jury that the defendant murdered the victims in New Mexico. State v. Lucero, 88 N.M. 441, 541 P.2d 430 (1975). We follow the rule stated in State v. Parker, 80 N.M. 551, 458 P.2d 803 (Ct.App.1969). The appellate court: '(i)n determining w......
-
State v. Coffin
...intent to kill in only a few seconds was for the jury. Garcia, 95 N.M. at 262, 620 P.2d at 1287 (quoting State v. Lucero, 88 N.M. 441, 443, 541 P.2d 430, 432 (1975)); accord UJI 14-201 ("A calculated judgment and decision may be arrived at in a short period of {76} In this case, the State p......
-
State v. Slade
...his wife was receiving treatment and shot two people, one of whom he suspected of being a police informer. 1975–NMSC–061, ¶ 7, 88 N.M. 441, 541 P.2d 430. The defendant himself was not being treated by the clinic. Id. Both Manus and Lucero are distinguishable from this case because in both c......
-
State v. Balderama
...the victim was still alive. Little planning is required; deliberation may be formed "in a short period of time." State v. Lucero, 88 N.M. 441, 443, 541 P.2d 430, 432 (1975). Defendant's statement, considered alone, is also evidence of first degree murder rather than a rash impulse because i......