State v. Maes

Decision Date04 April 2019
Docket NumberDocket No. A-1-CA-34743
PartiesSTATE OF NEW MEXICO, Plaintiff-Appellee, v. ELOY MAES, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.



Hector H. Balderas, Attorney General, Santa Fe, NM, Walter M. Hart III, Assistant Attorney General, Albuquerque, NM, for Appellee

L. Helen Bennett, P.C., L. Helen Bennett, Albuquerque, NM, for Appellant





VANZI, Judge.

{1} Defendant Eloy Maes appeals his conviction for voluntary manslaughter on the ground that his constitutional right to notice of the charges against him was violated when the district court permitted the State to amend the indictment on the fourth day of trial. He also argues that the mid-trial amendment of the indictment was contrary to Rule 5-204(C) NMRA. We conclude that neither Defendant's constitutional right to notice nor Rule 5-204(C) was violated, and thus affirm.


{2} A grand jury indictment charged Defendant with murder in the first degree in violation of NMSA 1978, Section 30-2-1 (1994), upon allegations that Defendant "did kill, with the deliberate intention to take away the life of [the victim]." He was also charged with aggravated battery resulting in great bodily harm and tampering with evidence. See NMSA 1978, § 30-3-5 (1969); NMSA 1978, § 30-22-5 (2003).

{3} At the opening of the fourth day of trial, the State notified the district court that it intended to amend the indictment to charge second-degree, rather than first-degree, murder. After discussing with counsel the lesser included charges of first-degree murder, the district court reserved decision on the amendment issue, stating that it would resolve the issue after additional argument and in the context of the jury instructions. The next day, the district court noted that the State had included "step down instructions" in its proposed jury instructions. While Defendant conceded that second-degree murder is a lesser included offense of first-degree murder, he argued that voluntary manslaughter is not. Following a lengthy colloquy between the district court and counsel, the court again deferred decision on the amendment issue until it determined the appropriate jury instructions after the close of evidence. The State rested its case later that day, and the district court took up the State's motion to amend the indictment. Defendant again objected to the addition of voluntary manslaughter to the indictment, renewing his argument that it is not a lesser included offense of the original charge of first-degree murder. The district court disagreed and granted the State's amendment motion, stating that it "d[id not] see the prejudice in terms of [Defendant] being blind-sided" because Defendant would be "preparing for the same thing, it's the same argument [by the State]." It then granted Defendant's motion for a directed verdict dismissing the first-degree murder charge but denied the motion as to second-degree murder and voluntary manslaughter. After Defendant, the only defense witness, testified, the district court instructed the jury on both second-degree murder and, over Defendant's objection, voluntary manslaughter. Defendant appeals his conviction of voluntary manslaughter.1


{4} On appeal, Defendant frames his argument in the following general terms: "The [d]istrict [c]ourt erred in allowing the State to amend the indictment mid-trial, allowing the State to abandon its first-degree murder charges and instead instruct the jury on second-degree murder and voluntary manslaughter." Defendant's broadly-stated assignment of error requires us to pursue two related, but distinct, avenues of inquiry, the first related to the amendment of the indictment, and the second bearing upon the jury instructions. As to the amendment of the indictment, "[a] defendant in a criminal case is entitled to know what he is being charged with and to be tried solely on those charges." State v. Johnson, 1985-NMCA-074, ¶ 26, 103 N.M. 364, 707 P.2d 1174; U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to . . . be informed of the nature and cause of the accusation[.]"). A defendant is provided with constitutionally-adequate notice of any lesser included offenses of the crime or crimes charged in an indictment. State v. Collier, 2013-NMSC-015, ¶ 35, 301 P.3d 370 ("This Court has long recognized that notice of a criminal charge necessarily includes notice of any lesser included offenses."). Consistent with this principle, Rule 5-204(A) provides that "[t]he court may at any time prior to a verdict cause the complaint, indictment or information to be amended in respect to any such defect, error, omission or repugnancy if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." (Emphasis added.) Similarly, Rule 5-204(C) provides that "[n]o variance between those allegations of a[n] . . . indictment . . . which state the particulars of the offense, whether amended or not, and the evidence offered in support thereof shall be grounds for the acquittal of the defendant unless such variance prejudices substantial rights of the defendant" and that "[t]he court may at any time allow the indictment or information to be amended in respect to any variance to conform to the evidence." (Emphasis added.) An amendment—even a mid-trial amendment—to the indictment "is not fatal unless the accused cannot reasonably anticipate from the indictment what the nature of the proof against him will be." State v. Marquez, 1998-NMCA-010, ¶ 20, 124 N.M. 409, 951 P.2d 1070. In addition, "[t]he mere assertion of prejudice, without more, is insufficient to establish prejudicial error warranting reversal of a conviction." Id. (internal quotation marks and citation omitted).

{5} Similar principles obtain with respect to jury instructions. In this regard, it is settled law that the district court may instruct the jury on, and the defendant may be convicted of, uncharged crimes as long as those crimes are lesser included offenses of the charged crime. Johnson, 1985-NMCA-074, ¶ 26 (stating that "[i]t is improper to instruct the jury as to a crime not formally charged [unless] that crime is . . . a lesser included offense of the crime formally charged"). Indeed, Rule 5-611(D) NMRA expressly provides that "[i]f so instructed, the jury may find the defendant guilty of an offense necessarily included2 in the offense charged[.]" Hence, no formal amendment of the indictment is necessary in order to instruct the jury on or convict the defendant of a crime that is included within the charged crime. See State v. Gallegos, 1989-NMCA-066, ¶ 50, 109 N.M. 55, 781 P.2d 783 ("The trial court could have instructed on all lesser included offenses supported by the evidence, even though defendant objected to the instruction[,]" even though the lesser included offenses were not named in the indictment).

{6} Defendant contends that the amendment of the indictment on the fourth day of trial was improper because Rule 5-204 did not permit the addition of the new charges of second-degree murder and voluntary manslaughter. He also argues that the amendment deprived him of notice of and the ability to defend against the two new charges, contrary to the dictates of the Sixth Amendment. Since Defendant does not assert that the New Mexico Constitution provides greater protections than those afforded by the federal Constitution, we assume without deciding that the New Mexico Constitution provides the same protection. Meadors, 1995-NMSC-073, ¶ 4 n.1 (stating that "the Sixth Amendment's Notice Clause is applicable to the states through the Fourteenth Amendment's Due Process Clause" and that, where the defendant relied only on the Sixth Amendment on appeal, it would "assume without deciding that the New Mexico Constitution provides the same protection"); see N.M. Const. art. II, § 14. We review de novo a district court's application of Rule 5-204(A) and its determination of whether an offense is a lesser included offense of that which is charged. See State v. Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d 852; State v. Hernandez, 1999-NMCA-105, ¶ 24, 127 N.M. 769, 987 P.2d 1156.

{7} We first define the scope of our review. Because second-degree murder is statutorily defined as a lesser included offense of the first-degree murder charge set out in the indictment, see § 30-2-1(B), amendment insofar as it related to second-degree murder was proper under Rule 5-204(A) since "no additional or different offense [was] charged[.]" Id. Indeed, Defendant conceded as much at trial. Consequently, although Defendant does not distinguish between second-degree murder and voluntary manslaughter on appeal, we understand his arguments to be limited solely to voluntary manslaughter.

{8} We discern no error in amending the indictment or in instructing the jury on voluntary manslaughter because it was necessarily included within the charges in the original indictment and Defendant had adequate notice of the need to defend against it. New Mexico courts have concluded multiple times that voluntary manslaughter is necessarily included within a murder charge. Nearly ninety years ago, our Supreme Court held as a matter of first impression that "a conviction for voluntary manslaughter, where there is evidence to sustain it, can be had under an information or indictment charging [first-degree] murder" because "[v]oluntary manslaughter is necessarily...

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