State v. Murillo

• Decision Date: 21 January 2015
• Docket Number: 32,708.
• Citation: 347 P.3d 284
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Guadalupe MURILLO, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

347 P.3d 284

STATE of New Mexico, Plaintiff–Appellee

v.Guadalupe MURILLO, Defendant–Appellant.

32,708.

Court of Appeals of New Mexico.

Jan. 21, 2015.

Hector H. Balderas, Attorney General, Margaret E. McLean, Assistant Attorney General Joel Jacobsen, Assistant, Attorney General, Santa Fe, NM, for Appellee.

The Appellate Law Office of Scott M. Davidson, Scott M. Davidson, Albuquerque, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} Defendant Guadalupe Murillo appeals his convictions of two counts of aggravated battery with a deadly weapon, contrary to NMSA 1978, Section 30–3–5(C) (1969), and unlawfully possessing a switchblade knife pursuant to NMSA 1978, Section 30–7–8 (1963). Defendant raises five issues on appeal. Three of Defendant's issues stem from his contention that the switchblade statute is unconstitutional on its face. In this regard, Defendant argues that the switchblade statute (1) violates the right to bear arms guaranteed under Article II, Section 6 of the New Mexico Constitution ; (2) violates federal and state substantive due process guarantees; and (3) violates federal and state equal protection guarantees. Defendant also contends that the jury instructions violated his procedural due process rights and that the district court improperly precluded him from presenting evidence in support of his self-defense theory during his opening statement. We uphold Section 30–7–8 as constitutional and affirm the district court.

BACKGROUND

{2} Defendant used a switchblade knife to stab two customers at the Wal–Mart in Clovis, New Mexico, where he worked in the tire and lube department. The two victims, Carlos Lopez and Celestino Owen (Owen), were part of a group of shoppers that included Anna Owen, who was Carlos Lopez's sister and Owen's wife, Owen's twelve year-old brother, and the three Owen children, ages six years, two years, and eight months. Conflicting testimony was presented as to whether the victims and their family members went to the store to purchase supplies for an outing or with the specific intention to attack Defendant or his brother-in-law and co-worker, Daniel Lopez. In any case, there was prior animosity between the parties, and the encounter led to an altercation between Defendant and Carlos Lopez in the grocery aisle. Conflicting testimony was presented as to who initiated the fight. Defendant used a switchblade knife to stab Carlos Lopez multiple times, while Carlos Lopez fought without a weapon. Owen, also weaponless, was stabbed in the neck by Defendant while trying to break up the fight.

CONSTITUTIONALITY OF SECTION 30–7–8

{3} Defendant did not raise his three facial challenges to Section 30–7–8 in the district court. Although these issues were not preserved, we exercise our discretion to review Defendant's arguments because these arguments implicate the general public interest. See Rule 12–216(B)(1) NMRA (stating that an appellate court may review unpreserved questions of general public interest); see also Azar v. Prudential Ins. Co. of Am., 2003–NMCA–062, ¶ 28, 133 N.M. 669, 68 P.3d 909 (stating that we have invoked the general public interest exception to the preservation rule when review is likely to settle a question of law that affects the public at large).

{4} In evaluating a facial challenge to the constitutionality of a statute, we examine whether there is any potential set of facts to which the statute can be constitutionally applied. Bounds v. State ex rel. D'Antonio, 2011–NMCA–011, ¶ 34, 149 N.M. 484, 252 P.3d 708, aff'd 2013–NMSC–037, 306 P.3d 457. Put another way, “we consider only the text of the statute itself, not its application[.]” Bounds, 2013–NMSC–037, ¶ 14, 306 P.3d 457 (alteration, internal quotation marks, and citation omitted). We do not question the wisdom, policy, or justness of an act of the Legislature. Id. ¶ 11. Instead, we presume statutes are valid and, therefore, we uphold them against constitutional challenge “unless we are satisfied beyond all reasonable doubt that the Legislature went outside the bounds fixed by the Constitution in enacting the challenged legislation.” Id. (internal quotation marks and citation omitted).

Article II, Section 6 Challenge

{5} Defendant argues that Section 30–7–8, under which possession of a switchblade knife is a petty misdemeanor, violates Article II, Section 6 of the New Mexico Constitution, which guarantees the right to bear arms.

{6} Article II, Section 6 reads:

No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.

The ban on possession of switchblade knives pursuant to Section 30–7–8 implicates Article II, Section 6 only if switchblade knives qualify as “arms.” For the purpose of our analysis, we assume without deciding that switchblade knives are among the arms protected by Article II, Section 6.

{7} Defendant does not argue for a particular level of scrutiny that should apply to the challenged legislation in his argument on this issue. Our cases that have addressed a challenge to a statute under Article II, Section 6 have scrutinized whether the statute was “reasonably related to the public health, safety, and welfare.” State v. Lake, 1996–NMCA–055, ¶¶ 7, 9, 11, 121 N.M. 794, 918 P.2d 380 ; see also State v. Rivera, 1993–NMCA–011, ¶¶ 5, 7, 115 N.M. 424, 853 P.2d 126 (“An act is within the state's police power if it is reasonably related to the public health, welfare, and safety.” (internal quotation marks and citation omitted)); State v. Dees, 1983–NMCA–105, ¶ 11, 100 N.M. 252, 669 P.2d 261 (upholding statute against an Article II, Section 6 challenge because the statute was “a reasonable regulation ... [that] serve [d] a legitimate goal”). This formulation approximates rational basis scrutiny. Compare Griego v. Oliver, 2014–NMSC–003, ¶ 39, 316 P.3d 865 (stating that under rational basis review, “the burden is on the party challenging statutes to prove that the legislation is not rationally related to a legitimate governmental purpose”), with Dees, 1983–NMCA–105, ¶ 11, 100 N.M. 252, 669 P.2d 261 (upholding a firearm control statute because it was “a reasonable regulation ... [that] serve[d] a legitimate goal”). Rational basis scrutiny is the most deferential standard of review. Griego, 2014–NMSC–003, ¶ 39, 316 P.3d 865. The least deferential standard of review, strict scrutiny, requires the party defending the statute to “prove that the legislation furthers a compelling state interest.” Id. In between lies intermediate scrutiny, which requires proof “that the legislation is substantially related to an important governmental interest.” Id.

{8} The United States Supreme Court has declared that the right to keep and bear arms for self-defense is a fundamental right but abstained from specifying standards of scrutiny that apply to challenges under that right. McDonald v. City of Chicago, 561 U.S. 742, 790–91, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). That said, the Court has rejected rational basis review as an overly deferential standard. District of Columbia v. Heller (Heller I ), 554 U.S. 570, 628 n. 27, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ; see also United States v. Reese, 627 F.3d 792, 801 (10th Cir.2010) (“[T]he [Supreme] Court indicated ... that the rational basis test is not appropriate for assessing Second Amendment challenges to federal laws.”); Heller v. District of Columbia (Heller II ), 670 F.3d 1244, 1256 (D.C.Cir.2011) (“Heller [I] clearly does reject any kind of ‘rational basis' or reasonableness test [.]”). The Court also has identified certain longstanding regulatory measures as “presumptively lawful[,]” offering an explicitly non-exhaustive list. Heller I, 554 U.S. at 626–627, 627 n. 26, 128 S.Ct. 2783. The lack of specific guidance from the Court as to the appropriate analytical framework for a right to bear arms challenge left a void, or, as the Seventh Circuit has put it, a “quagmire.” United States v. Skoien, 614 F.3d 638, 642 (7th Cir.2010) (en banc).

{9} Given only general direction by the Supreme Court, federal circuits have developed a consensus to the extent that some form of intermediate scrutiny is appropriate. See, e.g., Reese, 627 F.3d at 798, 802 (applying intermediate scrutiny to analyze a Second Amendment challenge to a federal statute that prohibited possession of a firearm while subject to a domestic protection order); Heller II, 670 F.3d at 1247, 1256–58, 1262 (applying intermediate scrutiny to District of Columbia laws requiring registration of firearms, prohibiting assault weapons, and prohibiting magazines that hold more than ten rounds); United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir.2010) (applying intermediate scrutiny to the prohibition of unmarked firearms); Skoien, 614 F.3d at 639, 641–42 (applying intermediate scrutiny to federal statute prohibiting firearm possession by persons convicted of domestic violence); see also Allen Rostron, Justice Breyer's Triumph in the Third Battle Over the Second Amendment, 80 Geo. Wash. L.Rev. 703, 752 (2012) (noting consensus “emerging from the confusion and uncertainty” that intermediate scrutiny is the correct standard 3 of review for Second Amendment claims). We have found only one court reviewing a right to bear arms challenge that has based its holding on a strict scrutiny analysis.¹ See Rostron, supra, at 753 (writing prior to the Sixth Circuit decision in 2014 that applied strict scrutiny under a right to bear arms challenge, one commentator wrote that “courts ... have been remarkably unanimous in rejecting the strict scrutiny standard of review.”).

{10} We are not persuaded that we should depart from the post-Heller I consensus for intermediate scrutiny to evaluate the statute in question. Viewed from any approach, the switchblade statute is a...