State v. Reed, 27,948.

Docket NºNo. 27,948.
Citation120 P.3d 447, 2005 NMSC 031
Case DateAugust 17, 2005
CourtSupreme Court of New Mexico
120 P.3d 447
2005 NMSC 031
STATE of New Mexico, Plaintiff-Appellee,
Scott Andrew REED, Defendant-Appellant.
No. 27,948.
Supreme Court of New Mexico.
August 17, 2005.

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John B. Bigelow, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, for Appellant.

Patricia A. Madrid, Attorney General, Elizabeth Blaisdell, Assistant Attorney General, Santa Fe, for Appellee.


BOSSON, Chief Justice.

{1} After a jury trial, Defendant Scott Reed was convicted of first-degree depraved mind murder, in violation of NMSA 1978, Section 30-2-1(A)(3) (1994), and sentenced to life in prison. In addition to two other charges not relevant to this appeal, Defendant was also convicted of negligent child abuse resulting in death contrary to NMSA 1978, Section 30-6-1 (2001, prior to 2004 amendment). Finding insufficient evidence, we reverse the conviction for first-degree depraved mind murder, but we affirm the conviction for child abuse resulting in death. Accordingly, we remand to the district court to vacate the conviction for depraved mind murder and adjust Defendant's sentence accordingly.


{2} By all accounts, Defendant, who was 18 years old at the time, was good friends with David O'Brien, who was four years younger. Even though David's parents did not approve of Defendant or his 16-year-old brother, Jeff, David continued to spend time with them.

{3} On the morning of December 24, 2001, David went shopping with the two Reed brothers and their mother. After returning to the Reed residence, Jeff went to his bedroom to take a nap, while Defendant and David drove to the video store. Around 1 p.m., David called his mother and asked her not to come home because he was studying. She testified that she thought David was home when he called. When the two friends returned to the Reed residence, Defendant's parents were gone. Besides the three teenagers, the only other person home at the time was Defendant's grandmother, who was in a far corner bedroom. Suffering from dementia, the grandmother was unaware of the events that followed.

{4} Defendant testified that when he realized that his parents were not home, he retrieved a .38-caliber revolver from the trunk of his car and brought it into the house. He had purchased the revolver a couple of weeks earlier from a friend, but kept it hidden from his parents because guns were forbidden in the Reed residence. Defendant said that even though David knew he should be returning home, he decided to stay to watch a video in the living room. After the movie started, Defendant placed the unloaded revolver on the coffee table in front of the sofa.

{5} Jeff testified that he saw the gun on the coffee table when he joined David and his brother to watch the movie. Defendant was sitting in the middle of the sofa, with David sitting to his right in a recliner. Jeff lay down on the love seat to Defendant's left. Defendant testified that while watching the video he began playing with the unloaded revolver. He told the jury he pulled the trigger once and the hammer once. Jeff testified that he saw Defendant click the hammer back and let it go once or twice and heard the revolver click once or twice. Then he did not hear any clicking for a few minutes.

{6} According to Defendant, David got up to go into the kitchen for a snack. Meanwhile, Defendant removed a single bullet from his pocket and placed it in the revolver. Defendant testified that he looked down the barrel of the gun to make sure the bullet was not in the chamber. Viewed from the back of the gun, the bullet was immediately to the

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right of the top cylinder in line with the firing pin, at a one o'clock position. Defendant told the jury he thought the gun was safe, and would not fire. He pointed the gun off to his side and pulled the trigger once. Defendant testified that he only meant to click the gun, and did not think it could fire. He claimed that because he was watching the television, he was not looking in the direction the gun was pointed, and did not know David had returned to the room. The gun discharged. As it turned out, the bullet had been placed in the exact position from which it would rotate into a firing position upon pulling the trigger. According to the autopsy, the bullet passed at a slight upward trajectory underneath David's left arm and struck him in the left side of his chest just below his nipple. It traveled through his body and lodged beneath his right arm without exiting.

{7} Jeff testified that he did not see Defendant shoot David, but was surprised when he heard the gunshot and covered himself with his arms. When Jeff looked up, he saw David crouching by the recliner before falling to the floor. Defendant testified that he was shocked that the gun went off, and that he panicked when he realized David had been shot. Defendant said he and Jeff tried to help David, and immediately called 911. Both spoke to the operator, but lied about what happened. Jeff claimed David was the victim of a drive-by shooting. Defendant said, "Somebody shot my friend." After hearing sirens, Defendant fled to his older brother's house with the gun. Crying and distraught, Defendant told his brother he accidentally shot David. Defendant then drove around trying to figure out what to do. He called his father on David's cell phone, which was in his jacket pocket, and told him the shooting was an accident. He also spoke on the phone with a police detective and admitted shooting David, but said it was an accident. Defendant drove to Springer, then returned to Albuquerque to go to the police. Even after the police told Jeff that Defendant had admitted shooting David, Jeff was hostile and continued to lie about the drive-by shooting. Meanwhile, David died from the gunshot wound.

{8} The State charged Defendant with an open count of murder. A jury trial began in October 2002. According to the State's main theory at trial, Defendant intentionally shot David after some sort of struggle. The State introduced evidence that David was shot one time in the chest, but that the shirt David was wearing had three holes at the back shoulder that did not line up with where the bullet entered his body. The State's attorney speculated that the shirt was bunched up because someone was holding David against his will. The State also pointed out that the recliner in which David had been sitting was found on its side in front of the television about ten feet from its original position, as if thrown in a fight.

{9} To contradict Defendant's claim that the shooting was an accident, the State introduced evidence to indicate Defendant was familiar with the revolver, and with guns in general. According to Defendant's own testimony, he had tested the revolver a couple of days earlier at a shooting range. Despite Defendant's claim that the revolver was sticking, and would not fire when a bullet was in the top chamber, the gun did discharge a couple of times. The State's tests revealed the revolver was working properly. Detective Zamora, the lead investigator, testified that the trigger on the revolver required a lot of pressure, making it difficult to pull unintentionally. In addition, Defendant's mother told police officers after the shooting that her sons liked guns. Cartridges from two different caliber weapons, not matching the revolver, were found in Jeff's bedroom.

{10} Much of the State's evidence, presented to support its theory of an intentional shooting, was ambiguous. Tests conducted on David's shirt indicated the shooting took place from four to ten feet away, and not at close range. Thus, if the shirt was bunched up, it was not from Defendant grabbing it. Detective Zamora testified that rescue personnel may have moved the recliner in order to attend to David. Testimony by the State's own witnesses tended to support Defendant's claim that he did not intend to shoot David. A detective testified that a lay person is easily confused about the direction a particular

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revolver rotates. The detective said he had investigated a lot of accidental shootings in which individuals mistakenly believed a revolver would not fire unless a cartridge was in the top position. On cross-examination, Detective Zamora said that he did not believe Defendant meant to shoot David, and that he had no evidence that the shooting was a willful and deliberate murder. He did testify, however, that he believed Defendant pointed the gun at David.

{11} At the close of the State's case, defense counsel asked for a directed verdict dismissing the first-degree murder charge because there was no evidence of deliberation. The State countered that it was for the jury to decide if the shooting was accidental. Then the State turned to the alternative theory of first-degree depraved mind murder.1 The State argued that depraved mind murder was clear because loading a firearm and pointing it inside a room where others are present is an act greatly dangerous to the lives of others indicating a depraved mind without regard for others. The prosecutor said common sense dictates that even an eighteen-year-old should know how greatly dangerous it was to load a gun, click it, and point it in the house. The district court refused to direct a verdict on the first-degree murder charge. In closing remarks to the jury, the prosecutor argued "that whenever you add an idiot and a loaded firearm, what you have is depraved mind murder."

{12} The jury convicted Defendant on all counts, including first-degree murder and negligent child abuse resulting in death. The jury was told to consider both alternative theories of first-degree murder, but only returned a guilty verdict on depraved mind murder. Defendant was sentenced to life in prison.


{13} On appeal, Defendant challenges his conviction for depraved mind murder based on insufficient evidence and...

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