State v. Rudolfo

• Decision Date: 05 June 2008
• Docket Number: No. 29,622.,29,622.
• Citation: 187 P.3d 170,2008 NMSC 036
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Mario RUDOLFO, Defendant-Appellant.
• Court: New Mexico Supreme Court

187 P.3d 170

2008 NMSC 036

STATE of New Mexico, Plaintiff-Appellee, v. Mario RUDOLFO, Defendant-Appellant.

No. 29,622.

Supreme Court of New Mexico.

June 5, 2008.

John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

Gary King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

DANIELS, Justice.

{1} This is a companion case to State v. Gonzales, 2007-NMSC-059, 143 N.M. 25, 172 P.3d 162, in which this court upheld convictions of first-degree murder and other offenses as to codefendant Jacob Gonzales, brother of Appellant Mario Rudolfo. In their joint trial, Rudolfo was convicted of first-degree murder, attempted first-degree murder, shooting at a motor vehicle resulting in great bodily harm, and tampering with evidence.

{2} Rudolfo raises four arguments in this direct appeal: (1) that his convictions for both the felony of shooting at a motor vehicle resulting in great bodily harm and first-degree murder based on that same predicate felony constituted double jeopardy; (2) that the district court erroneously refused a requested self-defense instruction; (3) that there was insufficient evidence to support his conviction for tampering with evidence; and (4) that the district court improperly limited his good time credit under the Earned Meritorious Deductions Act (EMDA), NMSA 1978, Section 33-2-34 (1999).

{3} We affirm the convictions for first-degree murder, attempted first-degree murder and tampering with evidence; reverse the conviction for shooting at a motor vehicle resulting in great bodily harm; and remand for resentencing in accordance with the EMDA. We also take this opportunity to clarify the meaning of the often-confusing term "slight evidence" that has been used historically by this and other courts when discussing the appropriate test for sufficiency of evidence to support the giving of self-defense and other jury instructions. We will avoid uncertainty in future applications of this test by permanently retiring the phrase "slight evidence."

I. BACKGROUND

{4} On a tragically violent Thanksgiving Day in 2001, Rudolfo and his brother, Jacob Gonzales, were involved in a fatal altercation with family members of Sara Montour, Gonzales's girlfriend. Sara shared a Valencia County trailer home with Gonzales. Gonzales, 2007-NMSC-059, ¶ 2, 143 N.M. 25, 172 P.3d 162. After an emotional argument with Gonzales that day, Sara left the trailer and went to her parents' house. Id. She asked some of her family members to go back with her and help retrieve her belongings. Id. The family members who accompanied her in a separate van to Gonzales's trailer home that evening included Sara's father, Angelo Montour; her mother, Darlene Montour; her brother, Eli Montour; and Eli's girlfriend, Pamela Martinez. Id.

{5} Upon arriving, Angelo and Eli Montour went inside while Darlene Montour and Pamela Martinez waited in the family van. Id. Inside the trailer, a fight broke out among Angelo and Eli Montour, Jacob Gonzales and Mario Rudolfo. Id ¶ 3. There were disputes about all the circumstances of the affray, but it was clear that Angelo Montour and Rudolfo were involved in a struggle for Rudolfo's assault rifle and that the rifle discharged inside the trailer. Id. The landlord who lived next door, Randy Miller, testified that he heard a gunshot and ran over to the trailer, where he tried to break up the fight. Angelo and Eli Montour hurriedly left the trailer, jumped in their van, and started driving away. Id. Inside the trailer, the landlord continued to struggle with Rudolfo for the rifle, while Gonzales ordered him at gunpoint to let it go. Rudolfo was able to wrestle his rifle away from the landlord, and he ran after the fleeing Montours. The landlord testified that he attempted to prevent Rudolfo from running out of the trailer with the rifle, but had to give up after Gonzales began pistol-whipping him from behind.

{6} Once they were free from the landlord, Rudolfo ran outside with the assault rifle, and Gonzales ran behind him with the pistol. As the Montour family headed down the driveway toward the roadway and slowed to pick up Darlene, Rudolfo and Gonzales fired multiple gunshots into the departing van, striking three of the occupants. Angelo and Eli Montour survived their serious gunshot wounds, but Pamela Martinez died from a shot to the back of her head.

{7} After the shootings, Rudolfo ran to a truck with the assault rifle, so he could go after the Montour van and, in his own words, "kill them all" and "finish them off.". He and Gonzales instead fled the scene with the weapons when they heard the police coming. The two were jointly apprehended at a traffic stop the next evening in Albuquerque, despite their efforts to conceal their identities from the police. A search of the car in which they were riding resulted in the discovery of the assault rifle and a magazine of hollow-point ammunition in the trunk and a loaded pistol under the seat.

II. DISCUSSION

A. Double Jeopardy

{8} The jury's general verdict finding Rudolfo guilty of the first-degree murder of Pamela Martinez did not indicate whether it was based on a willful and deliberate murder theory or on the alternatively-pled felony murder theory, which incorporated as an essential element the predicate felony of shooting at a motor vehicle resulting in great bodily harm. Rudolfo argues that his separate convictions for both murder and shooting at a motor vehicle constituted double jeopardy. This Court recently recognized the validity of this argument in his brother's appeal, and there is nothing in either the facts or the law that would give rise to a principled distinction between the two cases with respect to this issue. See Gonzales, 2007-NMSC-059, ¶¶ 5-12, 143 N.M. 25, 172 P.3d 162.

{9} The double jeopardy clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const, amend. V; see also N.M. Const, art. II, § 15 (providing for double jeopardy protection). The clause is applicable to the States through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). "Among its protections, the double jeopardy clause protects a defendant against multiple punishments for the same offense." Gonzales, 2007-NMSC-059, ¶ 11, 143 N.M. 25, 172 P.3d 162. If a defendant is charged with violations of multiple statutes for the same offense (a "double description" case), we must then determine if the Legislature intended to create separately punishable offenses or only one. Id. "We review Defendant's double jeopardy claim de novo." Id. ¶ 5.

{10} In Gonzales, Rudolfo's codefendant brother also was charged with first-degree murder based on willful and deliberate murder or, in the alternative, felony murder based on the predicate felony of shooting at a motor vehicle resulting in great bodily harm. See Gonzales, 2007-NMSC-059, ¶ 4, 143 N.M. 25, 172 P.3d 162. The jury returned a verdict of guilty of shooting at a motor vehicle resulting in great bodily harm and a general verdict of guilty of first-degree murder, without indicating which alternative theory the jury relied on. Id.; see id. ¶ 6 ("A jury can return a first-degree murder conviction even if the jurors do not agree on the underlying theory." (citing State v. Salazar, 1997-NMSC-044, ¶ 32, 123 N.M. 778, 945 P.2d 996)). Because Gonzales raised a double jeopardy issue regarding a general verdict, this Court must "examine whether either of the alternative theories of first-degree murder would subject Defendant to double jeopardy." Gonzales, 2007-NMSC-059, ¶ 10, 143 N.M. 25, 172 P.3d 162.

{11} In felony murder cases, the predicate felony is a lesser included offense and is always subsumed into the felony murder conviction; thus, a separate conviction for the same predicate felony would constitute double jeopardy. Gonzales, 2007-NMSC-059, ¶ 11, 143 N.M. 25, 172 P.3d 162. In Gonzales, we vacated the defendant's predicate felony conviction of shooting at a motor vehicle because the alternative theory of first-degree felony murder subjected him to double jeopardy. Gonzales, 2007-NMSC-059, ¶ 12, 143 N.M. 25, 172 P.3d 162.

{12} This case requires the same result, as the State has expressly conceded. We therefore vacate the separate conviction for shooting at a motor vehicle resulting in great bodily harm.

B. Refused Self-Defense Instruction

{13} Rudolfo urges reversal of his convictions for the murder of Pamela Martinez and the attempted murder of Angelo Montour on the ground that the district court erroneously determined that the evidence was insufficient to justify instructing the jury on his right of self-defense. Our standard of review is de novo. State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438.

{14} Rudolfo argues that his self-defense position is both procedurally and factually distinguishable from the arguments of his brother that we recently rejected in Gonzales.

{15} We first address Rudolfo's procedural distinction, that proposed self-defense instructions were actually tendered by Rudolfo's counsel and rejected by the district judge, while counsel for Gonzales declined any self-defense instructions. In Gonzales, however, we chose to address the self-defense issues on the merits. We held explicitly that the evidence was insufficient to warrant the instructions. Gonzales, 2007-NMSC-059, ¶ 18, 143 N.M. 25, 172 P.3d 162.

{16} This case arises from the same events that occurred in Gonzales. The facts relating to self-defense in the two cases are not materially distinguishable.

{17} A defendant is not entitled to a self-defense instruction unless it is justified by sufficient evidence on every element of self-defense. Those elements are that "(1) the defendant was put in fear by an...