State v. Swick

• Court: Court of Appeals of New Mexico
• Writing for the Court: WECHSLER
• Citation: State v. Swick, 242 P.3d 462, 148 N.M. 895, 2010 -NMCA- 98, 2010 NMCA 98 (N.M. App. 2010)
• Decision Date: 28 October 2010
• Docket Number: No. 28,316.,28,316.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael SWICK, Defendant-Appellant.

242 P.3d 462

148 N.M. 895

2010 -NMCA- 098

STATE of New Mexico, Plaintiff-Appellee,

v.Michael SWICK, Defendant-Appellant.

No. 28,316.

Court of Appeals of New Mexico.

July 1, 2010.

Certiorari Granted, Oct. 28, 2010, No. 32,510.

Gary K. King, Attorney General, Farhan Khan, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} Defendant Michael Swick was convicted of second degree murder, attempted murder (two counts), aggravated battery (deadly weapon, two counts), aggravated burglary (battery, two counts, and deadly weapon, one count), armed robbery (two counts), conspiracy (two counts), and unlawful taking of a motor vehicle. On appeal, Defendant raises four issues, contending that: (1) the second degree murder instruction was improper, (2) an instruction on self-defense should have been given, (3) several of his convictions violate double jeopardy protections, and (4) the district court erred in denying his motion for a mistrial. For the reasons that follow, we affirm.

BACKGROUND

{2} On the morning of January 21, 2006, Defendant and a group of others began consuming alcohol and driving around. Defendant, his cousin Benito Lopez, and a friend named Alex Ogle then borrowed a Jeep, which they used to "wreak [ ] havoc" before getting stuck in a ditch. The three consumed more alcohol, started "walking somewhere," and then Lopez briefly left on foot to return to the Jeep to retrieve some warmer

[148 N.M. 898, 242 P.3d 465]

clothes. When he returned, he saw Defendant standing above Ogle holding a large rock. Ogle was lying on the ground, bleeding, not moving, and apparently with no pulse. It was later determined that Ogle had sustained numerous stab wounds and blunt trauma injuries that ultimately caused his death.

{3} After moving Ogle's body to some bushes, Defendant and Lopez left in search of a vehicle that they could steal. They came upon the home of Rita and Carlos Atencio, knocked on the door, and asked to use the telephone. After entering the house, they repeatedly stabbed, beat, and slashed both of the Atencios before taking fourteen dollars in cash and the keys to a van, in which they fled.

{4} Defendant subsequently went to a friend's apartment to seek treatment for a wound to his hand. The police arrived in response to a 911 call. Defendant was ultimately convicted on the thirteen counts listed above. This appeal followed.

JURY INSTRUCTION ON SECOND DEGREE MURDER

{5} The jury was instructed on both second degree murder and, as a lesser-included offense, voluntary manslaughter. However, the second degree murder instruction was not in conformity with UJI 14-210 NMRA, insofar as the instruction did not contain language stating that Defendant "did not act as a result of sufficient provocation." Instead, the jury was instructed pursuant to UJI 14-211 NMRA, which applies when voluntary manslaughter is not a lesser-included offense. Defendant contends that this instruction resulted in the omission of an essential element, such that reversal is in order. Because Defendant neither tendered an appropriate instruction nor raised the issue in any other fashion below, we review for fundamental error. See State v. Cunningham, 2000-NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176 (observing that jury instructions are reviewed for fundamental error when no objection was raised below). Fundamental error in connection with a jury instruction occurs if "a reasonable juror would have been confused or misdirected by the jury instruction." Id. ¶ 14 (internal quotation marks and citation omitted).

{6} In Cunningham, our Supreme Court elaborated on the capacity of other instructions to cure an instruction that improperly omits an element of the charged offense. Specifically, the Court held that "in a fundamental error analysis jury instructions should be considered as a whole and a failure to include an essential element in the elements section may be corrected by subsequent proper instructions that adequately addresses the omitted element." Id. ¶ 21. Accordingly, applying the fundamental error analysis set forth in Cunningham, we must determine whether the erroneous jury instruction on second degree murder was "corrected by subsequent proper instructions that adequately addresse[d] the omitted element." Id. For the reasons that follow, we answer this question in the affirmative.

{7} As previously indicated, the second degree murder instruction omitted the element negating sufficient provocation. However, the subsequent instruction on the lesser-included offense of voluntary manslaughter adequately addressed the omission. In conformity with UJI 14-220 NMRA, that instruction specifically explained:

The difference between second degree murder and voluntary manslaughter is sufficient provocation. In second degree murder the defendant kills without having been sufficiently provoked, that is, without sufficient provocation. In the case of voluntary manslaughter the defendant kills after having been sufficiently provoked, that is, as a result of sufficient provocation. Sufficient provocation reduces second degree murder to voluntary manslaughter.

Additionally, the jury was separately instructed on the definition of "sufficient provocation."

{8} The foregoing instructions clearly and explicitly informed the jury about the distinction between second degree murder and voluntary manslaughter. We therefore conclude that the deficiency in the second degree murder instruction, concerning the absence of sufficient provocation, was "corrected by subsequent proper instructions

[148 N.M. 899, 242 P.3d 466]

that adequately addresse[d] the omitted element," Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176, such that fundamental error did not occur.

{9} Defendant urges this Court to depart from the principles articulated in Cunningham, on grounds that the "step-down" instruction conforming to UJI 14-250 NMRA required the jury to first address first and second degree murder before considering whether Defendant had committed voluntary manslaughter. Accordingly, Defendant contends that the instructions setting forth the elements of voluntary manslaughter and defining sufficient provocation cannot be said to have corrected the deficiency in the second degree murder instruction.

{10} Defendant's argument runs afoul of the clear precedent established by Cunningham. Furthermore, the very first instruction to the jury indicated that all of the instructions must be considered as a whole. Finally, we note that the voluntary manslaughter instruction preceded the step-down instruction. As a result, insofar as the jury is presumed to have read and followed the instructions, see State v. Gonzales, 113 N.M. 221, 230, 824 P.2d 1023, 1032 (1992), we conclude that the jury was adequately informed.

{11} We also note that our recent opinion State v. Sandoval, 2010-NMCA-025, 147 N.M. 465, 225 P.3d 795 (filed 2009), cert. granted, 2010-NMCERT-003, 148 N.M. 560, 240 P.3d 15 (2010), addressed a similar issue in which an error in jury instructions prevented the defendant from presenting self-defense with regard to one of the assailants. Id. ¶¶ 16-18. However, Sandoval is distinguished from the case before us because, in Sandoval, there was no curing instruction that permitted the jury to consider all of the assailants—rather than just the two that were included in the instructions—when deciding whether the defendant acted in self-defense. Id. ¶¶ 22, 26. In our case, as discussed above, the instructions, when read as a whole, were sufficient to cure the deficient second degree murder instruction.

REQUESTED JURY INSTRUCTION ON SELF-DEFENSE

{12} Defendant unsuccessfully sought an instruction on self-defense. He contends that the district court's failure to give his requested instruction was erroneous. "The propriety of denying a jury instruction is a mixed question of law and fact that we review de novo." State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (internal quotation marks and citation omitted).

{13} Defendant was required to present evidence supporting every element of self-defense in order to warrant a jury instruction on this issue. State v. Gonzales, 2007-NMSC-059, ¶ 19, 143 N.M. 25, 172 P.3d 162. The requirements of self-defense are:

(1) an appearance of immediate danger of death or great bodily harm to the defendant, (2) the defendant was in fact put in fear by the apparent danger, and (3) a reasonable person in the same circumstances would have reacted similarly. The first two requirements, the appearance of immediate danger and actual fear, are subjective in that they focus on the perception of the defendant at the time of the incident. By contrast, the third requirement is objective in that it focuses on the hypothetical behavior of a reasonable person acting under the same circumstances as the defendant.

State v. Coffin, 1999-NMSC-038, ¶ 15, 128 N.M. 192, 991 P.2d 477 (internal quotation marks and citation omitted).

{14} There is no direct testimony regarding the pertinent events because Defendant did not testify and no one else except Ogle, the deceased victim, witnessed the events. However, several witnesses testified that Defendant's hand was injured. In this regard, Lopez testified that he observed a wound to the back of Defendant's hand and that Defendant had told him Ogle had stabbed him. Officer John Wiese and Detective Michael Traxler of the Sandoval County Sheriff's Department similarly indicated that they had observed the wound and testified that Defendant had separately told them that Ogle had stabbed him.

[242 P.3d 467, 148 N.M. 900]

{15} Although the foregoing testimony indicates that Ogle may have stabbed Defendant in the back of the hand, it provides no information about the surrounding circumstances. The evidence therefore supplies no basis for inferring that Defendant's brutal attack...